Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part II. Texas Ethics Commission Chapter 40. Registration and Regulation of Lobbyists 1 TAC sec.40.5 The Texas Ethics Commission adopts an amendment to sec.40.5, concerning exclusions from administrative action lobbying, without changes to the proposed text as published in the April 9, 1993, issue of Texas Register (18 TexReg 2345). The rule clarifies what actions are excluded from the term administrative action in for purposes of the compensation threshold of the Government Code, sec.305.003(a)(2). The rule clarifies any ambiguities as to the application of the expenditure threshold. The rule will help provide the public with the necessary information for determining whether their direct communication with an administrative agency requires them to register under Chapter 305 of the Government Code. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6252-9d.1, which provide the Texas Ethics Commission with the authority to promulgate and adopt rules concerning the filing of reports mandated by Chapter 305 of the Government Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9324885 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: July 19, 1993 Proposal publication date: April 9, 1993 For further information, please call: (512) 463-5800 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 289. Radiation Control Texas Regulations for Control of Radiation 25 TAC sec.289.111 The Texas Department of Health (department) adopts sec.289.111, with changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1241) and with changes to the material the section adopts by reference. The section adopts by reference Part 11 of the Texas Regulations for Control of Radiation (TRCR) titled, "General Provisions." The amendment includes additional and revised definitions that reflect changes currently being made to TRCR Parts 21, 32, 40, 41, and 42. The majority of the definitions apply to the revision in entirety of TRCR Part 21 and are items of compatibility under the agreement between Texas and the United States Nuclear Regulatory Commission (NRC). Several wording changes were made to Part 11 to further clarify the intent of the section and to provide consistency with other sections of the TRCR. The word "research" was added to sec.11.1 to more accurately reflect the scope of the section. The word "public" was deleted from the title of the department throughout the rule because there is legislation pending in the Texas Legislature that will retain the department's name as "Texas Department of Health." In sec.11.2, the definition of "calendar quarter" was deleted and the definition of "quarter" that is in the proposed TRCR Part 21 was substituted for consistency with the compatibility items in TRCR Part 21. The definition of "distribution" was modified to add "...and any intermediate persons involved in that conveyance" to more accurately reflect the intent of the definition. A definition of "regulation" was added for clarification of the terms "regulation" and "rule." The definition of "Type A quantity" was corrected by deleting the reference to Appendix A and substituting the reference to Appendix 11-E. After sec.11.2, the term "United States Nuclear Regulatory Commission" was shortened to "Commission" to reflect the definition in sec.11.2 and for consistency throughout the TRCR. Section 11.5(c)(1) was modified to clarify that registrants having multiple use authorizations will be inspected at the most frequent interval specified for the uses authorized. Section 11.10 was amended to add "...and Part 13 of these rules" to include the specific requirements for impounding sources of radiation found in TRCR Part 13. In Appendix 11-C, the industrial facility category of "Assembler" was changed to "Assembler/Consultants" to more accurately reflect the intent of the section. In Appendix 11-C, the other facility category of "Laser Light Show" was changed to "Laser Light Show (Temporary Site)" and another category of "Laser Light Show (Permanent Installation)" was added to more accurately reflect the types of laser light shows inspected. The category of "Laser Light Show (Permanent Installation)" has a one-year inspection interval. Ion implanation devices and cathodoluminescence devices were added to the list of minimal threat radiation machines in Appendix 11-D to reflect the regulation of these devices. A footnote was added to Appendix 11-E to clarify the A2 values for americium and plutonium contained in americium/beryllium or plutonium/beryllium neutron sources or in nuclear-powered pacemakers. The department will enforce these amendments effective January 1, 1994. The following comments were received concerning the proposed amendment. Comment. One commenter expressed general support of the numerous changes in the proposed section. Response. The department acknowledged the commenter's support. Comment. Concerning sec.11.2, one commentor stated that in the definition of Type A quantities, "Appendix A" is referenced twice and that the definition should more accurately reference "Appendix 11-E." Response. The department agrees and has changed the definition to reflect the correct reference. Comment. Concerning sec.11.2, one commentor noted that the definitions of "High Radiation Area" and "Radiation Area" in the proposed section are not consistent with the same definitions in TRCR Part 31 and asked for clarification. Response. The department's response is that the definitions in TRCR Part 11 are items of strict compatibility with the NRC. As an Agreement State, Texas must adopt rules of the NRC that have been designated items of strict compatibility. Therefore, the definitions in TRCR Part 31, which is also currently proposed, were changed to reflect the definitions in TRCR Part 11. Comment. One commentor noted that transport groupings of radionuclides are still presented in TRCR Part 11 with a comment that they are "for the purpose of Part 44.5 only." Transport groups were dropped many years ago by the Department of Transportation and replaced with A1/A2 limits. The commentor questioned why the TRCR is continuing to carry transport groups and if for some reason it is determined that they are necessary to be used in conjunction with TRCR Part 44, why not move them to TRCR Part 44. (See Appendix 11-A) Response. The department's response is that transport groups are referenced in the requirements of TRCR Part 44 and therefore must be maintained in the section. TRCR Part 44 is not currently proposed at this time, so it cannot be amended concurrently with TRCR Part 11. If the sections are not amended concurrently, a gap in regulatory coverage will exist, therefore the department made no change to the section as a result of the comment. Comment. One commentor stated that Appendix 11-C is confusing because it provides for a two-year interval between inspections for an Educational/Academic (Other Than Medical) facility. However, a three-year interval for Chiropractic, Podiatric, and Veterinary facilities is specified. The commentor asked what the inspection interval is if the facility is an academic institution that is a veterinary school or a chiropractic college. (See Appendix 11-C) Response. The department's response is that the inspection interval for an academic institution, whether it is a veterinary school or a chiropractic college, is two years. The department made no change to the section as a result of the comment. Comment. One commentor noted that the footnotes to Appendix 11- E refer to Appendix A, paragraph II 3 and that the reference should be Appendix 11-E, paragraph II.C. The commentor noted that the footnotes appear to be taken from 49 Code of Federal Regulations sec.173.435, but a crucial footnote also contained in that regulation has been omitted. The omitted footnote concerns the A2 value for americium and plutonium contained in americium/beryllium or plutonium/beryllium neutron sources or in nuclear-powered pacemakers. The commentor recommended that the omitted footnote be included in the section. (See Appendix 11-E) Response. The department agrees and has changed the footnote to reflect the correct references and has added the omitted footnote to Appendix 11-E. Representatives from Davenport X-Ray Company, Inc. in Dallas, Texas A & M University in College Station, TN Technologies, Inc. in Round Rock, and Technical Welding Laboratory, Inc. in Pasadena presented comments concerning the proposed rules. The commentors were in favor of the amendments, however, they presented comments, questions, and suggestions for changes to the proposed amendment as discussed in the summary of comments. The amendment is adopted under the Health and Safety Code, Chapter 401, which provides the Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.111. General Provisions. (a) The Texas Department of Health adopts by reference Part 11, "General Provisions" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754, and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on June 23, 1993. TRD-9324740 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date:January 1, 1994 Proposal publication date: February 26, 1993 For further information, please call: (512) 834-6688 25 TAC sec.289.113 The Texas Department of Health (department) adopts sec.289.113, with changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1242) and with changes to the material the section adopts by reference. The section adopts by reference Part 21 of the Texas Regulations for Control of Radiation (TRCR) titled, "Standards for Protection Against Radiation." The United States Nuclear Regulatory Commission (NRC) revised its standards for protection against ionizing radiation found in 10 Code of Federal Regulations (CFR) Part 20. This revision incorporated updated scientific information and reflected changes in the basic philosophy of radiation protection advisory groups for internal doses. This revision of 10 CFR Part 20 conforms the NRC's regulations to the Presidential Radiation Protection Guidance to Federal Agencies for Occupational Exposure and the recommendations of national and international radiation protection advisory groups. The amendment to the section is a revision in entirety and reflects the changes in federal requirements. The revision of federal requirements has been designated as an item of strict compatibility. As an Agreement State, Texas must implement the changes and Texas licensees and registrants must implement the changes as of January 1, l994. Several wording changes were made to Part 21 to further clarify the intent of the section and to provide consistency with other sections of the TRCR. Throughout Part 21, the term "effective date of these rules" was deleted and replaced with "January 1, 1994." Section 21.102 was changed to 21.101 to reflect the proper numbering. In sec.21.208(d), the dose "0.5 rem (0.05 millisievert)" was changed to "0.05 rem (0.5 millisievert)" to more accurately reflect the intent of the section. In sec.21.602(a), the words "at this level" were added to the end of the first sentence for clarification. Section 21.903 (d) was deleted because posting of such rooms or areas is necessary and is consistent with keeping exposures as low as is reasonably achievable (ALARA). Section 21.904(c) was modified to add the wording in the current 21.203(g) concerning where the label is to be affixed because it clarifies the intent of the section. The reference in sec.21.906(d)(1)(i) was corrected to read sec.21. 906(d)(1)(ii). In sec.21.906(d)(2), "mR/hr" was changed to "millirems/hr" to reflect the correct units. In sec.21.906(d)(2)(ii), the reference to sec.11.15(i) was changed to sec.21.906(d)(2)(i) to reflect the correct reference. A footnote was added to sec.21.1101 to clarify that disintegrations per minute (dpm) may be indicated on records of surveys performed to determine compliance with Appendix 21-G. Section 21.1102(c) was added to clarify the retention period for records at additional authorized sites. The words "Except for the requirements in Part 46 of these rules and..." were added to sec.21.1302(c) to reflect the differing standards for naturally-occurring radioactive material. In sec.21.1304(a)(2), iodine-125 was included to more accurately reflect the intent of the section. Appendix 21- D, III.A. was modified to require that the waste generator submit a copy of the manifest to the department at the time of transfer or shipment to more accurately reflect the intent of the section. The following comments were received concerning the proposed amendment. Comment. One commenter stated that Part 21 is onerous, complex, and many parts are not applicable to the majority of licensees. However, the commenter realized that this is not the fault of the department since the regulations were propagated by the NRC and as an Agreement State, Texas must be compatible. The commenter commended the department on two changes that will be very positive for Texas licensees. The commenter questioned if there is some way to divide the section into parts which would specifically apply to certain categories of licensees or conversely, if that would be too arduous a task, could there be a statement at the front of this section setting out which portions apply to industrial licensees, medical licensees, etc. The commenter stated that the majority of licensees sincerely want to comply with the regulations. However, many have neither the background, experience, or stamina to evaluate all the new concepts and requirements and make educated decisions about what applies to their licensed activities. Response. The future amendments the department intends to divide the TRCR into three sections, one containing the general parts applicable to all licensees and registrants (Parts 11, 12, 13, 21, and 22), one containing parts applicable to licensees (Parts 31, 33, 36, 40, 41, 43, 44, 45, and 46), and one containing parts applicable to registrants only (Parts 31, 32, 34, 35, 36, and 42). The department made no change to the section as a result of the comment. Comment. One commenter stated that although proposed sec.21.102(a) requires a radiation protection program, it does not supply enough detail as to what content should be included in the radiation protection program. The commenter stated that if sec.21.102(a) is open to interpretation, then there will be no standard program content. The commenter also noted that sec.21.1102, concerning records or radiation protection programs, does not provide adequate detail, either. Response. The department's response is that the section states that the radiation protection program should be sufficient to ensure compliance with the provisions of TRCR Part 21. Therefore, the program should, at a minimum, address how the licensee or registrant will achieve compliance with TRCR Part 21 and the additional measures the licensee or registrant will take to ensure that occupational and public doses are ALARA. Because of the wide variety of uses of sources of radiation in Texas, the department cannot effectively describe specific items to be contained in a program that will adequately address each licensee and registrant. The department made no change to the section as a result of the comment; however proposed sec.21.102 was renumbered to sec.21.101 to accurately reflect proper numbering. Comment. One commenter stated that at their facility, extensive fluoroscopic examinations are performed in vascular interventional, gastroenterology, and cardiac catheterization laboratories. The radiation exposure levels to operators' collar badges are quite elevated compared to those received by their whole-body dosimeters. The proposed section would require basing radiation protection activities only on the collar badge reading while ignoring the body reading. In fact, both the collar reading and the body reading must be considered when evaluating the whole-body radiation dose of the operator. The commenter noted that there are few trained physicians who can provide these services and that to meet the proposed dose limits, the facility would be forced to limit the number of cases which these physicians perform. This is unacceptable as it limits the services the facility can provide to patients. Physicians must be allowed to practice freely as long as they can do so safely. Some rational method of calculating their personal radiation risk needs to be developed to assure safe practice methods without compromising these important services. The commenter recommended that the exposure to the head and body be monitored separately for these procedures. The two measurements can be factored into a calculated whole-body dose-equivalent value to assess radiation risk and proposed weighting factors of 0.04 and l.5 to be applied for the head and whole- body exposures respectively. As an example, suppose an operator wears two dosimeters (one at the collar and one under the apron), a thyroid shield, and an apron. Exposures of 1300 mRem to the collar and 50 mRem under the apron in one calendar quarter are received. This individual's actual whole-body dose equivalent would be (0.04 x 1300) + (1.5 x 50) = 127 mRem. Under the current section, this individual would be over the 1.25 rem limit for a calendar quarter. In actuality, the risk due to radiation exposure would be the same as if the individual were exposed to only one-tenth of the NCRP 91 recommended maximum for radiation workers. The commenter suggested that the risk to these workers is over- estimated by their collar badge readings alone. The commenter expressed concern that without some reasonable way to assess the risk from exposures, activities will be seriously curtailed. The commenter stated that denial of critical services to patients should not be based on inflated estimates of personal risk such as unmodified collar badge readings. (See sec.21.201) Response. The department acknowledged the commenter's remarks. However, this rule is a item of strict compatibility with the NRC and as an Agreement State, Texas must adopt the section. A committee of the Conference of Radiation Control Program Directors, Inc. is working on model state regulations that incorporate these compatibility items. The committee is developing recommended changes which will address medical fluoroscopy and the situation referred to by the commenter. When the recommended changes and accompanying rationale are fully developed, the department will consider amending TRCR Part 21 to address the situation. The second footnote to the definition of weighting factor allows the use of other weighting factors for external exposure when approved by the department. The department made no change to the section as a result of the comment. Comment. One commenter stated that in order to demonstrate compliance pursuant to sec.21.302(b), one of two options must be selected. For licensees and registrants like Texas A & M University who cannot credibly identify "the individual likely to receive the highest dose from the licensed or registered operation," sec.21.302(b)(2) represents two significant problems. First, any survey and sampling program capable of satisfying these requirements will necessarily be very manpower and equipment intensive. Second, sec.21.302(b)(2) (ii) is worded such that even if no radioactive materials are released to the environment, a limit of 0.05 rem in a year still applies. In this way, it supersedes the limit of 0.1 rem in a year specified in sec.21.301. The commenter recommended adding exemptions to the section based upon radioisotope activity levels at each location. Regardless, regulatory guidance should be issued by the department which assists the licensee or registrant in satisfying these requirements. Response. The department's response is that this section is an item of strict compatibility with the NRC and as an Agreement State, Texas must adopt the section. Numerous regulatory guides which are intended to accompany TRCR Part 21 are being developed and will be available after the section is adopted. The department made no change to the section as a result of the comment. Comment. One commenter noted that the changes in sec.21.502 will eliminate the previous requirement in the TRCR which automatically required personnel monitoring unless an exemption was requested. The current section has been a major burden on licensees and a major point of violation during inspection. By becoming compatible with NRC regulations and only requiring personnel monitoring under certain criteria, the department has provided a much needed service to Texas licensees. Response. The department acknowledged the commenter's remarks and made no change to the section as a result of the comment. Comment. Concerning sec.21.602, one commenter recommended that "self-shielded irradiators" and "non-self-shielded irradiators" should be defined in TRCR Part 21.3. Response. The department's response is that the intent of the term "self- shielded irradiator" is specified in sec.21.603. Therefore a "non-self-shielded irradiator" is one that does meet those specifications. The department made no change to the section as a result of the comment. Comment. Concerning sec.21.802, two commenters expressed strong support of the department's decision to require licensees and registrants to "control or maintain constant surveillance..." Response. The department acknowledged the commenter's remarks. Comment. One commenter noted that the specific criteria used in sec.21.906 (b)(2), "less than or equal to the Type A quantity," is undefined since a "Type A quantity" is only defined relative to an upper limit. The commenter noted that sec.21.906(d)(1)(i) refers to a non-existent section. The reference to sec.21.904(d)(1)(ii) should be changed to sec.21.906(d) (1)(ii). The commenter also stated that sec.21.906(f) should exempt moisture gauge users from the requirement to survey source position for gauges containing only americium-241/beryllium sealed sources with activities less than 110 millicuries. Response. The department's response is that the specific criteria in sec.21. 906(b)(2) can be applied using only the upper limit as defined in TRCR Part 11. The department made no change to the section as a result of the comment. The department agreed with the commenter's second remark and changed the section to reflect the correct reference. Surveying source position is a good radiation safety practice and is a procedure that complies with the concept of maintaining radiation exposures ALARA. The department made no change to the section as a result of the comment. Comment. One commenter noted that units such as cpm, dpm, cps, and dps are not allowed under sec.21.1101(a) for records required by this section. Since sec.21.1103 contains requirements for all records generated pursuant to sec.21. 501, and since many portable survey instruments now in use are equipped with meter faces which read out in units of cpm, this section could be seen as requiring all meter faces to be retrofitted with scales marked in becquerels. The commenter recommended allowing the results of contamination surveys using portable survey instruments to be recorded in units such as cpm, dpm, cps, and dps. Response. The department's response is to add a footnote to sec.21.1101 to clarify that disintegrations per minute (dpm) may be indicated on records of surveys performed to determine compliance with Appendix 21-G. Comment. One commenter noted that sec.21.1301 details the procedure for notification if a business is vacating the premises but questioned what the procedure is for notification if a business is transferring/selling non-exempt sources of radiation to another business and/or location. Response. The department's response is that the requirements for transfer of sources of radiation are specified in TRCR Part 41 for radioactive material and in TRCR Part 42 for radiation machines. The department made no change to the section as a result of the comment. Comment. One commenter noted that the requirements of sec.21.1302(c) differ from those in TRCR Part 46 and suggested that sec.21.1302(c) be changed to reflect the requirements of TRCR Part 46. Response. The department's response is that the words "Except for the requirements in Part 46 of these rules and..." were added to sec.21.1302(c) to reflect the differing standards for naturally-occurring radioactive material. Comment. Two commenters noted that sec.21.1304(a)(2) excludes the exemption of iodine-125 which is currently in sec.21.307(a). One of the commenters stated that, while the concentrations allowed in the current rule and in the proposed are larger, not all licensees are licensed to dispose of waste in a Type I Sanitary Landfill and that it seems pointless to remove this exemption especially during a time in which radioactive waste disposal is difficult and costly. Response. The department's response is to add iodine-125 to the exemption in sec.21.1304(a)(2). Representatives from Davenport X-Ray Company, Inc. in Dallas, Texas A & M University in College Station, TN Technologies, Inc. in Round Rock, The University of Texas Medical Branch at Galveston in Galveston, Baylor University Medical Center in Dallas, and Halliburton Energy Services in Duncan, Oklahoma were in favor of the amendments; however, they presented comments, questions, and suggestions for changes to the proposed amendment as discussed in the summary of comments. The amendment is adopted under Chapter 401 of the Health and Safety Code, which provides the Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.113. Standards for Protection Against Radiation. (a) The Texas Department of Health adopts by reference Part 21, "Standards for Protection Against Radiation" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754 and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 23, 1993. TRD-9324739 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 1, 1994 Proposal publication date: February 26, 1993 For further information, please call: (512) 834-6688 25 TAC sec.289.115 The Texas Department of Health (department) adopts sec.289.115, with changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1242) and with changes to the material the section adopts by reference. The section adopts by reference Part 31 of the Texas Regulations for Control of Radiation (TRCR) titled, "Radiation Safety Requirements and Licensing and Registration Procedures for Industrial Radiography." Part 31 is amended to require industrial radiographers to complete all training and testing requirements before receiving an identification card allowing them to work in Texas. The amendment has expanded the requirements for industrial radiation safety officers (RSO) by requiring at least 40 hours of active participation in industrial radiographic operations. The policy on reciprocity has been changed to allow recognition of certification of radiographers by other states or jurisdictions. The United States Nuclear Regulatory Commission (NRC) has added compatibility items requiring the use of alarming ratemeters for each radiographer and equipment standards for radiographic equipment manufactured after January 1992 and in use after January 1996. The requirements that are items of NRC compatibility must be included in the state rules. The numbering of the requirements in Part 31 was changed to provide consistency with other parts of the TRCR. Throughout the section, the term "Nuclear Regulatory Commission" was shortened to "Commission" to reflect the definition in TRCR Part 11 and for consistency throughout the TRCR. The word "safety" was added to the phrase "operating and emergency procedures" to more accurately reflect the intent of the section and to provide consistency throughout the TRCR. The words "or the individual" were added to sec.31.20(a) and sec.31.21(a) to allow individuals and not only employers to submit documentation of training. The word "before" was inserted after the word "and" in the second sentence of sec.31.20(b) to clarify the intent of the section concerning submission of TRC Form 31-1E. Section 31.20(c) was added to allow provision for a lost trainee status card. A footnote was added to sec.31.21(a) to clarify that there is reciprocal recognition of certification programs similar to Texas. The wording in the footnote in sec.31.21(a)(2) was changed to clarify the intent of the section. The words "or use of a cabinet x-ray unit" were added to the end of the last sentence in sec.31.21(a)(2) to clarify that this is unacceptable as on-the- job training as a radiographer. The words "the licensee or registrant has documented to the Agency that such individual..." were added in front of "has demonstrated..." in sec.31.21(b) to clarify the intent of the section. Section 31.21(e) was added to clarify that once an individual has completed the requirements of sec.31.21(d), the licensee or registrant is not required to submit the documentation referenced in sec.31. 21(a) and (b). Section 31.24(b) was changed to allow for the use of the trainee status card or radiographer identification card to meet the documentation requirements. The words "as a minimum" were added at the end of sec.31.23(b) to clarify the intent of the section. In sec.31.23(c)(11), the references to sec.31.43(a) and sec.31.54(a) were moved to sec.31.23(c)(12) to more accurately reflect the intent of the section. The definitions of "radiation area" and "high radiation area" were changed in sec.31.32(a) and (b) to be consistent with TRCR Part 11. The word "restricted" was added in front of "area" in sec.31.32(e) to clarify the intent of the section. In sec.31.33(b), the retention requirement for records required in sec.31.33 was changed to two years. Section 31.34(f) was deleted as it pertained to alarming ratemeter calibration performed once a year and was not pertinent to records required at temporary job sites. In sec.31.44(c), the word "calculated" was replaced with the word "estimated" as it is not possible to calculate dose rates before beginning operations with radiation machines. In sec.31.46(b)(4) and sec.31.59(b) (4), wording was changed and the 90-day criteria used to describe a "permanent use or storage site" was eliminated to clarify the intent of the section. In sec.31.51(a), the words "or an individual specifically authorized by the Agency" was added at the end of the sentence to further clarify who may provide direct visual surveillance. In sec.31.53(b), the words "and associated equipment" were added after "exposure devices" to be compatible with the NRC. In sec.31.52(b)(2), the word "or source changer" was added at the end of the sentence to be compatible with NRC. Section 31.55(c)(2) was changed by deleting "the exposure device...is changed" and inserting "re- establishment of the restricted area is required" for clarification of the intent of the section. The references in sec.31.55(e) and (f) were changed to be consistent with one another. Section 31.59(b)(6) was reworded for clarification of the intent of the rule. In Appendix 31-C, the requirement for "Alarming Ratemeter Functions" was deleted as these are not required to be documented. In Appendix 31-D, an additional item was added to clarify that methods of testing and training need to be included as part of operating, safety, and emergency procedures. The department will enforce these amendments effective September 1, 1993 The following comments were received concerning the proposed amendment. Comment. One commenter stated that state regulations are designed to protect the members of the public. The commenter indicated that the department's regulations are becoming so restrictive that an RSO has very little flexibility in performing his assigned duties and if the RSOs are so incompetent, should that not be the area of concern? The commenter stated that the RSO should have authority to make decisions concerning safety on the job site but should be held accountable for his actions. Response. The department's response is that the section changes reflect the basic minimum responsibilities of an RSO and do not limit flexibility. The department made no change to the section as a result of the comment. Comment. One commenter recommended changing the word "instrument" to "device" in the definition "radiographic exposure device." (See sec.31.2) Response. The department's response is that substituting the word "device" for "instrument" does not add to the clarity of the definition. The department made no change to the section as a result of the comment. Comment. One commenter indicated that frequently a radiography crew will not know at the time they initially log out the source that they may be required to go to another temporary job site. The commenter stated the crew will communicate with the main office after completing the first job and may be sent elsewhere. The commenter indicated that there is no way the crew could realistically indicate the second location on the log and suggested changing the section to require only the first location where the source is used. (See sec.31.7) Response. The department's response is that the section does not require the radiography crew to fill out the authorization log. Since the main office is assigning jobs, the RSO or his/her designee could indicate additional sites on the log. The department made no change to the section as a result of the comment. Comment. One commenter indicated that the section requires each licensee to submit a TRC 31-1E on a trainee, regardless of the fact this may have already been submitted by another licensee. The commenter stated this is duplication of work. (See sec.31.20(a)) Response. The department's response is that the section requires submission of TRC Form 31-1E the initial time an individual wants to be classified as a trainee. After review and approval by the department, the trainee is issued a "trainee status card" and until he/she wishes to change status, i.e., to radiographer, there is no need to submit additional documentation. The "trainee status card" is an indication that this individual has completed trainee requirements. The department made no change to the section as a result of the comment. Comment. One commenter stated that the section should have a provision allowing the trainee to use the completed TRC Form 31-1E in the event his/her card is lost and until the card can be replaced by the department. The commenter indicated the section as written only permits the 31-1E to be used in lieu of the status card for 30 days after the date of completion of the course. The commenter stated that it is not unusual for an individual seeking employment to complete the training course prior to obtaining employment which may not be within the 30 day restraint. The commenter recommended adding the wording, "...30 days after the completed TRC Form 31-1E is submitted to the department. (See sec.31.20(b)) Response. The department agrees and changed the section to include the recommendations. Comment. One commenter indicated that this section references TRC Form 31-1E, but there is no form attached to the section. The commenter indicated that there is a problem in that the section does not address teaching or training situations (students learning radiography). The commenter stated that their course is designed with the first five to six weeks on radiation safety and the last portion as "hands on" industrial radiography. The commenter indicated that currently, after students complete the 40 hours of safety training, a letter is sent to the Agency saying the course is completed. The commenter stated that according to the proposed section, they cannot continue unless they have a card in hand (trainee status card), which would impose a time delay on their schedules. The commenter recommended including a section on students. (See sec.31.20(b)) Response. The department's response is that TRC Form 31-1E is available from the department but will not be a part of the section. This college is in a unique situation in that technically they are not performing industrial radiography as a business. Individuals taking the college's industrial radiography course are classified as students and not "trainees." The section does not preclude students from beginning the "hands on" portion of their course. While it is impossible to address every situation by rule, the department considers these on an individual basis and currently handles this by individual license or certificate of registration condition. The trainee status card is not necessary for these students to begin the next phase of their training. The department made no change to the section as a result of the comment. Comment. One commenter indicated that one year of on-the-job training is the same as that for a radiographer trainer and this would penalize someone coming from out-of-state by re-classifying them as a trainee. The commenter recommended changing the footnote to allow documented experience as a fully qualified radiographer as authorized by an Agreement State or the NRC to be substituted. (See sec.31.21(a) and sec.31.21(a)(2)) Response. The department's response is that the intent of the section is to recognize some portion of the training from states that do not have certification programs similar to Texas. The section includes a reciprocity section that allows recognition of similar training and certification by another state or jurisdiction. Language was added to the footnote and a footnote to sec.31.21(a) was included to clarify the intent of the section. Comment. One commenter indicated that it is not always possible to obtain "hard copy" documentation of an individual's completion of an Appendix 31-A course. The commenter further indicated that this is particularly true for individuals who received their training several years ago or thru a previous employer who refuses to provide the employee with documentation. The commenter stated that if the department has previously reviewed and approved the required TRC training form submitted by another licensee, that the licensee could make reference to this and not have to resubmit. (See sec.31.21(a)(1)) Response. The department's response is that changes were made in TRC Forms 31- 1E and 31-1R that address these comments. The department added clarifying language to allow the use of copies of the trainee status card and the radiographer identification card to meet the documentation requirements of sec.31.24(b). Comment. One commenter recommended that a licensee be allowed to designate more than one individual as RSO or name an individual as an Assistant RSO on the license. The Assistant RSO should be expected to meet the same qualifications of sec.31.23(b) with the exception of having the two years of documented experience specified in sec.31.23(b)(3). The commenter indicates that allowing the licensee to utilize more than one individual in the administration of its safety program helps to ensure that one individual does not become so overwhelmed that the critical areas of the program become deficient. (See sec.31.23(a)) Response. The department's response is that the section does not preclude a licensee or registrant from naming an individual(s) as assistant RSO and delegating administrative responsibilities. An assistant RSO may not communicate with the Agency on matters concerning the license or certificate of registration nor may he/she certify the training of a radiographer. The department does not list assistant RSOs on the license or certificate of registration. The department made no change to the section as a result of the comment. Comment. One commenter recommended adding a provision allowing the "possession of a college diploma" to supersede the high school diploma requirement. (See sec.31.23(a)) Response. The department agrees and added language to clarify the intent of the section. Comment. One commenter questioned how 40 hours of active participation in industrial radiographic operations is to be documented and suggested that the section should indicate this. The commenter also stated that if this requirement is going to be retroactive for RSOs, particularly when requalifying for their license renewal application, it should be so stated in the section. The commenter indicated that if this is not going to be a retroactive requirement, there should be a footnote indicating an exemption for RSOs. (See sec.31.23(b)(3)) Response. The department's response is that the 40 hours of active participation may be verified in writing by an official of the company or a copy of the utilization log. Based on the department's experience, most RSOs have at least 40 hours of active participation. This requirement is easily attainable should an RSO need to fulfill this prior to renewal. The department made no change to the section as a result of the comment. Comment. One commenter indicated that proof of completion of a course as outlined in Appendix 31-A is required on TRC Forms 31-1E and 31-1R. The commenter recommended adding provisions in the section to eliminate continual redocumentation of requirements. The commenter also recommended requiring proof of training as outlined in Appendix 31-A be submitted with the application. (See sec.31.24(b)) Response. The department's response is that the section does not preclude individuals from submitting training documentation with the application for the examination. The changes in the section will ensure that once a radiographer identification card is issued, this is evidence that a radiographer has completed all the necessary requirements. The section has been changed in sec.31.24(b) to allow the use of trainee status cards and radiographer identification cards as documentation. TRC Forms 31-1E and 31-1R also require proof of company indoctrination that will change from company to company, so the submission of these are necessary. The department made no change to the section as a result of the comment. Comment. One commenter recommended changing the section to require that an individual submit documentation of on-the-job training rather than being dependent on the licensee or registrant. (See sec.31.21(a)(2)) Response. The department agrees and changed the section to include the recommendation. Comment. One commenter indicated that recharging of dosimeters is specified in sec.31.30(b)(3) and recommended deleting sec.31.30(b)(4) from the section. (See sec.31.30(b)(3) and (4)) Response. The department's response is that sec.31.30(b)(4) clarifies sec.31. 30(b)(3). The department made no change to the section as a result of the comment. Comment. One commenter expressed concern with meeting the requirement of the 14-day calendar period and indicates that often this is not enough time if the badge holder is out of the country. (See sec.31.30(b)(8)) Response. The department's response is that the section contains a provision that indicates in circumstances that make it impossible to return each film badge or TLD, the licensee or registrant can document the circumstances for review by the department. The department made no change to the section as a result of the comment. Comment. One commenter stated that the section requires, regardless of cause, the monitoring badge to be processed immediately if the dosimeter goes "off- scale." The commenter recommended that there should be allowance in the section for discharging beyond the scale due to "leakage" or being dropped. The commenter recommended permitting the individual to continue to work and to let the RSO make the determination and document whether the "off-scale" reading was caused by radiation or other means. The commenter further recommended a two-day limit for this determination. The commenter indicated that otherwise, a radiographer would not be paid for his/her time if they were required to stop work and there would be a financial incentive not to report this. (See sec.31.30(b)(9)) Response. The department's response is that it is the RSO or his designee's responsibility to monitor dosimeters for leakage and remove them from service if this is occurring. The RSO cannot determine if a dosimeter was dropped or if there was an overexposure until the TLD or film badge is processed. A film badge or TLD could be sent by Federal Express or overnight mail and the results faxed to the company the next day. The department made no change to the section as a result of the comment. Comment. One commenter stated that the section implies that in accordance with TRCR sec.21.902(c), "Very High Radiation Areas" must be posted. If that is the case, the posting criteria specific to "Very High Radiation Areas" should be addressed within this section. The commenter stated that the definitions for "Radiation Area" and "High Radiation Area" should be consistent with TRCR 11.2 The commenter further stated that if sec.31.32(e) means that both the "High Radiation Area" and "Radiation Area" signs can be posted at the "Restricted Area" barricade rope, then this method of posting should be plainly stated. (See sec.31.32(a),(b), and (e)) Response. The department agrees and has changed the section to include the recommendations. Comment. Several commenters stated that the implementation of requiring copies of records at additional authorized use/storage sites is duplication of effort and an attempt to cause the issuance of violations. One commenter recommended that the department should allow the licensee to designate a single location where the department can inspect all records for all sites. (See sec.31.33) Response. The department's response is that the current section does not address documents required at additional use/storage sites. It is not uncommon for a company to have a main site and several other sites throughout the state. These are often in different regions and would involve different inspectors. It is the intent of the section for records of all the sites be maintained at the main site and records and documents "specific to that site" i.e., a specific authorized use/storage site, be maintained at that site. The department made no change to the section as a result of the comments. Comment. One commenter made similar statements for sec.31.33(a)(4)-(8), (10) - (12),(17), and sec.31.33(c). The commenter stated that these requirements are redundant and that all records should be maintained at the main site. The commenter also indicated that companies move their work forces around from site to site and it would be difficult to maintain records. The commenter recommended that these portions of the section be reconsidered. (See sec.31.33) Response. The department's response is that the intent of the section is to address additional authorized use/storage sites and not temporary job sites. The intent is to require all records be maintained at the main site and records "specific to that site" at each additional site. The section does not require that all records be maintained at the main site and all additional sites. The department made no change to the section as a result of the comment. Comment. One commenter stated that the section should be specific to the "function test" referenced in proposed sec.31.30(f)(1). As written, the individual will be required to have the calibration certificate of the alarming ratemeter he/she is using. (See sec.31.34(f)) Response. The department agrees and deleted this requirement from the section. Comment. One commenter indicated that this section is incomplete as written. (See sec.31.35(e)) Response. The department agrees and has made the necessary correction. Comment. One commenter stated that if radiographic operations are performed in accordance with the requirements of Part 21 and 31, and the requirements of sec.31.44(c) are met, then the registrant should not be prohibited from performing radiography at storage sites. The commenter stated that storage sites should be treated the same as a temporary job site. (See sec.31.43(c)) Response. The department's response is that the intent of the section is to prohibit radiographic operations at a storage site unless specifically authorized by the certificate of registration. The department made no change to the section as a result of the comment. Comment. Several commenters questioned how one figures dose rates for an x-ray machine? (See sec.31.44(c)) Response. The department agrees and changed the wording to clarify the intent of the section. Comment. Several commenters stated that the section references sources stored more than 90 days but fails to indicate if the 90 days are "consecutive" or "within a calendar year." The commenters indicated that if sec.31.46(b)(4) remains as proposed, almost all job sites where radiography is performed a couple of days a week will qualify as a "use site." According to this criteria, a registrant performing radiography on a "call out" basis would have to meet the records requirements of sec.31.33, i.e., keeping records at a place where an office does not exist. The commenters recommended clarifying this section or rescinding it. (See sec.31.46(b)(4)) Response. The department agrees and has made wording changes to clarify the intent of the section. Comment. One commenter recommended that the section contain the criteria for radiation levels specified in ANSI N432-1980. The commenter further recommended that an option would be to include the permissible levels by adding an Appendix 31-E, which would be a reprint of levels specified in ANSI N432-1980. (See sec.31.50(b)) Response. The department's response is that the TRCR has multiple references to various ANSI standards. Reprinting these would add multiple pages to the section. The department made no change to the section as a result of the comment. Comment. One commenter stated that there are occasions when you must use a specifically designed tip for the source tube and occasionally on jet engines, a long J-tube. Since these are frequently constructed to meet the individual situation, the commenter is concerned that these may not meet ANSI standards. (See sec.31.53(b)(8)) Response. The department's response is that the section addresses guide tube exposure head connections, not the exposure head or tip. The department made no change to the section as a result of the comment. Comment. One commenter questioned if the quarterly audit requirement is an NRC compatibility item, as it causes difficulties for companies. (See sec.31. 54(a)) Response. The department's response is that the quarterly audit is an item of compatibility with the NRC. The department made no change to the section as a result of the comment. Comment. One commenter stated that if radiographic operations are performed in accordance with the requirements of Part 21 and 31, and the requirements of proposed sec.31.55(c) are met, then the licensee should not be prohibited from performing radiography at storage sites. The commenter stated that storage sites should be treated the same as temporary job sites. (See sec.31.54(e)) Response. The department's response is that the intent of the section is to prohibit radiographic operations at a storage site unless specifically authorized by the license. The department made no change to the section as a result of the comment. Comment. One commenter indicated that while this section requires that the entire circumference of the radiographic exposure device be surveyed, it does not specify the permissible radiation levels nor does it make any reference to any section criteria. The commenter recommends that to avoid any assumptions made by the licensee, the section should be clarified to specifically indicate the permissible radiation levels. (See sec.31.55(b)) Response. The department's response is that the intent of the section is to ensure that the source is fully returned to the shielded position. The department made no change to the section as a result of the comment. Comment. One commenter stated that a majority of radiography performed requires multiple exposures per weld and the exposed portion of the source is changed several times. To be in complete compliance with this section, not only will the radiographer have to recalculate dose rates for posted areas and perform the required survey referenced in sec.31.55(c)(1), he/she will also, according to sec.31.55(h), have to record the results of such surveys which could result in a documentation every time the source is exposed. A typical day for a radiographer is 30 welds with three exposures per weld, which would result in 60 surveys, etc. Knowing that multiple exposures will be required within the same area, the radiographer could post the radiation area based on maximum dose rate calculations and post an area large enough to be in compliance regardless which weld is being radiographed, etc. As written, this section would still require the survey requirements be re-verified and recorded for each exposure. The commenter recommended changing the wording to: "Each time the source is relocated to a new radiography area requiring the re-establishment of an additional radiation area, the requirements of sec.31. 55(c)(1) shall be met." (See sec.31.55(c)(2)) Response. The department agrees and changed the section accordingly. Comment. One commenter stated that while this section requires that the entire circumference of the radiographic exposure device be surveyed, it does not specify the permissible radiation levels nor does it make a reference to any section criteria. The commenter recommended that to avoid any assumptions made by the licensee, the section should be worded to specify the permissible radiation levels. (See sec.31.55(d)) Response. The department's response is that the intent of the section is to ensure that the source is fully returned to the shielded position. The department made no change to the section as a result of the comment. Comment. One commenter indicated that the criteria for storing radioactive materials should be the same regardless of the type of storage container or its location. The section addresses the same issue, but quotes different qualifying requirements, sec.21.301(a) and (b), regarding permissible radiation levels. The commenter recommended that these requirements should be clarified and consistent with one another. (See sec.31.55(e) and (f)) Response. The department's response is that the intent of the section is to address a vehicle used for storage, i.e., parked overnight at a motel, and storage containers. The department agrees and changed the section to include the recommendations. Comment. One commenter indicated that radiography requirements on offshore platforms are often the same as they are on dry land which means that occasionally it is physically impossible to use a collimator. The commenter recommended that the department reconsider sec.31.57(b)(2) and make the section compatible with sec.31.54(c). (See sec.31.57(b)) Response. The department's response is that based on past experience it is rare that a collimator could not be used. Should this occasion arise, a request for license authorization may be submitted to the department. The department made no change to the section as a result of the comment. Comment. One commenter indicated that anyone attempting a retrieval of a disconnected source should have appropriate training. Several commenters questioned how an individual or RSO becomes qualified to do source retrieval and whether a licensee could contact an outside company to retrieve the source and the procedure needed. (See sec.31.58). Response. The department's response is that an individual, RSO, or outside company must submit their operating, safety, and emergency procedures for retrieving sources to the department for review. Upon approval, the department will authorize source retrieval on a license. The department made no change to the section as a result of the comment. Comment. One commenter suggested that any required license condition that authorizes source retrieval should be specific to the procedures submitted for approval and not specific to a person authorized to perform the retrieval. If appropriate procedures are in place, then an individual meeting the criteria specified in sec.31.21 and sec.31.24(a) should be allowed to perform the retrieval with the RSO's approval. (See sec.31.58) Response. The department's response is that there is review of specific retrieval procedures submitted by the licensee. The section does not preclude the RSO from submitting names of individuals he/she feels are qualified to perform these procedures. The department made no change to the section as a result of the comment. Comment. Several commenters stated that the section references sources stored more than 90 days but fails to indicate if the 90 days are "consecutive" or "within a calendar year." The commenters indicated that if sec.31.59(b)(4) remains as proposed, almost all job sites where radiography is performed a couple of days a week will qualify as a "use site." According to this criteria, a licensee performing radiography on a "call out" basis would have to meet the records requirements of sec.31.33, i.e., keeping records at a place where an office does not exist. The commenters recommended clarifying this section or rescinding it. (See sec.31.59(b)(4)) Response. The department agrees and has made wording changes to clarify the intent of the section. Representatives from American Airlines in Tulsa, Oklahoma, Technical Welding in Pasadena, MQS Inspection in Pasadena, San Jacinto College in Pasadena, CBI Na- Con in Houston, and Frank Malek and Associates in Montgomery submitted comments regarding the proposal. The commenters were in favor of the amendments, however, they offered comments, questions, and suggestions for change. Several representatives expressed opposition to several sections of the proposed section. The amendment is adopted under Chapter 401 of the Health and Safety Code, which provides the Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.115. Radiation Safety Requirements and Licensing and Registration Procedures for Industrial Radiography. (a) The Texas Department of Health adopts by reference Part 31, "Radiation Safety Requirements and Licensing and Registration Procedures for Industrial Radiography" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754 and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 23, 1993. TRD-9324738 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 834-6688 25 TAC sec.289.116, sec.289.122 The Texas Department of Health (department) adopts sec.289.116 and sec.289. 122, with changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1243) and with changes to the material the section adopts by reference. Section 289.116 adopts by reference Part 32 of the Texas Regulations for Control of Radiation (TRCR) titled, "Use of Radiation Machines in the Healing Arts and Veterinary Medicine." Section 289.122 adopts by reference Part 42 of the Texas Regulations for Control of Radiation (TRCR) titled, "Registration of Radiation Machine Use and Services." Part 32 was amended to add mammography regulations with provisions for equipment standards, provisions for quality assurance programs, training requirements for equipment operators and physicians, provisions for utilizing licensed medical physicists for quality assurance testing, and continuing education for equipment operators. A footnote was added to 32.17 to indicate that the requirements of 32.17 are effective March 1, 1994. The wording in the third sentence of 32.17(a)(3) was changed for clarification from "When deviations occur on items 32.17(a)(3) (i) and (iv), no" to "When deviations from the requirements specified in 32. 17(a)(3)(i) and (iv) occur, no." In the fourth sentence of 32.17(a)(3), the word "specified" was added after "all other items" for clarification. In the last sentence of 32.17(a)(3), the words "a minimum of" were added for consistency throughout the TRCR. In 32.17(a)(3)(i)(a), the deviation in the Optical Density (OD) was changed to +/- 0.15 to follow the American College of Radiology (ACR) guidelines. In 32.17(a)(3)(iv) the word "checked" was changed to "evaluated" to more accurately reflect the intent of the section. In 32. 17(b)(2)(i), wording was added to allow technologists performing mammography to waive the formal training requirement. For clarification, 32.17(b)(3) was modified to read, "The person must also be registered with the Agency unless exempted by 42.2(f)." 32.44(a)(4), which is a U.S. Food and Drug Administration (FDA) requirement, is not always attainable and the ACR guidelines do not contain this requirement. Therefore, 32.44(a)(4) was deleted. The remainder of 32.44(a) was renumbered to correspond with this change, and 32.17(a)(3)(xvi) and 32.17(c)(3)(ix) that referenced the section were deleted. In 32.44(a)(4)(ii), the wording was changed to "The collimated light field edges shall not exceed the edges of the x-ray beam by more than +/- two percent of the SID" to clarify the intent of the section. 32.44(a)(6) was changed to reflect concurrence with the ACR guidelines. In 32.44(a)(11)(i), the second sentence was deleted and the following added: "For systems with automatic compression, the maximum force applied without manual assistance shall not exceed 40 pounds. The change was made to ensure that automatic compression did not exceed the 40-pound limit. In 32.44(b)(2), the dose limit of 100 millirads for film/screen systems without grids was added for concurrence with ACR guidelines. The footnote that accompanies 32.44(b) was deleted because the appendix it references does not relate to the methodology for determination of mean glandular dose. In 32.100, the definition of "mammographic screening" was amended to replace "carcinoma" with "diseases" and "self-referral of asymptomatic persons" to "self-referral by asymptomatic persons." The department will enforce these amendments effective September 1, 1993. The following comments were received concerning the proposed amendment to TRCR Part 32. Comment. One commenter stated that this requirement should apply to all radiographic film processors and not just those for mammography (see sec.32.10). Response. The department agreed that these requirements are needed for all film processors. However, at this time, the department only formally amended the section to include requirements for mammography. A revision of all of Part 32 is planned for the future. The department made no change to the section as a result of the comment. Comment. One commenter indicated that the +/- 0.10 OD standard, as required by the ACR, was intended to be an attention limit, not an action limit. Only if test results indicate deviations of more than +/- 0.15 OD after repeating the test should operations be terminated pending correction of the condition. The commenter recommended changing this section to read "deviations of +/- 0. 15 or more in OD." Otherwise, the term "corrective action" should be more clearly defined. The commenter also asked whether the ACR term "close monitoring" is considered an acceptable corrective action and what constitutes "close monitoring" (see 32.17(a)(3)(i)(a))? Response. The department's response is to change the section to correspond with ACR OD recommendations. Comment. One commenter indicated that the ACR recommends +/- 1.25 OD (see 32.17(a)(3)(i)(a)). Response. The department's response is that the current ACR guidelines recommend +/- 0.15 and the department changed the section to reflect ACR recommendations. Comment. One commenter questioned why autoloaders were not included in these sections (see 32.17(a)(3)(i)(b), (ii), and (iii)). Response. The department acknowledged that these sections can apply to autoloaders. There are a number of items that could be included in darkroom and screen cleaning requirements and because autoloaders are not as common with mammographic systems, detailed instructions will be addressed in a regulatory guide. The department made no change to the section as a result of the comment. Comment. One commenter stated that a phantom image is not necessary to verify proper functioning of a mobile mammographic system on a daily basis. Providing that a post-reading mAs meter is available, proper equipment function can be confirmed by documenting the stability of the mAs obtained when a phantom is exposed with a loaded cassette in the bucky. The commenter recommended changing the section to read as follows: (iv)(a) Image quality shall be checked (using an appropriate mammographic imaging phantom) to comply with 32.44(a)(14) at intervals not to exceed one month; (iv)(b) For mobile mammography operations, in addition to the image quality requirements in part 32.17(a)(3)(iv)(a), image quality shall be checked as in 32.17(a)(3)(iv)(a) prior to performing mammography at each new location. Alternately, proper performance of x-ray systems equipped with post-reading mAs meters may be verified prior to performing mammography at each new location by exposing a phantom under phototimed conditions with a uniquely identified clinical image receptor in place and verifying the constancy of the mAs required for the exposure. Deviations in the resulting mAs of more than +/- 20 percent from the established norm shall be cause for cancellation of mammographic operations pending acquisition of a suitable phantom image as in 32.17(a)(3)(iv)(a) (see 32.17(a)(3)(iv)(a)). Response. The department's response is that the evaluations required by the section are reasonable and provide a consistency in assuring image quality. The department made no change to the section as a result of the comment. Comment. One commenter recommended inserting the words "slices of partly" in front of "spherical masses" in the footnote that accompanies 32.17(a)(iv). Response. The department's response is that the additional wording is not necessary to clarify the section and the department made no change to the section as a result of the comment. Comment. One commenter noted that there are other options for masking out light than placing cut-outs on viewboxes. Also, testing these devices every six months will do little to improve quality of care and only adds to the technologist's burden only serves to increase cost of delivering medical services. The commenter recommended eliminating the phrase "on the view boxes" from this section and the phrase "and mask integrity" from the second sentence (see 32.17(a)(4)(ii)). Response. The department's response is that the use of masks to block extraneous light and the subsequent semi-annual check of these items is an important part of a mammographic quality control program. The department made no change to the section as a result of the comment. Comment. One commenter is a chiropractic radiologist, and while his training did not specifically involve mammography, he indicated there are some who do have extensive training in this area. The commenter requested that any restrictions placed on someone reading mammograms be based on qualifications to read these studies rather than on which doctorate degree the individual physician has. The commenter recommended that anyone who interprets mammograms, whether they be medical doctors, chiropractors or osteopaths, demonstrate training and certification of some type to be determined by the state (see 32. 17(b)(1)). Response. The department's response is that after review of the legislation that recently passed and this section revision, Part 32 may need to be amended in the future and inclusion of chiropractic radiologists will be considered at that time. The department made no change to the section as a result of the comment. Comment. One commenter stated that the department is being biased against the ARCRT. The commenter recommended that the department use both registries names, ARRT and ARCRT, or in the paragraph, state that operators of mammographic x-ray machines who hold both a current and valid Texas certification under the Medical Radiologic Technologist Act, Article 4512m, V. T.C.S. and an Advanced Certification in Mammography are exempt from the section (see 32.17(b)(2)(iii)). Response. The department's response is that the ARCRT technologists are included under the Medical Radiologic Technologist Certification Act, Article 4512m, and could perform mammography if they have 20 hours of formal training, which is the same for an ARRT technologist. The formal training is waived only if a technologist has five years of experience in mammography or has received an ARRT Certificate of Advanced Qualification in Mammography. The executive director of the ARCRT confirmed that to date there is no advanced certification in mammography available under the ARCRT and there are currently no plans to develop one. The department made no change to the section as a result of the comment. Comment. One commenter stated that it is not necessary for the physicist to personally perform all the tests outlined in this section and some allowance for trained assistants should be made. The commenter suggested amending the section by adding, "Medical Physicists's responsibilities include: assuring the proper performance of, and evaluating of the results of, the following tests" (see 32.17(b)(3)). Response. The department's response is that the Medical Physics Practice Act, Article 4512n, does not allow assistants to perform tests for medical physicists. The department made no change to the section as a result of the comment. Comment. One commenter expressed concern that if only medical physicists are allowed to perform the evaluation of a mammography system, facilities will have difficulty because of the small number of qualified physicists. The commenter stated that many existing x-ray service vendors have the capabilities and qualifications to perform these services and recommended that the department certify service companies to perform mammography service (see 32.17(b)(3)). Response. The department's response is that a federal bill signed into law in October, 1992, The Mammography Quality Standards Act, requires a survey and review by a "medical physicist licensed or approved by a State." There is also a state bill recently signed into law that will require these tests be performed by a licensed medical physicist. Additionally, any facility that has ACR accreditation must use a medical physicist for these tests. Both of these bills closely follow ACR guidelines. The section does not preclude service companies from performing service (maintenance) on mammographic machines. The section establishes requirements for quality control tests that must be done by a physicist. The department made no change to the section as a result of the comment. Comment. One commenter stated that these tests can and are being competently performed by existing service vendors and feels that the section will cause extensive waiting periods for routine service on mammography systems (see 32.17(c)(3)). Response. The department's response is that a federal bill signed into law in October, 1992, The Mammography Quality Standards Act, requires a survey and reviewed by a "medical physicist licensed or approved by a State." There is also a state bill recently signed into law that will require these tests be performed by a licensed medical physicist. Additionally, any facility that has ACR accreditation must use a medical physicist for these tests. Both of these bills closely follow ACR guidelines. The section does not preclude service companies from performing service (maintenance) on mammographic machines. The section establishes requirements for quality control tests that must be done by a physicist. The department made no change to the section as a result of the comment. Comment. Concerning 32.17(c)(3)(i), one commenter questioned why this is included in the medical physicists' responsibilities when it is already included in the operators' responsibilities. Response. The department's response is that the quality control tests follow the guidelines of the ACR. The screen-film contact test performed by the technologist is to assure optimum contact is maintained between the screen(s) and film in each cassette. The test by the medical physicist is to assess the uniformity of the radiographic speed of the image receptors routinely used for mammographic imaging. The department made no change to the section as a result of the comment. Comment. One commenter recommended that the department define "appropriate" image receptor (see 32.44(a)(2)). Response. The department's response is that the word "appropriate" was removed from the phrase and it now reads: "The image receptor systems and their individual components shall be specifically designed for mammography." Comment. One commenter stated that 25.8 nC/kg (0.1 milliroentgen) is too low for transmission of the beam through the image receptor (see 32.44(a)(4)). Response. The department's response is that this is a requirement of the FDA. However, there have been tests done in attempts to meet this and even under optimal clinical conditions, the 0.1 milliroentgen requirement was generally not attainable. Therefore, the department deleted this section from the section. Comment. One commenter stated that it made no sense to require collimator confinement to the image receptor at the anterior edge (the edge opposite the chest wall) of the x-ray beam because there is no patient or operator out there (see 32.44(a)(4)(i)). Response. The department's response is that collimator confinement to the image receptor size is important in order to reduce scatter radiation. The department made no change to the section as a result of the comment. Comment. One commenter questioned the importance of limiting the minimum size of the light field to the beam size and stated that in performing mammography, one should avoid cutting off portions of the breast. Thus, if the light field is slightly smaller than the x-ray beam, cut-off is more easily avoided. The commenter also stated that the light field should not be larger than the x-ray field because the light field may indicate that adequate coverage has been achieved when it hasn't. A retake would then be required. The commenter recommended changing the section to read: "The collimated light field edges shall be equal to or smaller than the x-ray beam but shall not differ from the edges of the x-ray beam by more than 2.0% of the SID" (see 32. 44(a)(4)(ii)). Response. The department's response is to make wording changes to clarify the intent of the section. Comment. One commenter noted that the footnote to 32.44 indicates there may be a period of years from the date of approval of the section. The commenter cannot support any delay in the effective date beyond six months. Response. The department's response is that the intent is to give registrants a year to come into compliance with the equipment portion of the section. The department inserted the actual effective date, September 1, 1994. Comment. One commenter noted that the section conflicts with the Health Care Finance Administration (HCFA) and the ACR regarding the permissible variability of the kV. ACR allows a 5.0% variance of the measured kV and this section would allow an 8.0% difference (2 kV at 25 kV settings). The commenter recommended changing the section to be compatible with the ACR (see 32.44(a)(6) ). Response. The department's response is to change the section accordingly. Comment. One commenter indicated that some old units have the backup timer restricted to less than that required for 6 centimeters acrylic (see 32.44(a) (7)). Response. The department's response is that the section allows for acrylic thicknesses of 2 centimeters to 6 centimeters. The department made no change to the section as the result of the comment. Comment. One commenter stated that a more realistic requirement for radiation output would be 258 C/kg/sec (1 R/s) (see 32.44(a)(8)). Response. The department's response is that the requirement is taken from the American Association of Physicists in Medicine (AAPM) report #29 on mammography systems. The commenter gave no justification for the recommended change. The department made no change to the section as a result of the comment. Comment. One commenter indicated that the Senograph 600t operates at 200 mA for less than 3 seconds (see 32.44(a)(8)). Response. The department's response is that while it would be ideal to be able to cover all variances in machines in the section, some situations may have to be evaluated on a case-by-case basis. The department made no change to the section as a result of the comment. Comment. Concerning 32.44(a)(9)(ii), one commenter indicated that this is the only reference to xeroradiography in the whole section and there is no mention of dusting (the xerographic plates) and processor maintenance. Response. The department's response is that the proposed section largely follow the recommendations of the ACR. The section cannot address all variances which exist, and some situations may have to be evaluated on a case-by-case basis. The department made no change to the section as a result of the comment. Comment. One commenter noted that many women have breasts that cannot be imaged on the standard 18 x 24 cm image receptors because of size, thus requiring multiple exposures of the same view which results in a large amount of overlap between the several views and increased patient exposure. The commenter recommended adding the following: "(iv) utilizing large format image receptors (minimum 24 x 30 cm) which meet the requirements of 32.44(a)(10(i)" (see 32.44(a)(10)). Response. The department's response is that the section does not preclude registrants from utilizing large format image receptors (24 x 30 centimeters) if their machine is equipped with this option. The department made no change to the section as a result of the comment. Comment. One commenter indicated that grids are not used for the magnification mode which may be associated with a larger cassette size (see 32. 44(a)(10)(i)(b)). Response. The department's response is that the section states that mammographic x-ray systems have the capability of using anti-scatter grids and that they be available for all image receptor sizes of the system. The section does not state that grids must be used for all filming. The department made no change to the section as a result of the comment. Comment. One commenter stated that all mammography units currently available are easily upgradable to post-reading mAs meters, Automatic Exposure Control (AEC), and large format buckies. Future designs should include all of these capabilities. There should be no exemptions from these requirements (see 32.44(a)(7), and (a)(10)(ii) and (iii)). Response. The department's response is that having these features on all mammographic machines would be an ideal situation. However, the department cannot adequately justify requiring all machines to be upgraded to include these options. The department made no change to the section as a result of the comment. Comment One commenter stated that many systems do not have automatic compression. Under these conditions, it would not be unusual or unreasonable to find systems capable of more than 40 pounds of force. Some systems equipped with automatic compression have the capability of being operated in a combined mode where the system automatically compresses to one (minimum) level and the operator then increases the compression as required. All of these systems, when properly adjusted, are capable of adequate breast imaging. The commenter recommended changing the last sentence to read, "For systems with automatic compression, the maximum force applied without manual assistance shall not exceed 40 pounds (see 32.44(a)(11)(i)). Response. The department's response is to change the section accordingly. Comment. One commenter questioned whether manual compression is acceptable and is the operator part of the x-ray system (see 32.44(a)(11)(i), page 10). Response. The department's response is that the section does not prohibit manual compression and the operator is not considered part of the x-ray system. The department made no change to the section as a result of the comment. Comment. One commenter requested a definition of "40 mesh test" (see 32. 44(a)(12)). Response. The department's response is that the specifications of a "40 mesh test" will be addressed in a regulatory guide that will be developed to accompany the section. The department made no change to the section as a result of the comment. Comment. One commenter requested that the department change its regulatory guide for mammographic screening, as it currently indicates 400 mR for two views (see 32.44(b)). Response. The department's response is that revised regulatory guides are currently being developed to correspond with the changes in the section. Comment. One commenter recommended that the footnote that accompanies 32. 44(b) be eliminated. Appendix 32-B does not relate to the methodology for determination of mean glandular dose. The instructions in Appendix 32-B may produce an entrance skin exposure if properly executed but there is inadequate information and instruction in the appendix for determination of mean glandular dose. Response. The department's response is to delete the footnote. Comment. One commenter recommended changing the definition of "Density Difference' by adding "but not less than" after "closest to." The commenter also recommended amending the definition of "Mammographic Screening" by changing "carcinoma" to "diseases" and "self-referral of" to "self-referral by" (see 32.100). Response. The department's response is to make clarifying changes to the definitions. Part 42 was amended to expand definitions of the types of radiation services that must be registered, provide for additional registration requirements, and establish minimum requirements for radiation safety officers and equipment service personnel. The numbering of the requirements in TRCR Part 42 was changed to provide consistency with other parts of the TRCR. 42.60 was deleted and the definition of "provider of equipment" was moved to 42.1(c)(10) to make the section more concise. In 42. 2(d), the word "activated" was changed to "energized" and the sentence restructured for clarification. In 42.21(d) and (f), the word "safety" was inserted in the term "operating and emergency procedures" for clarification and consistency with other sections of the TRCR. The last sentence in 42.22(f) was deleted and language added to clarify the intent of the section. Language was added to 42.27 and 42.28 to require the signature of the applicant and RSO on registration applications and to require that persons be registered with the department before providing services. 42.32(a)(1) was modified to provide for the acceptance of the assembler's notification of installation in lieu of the registrant filing a report of installation with the department to reflect current practice. The requirement for reciprocity for radiation services was deleted from 42.40, as other states may not have requirements similar to Texas for these services. Persons wishing to offer these services in the state on a temporary basis will be required to register with the department. In Appendix 42-A, II.A.(h)(i), evidence of licensure in medical nuclear physics was added to allow these individuals to serve as RSOs. An exemption from the requirements of Appendix 42-A was added for persons identified on a certificate of registration prior to September 1, 1993. The word "safety" was included in the term "operating and emergency procedures" in Appendix 42-B, G. for clarification and consistency with other parts of the TRCR. In Appendix 42-C, an exemption from the requirements of Appendix 42-C was added for persons holding a certificate of registration with individuals hired to perform services before September 1, 1993. Appendix 42-C, II.A. was modified to require one year of formal training and the footnote was modified to delete "Agency-accepted training course" and use the language "courses in radiation machine assembly, maintenance, and repair techniques" for clarification of the intent of the section. The following comments were received concerning the proposed amendment to TRCR Part 42. Comment. One commenter concurs with the proposed revisions. Response. The department acknowledged their concurrence. Comment. One commenter recommended dividing this section into four groups: (1) Services not requiring approval from other state agencies; (2) Services which require accreditation by the National Voluntary Laboratory Accreditation Program of the National Institute of Standards and Technology; (3) Services which may require approval of the Texas Education Agency; (4) Services which require licensure by the Texas Board of Licensure for Professional Medical Physicists (see 42.1, page 42-1). Response. The department's response is that the section adequately addresses the requirements for services. The department made no change to the section as a result of the comment. Comment. One commenter indicated that in the listing of radiation services, there is no exemption in the registration from mammography service (see 42.1). Response. The department's response is there is no exclusion in the section that prevents x-ray service companies from performing maintenance on mammography machines. If the commenter is referring to mammography requirements in Part 32.17 that state that "quality assurance tests" must be performed by a licensed medical physicist, these quality assurance tests do not include maintenance and service by service companies registered with the department. The department made no change to the section as a result of the comment. Comment. One commenter recommended that financial institutions coordinate the use of x-ray machines with an x-ray service company or a medical physicist (see 42.2(e)). Response. The department's response is that the intent of the section is to keep financial institutions from having to register in order to sell, lease, or transfer machines. Financial institutions are not privy to department rules and the department would have difficulty determining compliance. The person acquiring the radiation machines from the financial institution would be required to register them. The department made no change to the section as a result of the comment. Comment. One commenter expressed concern with the section requiring that the application for licensed hospitals be signed by the administrator, president, or chief executive officer. Their registration contains over 100 machines that are in various schools or branches, i.e., medical, veterinary, research, etc. One executive of one branch will not take the responsibility to sign for all the other branches. Likewise, to get signatures of all involved each time an amendment is submitted would consume large amounts of time (see 42.21(e) and (f)). Response. The department's response is that while multiple signatures may be required on the initial application, subsequent amendments can be signed by the radiation safety officer of large institutions such as that of the commenter. The department made no change to the section as a result of the comment. Comment. One commenter recommended changing this section to only include registration of persons providing radiation machine assembly, maintenance, repair, performance of preventive maintenance tests, and health physics surveys for industrial or veterinary users and exclude these services for human use (see 42.22). Response. The department's response is that this recommendation would require dual registrations for persons providing these services for radiation machines for non-human and human use. Additionally, it would require separate and additional fees for these persons. The department made no change to the section as a result of the comment. Comment. One commenter asked if the criteria (in Appendix 42-C) applies to the renewal of existing registrations, or only to the initial registration (see 42.22(c))? Response. The department's response is that the criteria applies to individuals hired to perform services after the effective date of the section (September 1, 1993). The department made no change to the section as a result of the comment. Comment. Concerning 42.24, which is reserved, one commenter recommended that this section be titled, "Application for Registration of Services Which Require Licensure by the Texas Board of Licensure of Professional Medical Physicists." The commenter recommended that this section include requirements for application that are the same as those in 42.26, but to add that the department will require written documentation of licensure by the Texas Board of Licensure for Professional Medical Physicists and that this documentation must be retained for inspection by the department (see 42.24 (Reserved)). Response. The department's response is that registration of persons performing calibration and surveys is addressed in 42.26. It is the responsibility of the Texas Board of Licensure for Professional Medical Physicists to ensure that medical physicists are licensed. The department made no change as a result of the comment. Comment. Concerning 42.27, one commenter recommended adding sections, as in 42.22(a) and (b), which require the applicant to receive a certificate of registration from the department before providing services and require the signature of the registrant, or a person duly authorized to act on his behalf and the signature of the RSO on the application. Response. The department's response is to change the section to include the recommendations. Comment. One commenter recommended dividing calibration of survey and measurement instruments into two categories, those for industrial and veterinary use and those for human use. The commenter further recommended that the applicant be required to submit to the department written documentation of a license to practice medical physics issued by the Texas Board of Licensure for Professional Medical Physicists for calibration of survey and measurement instruments for human use (see 42.27). Response. The department's response is there is no difference in the process of submitting registration applications for calibration of survey and measurement instruments, whether for industrial and veterinary use or for human use. It is the responsibility of the Texas Board of Licensure for Professional Medical Physicists to ensure that medical physicists are licensed. The department made no change to the section as a result of the comment. Comment. Concerning 42.28, one commenter recommended adding sections, as in 42.22(a), requiring the applicant to receive a certificate of registration from the department prior to offering services. The commenter also suggested adding a section that requires a signature by the applicant or person duly authorized to act for and on the applicant's behalf to this section. Response. The department's response is to change the section to include the recommendations. Comment. One commenter recommended that the applicants be required to submit documentation to the department of any licenses issued by other agencies which relate to education and/or licenses, (e.g. licenses from the Texas Board of Licensure for Professional Medical Physicists, the Texas Education Agency or the Nuclear Regulatory Commission (NRC). The commenter also recommended that the applicant be required to submit evidence of licensure or exemption from regulation by the Texas Education Agency (see 42. 28). Response. The department's response is that it is the responsibility of the individual boards or agencies to ensure that the appropriate persons are licensed or certified. The department made no change to the section as a result of the comment. Comment. One commenter indicated that there is no provision to recognize the training and experience of persons who have served as Radiation Safety Officer (RSO) in years preceding this regulation. Example: A person who has several years of health physics experience and has served on a Registration Certificate for several years will not be allowed to continue to serve in an RSO capacity if the person cannot meet the new Part 42 requirements. The commenter recommended that a "grandfather provision" be added to recognize those currently serving as RSOs. The commenter also indicated that a person licensed as a Medical Physicist should possess the training, experience, and knowledge necessary to serve as an RSO, even if the licensure is in medical nuclear physics. The commenter feels that these individuals should not be excluded from serving as an RSO (see Appendix 42-A). Response. The department's response is to change the section to include the recommendations. Comment. One commenter questioned what constitutes "experience or education providing familiarity with the type(s) of equipment to be serviced to include radiation safety" (see Appendix 42-C, I.A.). Response. The department's response is that the intent of the section is to exclude persons who have had no training whatsoever. The department made no change to the section as a result of the comment. Comment. One commenter indicated that there are no standards specified to define the extent of "knowledge of protective measures to reduce potentially hazardous conditions." The commenter questioned how much knowledge is expected, what hazardous conditions are included, and whether electrical and mechanical hazards are also to be considered (see Appendix 42-C, I.B.). Response. The department has the authority to regulate sources of radiation only, and therefore is concerned with radiation hazards. The intent of the section is to exclude persons who have had no training whatsoever, not specified level of knowledge. The department made no change to the section as a result of the comment. Comment. One commenter questioned who is to supervise this training (another registrant, a physicist, or the factory engineers) and what the qualifications are for the individual supervising the aspiring service person (see Appendix 42- C, I.C.). Response. The department's response is that the intent of the section is to exclude persons who have had no training whatsoever, not to require or assess a specified level of knowledge. Therefore, supervising individuals should have at least a greater knowledge and more experience than the individual being supervised. The department made no change to the section as a result of the comment. Comment. One commenter questioned what minimum training is acceptable and stated that there is a wide difference between the military technical training and a two day experience at the x-ray machine factory. The commenter recommended delineating the number of hours and the subjects that are to be covered. The commenter also recommended that the x-ray service person be able to read and understand electrical schematics, and that the department give a simple examination in radiation safety and x-ray machine design before a service person is registered (see Appendix 42-C, II). Response. The department's response is that there are a variety of factory training schools, schools offering degrees in biomedical equipment repair, and schools with bachelor's degrees in electrical engineering with specialized training in radiation producing devices. The department does not have the resources to adequately develop an objective examination that would cover all types of radiation machines currently available and in use. The intent of the section is to exclude persons who have had no training whatsoever, not to require or assess a specified level of knowledge. The department made no change to the section as a result of the comment. Comment. One commenter requested clarification of what combination of training and experience equals II.A. and recommended that more specific criteria be applied so that x-ray service is provided by the most competent companies available (see Appendix 42-C). Response. The department's response is that an example of acceptable training and experience would be a combination of a factory school, courses in radiation machine assembly, maintenance and repair, and experience in maintenance of radiation machines. Because of the wide variety of schools, training courses, and experience, it would be difficult to develop a comprehensive listing of acceptable combinations. The department made no change to the section as a result of the comment. Representatives from Texas Chiropractic College Clinic in Pasadena, Terry Everett, R.T., ARCRT in Carthage, Baylor University Medical Center in Dallas, EG & G Astrophysics Research Corporation in Long Beach, California, Mallinckrodt Nuclear Medicine in Dallas, Richmond Imaging Associates in Houston, Robert R. Perry, Ph.D. in Dickinson, Davenport X-ray Co. Inc., in Dallas, and The University of Texas Medical Branch in Galveston were in favor of the amendments, however, they presented comments, questions, and suggestions for changes to the proposed amendment as discussed in the summary of comments. The amendments are adopted under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.116. Use of Radiation Machines in the Healing Arts and Veterinary Medicine. (a) The Texas Department of Health adopts by reference Part 32, "Radiation Machines in the Healing Arts and Veterinary Medicine" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754 and is available for public inspection during regular working hours. sec.289.122. Registration of Radiation Machine Use and Services. (a) The Texas Department of Health adopts by reference Part 42, "Registration of Radiation Machine Use and Services" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754 and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9324781 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 834-6688 25 TAC sec.289.121, sec.289.128 The Texas Department of Health (department) adopts sec.289.121 and sec.289. 128 concerning Texas regulations for control of radiation, with changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1244) and with changes to the material the section adopts by reference. Section 289.128 adopts by reference Part 40 of the Texas Regulations for Control of Radiation (TRCR) titled, "Exemptions, General Licenses, and General License Acknowledgements." Section 289.121 adopts by reference Part 41 of the Texas Regulations for Control of Radiation (TRCR) titled, "Licensing of Radioactive Material." Part 40 is a new section that incorporates the sections deleted from Part 41, exemptions and general license requirements, and addresses the requirements for the new concept of general license acknowledgements. Wording changes were made to Part 40 to further clarify the intent of the section and to provide consistency with other sections of the TRCR. A reference to TRCR Part 46 was added to sec.41.1 to more accurately reflect the intent of the section. The words "Except as otherwise authorized" were added to sec.41.1 to clarify the intent of the section. Section sec.40.3(c)(6) was modified to clarify shipping container requirements. The wording in sec.40.4(b) (5) was amended to clarify that exempt quantities in Appendix 40-B do not apply to the decay of generally licensed or specifically licensed quantities. The word "industrial" in sec.40.51(e) was deleted because the requirements apply to depleted uranium in any product or device. Section 40.51(e)(1) was modified to add the words "including beam shaping and collimation" to more accurately reflect the intent of the section. Section 40.52(a) was modified to add the provisions listed under sec.40.61(a)(4)(i)-(iv) and (viii)-(xi) for devices designed and manufactured for the purpose of producing light or an ionized atmosphere that are also required to comply with these requirements. In sec.40.52(a), a reference to sec.40.61 was added and a reference to sec.40.70 was deleted to clarify the intent of the section. Section 40.60 was modified to add the reference to sec.21.401(d) and (e) to more accurately reflect the intent of the section. The wording in sec.40.61(a)(4)(iv) was modified to add the same words as in sec.40.61(a)(4)(x) to more accurately reflect the intent of the section. The wording in sec.40.62(b)(1) was changed from "property" to "the environment" to more accurately reflect the responsibilities of the department. The word "all" in section 40.63(a) was changed to "applicable" to clarify the intent of the section. Section 40.90 was deleted because the section does not apply to either general licensees or holders of general license acknowledgements. In addition, throughout the section the term "U.S. Nuclear Regulatory Commission" was shortened to "Commission" to reflect the definition in TRCR Part 11 and for consistency throughout the TRCR. The following comments were received concerning the proposed amendment to TRCR Part 40. Comment. One commenter questioned the term "licensing state". The commenter stated that since the department does not have a broad-based circulation for these sections, there is no reason to continue the facade of this pseudo regulating department. Response. The department's response is that "Licensing State" is defined in TRCR Part 11 and the term is used throughout the sections. The department made no change to the section as a result of the comment. Comment. One commenter objected that the general license portions of the regulations continue to allude to information being required or contained in a license acknowledgement. The commenter stated that most general licensees do not have a complete copy of the regulations, nor will they know where to access the information required for the forms. The commenter suggested that if the department wants to do away with generally licensed devices, then they should do so. Response. The department's response is that the general license acknowledgement is not a specific license. The general license acknowledgement provides a means of tracking certain generally licensed devices and ensuring that the intended levels of control are followed by persons receiving the generally licensed devices. Certain generally licensed devices have been involved in numerous incidents such as the loss, damage, or improper disposal of sources. These types of incidents can cause excessive exposures to workers and the general public. The United States Nuclear Regulatory Commission (NRC) is also considering requiring a similar tracking and reporting system. The department made no change to the section as a result of the comment. Comment. One commenter stated that while most departments spend money trying to minimize documentation, to clearly state what is required, and communicate effectively and efficiently with their constituents, these regulations appear to be working in a totally opposite direction, as they are clearly onerous to both licensees and distributors. Response. The department's response is that the intent of the general license acknowledgement concept is to require general licensees to maintain proper records and accountability of any type of device that contains radioactive material and that without the proper handling, may be a hazard to the health and safety of the general public. As with any new section or regulatory concept, there will be a period of familiarization and adjustment. The department made no change to the section as a result of the comment. Comment. One commenter questioned the purpose of the expenditure for having depleted uranium as part of any shipping container be conspicuously and legibly impressed with "CAUTION, RADIOACTIVE SHIELDING-URANIUM" and then further encased in mild steel. (See sec.40.3(c)(6).) Response. The department agrees that the requirement is not clearly stated and changed the wording to clarify the intent of the section. Comment. One commenter stated that the department and the NRC has authorized distribution of special nuclear material, primarily plutonium 238, even though the section clearly states that special nuclear material is excluded from been acquired, possessed, used, or transferred in accordance with the provisions of sec.40.61(a)(2),(3), and (4) by a general licensee. The commenter suggested that the department take the opportunity to clean up the regulations to be consistent with regulatory practice. (See section sec.40.61(a) (1).) Response. The department's response is that this section is not a new requirement and license authorizations for generally licensed distribution of devices containing special nuclear material are being researched by the department. The department made no change to the section as a result of the comment. Comment. One commenter stated that the 30 day filing requirement in sec.40. 61(a)(3)(i) is redundant and restrictive. The distributor is currently required to provide a quarterly report to the department, detailing distribution of generally licensed devices. The commenter recommends that the department be required to provide the acknowledgement report to the licensee, based upon information contained in the quarterly distribution report. The commenter also requested that TRC Form 12-2 be included with the mailing because this should not be the responsibility of the distributor. Response. The department's response is that the general license acknowledgement provides a means of tracking certain generally licensed devices and ensuring that the intended levels of control are followed by persons receiving the generally licensed devices. Certain generally licensed devices have been involved in numerous incidents such as lost, damaged, or improperly disposed of sources. These types of incidents can cause excessive exposures to workers and the general public. The NRC is also considering requiring a similar tracking and reporting system. The department made no change to the section as a result of the comment. Comment. One commenter objects to having to submit documentation on taxes owed by the licensee. The commenter does not believe that state law intended for the department to be a tax tracking agency and that it is an onerous reporting burden, having absolutely nothing to do with public health and safety. (See sec.40.61(a)(3)(ii).) Response. The department acknowledges the commenter's objections but the law requires the department to verify tax status before a license or registration may be issued. The department made no change to the section as a result of the comment. Comment. One commenter noted that the wording in sec.40.61(a)(4)(viii) is extremely broad to a point of being unworkable and that "...any indication of possible failure or damage to..." is too ill-defined. The commenter suggested that if there is a failure, then perhaps a report is in order, although the commenter can't see what possible benefit it serves. Response. The department's response is that the intent of the section is for the licensee to report conditions of the device which could be an indication that failure or damage is forthcoming and thus provides for a type of "preventive maintenance." The department made no change to the section as a result of the comment. Comment. One commenter objected to the requirement for licensees to furnish the serial number(s) of the sealed source(s) when reporting to the department the identification of the device(s). (See sec.40.61(a)(4)(x) and (xi).) Response. The department's response is that the intent of the section is for the general licensee to maintain records of devices containing radioactive material, including source serial number, as a means of tracking and controlling the sources. The department made no change to the section as a result of the comment. Comment. One commenter stated that sec.40.61(b)(1) lists a number of in-vitro testing kits which may be obtained as generally licensed units. However, sec.40.61(b)(2) states, "...no person...receive, acquire, possess.." until that person has filed an application for an acknowledgment on a form, and has received from the agency an acknowledgement." The commenter noted that this creates a situation in which physicians, veterinarians, clinical laboratories or hospitals with the ability to receive these kits must wait until they file a form and receive an acknowledgement before actually receiving the kits. What if an emergency arises? The commenter stated that this appears very restrictive. Response. The department's response is that this is not a new requirement for this section and based on the department experience, this requirement has never presented a burden to licensees and no emergency involving the receipt of an acknowledgement from the department has occurred. Therefore, the department made no change to the section as a result of the comment. Comment. One commenter questioned if the information submitted, as requested in sec.40.62(a), is deemed inadequate, must a licensee rid himself of the radioactive material already on site? The commenter stated that this section appears to enable the department to make very broad based interpretations of the guidelines and regulations. Response. The department's response is that if the information submitted is not adequate, the department will clarify what must be submitted to correct the inadequacy and request that information. The department made no change to the section as a result of the comment. Comment. One commenter stated that the incorporation of "...danger to public health and safety or property" in sec.40.62(b)(1) is too restrictive. The commenter feels that if a device by its nature or use presents a "... danger to public health and safety or property," it should not be authorized for general license distribution. The commenter suggested that all the requirements following sec.40.62(b)(1) are in absolute conflict with the concept of general license and should be deleted. Response. The department's response is that it is the lawful responsibility and the goal of the department to protect the public health and safety and the environment, and therefore, the department retains by rule the authority to do so. The department did change the word "property" to "environment" to more accurately reflect its responsibilities. Comment. One commenter stated that it is not clear or consistent throughout this section which requirements apply to general licensees. Some requirements address exemptions from certain parts. However, sec.40.63(a) says each general license acknowledgement shall be subject to all the provisions of the act now in effect...and to all sections and orders of the department. The commenter questioned how a licensee determines which parts are applicable and which are not. (See sec.40.62(a).) Response. The department agrees with the comment and changed the word "all" to "applicable" to clarify the intent of the section. Comment. One commenter stated that this section is much too restrictive in requiring amendments of the general license acknowledgement each time a licensee makes a change in his inventory or information previously submitted and that the department is implementing portions of specific license requirements into the general license category. (See sec.40.66) Response. The department's response is that it is the intent of the section that the licensee file for an amendment to their General License Acknowledgement each time they receive a new device in order to properly track and control the devices. The department made no change of the section as a result of the comment. Comment. One commenter stated that the reciprocity requirements for generally licensed devices are onerous and a burden for the licensee. If a device has been authorized for general license distribution, it presents no inherent danger to public health and safety, and therefore should not be regulated as would a specifically licensed device. (See sec.40.90) Response. The department deleted this section because it does not apply to holders of general licenses or general license acknowledgements. Part 41 contains sections that address the requirements for a specific license; qualifications and specific duties for radiation safety officers (RSO) for the activities for which the license application is submitted; radiation safety information for evaluation of sealed sources and devices; requirements for emergency plans, financial assurance and record keeping for decommissioning, and criteria for determining acceptable financial security; and specific subjects to be included in training courses. Several wording changes were made to Part 41 to clarify further the intent of the section and to provide consistency with other parts of the TRCR. A reference to TRCR Part 46 was added to sec.41.1 and sec.41.26(f)(3) to more accurately reflect the intent of the section. The words "Unless otherwise exempted" were added to sec.41.1 for further clarification of the intent of the section. The wording in sec.41.25(a) and (b), sec.41.30(b), and sec.41.90(c) was changed from "property" to "the environment" to more accurately reflect the responsibilities of the department. Section 41.25 was amended to add the word "safety" to more correctly indicate what should be addressed in the procedures, and to delete the reference to Appendix 41-A. The items listed in Appendix 41-A did not represent a minimum list of procedural items that could be applicable to all users of radioactive material licensed under Part 41. The wording in sec.41.26(c)(2) was amended to clarify that an appropriate survey instrument shall be used to perform survey of the patient immediately after removing temporary implants, including retraction of a source(s) from a remote control brachytherapy device at the conclusion of treatment. Section 41.26(f) was modified to delete the requirement for a separate license for conducting tracer studies involving direct release of radioactive material to the environment because it was not the department's intent to require such limitation. The word "quarterly" in sec.41.27(c)(11) was deleted because the performance of inventories is a duty of the RSO and should be conducted in accordance with the specific section under which the activities are licensed. Sections 41.28(d)(1), (d)(4)(ii), and (iii), (iv)(b) and (v), and 41.90(b) were modified to reference section 40. 51(a)(3) to more accurately reflect the intent of the section. Section 41.28(d) (3) wording was added to clarify the authorizations for a general license. The wording in sec.41.28(g) and (k) and Appendix 41-B was expanded to allow a "product license application (PLA)," approved by the United States Food and Drug Administration, to be submitted instead of a new drug application (NDA). Section 41.28(l) was amended to delete the word "industrial" since the requirements apply to depleted uranium in any product or device for mass-volume applications. In addition, throughout the section the term "U. S. Nuclear Regulatory Commission" was shortened to "Commission" to reflect the definition in TRCR Part 11 and for consistency throughout the TRCR. Appendix 41-E was modified to add wording to I.B., II.B., III.B., V.B., and VI.B. to specify that classroom and laboratory training can also be obtained in a medical teaching institution. Appendix 41-E, III.A.2.(b) was modified to state that supervised clinical experience must include experience for the therapy authorization requested from III. A.2.(b)(i)-(v). This change resulted in the deletion of IV. and V., concerning treatment of hyperthyroidism and thyroid carcinoma. In Appendix 41-E, III. B., the word "diagnostic" was changed to "therapeutic" to reflect correctly the intent of the section. In Appendix 41-E, VI.A.1.(d), "nuclear medicine by the Royal College of Physicians and Surgeons of Canada; or," was added to reflect the intent of the section. In Appendix 41-E, V.B., the reference to the full scope of diagnostic nuclear medicine procedures was deleted and the term "use of sealed source therapy" was added to clarify the intent of the section. In Appendix 41-E, IX.B. was added to address continuing education and experience in association with board certifications. Also, a requirement to include source serial number in the specified report was added to sec.41.28(d)(4)(iii) and (iv)(c) and sec.41.90(1). In order to track and maintain properly records of devices containing radioactive material, the source serial number should be included in all information submitted to the department when these devices are transferred from licensee to licensee. The following comments were received concerning the proposed amendment to TRCR Part 41. Comment. One commenter expressed objection to the requirement that licensees be required to submit documentation regarding taxes owed. The commenter does not believe that state law intended for the department to be a tax tracking agency and that it is an onerous reporting burden having absolutely nothing to do with public health and safety. (See sec.41.24(g).) Response. The department's response is that the law does require the department to verify tax status before a license or registration may be issued. The department made no change to the section as a result of the comment. Comment. One commenter stated that the requirements for licensees wanting to do research and development using multiple isotopes are unrealistic. For example, the requirement for a full time RSO and the requirement that a licensee establish a radiation safety committee which approves projects prior to purchase of radioisotopes are unworkable for the majority of licensees. The commenter stated that regulation should not dictate who approves projects. (See section 41.26(f)(1).) Response. The department's response is that because of the variability in Radiation Safety Committees (RSC) from licensee to licensee, it is necessary to specify general requirements that shall be fulfilled by each RSC regardless of the entity they represent and the activities involved. In addition, a full time RSO is necessary to oversee broad scope operations involving multiple research projects and users. The department made no change to the section as a result of the comment. Comment. Two commenters expressed objection to the requirement for a separate license for field experiments involving tracers. (See sec.41.26(f)(2).) Response. The department did not intend to limit research and development entities from performing field experiments. The department agrees with the commenters and clarified the requirement for a separate license for such studies. Comment. One commenter noted that an educational requirement of a high school degree or equivalency through GED is the only specific requirement addressed in the RSO qualifications. The requirements for completion of training and testing, and training and supervisory skills are ambiguous and open to interpretation. The commenter also noted that an employee who has acquired a GED will usually not be promoted high enough in an organization to have acquired any supervisory experience, training, or advanced skills. The commenter stated that the educational requirements for an RSO are inadequate and that an individual at this educational level could not successfully execute the duties the department has set out as responsibilities for an RSO. (See sec.41.27(b).) Response. The department's response is that the section establishes minimum requirements. Part 41 covers a wide variety of uses of radioactive material and thus a wide variety of experience and training is necessary. Because of this variety, more specific qualification requirements that would be applicable to all licensees in Part 41, are not appropriate. The department made no change to the section as a result of the comment. Comment. One commenter stated that regulations should not contain job descriptions for the RSO and if the department wants to control the licensees' activities, it should be done through license requirements. The commenter also noted that this part would require quarterly inventory of sources when semi- annual or annual inventory is certainly sufficient and consistent with current requirements. (See sec.41.27(c).) Response. The department's response is that in order to clarify the expectations concerning the RSO's duties, it is appropriate to specify in rule a minimum number of these duties. In 41.27(c)(11), the department deleted the word "quarterly" to provide consistency. Comment. One commenter noted that 41.28(d)(1)(ii)(a) states that devices can be safely operated by persons who have no training in radiological protection. The commenter stated that this statement is in total conflict with earlier statements requiring training, procedures and documentation equivalent to specific license requirements. Response. The department's response is that the section states that the manufacturer shall submit information regarding the device which provides reasonable assurance that the device can be safely operated by persons not having training in radiological protection. Part 40 creates a system for tracking and controlling certain generally licensed devices and the section does not require extensive training for the possessor of those generally licensed devices. The department made no change to the section as a result of the comment. Comment. One commenter stated that for the distribution of generally licensed devices, the manufacturer is required to furnish only a specific amount of information, which will not help the licensee complete the acknowledgement form required in TRCR Part 40. (See sec.41.28(d)(4).) Response. The department's response is that the section does not prohibit the manufacturer from providing information beyond that required by the section. The department made no change to the section as a result of the comment. Comment. One commenter stated that the special requirements for a specific license to manufacture, assemble, repair, or commercially distribute commodities, products, or devices that contain radioactive material are unrealistic. For example, if a licensee is required to provide details on a shipping container, i.e., a source head, then it will be necessary to resubmit information and request approval every time any aspect of that container changes, such as the size, material of construction, etc. (See sec.41.28(n).) Response. The department's response is that it intends for the licensee to describe the requirements addressed in this section and does want to be informed of any changes in any procedures that involve radiation safety. The department made no change to the section as a result of the comment. Comment. One commenter stated that if a licensee provides the detailed information required for submission to result in the issuance of a sealed source and device sheet, the department should be required to issue same. The phrase "may issue" should be revised. (See sec.41.29(e).) Response. The department's response is that an applicant can submit all the information required by sec.41.29, but that information may be inadequate for the department to review. The department should not issue a licensing document based upon submission of inadequate information and should not be required to do so in the section. The department made no change to the section as a result of the comment. Comment. One commenter noted that the financial assurance and recordkeeping for decommissioning, and emergency plan requirements reference appendices which do not contain entries that correspond to license authorizations such as atomic numbers less than 84, and atomic number 84 or greater. (See sec.41.200 and sec.41.300) Response. The department's response is that these are items of strict compatibility with the NRC and as an Agreement State, Texas must adopt them. The department recommends that licensees review current license authorizations and request amendments to licenses to more accurately reflect the radioactive material possessed. The department made no change to the section as a result of the comment. Comment. One commenter stated that training requirements as specified have no regard for an individual licensee's site, operation, or personnel considerations and that some of the requirements are not applicable in all situations. (See Appendix 41-B.) Response. The department's response is that the section does not prohibit the inclusion of additional items specific to the licensee's operation. The section includes the basic elements of training courses designed for users of radioactive material. The department made no change to the section as a result of the comment. Comment. One commenter objected to the financial assurance requirements when dealing with specific isotopes and noted that there is a major inconsistency associated with financial requirements for possessing loose radioactive material as opposed to radioactive material in a sealed source. (See Appendix 41-G.) Response. The department's response is that this is an item of strict compatibility with the NRC and as an Agreement State, Texas must adopt the section. The likelihood for contamination involved with the use of loose radioactive material is greater than that with sealed sources. Therefore, larger potential decommissioning costs are predicted. The department made no change to the rule as a result of the comment. Representatives from TN Technologies, Inc. in Round Rock was opposed to portions of the rule; and Texas A & M University in College Station presented comments, questions, and suggestions for changes to the proposed amendment as discussed in the summary of comments. The amendment is adopted under Chapter 401 of the Health and Safety Code, which provides the Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.121. Licensing of Radioactive Material. (a) The Texas Department of Health adopts by reference Part 41, "Licensing of Radioactive Material" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754, and is available for public inspection during regular working hours. sec.289.128. Exemptions, General Licenses, and General License Acknowledgements. (a) The Texas Department of Health adopts by reference Part 40, "Exemptions, General Licenses, and General License Acknowledgements" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754, and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9324783 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 834-6688 25 TAC sec.289.126 The Texas Department of Health (department) adopts an amendment to sec.289. 126, with changes to the proposed text as published in the February 26, 1993, issue of the Texas Register (18 TexReg 1244) and with changes to the material the section adopts by reference. The section adopts by reference Part 12 of the Texas Regulations for Control of Radiation (TRCR) titled, "Fees for Certificates of Registration, Radioactive Material(s) Licenses, Emergency Planning and Implementation, and Other Regulatory Services." The section reflects increases in fee amounts to more accurately represent the costs of regulating radiation activities in Texas. Considering the current budget status of the state, it is now necessary to recover 100% of the costs of regulating sources of radiation in Texas and equally distribute those costs not previously assessed specific categories of licensees and registrants among those categories. In addition, the authority to regulate the disposal of radioactive substances was transferred from the department to the Texas Water Commission (TWC) on March 1, l992. The rule revision deletes fees for those regulatory activities which are now under the jurisdiction of the TWC. Several wording changes were made to the section to further clarify the intent of the section. The fee category "Agency-Approved Training Courses" was changed to "Agency-Accepted Training Courses (Involving Possession of Radioactive Material)" to clarify that the category applies to training course licensees who possess radioactive material that is used as part of the training course presentation. The registrant reciprocity fee category "Calibration (Survey Instrument and X-Ray Equipment)" was deleted because those services are not granted reciprocal recognition in TRCR Part 42. The department will enforce these amendment effective September 1, 1993. The following comments were received concerning the proposed amendment. Comment. Two commentors expressed opposition to the fee increases at this time. One of the commentors stated that fees should be based on the type of radiation activities a clinic or user may employ and that small veterinary practices with one portable machine used infrequently are already paying proportionally more for the smaller regulatory burden that they present. That commentor stated that the department should focus on the larger problem of radioactive waste disposal rather than the trained professional user of diagnostic x-ray radiation, because the commentor cannot imagine a greater need for the department than that of protecting the public health in the area of radioactive waste management. The commentor further stated that the small veterinary practice is unduly burdened by regulatory and license fees of all kinds and asked that the department consider the plight of the small, single-machine professional diagnostic x-ray user before ratifying fee increases of the kind proposed. The commentor believes that the department has done little to enlighten the diagnostic x-ray user except to spawn a burdensome, malignant, and awkward set of regulations to update annually and that the department is quickly becoming an ogre to the small veterinary practitioner and should focus its energies elsewhere. The second commentor in opposition to the revisions noted that in 1986, $40 per year total was paid for registration and that it went up to $74 per year in l987. This increased again to $95 per year in l990. The commentor stated that if the proposed increase goes into effect, it will increase the registration fee more than three times or 225% of what it was in l986 and the commentor feels that this increase is too much at this time, especially in the poor economic climate we are still lingering in. The second commentor also noted that the state veterinary license fee has risen from $100 per year to $300 per year. The commentor stated that DEA and Congress just passed a controlled substances registration fee increase which will raise veterinarians' fees from $20 per year to $70 per year, which amounts to a 250% increase and that this fee increase was passed through Congress without much publicity before, apparently, most veterinarians knew about it in order to voice objections. The commentor asked the department not to compound increasing costs by raising x-ray registration fees. Veterinarians are finding it more difficult to pass these increased fees onto clients' shoulders who are also struggling to make ends meet. (See sec.12.31.) Response. The department acknowledged the concerns expressed by the commentor. However, considering the current budget status of the state, it is now necessary to recover 100% of the costs of regulating sources of radiation in Texas and equally distribute those costs not previously assessed specific categories of licensees and registrants among those categories. The proposed section reflects increases in fee amounts to more accurately represent the costs of regulating radiation activities in Texas. The fees have always been calculated based upon the actual costs of time spent by the department regulating a specific category of licensee or registrant. The base fee for veterinarians is calculated using the costs for time spent reviewing and processing applications and amendment requests, preparing and reviewing inspection reports, escalated enforcement, and incident/complaint investigations. The machine fee is calculated based upon the costs for time spent preparing for and conducting inspections and travel, since inspection frequencies vary and the time spent on inspection varies according to the type and number of radiation machines being inspected. It is the department's mission and goal to protect the public health and safety and the environment. As such, all users of all types of sources of radiation are regulated and no one single category of user is focused upon more than another when radiation safety is a concern. The use of diagnostic x-ray machines presents a greater potential for exposure because of the vast number of machines being used. The department made no change to the section as a result of the comment. Comment. A commentor expressed understanding of the rationale for the increase in fees but felt the amount of cost being spent to regulate the uranium industry warrants discussion. The commentor noted that the scope of the Uranium Program (and the associated department resources) was conceived in the very early l980's, when there were many companies operating numerous uranium mines. At that time, the current size of the department was probably well calculated and justified. The commentor stated that since the early l980's, the size of the uranium industry has experienced extraordinary contraction, to the point that there are only two operating companies remaining, URI and one other. At the same time, there has not been a restructuring of the department, which corresponded to the downsizing of the regulated industry. In fact, over the years, there has been an escalation of fees on a "per project" basis which presumably is the result of less projects shouldering the burden of a regulatory department who's size remained status quo. If the downsizing of the uranium industry continues, the commentor questioned if the remaining company (project) will burden the entire department's cost. The commentor also noted that in l980, the department's regulatory services consisted of approximately two one-day inspections per year, and a limited amount of environmental monitoring per facility, as is presently the case in l993. However, under the proposed fee schedule, the two inspections and monitoring would cost $27,650 and the commentor feels this is excessive. The commentor feels that at this time, an increase in fees is unnecessary and stated that a more appropriate action would be to review the current and foreseeable future department resource requirements and cut costs down to meet budgetary constraints. The commentor further stated that the current contemplated consolidation of the department functions at the TWC may provide the opportune time to revisit the costs associated with the regulatory program. The commentor, as the affected industry, offered to provide detailed input as to where streamlining could be accomplished and costs reduced. (See sec.12.22.) Response. The department acknowledged the concerns expressed by the commentor. The staff resources working in the area of uranium recovery regulation have decreased since 1981. However, staff are still needed through the restoration phase of the license as well. Regulatory costs are based on time actually spent or estimated to be spent in specific license and registration categories. Across-the-board costs such as rulemaking, training, and administration have been prorated to the fee categories. Comment. One commentor stated that the fees in many categories are growing to such magnitude that they are going to put many small Texas licensees out of business, or significantly impact their business. The commentor recommends that you consider following the precedent set by the NRC and implement a maximum upper limit for licensees falling within a small business definition. Response. The department's response is that the majority of the proposed fees for the categories of radioactive material licenses are still less than the NRC's maximum limit for those entities that qualify as a small business under NRC's size standards. The department made no change to the section as a result of the comment. Comment. One commentor questioned the rationale for an across-the-board fee for "agency-approved training courses" and noted that the only two categories of licensees required to get approval of their training courses are those for radiographers and well loggers. The commentor also stated that the phrase "agency-approved training course" is simply a misnomer for other categories, since there are no agency-approved training courses and one does not even have to be licensed to offer training courses. The only time a license is required is if one wants to use radioactive material as a part of the training course presentation. The commentor recommended that the category read "agency-approved training courses for radiographers and well loggers." (See sec.12.21.) Response. The department's response is that the category titled, "Agency- Approved Training Courses" is intended for those entities that possess and use radioactive material during the course presentation. The department changed the title of the category to "Agency-Accepted Training Courses (Involving Possession of Radioactive Material)." Comment. One commentor noted that sec.12.21(b) states that the fee for the evaluation of a sealed source or device is a one time assessment for initial evaluation. The commentor stated that it is necessary from time to time to request amendments to these evaluation sheets and that the rule can be interpreted to mean that there is no fee for these amendments. The commentor recommended clarifying this section because it is not clear whether there is no fee for amendments to an evaluation or if each amendment would be considered another initial evaluation with an additional fee assessment. (See sec.12.21(b).) Response. The department's response is that sec.12.21(b) states that a fee must be submitted with a request for an initial evaluation. Therefore, there is no fee associated with requests for modifications to the initial evaluation. The department made no change to the rule as a result of the comment. Representatives from Town West Veterinary Clinic, P.C. in Tyler, and Rufe Snow Animal Clinic in Fort Worth, were against the proposed amendments; URI, Inc. in Dallas, and TN Technologies, Inc. in Round Rock presented comments, questions, and suggestions for changes to the proposed amendment as discussed in the summary of comments. The amendment is adopted under Chapter 401 of the Health and Safety Code, which provides the Board of Health with the authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.126. Fees for Certificates of Registration, Radioactive Material(s) Licenses, Emergency Planning and Implementation, and Other Regulatory Services. (a) The Texas Department of Health adopts by reference Part 12, "Fees for Certificates of Registration, Radioactive Material(s) Licenses, Emergency Planning and Implementation, and Other Regulatory Services" of the Department's document titled Texas Regulations for Control of Radiation, as amended in July 1993. (b) The document adopted by reference in this section is indexed and filed in the Bureau of Radiation Control, Texas Department of Health, The Exchange Building, 8407 Wall Street, Austin, Texas 78754, and is available for public inspection during regular working hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9324782 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1993 Proposal publication date: February 26, 1993 For further information, please call: (512) 834-6688 Part II. Texas Department of Mental Health and Mental Retardation Chapter 402. Client Assignment and Continuity of Services Subchapter H. Placement Appeals Procedures-Mental Retardation Services 25 TAC sec.sec.402.281-402.301 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.402.281-402.301 concerning placement appeals procedures- mental retardation services, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register . The sections are repealed contemporaneously with the adoption in this issue of the Texas Register of new sec.sec.402.281-402.298 governing placement appeals procedures-mental retardation services. The purpose of the repeal is to allow the adoption of new sections describing simplified, streamlined procedures related to the department's placement appeals process. No comments were received regarding adoption of the repeal.sections. The repeals are adopted under the Health and Safety Code, Title 7, sec.532. 015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 14, 1993. TRD-9324791 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 465-4670 25 TAC sec.sec.402.281-402.298 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.402.281-402.298, concerning placement appeals procedures-mental retardation services. Sections 402.281, 402.283, 402. 285-402.289, 402.292, and 402.294-402.296 are adopted with changes to the text as proposed in the January 29, 1993 issue of Texas Register (18 TexReg 549). Sections 402.282, 402.284, 402.290-402.291, 402.293, 402.297, and 402. 298 are adopted without changes and will not be republished. The repeal of existing sec.sec.402.281-402.301 is simultaneously adopted. The purpose of the new sections is to implement provisions of the settlement agreement in Lelsz vs. Kavanagh, which require the department to simplify and streamline the placement appeals process and to describe that process in a simply worded and easily understood format. The most notable examples of simplification and streamlining in the sections are: the burden of proof falls on facility staff to prove a contemplated placement would be of significant benefit to the individual receiving mental retardation services and meets the statutory requirement of being the least restrictive environment; the interdisciplinary teams and placement review teams must arrive at consensus decisions; and all reviews and appeals are automatic and require no complicated written request to be submitted by the individual or parent. In addition, the new subchapter adopts by reference as Exhibit A an Operating Instruction which restates the policies in the sections and provides additional and crucial procedural detail in a format which is user-friendly. Also adopted by reference as Exhibit B is a simply written, one-page outline of the various stages included in the review and appeal process; the outline must be included with each written notice required in the subchapter to be sent to the individual or parent. Revisions to sec.402.281 clarify that the subchapter does not apply to facility residents admitted under respite or emergency status, nor to the movement of residents from one unit to another within the facility. In sec.402. 285(f), the word "significant" is deleted as being unnecessary and redundant. Typographic errors have been corrected in the definition of "mental retardation authority" in sec.402.283 and in subsection a of sec.402.287. Also in sec.402.287(a), language has been added which requires the placement review team to arrive at a consensus recommendation. In sec.402.287(b), clarifying language has been added which specifies that the placement review team may choose to conduct interviews in addition to reviewing the written summary of the IDT meeting and the individual's record. In sec.sec.402.286-402.289, clarifying language has been added regarding timeframes. Of special note is the change in sec.402.287(a) which requires a placement review team to meet within 21 days rather than 14 days of the IDT meeting at which a consensus recommendation could not be reached. The change was made because the designated IDT member is allowed 14 days in which to produce a summary of the proceedings which would be used by the placement review team during its deliberations. Language in sec.402.288(c) has been revised to clarify that the setting being considered by the IDT need "an appropriate placement" instead of "the most appropriate placement." The title of sec.402.289 has been changed to reflect that the section contains provisions which deal with preparing for an administrative hearing, as well as initiating the hearing process. Language has been revised throughout Exhibit A (the operating instruction) to correspond with changes in the text of the subchapter. The title of Exhibit B has been changed to "Outline of Placement Appeals Process" rather than "Summary of Placement Appeals Process" to avoid confusion with the summary which is required to be prepared in sec.402.286(c). A public hearing was held on March 4, 1993, but no testimony was offered. Written comments were received from six parents of individuals receiving residential mental retardation services at TXMHMR facilities; two community mental health and mental retardation centers; Advocacy, Inc.; Association for Retarded Citizens, Texas; and from the plaintiffs' attorney in Lelsz vs. Kavanagh. Several commenters commended the department on the proposal. One commenter described the proposal as "extremely well-done" and having "achieved its goal of developing an instruction that is more understandable." The Association for Retarded Citizens, Texas declared itself to be "pleased to support the promulgation of these rules as presented," adding that the proposal represents "a substantial improvement over current rule." The plaintiffs' attorney in Lelsz vs. Kavanagh offered no comments other than to concur with the comments of Advocacy, Inc., especially those relating to the need for a designated advocacy in specific situations. The department responds that a provision in the definition of "parent" provides for either an advocate for the individual who may or may not be a family member; the provision calls for facility staff to assist any individual to obtain an advocate. The department adds that due to inadequate resources it is not possible to provide an advocate for every individual receiving mental retardation services. In addition, the department believes that the consensus- building process required in this subchapter has the potential for handling any conflicts between a parent and the facility staff serving on the IDT. One commenter called for reinstatement of a provision from an early draft of the proposal which allowed the parent to veto an IDT recommendation for placement in a specific community setting. Another commenter provided alternative language for the process described in sec.sec.402.285-402.288 that effectively give the parent veto power. The department responds that the Health and Safety Code, Title 7, sec.592.013, guarantees the right of an individual with mental retardation to live in the least restrictive environment appropriate to the individual's needs and abilities, and that sec.594.011 requires the department to transfer, furlough, or discharge a resident for whom the facility no longer represents the least restrictive environment. This statute allows parents or minors and legal guardians the right to have an administrative hearing. Another commenter requested that parents have the "right to appeal any decision which leaves them out of the decision-making process" and any other decisions that "don't seem right to them." The department responds that both the current subchapter and the proposed subchapter provide for the involvement of both the individual and family in decisions regarding placement as is required by the Health and Safety Code, Title 7, the Subtitle D, Persons with Mental Retardation Act. The sections provide that the parent of the incompetent individual is included as a full member of the interdisciplinary team (sec.402.183, definition of IDT); the parent of the competent individual is included unless the individual chooses to exclude (sec.402.285(d)). One commenter commended the department on requiring "consensus" as opposed to majority rule with respect to IDT decisions, and on shifting the burden of proof from the individual and/or parent to the department during review and appeal procedures regarding the appropriateness of a placement recommendation. The department appreciates the commendation and notes that in sec.402.295, training on consensus-building is required of all facility staff who serve on IDTs or placement review teams. It is also noted that Exhibit C to the subchapter is a "job a`ide" developed by the department's Human Resource Development division in Central Office; it is recommended for use in providing "informal guidance" at the beginning of IDT meetings to enable all participants to feel comfortable with the consensus process. A commenter stated that the revisions are not easier to understand and user- friendly, citing as a primary example the use of the phrase "rules of privilege recognized by law" in the section of the operating instruction which discusses the role and responsibilities of the administrative hearing officer. The department responds that the phrase has a precise meaning to an attorney who serves as a hearing officer. It refers to documents and conversations, such as those relating to doctor/patient or attorney/client relationships, which are by law confidential and may not be required to be disclosed; those documents and conversations are, therefore, "privileged." A commenter observed that the definitions of "competent" and "incompetent" in sec.402.283 imply that the terms are defined in the Health and Safety Code when they are not. The department acknowledges the discrepancy and has rewritten the definitions to more accurately reflect their derivation from the Health and Safety Code, Title 7, sec.591.006, which deals with consent. In addition, a definition for "legally adequate consent" has been added which incorporates relevant provisions of the proposed definitions for "competent" and "incompetent." Another commenter offered alternative definitions of "guardian," "interdisciplinary team," and "parent." The department responds that the definitions have been modified although the language offered by the commenter was not always used. "Guardian" has been revised to include a reference to limited guardianships. The definition of "interdisciplinary team (IDT)" has been modified to include the more general description of IDT membership from the Health and Safety Code as requested; the detailed language of the proposed definition regarding the professions and disciplines which are to be represented on the team has been retained. The shorter and generalized language offered by the commenter as a definition of "parent" was not accepted; instead, the definition now includes reference to "an unrelated" advocate who may act in behalf of the individual instead of a family member. The department suggests that this latter language meets the commenter's additional request for a definition of "non-family advocate. A commenter noted that the purpose of the IDT is to make recommendations only and urged that the parent be regarded as a "valued member of the team as opposed to an invited guest." The department responds that the sections state clearly that the IDT "shall make a recommendation" regarding placement, and that nothing in the sections is intended to imply that the parent is anything other than a valued member of the IDT. Another commenter commended the department specifying that a member of the facility's public responsibility committee may serve on the IDT if requested by the individual or parent. A commenter requested the addition of the following terms to sec.402.283: annual planning conference, family advocate, and managing conservator. The department responds that it is not necessary to define annual planning conference since the purpose of the meeting is self-evident from the text; nor is a definition of family advocate necessary since the term is incorporated into the definition of "parent." The department has added a definition of "managing conservator." The commenter recommended that the term "placement review team" and the process which calls for the team be stricken from the subchapter because "a team made up of facility employees, appointed by the head of the facility would be biased in favor of upholding the previous recommendation of the IDT and the facility head." The department responds that the sections provide that the team is to be activated only when there is no IDT recommendation due to lack of consensus. In addition, the process described in the sections never calls for the head of the facility to make a recommendation regarding placement issues. A commenter questioned whether the mental retardation professional who is to serve on the placement review team could be a representative of the MRA. The department responds that with the exception of a representative from the facility's Public Responsibility Committee, all members of the team are employees of the facility. Clarifying language has been added to the definition in sec.402.283. A commenter requested that the provisions of Exhibit A, commonly referred to as the Operating Instructions (OI), be incorporated into the text of the subchapter to ensure that those provisions have the same force as the rule. The department responds that because Exhibit A is adopted by reference in sec.402.284, the provisions of the OI have the same force as those of the subchapter; also, the exhibit is intended to provide a simpler-to-follow-and-understand format than the more complex, but mandatory format of the subchapter. A commenter requested the inclusion of language in sec.402.285(a) that would permit the parent to determine whether or not the incompetent individual may attend IDT meetings. Another commenter contended that the parent must always be included in IDT meetings. The department responds that the Health and Safety Code, Title 7, sec.592.035, guarantees that the individual, whether competent or incompetent, has the right to participate in all aspects of service planning, including issues regarding placement. That same section specifies that the parent may take part if the individual is a minor or the parent has been named the guardian of the person of an individual. One commenter requested written notice of IDT meetings should be sent 14 days in advance. Another commenter stated that the complete subchapter and Exhibit A, the operating instruction (A) should be enclosed with all notifications instead of just the one-page outline of the appeals process (Exhibit B). The department responds that the 14 day timeframe for advance notice of IDT meetings is spelled out in the OI. Also, the department explains that while the one-page outline was developed specifically for enclosure with such notices, the individual and/or parent may request a copy of the complete subchapter and exhibits. Another commenter expressed concern with the requirement that notices be sent by certified mail, return receipt requested and suggested that people are intimidated when they receive certified mail and may not pick up the letter or respond. The commenter suggested followup by staff to ensure the notice is collected by the parent. The department responds that while the intent of the provision was to ensure parents were notified of meetings, it is recognized that this requirement can cause a hardship, especially when the intended recipient must take time away from a job to pick up the letter at the post office. Therefore, the provisions has been modified to require delivery of notices to parents by regular mail, with followup by facility staff to ensure receipt. One commenter questioned whether an administrative hearing could be held when the placement review team's recommendation is for alternate placement and the individual or parent objects, just as it is when the recommendation is for continuation of the current placement. The department responds that language has been added to sec.402.287(c) clarifying that a hearing is held only if the recommendation is for continuing the current placement; when the recommendation is for alternate placement, facility staff are to initiate the search for an appropriate placement. In addition, the new language specifies that the placement review team is to notify the head of the facility within one working day if a hearing must be held. Another commenter questioned how an objection to continued placement of an incompetent individual with no parent could be lodged, and suggested that the facility's Human Rights Officer could fill that role or that the department should designate an advocate. The department responds that resources are not available for the implementation of either suggestion. Three commenters requested that the entire IDT be required in sec.402.288(b) to visit a setting proposed for alternate placement of an individual. The department responds while this would be the optimal situation, facilities lack sufficient monetary, time, and staff resources to do so. Another commenter stated that it is impractical to wait as required in sec.402.288(d) until a specific setting has been located and the IDT has failed to reach a consensus recommendation regarding placement of the individual in that setting for an administrative hearing. The commenter added that most providers cannot justify holding a community-based setting open for the months that appeals might take. The department responds that the hearing must be held within 31 calendar days of the IDT meeting (see sec.402.289(c)) so there will be no delays of several months. Three commenters stated that the hearing officer should never be a department employee as is permitted in sec.402.289(b). One of the commenters recommended that the hearing officer be an attorney from another state agency or from the private sector. Another of the commenters objected to language requiring the hearing officer to be selected "in the manner most economical to the department." A fourth commenter suggested that when a non-department attorney is not available to conduct a hearing that the facility contract with the state's Office of Administrative Hearings. The department responds that for some years hearings have been conducted only by attorneys with whom the department contracts for just that purpose. It is the intent of the department to continue that practice. Regarding the suggestion of turning to the Office of Administrative Hearings, the department notes that in the past the number of hearings has been so low that resorting to this option has not been necessary; in addition, the department believes it is preferable to utilize attorneys who are familiar with the relevant portions of the Health and Safety Code and agency rules. A commenter requested that parents be given 14 days' notice of the date for a public hearing rather than the seven days specified in sec.402.189(e). The department responds that the short notice period is necessary because the Health and Safety Code, Title 7, sec.594.015(a), requires that administrative hearings be held no later than 30 days following the date of the request for the hearing. The same commenter stated that employees of the department should not be permitted to assist the hearing officer as is allowed in sec.402.289(h). The department responds that the hearing officer must have the option of calling on the expertise and knowledge of departmental employees, as well as non-employees, if necessary to render a fair judgement. Two commenters suggested that if the hearing officer should have to be replaced before judgment is rendered, as is permitted in sec.402,289(i), a new hearing must be held with the new officer. The department responds that a provision has been added in sec.402.292 which requires that all hearings be audiotaped; this will permit a new hearing officer to review the proceedings to date and continue the hearing with no time or placements lost. The same two commenters stated that a prehearing conference must not be held unless all participants to the hearing agree and are in attendance. The department responds that the proposed language in sec.402.291(a) provides for the involvement of all participants in a prehearing conference. The amendments and new sections are adopted under the Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking authority. sec.402.281. Purpose. The purpose of this subchapter is to describe the policies and procedures concerning the review and appeal of placement recommendations involving individuals receiving residential services in mental retardation facilities. These policies and procedures are not applicable in situations involving individuals admitted to the facility under respite or emergency status, nor to the movement of an individual from one unit to another within the facility. sec.402.283. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Competent-A term used to designate the ability of an individual with mental retardation to give legally adequate consent, as determined by the interdisciplinary team. Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation. Consensus-A negotiated agreement that all team members can and will support in implementation. The negotiation process involves the open discussion of ideas with all parties encouraged to express opinions. Department-The Texas Department of Mental Health and Mental Retardation. Deputy commissioner -The deputy commissioner for Mental Retardation Services. Facility-Any state school or state center of the department which provides residential mental retardation services. Guardian- (A) A plenary guardian of the person of an individual with mental retardation; or (B) A limited guardian of the individual with mental retardation who is authorized to provide consent regarding placement issues under Texas Probate Code sec.130A-O. Head of the facility-The superintendent or director of a facility. Hearing officer -Any person designated or commissioner to conduct hearings pursuant to this subchapter. Incompetent-A term used to designate the inability of an individual with mental retardation to give legally adequate consent, as determined by the interdisciplinary team. Individual-A person receiving residential mental retardation services provided by a facility. This does not include a person in the community receiving services provided through a facility's community-based services program. Interdisciplinary team (IDT)-A group of mental retardation professionals and paraprofessionals plus other concerned persons who assess the individual's treatment, training, and habilitation needs and make recommendations for services. These group members function as a team and include: (A) the individual and the parent, unless the competent individual has requested that the parent be excluded; (B) as specified by the facility, persons who are professionally qualified, certified, or both, in various professions with special training and experience in the diagnosis, management, needs, and treatment of individuals with mental retardation; (C) persons who are directly involved in the delivery of mental retardation services to the individual; (D) representative(s) of the appropriate mental retardation authority; and (E) member(s) of the facility's public responsibility committee (PRC), if requested by the PRC, the competent individual, or parent of the incompetent individual. Legally adequate consent-A term consistent with provisions of the Health and Safety Code, Title 7, sec.591.006 (formerly Persons with Mental Retardation Act, Vernon's Civil Statutes, Article 5547-300, sec.3) concerning consent obtained from an individual with mental retardation which is legally adequate when each of the following conditions has been met: (A) legal capacity: The individual giving the consent is of the minimum legal age and has not been adjudicated incompetent to manage personal affairs by an appropriate court of law; (B) comprehension of information: The individual giving the consent has been informed of and comprehends the nature, purpose, consequences, risks, and benefits of, and alternatives to the procedure, and the fact that withholding or withdrawal of consent shall not prejudice the future provision of care and services to the individual with mental retardation; and (C) voluntariness: The consent has been given voluntarily and free from coercion and undue influence. Managing conservator -A suitable and competent adult, a parent, or an a court to represent the interests of a minor child. Mental retardation authority (MRA)-The entity designated by the commissioner to direct, operate, facilitate, and/or coordinate services to individuals with mental retardation in a particular service area of the state as are required to be performed at the local level by state law and the department. Parent- (A) the natural or adoptive mother or father of the individual, but not a mother or father whose parent-child relationship has been legally terminated; (B) a family member or an unrelated advocate who acts in behalf of the individual instead of the natural or adoptive mother or father and is listed as the primary correspondent for the individual. An individual may choose to have an advocate in addition to a family member; facility staff shall assist the individual in obtaining an advocate; (C) a legally appointed guardian of the individual; or (D) a legally appointed managing conservator of the individual. Placement review team-A group of persons of the facility to review placement options for an individual when the individual's IDT is unable to arrive at a consensus recommendation regarding placement. None of the persons shall have served on the IDT. Included on the committee will be: (A) representatives of the professional disciplines (psychology, social work, and medical or nursing) who are employees of the facility; (B) a mental retardation professional who is an employee of the facility and who has knowledge of community programs; and (C) a member of the facility human rights committee and/or the public responsibility committee. Pleadings-Written statements filed by participants concerning their respective positions, claims, and rights in administrative hearings. Preponderance of the evidence-The body of evidence which, when fairly considered, produces the stronger impression. The superiority of weight of testimony is determined by the opportunity for knowledge, the information possessed, and the manner of testifying, rather than by the greater number of witnesses. Public Responsibility Committee (PRC)-An independent, impartial third-party mechanism, the functions, duties, and responsibilities of which are described in Chapter 410, Subchapter A, relating to Public Responsibility Committees. Each facility must have a PRC. sec.402.285. General Provisions. (a) The individual, whether competent or incompetent, always has the right to be present and to participate in IDT meetings and administrative hearings. The desires and aspirations of the individual, whether competent or incompetent, shall be given careful consideration when recommendations are made concerning placement. (b) Communication devices and techniques (including the use of sign language) shall be utilized, as appropriate, to facilitate the individual's involvement in the placement process and to ensure that the individual is able to make those desires and aspirations known. (c) Recommendations shall be based on the determination of the least restrictive environment as outlined in Chapter 402, Subchapter G of this title (relating to Determination of the Least Restrictive Environment-Mental Retardation Services.) (d) The competent individual has the right to exclude the parent from participation in: (1) meetings of the interdisciplinary team (IDT) at which placement is to be discussed; and (2) all review and appeal procedures. (e) If the competent individual wishes to include the parent, facility staff shall encourage attendance and participation by the parent. Every reasonable attempt shall be made to schedule meetings at a time that is convenient for the parent who is involved in the process. (f) The burden of proof in an administrative hearing lies with facility staff on the IDT to prove by the preponderance of the evidence that a potentially appropriate setting is of benefit to the individual and meets the right of the individual to live in the least-restrictive environment as guaranteed in the Health and Safety Code, Title 7, Subtitle D, sec.592.013 and sec.592.032. (g) Recommendations by the IDT and the placement review team, as well as the final decision by the hearing officer in an administrative hearing, shall be documented in the record of the individual. (h) If a placement recommendation is under review or appeal as of the effective date of this subchapter, that stage of the process shall be completed under the provisions of the old subchapter. (i) Notices to either the competent individual or the parent of the incompetent individual shall be: (1) in that person's primary language; (2) accompanied by a copy of Outline of Placement Appeals Process, which is herein adopted by reference as Exhibit B; and (3) delivered either in person or by regular mail, as appropriate. Facility staff shall contact the person to whom a notice is mailed to ensure its receipt. sec.402.286. Placement Recommendation by Interdisciplinary Team. (a) During the annual planning meeting or during a special planning meeting held to consider the placement of an individual residing in a facility, the IDT shall determine by consensus whether the current placement constitutes the least restrictive environment. (b) The IDT shall make a recommendation for: (1) continuation of the current placement; (2) alternate placement in another facility; or (3) alternate placement in a community setting. (c) A summary of the discussion is prepared by a designated facility employee serving on the IDT which includes a fair and accurate recounting of all viewpoints expressed during the meeting. The summary is provided to the competent individual or parent of the incompetent individual within 14 calendar days of the meeting. (d) If there is no consensus, the IDT shall notify the head of the facility within one working day. The head of the facility shall name a placement review team. sec.402.287. Appeal to the Placement Review Team. (a) The placement review team shall meet within 21 calendar days of the IDT meeting and review the summary prepared by the designated IDT member and the record of the individual. The team must arrive at a consensus recommendation for: (1) continuation of the current placement; (2) alternate placement in another facility; or (3) alternate placement in a community setting. (b) In arriving at its recommendation, the placement review team may choose to interview the: (1) individual; (2) parent of the individual, unless the competent individual has excluded the parent from participation in the placement process; (3) other members of the IDT; and/or (4) other facility staff. (c) If the placement review team's recommendation is for continuation of the current placement and the competent individual or parent of the incompetent individual objects, the team shall notify the head of the facility, within one working day, of the need for an administrative hearing. If the placement review team's recommendation is for alternate placement in either another facility or a community setting, facility staff shall initiate the process to find an appropriate setting. sec.402.288. Specific Alternate Placement Recommendation by IDT. (a) The IDT shall be convened when a potentially appropriate setting becomes available for an individual recommended for alternate placement in the community or in another facility. (b) A facility employee serving on the IDT who personally knows the individual shall visit the proposed setting prior to the meeting. The individual and parent-if the competent individual wants the parent to be involved-shall be encouraged to visit the proposed setting prior to the meeting. (c) The IDT shall determine by consensus whether the setting is an appropriate placement for the individual and shall make a recommendation for: (1) continuation of the current placement, or (2) the alternate placement. (d) If there is no consensus, the IDT shall notify the head of the facility within one working day, of the need for an administrative hearing. sec.402.289. Initiating and Preparing for the Administrative Hearing Process. (a) The head of the facility shall inform the deputy commissioner of the need for an administrative hearing within one working day of being notified by either the placement review team as described in sec.402. 287(c) of this title (relating to Appeal to the Placement Review Team) or the IDT as described in sec.402.289(d) of this title (relating to Specific Alternate Placement Recommendation by IDT.) Within five working days of being notified by the head of the facility, the deputy commissioner shall appoint a hearing officer. (b) When feasible, the hearing officer shall be an attorney who is not an employee of the department. If this is not feasible, the person appointed shall: (1) not be permanently employed at the facility where the individual who is to be the subject of the hearing is a resident; (2) not have participated in any aspect of the care and treatment of the individual who is to be the subject of the hearing; and (3) be selected in the manner most economical to the department. (c) The hearing shall be held not less than 14 calendar days but not more than 30 calendar days from the date the deputy commissioner received the request for the hearing. (d) The hearing officer may set a time outside regular business hours and a place away from the facility where the individual resides if a timely request is made by the competent individual or parent of the incompetent individual and the hearing officer determines good cause exists for such a determination. The location selected must be accessible to persons with handicaps. (e) No less than seven working days in advance of the hearing date, notice of the hearing shall be served on all participants, including the individual, the parent of the incompetent individual, and the head of the facility, as well as their legal counsel or lay representative(s) as described in sec.402.290(a) of this title (relating to Representation of Parties During an Administrative Hearing). (f) The hearing officer shall ensure that written notice of the hearing is served personally or by certified mail, return receipt requested. (g) The hearing officer may postpone or continue the hearing until a later date if, in the officer's sound judgment and discretion, there is good cause to do so. Good cause includes, but is not limited to, a finding that a later date would: (1) result in a more just determination of the issues; and (2) not endanger the welfare of the individual. (h) The hearing officer may designate one or more employees of the department or other knowledgeable persons to assist in the evaluation of evidence presented at the hearing. (i) At any time before final judgment is rendered, another hearing officer shall be appointed by the deputy commissioner to perform any remaining functions without having to repeat the previous proceedings in the case if the first hearing officer should die, become disabled, withdraw or be removed from employment, or withdraw or be removed from the proceeding. sec.402.292. Conducting an Administrative Hearing. (a) The burden of proof in an administrative hearing lies with facility staff on the IDT to prove by the preponderance of the evidence that a potentially appropriate setting will benefit the individual and meets the right of the individual to live in the least restrictive environment as guaranteed in the Health and Safety Code, Title 7, Subtitle D, sec.592.013 and sec.592.032 (formerly the Persons with Mental Retardation Act, Vernon's Civil Statutes, Article 5547-300). (b) The administrative hearing shall be closed to the public unless the competent individual or the parent of the incompetent individual requests a hearing open to the public. (c) The facility shall provide language interpreters and/or an interpreter for the hearing-impaired upon timely request made by a competent individual or the parent of the incompetent individual, legal counsel or lay representative, or upon order of the hearing officer. (d) The proceedings shall be tape recorded. Any part of the tapes shall be transcribed on the written request of any participant and copies shall be distributed as described OI 401 -1 governing Inspection of Department Records, and Chapter 403, Subchapter K, relating to Client-Identifying Information. sec.402.294. Briefing of Staff on Policy. A briefing on the purpose of and major issues addressed in the subchapter and operating instruction shall be provided within 60 calendar days of the effective date of this subchapter to all facility staff who serve or may serve on an IDT or a placement review team, and/or are involved in community placement activities. sec.402.295. Training. (a) Training on consensus-building shall be provided for all facility staff who serve on IDTs or placement review teams. The topic is covered in two chapters of the IDT curriculum developed by Human Resource Development in Central Office. (b) Informal guidance concerning the principles of consensus-building is recommended as the first order of business for each IDT meeting. A job aide on Principles of Consensus-Building, which is attached as Exhibit C to the subchapter, can be helpful in this regard. sec.402.296. Exhibits. (a) Exhibit A-Operating Instruction (OI) 402-H, governing Placement Appeals Procedures; (b) Exhibit B-Outline of Placement Appeals Process; and (c) Exhibit C-Principles of Consensus Building. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 14, 1993. TRD-9324790 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: September 1, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 465-4670 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 3. Life, Accident, and Health Insurance Subchapter II. Insurance Sold in Connection with Prepaid Funeral Contracts 28 TAC sec.3.9001, sec.3.9002 State Board of Insurance of the Texas Department of Insurance adopts new sec.3.9001 and sec.3.9002, concerning Insurance Sold in Connection with Prepaid Funeral Contracts, without changes to the proposed text as published in the April 20, 1993, issue of the Texas Register (18 TexReg 2518). new sections are necessary to promulgate as a rule the Joint Memorandum of Understanding between the Texas Funeral Service Commission, the Texas Department of Insurance and the Texas Department of Banking. This Joint Memorandum of Understanding is required by Texas Civil Statutes, Article 4582b. new sections provide a description of the statutory responsibilities of the three agencies and the procedures by which the agencies will coordinate their regulatory activities in the area of prepaid funeral services and transactions. comment was received on the sections. The commenter expressed support for the new sections because they would bring the three agencies together to work toward consistent regulation of the pre-arranged funeral industry. The commenter expressed concern that a penalty being levied against a company might be duplicated or tripled as a result of penalties being levied by other agencies. The commenter requested language in the Joint Memorandum or the regulations promulgated pursuant to the Memorandum, which would limit penalties levied to only one agency; the agency with direct regulatory responsibility. insurance company, The Midland Mutual Life Insurance Company, commented on the rules, and was generally in favor of them. agency agrees with the comment that the new sections will bring the three agencies together to provide more consistent regulation of the industry. The agency disagrees with the request that only the agency with direct regulatory responsibility levy penalties. If a company violates one of the agency's regulations, that agency has direct regulatory responsibility for that violation. If the company also violates regulations of another agency, that agency has the same direct regulatory responsibility for the violation of its regulations. The amount of penalties is a matter which can be addressed through the administrative law process before each agency. new sections are adopted under Texas Civil Statutes, Article 4582b, Insurance Code, Article 1.04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. Texas Civil Statutes, Article 4582b, sec.4(I), mandate the Texas Department of Insurance, the Texas Funeral Service Commission and the Texas Department of Banking to enter into a Joint Memorandum of Understanding and mandates that each agency promulgate the Joint Memorandum of Understanding as a rule. Insurance Code, Article 1.04(b), provides the board with authority to determine rules in accordance with the laws of this state. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. REFERENCE TO STATUTE The following statutes are affected by this rule: sec.3.9001-sec.3.9002 The Insurance Code Article 1.04. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 28, 1993. TRD-9324906 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 19, 1993 Proposal publication date: April 20, 1993 For further information, please call: (512) 463-6328 Chapter 5. Property and Casualty Insurance Subchapter A. Automobile Insurance Motor Vehicle Damage Claims, Coverage, Settlement, and Disclosure Practices 28 TAC sec.5.501 The State Board of Insurance of the Texas Department of Insurance adopts new sec.5.501, concerning motor vehicle damage claims, coverage, settlement, and disclosure with changes to the proposed text as published in the March 30, 1993 issue of the Texas Register (18 TexReg 2124). During the period for public comment for the proposed new section, a public hearing was requested and convened June 10, 1993, as Docket Number R-1997. As a result of the many comments received during the comment period and the hearing pursuant to Docket Number R-1997, the adoption includes changes to the new section, including revisions to subsections (a)-(e), as well as the addition of a new subsection (f) and the resequencing of proposed subsection (f) as subsection (g) in the adoption. The section is necessary to assure full and adequate disclosure of claim settlement rights for insurance consumers and to identify certain prohibited practices in the settlement of motor vehicle damage claims. The new section will assure orderly implementation of the Insurance Code, Article 5.07-1, and the effective disclosure of beneficiaries' rights pursuant to auto insurance policies. The adoption contains a number of changes to the section as proposed and published. There are three changes to subsection (a). The first change to subsection (a) replaces the word "policies" with the words "an auto insurance policy" to clarify the types of insurance policies to which the section applies. The second change to subsection (a) makes it clear that the provisions of the section are not intended to preclude any company filing of endorsements and rate rules for consideration of approval by the board which would be available under the Insurance Code, Article 5.07-1(b). The third change to subsection (a) further clarifies that any such rate rules or endorsements so adopted and any policies that are issued with such endorsements are not subject to the provisions of the subsection. The change to subsection (b) clarifies the definition of "reasonable rate of reimbursement" by deleting the adjectives "particular" and "physical" with respect to "repairs" and "damage to a motor vehicle", respectively. The change to subsection (c) makes it clear that the activity prohibited in paragraph (2) is the establishing or maintaining of reimbursement rates for repair that fail to reasonably reflect the costs of obtaining those repairs as indicated in written procedures that are developed and utilized by an insurer in compliance with subsection (d). Subsection (d) is changed in four respects. The first change to subsection (d) clarifies that insurers are to develop written procedures and follow those procedures in determining reasonable reimbursement rates for repairs for damage to motor vehicles. The second change to subsection (d) requires that written information specifying how a rate of reimbursement is determined for any given repair is to be provided upon the request of a beneficiary when a claim is submitted. The third change to subsection (d) is the addition of paragraph (3), which requires an insurer to furnish the beneficiary a copy of the recommended repair facility's original invoice itemizing charges for, and quality and cost of, replacement parts in instances where a repair facility has been recommended by the insurer. The fourth change to subsection (d) is the addition of a new paragraph (6) to include information about how much the insurer will pay for a covered repair performed by a repair facility of the beneficiary's choice if the beneficiary so requests when filing a claim. Subsection (e) is changed in four respects. The change to subsection (e)(2), makes it clear that the disclosure may be provided as the first, second, or third page of the policy or certificate, in lieu of being provided in writing on the face of the policy. The change to subsection (e)(3), clarifies the manner in which and circumstances under which the disclosure is to be provided. The changes to subparagraphs (A) and (B) of paragraph (3) in turn clarify circumstances under which and time frames within which provision of the oral and written disclosures are to be made. The change to subsection (e)(4), makes the specific provisions of the notice more clear. The addition of new subsection (f) creates a provision excepting application of the section's provisions to self-propelled motor vehicles that have built-in facilities for cooking, sleeping and personal sanitation and hygiene. Adopted sec.5.501(a) sets out the purpose of the section. It also clarifies that adopted sec.5.501 applies to an auto insurance policy promulgated by the board, and is not intended to preclude any company filing of endorsements and rate rules for consideration by the board which would provide for limitations anticipated in the Insurance Code, Article 5.07-1 and subject to Article 5. 07- 1(b). Adopted sec.5.501(b) contains definitions of essential terms. Adopted sec.5.501(c) identifies specific insurer activities which are prohibited in the settlement of motor vehicle damage claims and declares such activities to be unfair trade practices or deceptive trade practices under the Insurance Code, Article 21.21. Adopted sec.5.501(d) sets out minimum requirements for determination of a reasonable rate of reimbursement for motor vehicle repairs. Adopted sec.5.501(e) contains specific requirements for consumer disclosure under the section and sets out language and format for such disclosure. Adopted sec.5.501(f) creates a provision excepting application of the section's provisions to self-propelled motor vehicles that have built-in facilities for cooking, sleeping and personal sanitation and hygiene. Adopted sec.5.501(g) contains provisions for severability. A total of 31 written submissions were received in connection with publication of proposed new sec.5.501. Some of those commenting transmitted the same comments both by facsimile and by mail. Of those commenting, ten were in favor of the proposed section, 15 were against the proposed section, and the remaining six commented on the proposed section, rather than clearly in favor or clearly against the proposal. Those commenting on the section generally had specific recommendations, such as alternate placement of the notice, alternate language for the notice, or made specific requests such as exemption from application of the section or request for public hearing. Those submitting written comments in favor of the proposed section included the Automotive Service Association, Bay Tex Glass Association, Texas Automobile Dealers Association, Texas Collision Association, Texas Glass Association, and five individual consumers. Those who submitted written comments against the section as published included Allstate Insurance Companies, Art's Auto Paint and Body Shop, Autocomp Replacement Systems, Farmer's Insurance Group, Gem Agencies, John Nanninga Insurance Agency, Nationwide Insurance, Safelite Glass Corp, Service King Paint and Body Shop, Southern Farm Bureau Casualty Company, Texas Farm Bureau Insurance Company, Texas Farm Bureau Underwriters, USAA, and two individual consumers. Those who submitted written comments on the section as published included Employers General Insurance Group, Inc., Foremost County Mutual Insurance Company, National Association of Independent Insurers, Novus Systems, Progressive Insurance Company, State Farm Insurance Companies, and the Texas Automobile Dealers Association. Comments of those favoring adoption of the section were as follows: 1. The proposed section provides for greater assurance of freedom of choice and protection of a consumer's right to choose the repair shop the consumer wants. 2. The prohibited activities identified in the proposed section help to clarify the Insurance Code, Article 5.07-1, and to assist in effective implementation of that article. 3. Setting out the specific prohibited activities in the proposed section is necessary to ensure that consumers are aware of the rights they have in connection with insurance claims. 4. The reasonable rate of reimbursement is addressed rationally in the proposed section; it makes sense to have an insurance company establish written procedures for determining the rate of reimbursement for claims. 5. The disclosure required by the proposed section makes good common sense. The wording is accurate and necessary to the purpose of the notice. Comments and responses on or against the section are as follows: 1. The section as proposed and published exceeds the rulemaking authority of the Board. The Department responds that the statement of statutory authority in the preamble to the section as proposed and published at (18 TexReg 2124) on March 30, 1993, contains an accurate and sufficient basis upon which the section can be proposed and adopted. The Board has determined that the new section is essential to the uniform, orderly and effective administration of Article 5.07- 1, consistent with the legislative intent apparent from the specific provisions of that statute. 2. The section as proposed and published, and with changes recommended by the staff at hearing, prohibits insurers' sponsored cost savings programs that benefit policy holders by providing quality services. The Department does not believe that the section as proposed and published, or with changes recommended by the staff at hearing, prohibits insurers from sponsoring voluntary cost savings programs to benefit policyholders by providing quality services. The Department does not believe that any provision in the section as proposed results in such a prohibition. What the section is designed to prevent is the use of such programs to preclude freedom of choice by beneficiaries with claims. The adopted section as prohibits insurers from not disclosing to the beneficiary the right to choose a repair facility of the beneficiary's choice. The section also details the manner in which that disclosure is to be made. The section also prohibits certain practices that directly or indirectly limit coverage under the policy in contravention of Article 5.07-1. 3. One comment urged that the section as proposed and published exceeds the board's jurisdiction under Article 21.21, sec.13. An alternative comment urged that the board has clear authority under Article 21.21, sec.1 and sec.13, to adopt the section. The Department disagrees with the first comment and agrees with the second comment. The Board has repeatedly pointed to specific provisions in Article 21.21 which grant it clear authority to consider and adopt the section as proposed. 4. The section as proposed and published is overbroad because it attempts to completely foreclose legitimate special programs by insurers designed to reduce repair costs and because it labels as unfair and deceptive acts and practices which are neither unfair nor deceptive. The Department disagrees with this comment. The primary purposes of the section are to ensure effective disclosure to beneficiaries of certain rights they have in connection settlement of particular types of claims, and to prohibit practices by insurers that would preclude the exercise of freedom of selection by such beneficiaries. Subject to those provisions, the section does not prohibit the existence of legitimate programs by insurers designed for the benefit of its insurers and consumers generally to provide quality repairs at reduced costs. 5. The section as proposed and published violates public policy which would adequately compensate claimants for damages they suffer, while at the same time keeping rates as low as possible, by prohibiting the promotion of lower cost programs that arguably provide repairs of sufficient quality to adequately compensate claimants. Alternatively, the section as proposed and published is excessive in requirement and not in the public interest. The Department believes the section as proposed embraces and supports good public policy, which not only strives for adequate compensation of claimants for damages suffered, but also emphasizes recognition and disclosure of the consuming public's right to make certain decisions in an informed and unrestrained manner. However, since the section represents a means of clarifying Article 5.07-1, it is in no sense intended to be inconsistent with that article or any insurance law which has as its purpose the achievement of premium rates for consumers that are as low as possible. The adoption does, however, add language to subsection (a) to clarify that this section does not preclude the filing or approval of endorsements providing the types of limitations contemplated in Article 5.07-1(b). 6. The language in subsection (a) as published does not clearly provide which insurance policies are subject to the section, and even with the additional language referred to in Comment Number 5, previous, the subsection does not adequately except from the provisions of this section the possible endorsements, policies and rules envisioned in the Insurance Code, Article 5. 07-1(b). Thus, the section fails to meet the terms of Article 5.07-1. The Department disagrees with this comment because the section represents a means of clarifying Article 5.07-1, but the Department also makes a further change to subsection (a) resulting from this comment. First, the provisions of the section are in no sense intended to be inconsistent with or contrary to the terms of Article 5.07- 1 or any insurance law which has as its purpose ensuring that coverage for damage to a motor vehicle is neither directly nor indirectly limited. The Department again points out that the adoption further revises subsection (a) to clarify that the section applies to an auto insurance policy, but not to rules, endorsements or policies issued with such endorsements which are considered and adopted by the Board pursuant to Article 5.07-1(b). 7. The section as proposed and published is impractical because it fails to recognize the manner in which claims are processed. Since many of the claims processing matters are conducted over the telephone, the oral disclosure, choice by the insured, and the repair work itself may all have been completed before the written notice required by the section has been received by the beneficiary. The Department disagrees that provisions of the section result in impracticality of the section. The provisions of the section are set out to provide disclosure and to prohibit certain practices. They are not intended to interfere with the timely and efficient processing of claims. While the Department believes that in some instances the operation of the section might have the unintended result that a beneficiary will receive the written confirmation of the beneficiary's right to choose a repair facility after that choice has in fact already been made, the Department does not believe this renders the section impractical or impracticable. 8. Incentives such as guarantees for repairs to be done satisfactorily should be permitted if a particular repair facility is chosen. The Department agrees with the concept of this comment, but is not certain about its context, since it was propounded in opposition to the section as proposed. The section as proposed does not prohibit incentives similar to the one used as an example in this comment, depending on what entity is providing the guarantee. It does, however, prohibit the use of such incentives as inducements or means by which to preclude freedom of choice by a beneficiary of any repair facility. 9. The section as proposed and published would prohibit efficient delivery of high quality auto repairs through large providers and would benefit only the providers of less efficient and more costly service. The Department disagrees with this comment. The purpose and provisions of the section as proposed is to ensure disclosure of certain matters to beneficiaries and to prohibit practices that would interfere with a beneficiary's legitimate right to choose under law where repairs are to be performed. It does not prohibit delivery of auto repairs through large providers or through small providers. It does not prohibit insurers from making recommendations, so long as such recommendations are not structured in a manner that would preclude beneficiaries from exercising their right to choose. 10. Insurers should be allowed to advise their insureds of the availability of products and services of an accessible, experienced, cost-effective repair facility, if they are aware of such a facility. The Department does not believe that the section as proposed prohibits insurers from advising insureds about the availability of particular products and services, so long as insureds are also aware that the final decision about whether to take advantage of such availability is theirs alone. Both this comment and the prior one seem to assume that referral plans are prohibited by the section. Referrals themselves are not prohibited, provided that certain events occur in connection with the referral. The activity prohibited is the insurer itself providing the incentive or the inducement (e.g., waiver of deductible, rebate, insurer warranty). 11. Subsection (c)(2) is insufficient as proposed and published, and should contain a specific statement that written insurer guidelines, on file and subject to inspection, are presumed to reflect the reasonable cost of obtaining repairs. The Department responds that it is inappropriate to specifically provide by regulation that the existence of written guidelines subject to inspection creates the presumption of reasonableness. For this reason, no change to subsection (c)(2) is made as a result of this comment. 12. Subsection (c)(3) appears to be unnecessarily vague, since financial incentives, other incentives and inducements are not defined in the rule. The provision appears to restrain an insurer from describing any benefits of using a recommended shop. The activity prohibited by the section is activity on the part of the insurer in providing an inducement which would preclude the beneficiary from exercising freedom of choice. This comment appears to address concerns similar to those raised in Comments 9 and 10. The Department reemphasizes its response to those two prior comments. 13. The section as proposed and published will drive up the cost of physical damage claims because it suppresses fair competition on repair prices. The Department does not believe that the section as adopted will either drive up or drive down the cost of damage claims. The Department position is that the section neither suppresses nor enhances fair competition on repair prices, since its purposes are to prohibit certain practices that would limit the freedom of choice by beneficiaries about where they have repairs performed, to provide certain disclosure, and to declare that certain practices are unfair trade practices. The section is not intended to prohibit voluntary cost-savings program availability. 14. Cost of compliance is materially understated. The Department responds that the cost estimate in the proposed preamble represents anticipated costs only. The actual cost of compliance will depend in part on business decisions already made or to be made by insurers. The cost estimate anticipates that prudent business practice and passage during the 1991 regular legislative session of Article 5.07-1 has resulted in procedures already in place which would be required if the section were to be adopted. The actual cost of compliance could also be lower than what the commenter anticipates. In addition, the adoption includes changes to the section as proposed, some of which ought to result in lower compliance costs. 15. The section as proposed and published cannot reasonably be applied to motor home insurance, even though motor homes come under the personal auto insurance policy provisions. The Department agrees with this comment. Such vehicles appear to be relatively few in number, and unique in repair requirements. For this reason, the adoption adds new subsection (f) to create an exception for self- propelled motor vehicles, otherwise subject to an auto insurance policy, that have built in facilities for cooking, sleeping, and personal sanitation and hygiene. 16. If adopted, the section should require a repair facility to be in substantial compliance with state and federal law and regulations for such facilities. The Department does not believe the adopted section should contain such a provision. The statute pursuant to which the section is proposed is concerned with direct or indirect limitations of coverage and consumer choice, and disclosure of consumer choice. The purpose of the section as proposed is to ensure disclosure to beneficiaries and to prohibit certain practices by insurers. The Department believes that the proposal of this comment would take the section beyond its stated purpose. The recommendation under this comment was withdrawn at the hearing. 17. Subsection (b) should not include the words "particular" or "physical" in the definition of "reasonable rate of reimbursement", as those adjectives are more confusing than they are clarifying. The Department agrees that removal of such adjectives will not result in a change to the meaning of the definition. For that reason, the adopted section removes the words "particular" and "physical" from the references to "repairs" and "damage," respectively, in the definition of "reasonable rate of reimbursement". 18. A single violation under subsection (c) should not constitute an unfair trade practice, especially if the violation is an unintentional violation. Subsection (c) should be amended to provide a standard that relies on a pattern of practice. The single act standard is unfair and unnecessary. The Department believes that insurance consumers are injured by specific instances of conduct committed in connection with practices of insurers, and that to require a pattern of conduct before classifying a particular behavior as an unfair trade practice will result in preclusion of redress for consumers even in instances where such behavior was intentional although isolated. For these reasons, the recommended change is not adopted. 19. Uncertainty exists about what the phrase "to be covered under the policy" in subsection (c)(4) means. The commenter thought the term to be ambiguous in context. The Department does not believe this term is ambiguous inherently or in its context. It means "to be a covered repair." 20. The phrase "any other document distributed to a beneficiary" in subsection (c)(6) could be read to refer to distribution of documents by entities not under the control of the insurer. The Department disagrees because it believes subsection (c) makes it clear that the practices prohibited in paragraphs within that subsection are practices of an insurer, not of some party other than the insurer and over whom the insurer has no control. 21. The board lacks the authority to establish a reasonable rate of reimbursement as envisioned in subsection (d). The Department emphasizes that the section does not seek to establish by rule a reasonable rate of reimbursement. It requires establishment of written procedures by insurers for determining reasonable reimbursement rates for repairs to motor vehicles. To address concerns raised, the final adoption includes clarifying changes to subsection (d) which are designed to address and resolve the concern expressed in this comment. 22. The reasonable rate of reimbursement standard of subsection (d) will require frequent updates because reasonableness is not defined with respect to reimbursement rates. Thus the section as proposed is ambiguous in this material respect. The Department believes this comment centers on the same concern as the prior comment, and its response is the same. 23. The requirement relating to unreasonable distance in subsection (d)(2) is vague and works hardship on insurers to know how to comply with it. The Department points out that some of the matters addressed in the rule involve questions of fact which ultimately might have to be resolved by a trier of fact. The required written procedures will have to be set so that there are not indirect limitations on coverage. The methodology selected by particular insurers will ultimately establish reasonable rates of reimbursement for those insurers. Certainly one alternative to the more flexible standard of "reasonable distance" envisioned by the section would be to designate an exact distance; however such a standard would significantly limit insurers in the development of procedures. 24. If adopted, the section should require in subsection (d) that written procedures be filed with the Department and reviewed annually to ensure compliance with the section. The Department responds that it will act on complaints alleging violations of law or of the section, if adopted. It will utilize resources as efficiently as possible to resolve any matters arising under the section as adopted. Unfortunately, the Department has insufficient resources to review on a periodic basis the written procedures of each insurer that will be subject to the provisions of the section. 25. If adopted, the section should, with respect to subsection (d), provide a means for contesting and resolving and insurer's determination of "reasonable reimbursement" and set up procedures for compliance. The Department believes that the current departmental processes will accommodate and provide for the redress addressed in this comment. For this reason, the recommendation made in this comment is not adopted. 26. If adopted, the section should state explicitly that an insurer may not specify the brand, type, kind, age or condition of parts or products that may be used to repair a vehicle. The Department believes that the provision in subsection (d)(1), in its reference to Article 5.07-1, is sufficient, since the statutory requirement is quite specific regarding this prohibition on insurers. 27. The requirement in subsection (d)(3) needs to be revised, since there is no legal requirement for an admitted non-domiciled insurer to have a principal office location in Texas. The Department agrees and changes subsection (d)(3) upon adoption to require the procedures be on file at the principal office location of the insurer in its domiciliary state. 28. If adopted, the section should contain a new paragraph in subsection (d) requiring a copy of the original itemized invoice to be provided to a beneficiary in instances where a repair facility is recommended, so that the beneficiary will know what has been done, and at what cost, so that the beneficiary can make an informed decision about where to have repairs made and what possible changes to make to his/her coverage under the insurance policy. The Department agrees. Because the Department believes it is important that each insurance consumer have an adequate basis upon which to make decisions about repair facilities, and about future changes to coverage under his or her auto policy, new paragraph (3) is added to the adopted section to provide essentially as recommended by the commenter. 29. It is recommended subsection (e) be redrafted for purposes of clarification. The Department agrees. For this reason, the adopted section contains a number of changes to subsection (e) to make the subsection better organized and more clear with respect to disclosure requirements. 30. The disclosure required by subsection (e) is unnecessary. The Department disagrees with this comment. Beneficiaries need such disclosure in order to make the best informed decision about repair facilities in connection with motor vehicle damage claims. 31. The requirement for written disclosure in all instances fails to recognize the facts of modern claim settlements, more specifically telephone settlement procedures and processes; it is recommended that subsection (e)(3) (A) be changed to require oral disclosure where no written claim processing documentation is required and it is determined that repair costs will be paid from benefits under the insured's auto policy. The Department believes it is very important to have the documentation afforded by a written record of disclosure about the rights of beneficiaries in connection with submission of a claim. For this reason the adopted section retains the requirement for written disclosure to be provided at least once in connection with the filing of a claim. 32. The disclosure requirement of subsection (e) should be changed to require written notice of the beneficiary's rights at the time of policy issuance, without the followup requirement of disclosure at the time of claim processing. In the alternative, if it is preferred that insureds be informed of their rights regarding damage claims at the point of reporting a claim, then remove the requirement that written notice be provided in connection with issuance and delivery of the policy and instead require it be provided at the time of claim submission and processing. The Department disagrees. Because these two events might be separated by a significant interval of time, the Department believes it is very important for beneficiaries to have information relating to their right to choose a repair facility provided both at the time of the delivery of the policy and at the time that a claim arises. For this reason, the Department is not making a change with respect to this comment. 33. In subsection (e)(2), remove the reference to the face of the policy and permit the notice to accompany the policy when delivered. This recommendation is based on the length of the required disclosure and the insufficient amount of remaining available space on the face of the promulgated policy for the notice. The Department agrees that because the content of the notice is important and because it would be difficult to dramatically streamline the notice, the insurer should have the option of accompanying delivery of the notice with the policy. For this reason, the adoption revises subsection (e)(2) to permit the notice to accompany the policy or certificate as the first, second or third page of such policy or certificate at the time the policy is delivered. 34. Paragraph (3) of subsection (e) can be clarified by removing the "and/or" language. The Department agrees that the language of subsection (e), paragraph (3), can be made more clear. For this reason, the adoption makes a change to that paragraph which provides for specific reference to circumstance-and-timing provisions within the paragraph relating to notice and disclosure. 35. It is recommended that subsection (e)(3)(B)(ii) be changed to require that special written notice be mailed to a beneficiary not later than one business day (rather than 24 hours) following initial telephone contact by the beneficiary regarding the claim in instances where no written claim is required to be filed. The Department agrees that a one-business-day standard is more practical than a 24-hour standard. For this reason, adopted subsection (e)(3)(B)(ii) includes, among other changes, the provision of special written notice mailed or provided by facsimile transmission to the beneficiary within one business day of initial telephone contact. 36. The disclosure required in subsection (e) is too long, too wordy, and needs to be in plain language. The Department agrees. For this reason, the adopted disclosure is in language that is more plain. The New section is adopted pursuant to the Insurance Code, Articles 5.07-1, sec.sec.5.10, 21.21 and 1.04, and Texas Civil Statutes, Article 6252-13a. The Insurance Code, Article 5.07-1, provides for disclosure of consumer information and requires that any rules promulgated by the board for auto insurance policies which provide for any limitation relating to repair and replacement services resulting from automobile damage mandate particular consumer disclosures. Article 5.10 provides that the board is empowered to make and enforce rules and regulations necessary to the administration of Subchapter A, Chapter 5, Insurance Code. Article 21.21, sec.13, authorizes the Board to promulgate and enforce reasonable rules necessary to accomplish the purposes of deterring or otherwise curbing practices in the business of insurance which facilitate or result in unfair competition, unfair trade practices and/or deceptive trade practices. Article 1.04 provides the Board with the authority to determine policy and rules in accordance with the laws of this state. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. The adopted section, primarily affects regulation pursuant to Subchapter A of Chapter 5 of the Insurance Code, relating to motor vehicle insurance, most specifically Article 5.07-1; and Subchapter B of Chapter 21 of the Insurance Code, including Article 21.21, relating to unfair competition, unfair trade practices and deceptive trade practices. CROSS REFERENCE TO STATUTE. The following statutes are affected by this rule: The Insurance Code, Articles 5.07-1 and 21.21, sec.5.501. sec.5.501. Motor Vehicle Insurance Damage Claim Coverage, Settlement, and Disclosure. (a) Purpose. The purpose of this section is to prohibit certain practices in the settlement of motor vehicle damage claims under an auto insurance policy delivered, issued for delivery or renewed in this state; to provide for definitions relating to such activities and practices; and to declare that certain practices constitute unfair trade practices in the business of insurance in this state. The provisions of this section are not intended to preclude any company filing of endorsements and rate rules for consideration for approval by the board which would provide for limitations anticipated in the Insurance Code, Article 5.07-1 and subject to Article 5.07-1(b). Any rate rules or endorsements so adopted and policies issued with such endorsements are not subject to the provisions of this section. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the text of this section clearly indicates otherwise. (1) Reasonable rate of reimbursement-The rate of reimbursement for repairs resulting from damage to a motor vehicle, established pursuant to written procedures developed and utilized by an insurer as required in subsection (d) of this section. (2) Repair facility-Any motor vehicle repair shop, any other physical facility, or any business establishment or location which has as its primary business activity the repair of damage to motor vehicles and/or the replacement of particular motor vehicle parts necessitated by physical damage to such motor vehicles. (c) Prohibited Insurer Activities. Each of the activities by an insurer identified and described in paragraphs (1) -(6) of this subsection constitutes a direct or indirect limitation of coverage, and each is expressly prohibited as an unfair trade practice and/or as a deceptive trade practice under the Insurance Code, Article 21.21, in the settlement of motor vehicle insurance damage claims: (1) failing to disclose, as required in subsection (e) of this section, the right of a beneficiary under the policy to choose the repair facility of the beneficiary's choice in the settlement of a motor vehicle insurance damage claim; (2) establishing or maintaining reimbursement rates for repairs which fail to reasonably reflect costs of obtaining such repairs as indicated in the written procedures developed and utilized by an insurer in compliance with subsection (d) of this section; (3) providing financial or other incentives or inducements for beneficiaries to have repairs completed at a particular repair facility; (4) stating or otherwise intimidating, coercing or threatening any beneficiary into believing that a particular repair facility must be utilized by the beneficiary in order for the damage repair or parts replacement to be covered under the policy; (5) otherwise requiring that repair or replacement work resulting from physical damage to motor vehicles must be performed by a particular repair facility; or (6) displaying the name and/or telephone number of a repair facility on a price verification sheet, quote sheet, or any other document distributed to a beneficiary or to a motor vehicle repair facility prior to the beneficiary's advising the insurer about the shop which has been chosen, except in instances where the beneficiary specifically requests the insurer to recommend a repair facility. (d) Reasonable rate of reimbursement for motor vehicle repairs. All insurers subject to the provisions of this section shall establish written procedures and shall follow those procedures in determining reimbursement rates for repairs for damage to motor vehicles. Written information which specifies how the rate of reimbursement is determined for any given repair or replacement item shall be provided upon request of a beneficiary at the time a claim is submitted. At a minimum, such procedures: (1) shall be designed to assure full compliance with the terms of the insurance contract and with the Insurance Code, Article 5.07-1(a); (2) shall be designed to assure that beneficiaries are not restricted in their choice of a repair facility by having to travel an unreasonable distance to receive full reimbursement for the covered repairs; (3) shall include, in instances where a particular repair facility has been recommended, furnishing the beneficiary with a copy of the recommended repair facility's original invoice itemizing repair charges and the quality and cost of particular replacement parts used; (4) shall be on file in the insurer's principal office location in its domiciliary state; (5) shall be provided to the department upon request; and (6) shall include, at the request of a beneficiary filing a claim, information about how much the insurer will pay for a covered repair performed by a repair facility the beneficiary chooses. (e) Required disclosure. All insurers subject to the provisions of this section shall provide the disclosure required by paragraphs (1)-(4) of this subsection. (1) Insurers shall provide full disclosure concerning the rights of beneficiaries with respect to claims for damage repair and replacement under automobile insurance policies delivered, issued for delivery, or renewed in this state. (2) Such disclosure shall be provided in writing on the face of the policy, or certificate in lieu of a policy, if applicable, or shall accompany the policy or certificate as the first, second or third page of such policy or certificate at the time the policy is delivered. (3) Such disclosure shall also be provided as required in subparagraphs (A) and (B) of this paragraph. (A) If an insurer provides any information, oral or written, about a repair facility or network of repair facilities in connection with a claim, the insurer shall provide full disclosure about the right of beneficiaries to choose the repair facility of their choice as provided in this subparagraph. (i) If an insurer provides information about a repair facility orally, the insurer shall provide oral disclosure of the right of a beneficiary to select any repair facility. The insurer also shall mail or transmit by facsimile to a beneficiary, no later than one business day following the oral disclosure, a written disclosure of the right of a beneficiary to choose any repair facility. (ii) If an insurer provides written information about a repair facility, in accordance with subsection (c) (6) of this section, the insurer shall provide a written disclosure of the right of a beneficiary to choose any repair facility. The written disclosure shall be provided at the same time as disclosure of any information about a repair facility. (B) An insurer must provide the written disclosure at least once for each claim submitted as provided in this subparagraph regardless of whether it provides any information about a repair facility or network of repair facilities. (i) If written forms or documentation are provided to a beneficiary in order to process a claim, such disclosure may accompany such written forms or documentation sent by the insurer to the beneficiary. (ii) Where no written claim is filed, the insurer shall provide such disclosure as a special written notice mailed or transmitted by facsimile to the beneficiary within one business day of initial telephone contact by the beneficiary regarding the claim. (4) Such disclosure, in its oral form, shall be provided in substantially identical language as the following, and in its written form shall be provided in substantially identical language and format (including capitalization, punctuation and text in at least 10-point type) as the following: NOTICE BY LAW, YOU HAVE THE RIGHT TO SELECT WHERE YOUR MOTOR VEHICLE IS REPAIRED. HOWEVER, (NAME OF COMPANY) IS NOT REQUIRED TO PAY MORE THAN A REASONABLE CHARGE FOR THE REPAIRS PERFORMED. IN OTHER WORDS, (NAME OF COMPANY) IS NOT REQUIRED TO PAY THE COST FOR COVERED REPAIRS THAT IS GREATER THAN THE REASONABLE CHARGE. YOU MAY BE REQUIRED TO PAY THE DIFFERENCE. AT YOUR REQUEST WE WILL EXPLAIN TO YOU IN WRITING HOW WE DECIDE A REASONABLE CHARGE FOR THIS REPAIR. IF YOU FILE A CLAIM AND SO REQUEST, WE ALSO WILL TELL YOU HOW MUCH WE WILL PAY FOR A COVERED REPAIR PERFORMED BY A REPAIR SHOP YOU CHOOSE. (f) Exception. The provisions of this section do not apply to self-propelled motor vehicles that have built-in facilities for cooking, sleeping, and personal sanitation and hygiene which are otherwise subject to a promulgated auto insurance policy. (g) Severability. If any provision of this section or the application thereof to any person or circumstance is held invalid for any reason, the invalidity shall not affect the other provisions or any other application of said provisions which can be given effect without the invalid provision or application. To this end all provisions of this section are declared to be severable. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 23, 1993. TRD-9324717 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 14, 1993 Proposal publication date: March 30, 1993 For further information, please call: (512) 463-6328 Subchapter E. Texas Catastrophe Property Insurance Association 28 TAC sec.5.4001 The State Board of Insurance of the Texas Department of Insurance adopts amendments to sec.5.4001, concerning a change in the plan of operation of the Texas Catastrophe Property Insurance Association (TCPIA) to provide a new formula and procedure for determining member participation in the TCPIA with respect to TCPIA policies with inception dates on and after January 1, 1993 without changes to the proposed text as published in the April 27, 1993, issue of the Texas Register (18 TexReg 2786). The amendments also eliminate as unnecessary language any reference in the TCPIA plan of operation to the reporting of statistical information to the board's organization. These amendments are adopted. The State Board of Insurance of the Texas Department of Insurance adopts this amendment because recent changes in ratemaking required by House Bill 2 as enacted by the 72nd Texas Legislature, preclude the use of the current procedures outlined in the TCPIA plan of operation (28 TAC sec.5.4001) for determining member participation in the TCPIA on and after January 1, 1993. The implementation of the file and use rating system for commercial property policies and the flex rating system for other property policies makes it impossible to properly establish direct written premiums at manual rates, as previously required under the TCPIA plan of operation. Language referencing the reporting of statistical information to the board's duly appointed statistical gathering organization is eliminated as unnecessary since the TCPIA is required to report statistical information to the board in accordance with the property statistical plan promulgated by the board for property insurance. The amend section provides a new formula and procedure for determining member participation in the TCPIA on and after January 1, 1993. This new formula and procedure will be based on actual direct written premiums for extended coverage and other allied lines for property insurance rather than on direct written premiums restored to current manual rates. The amendment also eliminates unnecessary language in the TCPIA plan of operation regarding the reporting of statistical information to the board's duly appointed statistical gathering organization. No comments were received regarding adoption of the amendments. The amendment is adopted pursuant to the Insurance Code, Articles 21.49, sec.5(c) and sec.1.04(b), and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. Article 21.49, sec.5(c), requires the State Board of Insurance to adopt the plan of operation of the Texas Catastrophe Property Insurance Association or any amendment thereto. Article 1.04(b) authorizes the State Board of Insurance to adopt rules in accordance with the laws of this state. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures and to prescribe the procedures for adoption of rules by a state administrative agency. The following statutes are affected by this rule: sec.5.4001 The Insurance Code, Articles 21.49sec.5(c) and 1.04(b) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 28, 1993. TRD-9324905 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 19, 1993 Proposal publication date: April 27, 1993 For further information, please call: (512) 463-6328 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Texas Commission on Jail Standards Chapter 300. Fees and Payments Emergency Overcrowding Relief 37 TAC sec.300.24, sec.300.27 The Texas Commission on Jail Standards adopts amendments to sec.300.24 and sec.300.27 concerning Fees and Payments. Section 300.27 is adopted with changes to the proposed text as published in the May 25, 1993, issue of the Texas Register (18 TexReg 3352). Section 30024 is adopted without changes and will not be republished. The amendments revise reporting requirements to reflect actual current procedures of the commission. The amendments revise reporting requirements to coordinate the mandated statewide use of the state identification number. No comments were received. The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. sec.300.27. Records. Each sheriff shall maintain complete records of the information required under sec.300.24 of this title (relating to Reports) and make the records available to commission staff upon request for review. The sheriff shall retain completed copies of each inmate's TDCJ-ID Document Checklist and copies of issued white warrants for a period of one year from the date of transfer or release of the inmate from the jail. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 25, 1993. TRD-9324795 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: July 16, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 463-5505 37 TAC sec.300.28 The Texas Commission on Jail Standards adopts new sec.300.28, concerning Fees and Payments, without changes to the proposed text as published in the May 25, 1993, issue of the Texas Register (18 TexReg 3352). The new section allows adjustments to be made to inaccurate submitted reports required by sec.300.24. The new section allows counties to request payment adjustments for previously submitted reports which understate felony backlog. No comments were received regarding adoption of the new section.. The new section is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 25, 1993. TRD-9324796 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: July 16, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 463-5505 Part XIII. Texas Commission on Fire Protection Chapter 421. Standards for Certification 37 TAC sec.421.1 The Texas Commission on Fire Protection adopts an amendment to sec.421.1 (formerly sec.233.1), concerning minimum standards for basic structural fire protection personnel, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1859). The justification for the amendment is the clarification of procedures for meetings of the Fire Protection Personnel Advisory Committee. The amendment changes the word "commission" to the "Fire Protection Personnel Advisory Committee." The amendment provides the method by which the meetings may be called, the number of members on the committee, and the responsibility of the committee. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.023, which provides the commission with authority to establish a fire protection personnel advisory committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324701 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 423. Fire Suppression Subchapter A. Minimum Standards For Structure Fire Protection Personnel Certification 37 TAC sec.423.1 The Texas Commission on Fire Protection adopts an amendment to sec.423.1 (formerly 233.9), concerning minimum standards for basic structural fire protection personnel, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1659). The amendment will result in a clearer understanding of the requirements for certification as structure fire protection personnel, particularly regarding volunteer fire fighters, out of state, or military personnel seeking to establish certifiability as fire protection personnel. The amendments add the completion of the approved Basic Volunteer Fire Fighter Curriculum as specified in Chapter 1 of the commission's document titled "Commission Volunteer Certification Curriculum Manual" as an option for being certified as structure fire protection personnel. The amendment also provides criteria for approval of basic fire suppression programs from other jurisdictions, including out-of-state and military programs, to determine equivalency. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel; sec.419.032(d), which provides the commission with authority to certify persons that are qualified as fire protection personnel; sec.419.075, which provides the commission with authority to certify volunteers under Subchapter B. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324700 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 425. Fire Protection Personnel Instructors Subchapter A. Fire Service Instructor Certification 37 TAC sec.425.5, sec.425.7 The Texas Commission on Fire Protection adopts amendments to sec.425.5 (formerly sec.233.85) and sec.425.7 (sec.233.87), concerning fire protection instructors, including advanced and master level instructor certifications, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1660). It is anticipated that the sections as amended will allow more fire fighters to obtain advanced levels of instructor certification without being full-time instructors. The change to the requirements for a master instructor certificate will also encourage persons holding master certificates in other disciplines to become instructors. The amendment to sec.425.5 deletes the language requiring an advanced instructor to be working full-time as an instructor or training officer. The amendment to sec.425.7 changes the prerequisites required to obtain a master fire protection instructor certification to require master certification in another discipline. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324699 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 429. Minimum Standards For Fire Inspectors 37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11, 429.13, 429.15, 429.17 The Texas Commission on Fire Protection adopts the repeal of sec.sec.429.1 (formerly 233.93), 429.3 (233.95), 429.5 (233.97), 429.7 (233.99), 429.9 (233. 101), 429.11 (233.103), 429.13 (233.105), 429.15 (233.107), and 429.17 (233. 109), concerning minimum standards for fire inspectors, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1661). The repealed rules will be replaced with new rules concerning the same subject matter with an effective date of January 1, 1994. The repeal of these rules will allow for replacement of obsolete language by new sections intended to increase the competency of person assigned fire inspection duties particularly in smaller cities that often face the same hazards as larger cities, as well as more effective fire prevention services for the public. In addition, the repeal eliminates the on-year experience requirement that permits fire inspectors to be recognized as expert witnesses upon completion of training. The sections adopted for repeal will be replaced by new sections relating to the same subject matter published in this issue of the Texas Register as adopted new rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324697 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1994 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11 The Texas Commission on Fire Protection adopts new sec. sec.429.1, 429.3, 429. 5, 429.7, 429.9, and 429.11, concerning minimum standards for fire inspection personnel, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1661). The new sections replace repealed sections pertaining to the same subject matter and have a proposed effective date of January 1, 1994. The new sections will result in increased competency of persons assigned to fire inspection duties, particularly in small cities that often face the same hazards as larger cities, as well as more effective fire prevention services for the public. In addition, the elimination of the one-year experience requirement permits fire inspectors to be recognized as expert witnesses upon completion of training. New sec.429.1 requires fire inspector certification of all full-time, fully paid local government employees who are assigned fire code enforcement duties. New sec.429.3, concerning standards for Basic Fire Inspector Certification, replaces current language where the number of training hours depends on city population, with a single basic curriculum requirement consisting of either a 226-hour course or possession of an associate degree, including 21 semester hours in specified fire protection and prevention courses. The new sections pertaining to intermediate, advanced, and master certification provide requirements consistent with higher levels of structure certification. One commenter opposed the new sections concerning the prohibition against certification as a full-time fire fighter and as a full-time fire inspector and related requirements for supervision of persons certified as Fire Fighter/Instructor Limited by a full-time certified Fire Inspector. These provisions were viewed by the commenter as an unwarranted intrusion into the internal organization of a municipality's fire service. One commenter opposed the provisions in new sec.429.1 that requires that all full-time employees of a local governmental entity who are assigned fire code enforcement activities to be certified by the commission as fire inspectors. The commenter claimed this requirement would discourage inspections by fire company officers who are not certified fire inspectors. Comments against the proposed new sections were received from representatives of the City of Addison and the city of Hurst. The commission disagrees with the comments concerning the requirement of certification for fire code enforcement activities. The commission is of the opinion that persons engaged in such activities, as defined in the newly adopted rules, should have the training required for certification as fire inspections. The rules do not prohibit company inspectors by suppression personnel, but would require fire inspector certification where the individuals are engaged in the enforcement of duly adopted fire codes, ordinances, or statutes through administrative, civil, or criminal proceedings. The commission did not agree with the commenter concerning the supervision required for certification of inspector limited personnel because the new section did not involve a change in policy from the previous rules. The commission was of the opinion that such policy should not be changed without further study and asked the Fire Protection Personnel Advisory Committee to consider at its next meeting the issue concerning supervision of fire inspector limited personnel. The new sections are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for specialized fire protection personnel positions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324698 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1994 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 431. Minimum Standards for Fire and Arson Investigators 37 TAC sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, 431.11 The Texas Commission on Fire Protection adopts the repeal of sec.sec.431.1, (formerly 233.113), 431.3 (233.115), 431.5 (233.117), 431.7 (233.119), 431.9 (233.121), 431.11 (233.123), concerning minimum standards for fire and arson investigator, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1664). The repealed sections are replaced by new sections concerning the same subject matter with a proposed effective date of January 1, 1994. The repeal of these rules will allow for replacement of obsolete language by new sections which will result in more consistent training, more effective arson investigators, possible prevention and deterrence of arson, and reduction of fire losses. The sections adopted for repeal will be replaced by new sections relating to the same subject matter published in this issue of the Texas Register as adopted new rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324695 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1994 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 37 TAC sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, 431.11, 421.13 The Texas Commission on Fire Protection adopts new sec. sec.431.1, 431.3, 431. 5, 431.7, 431.9, 431.11, and 431.13, concerning minimum standards for fire and arson investigators, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1664). The new sections replace repealed sections concerning the same subject matter and have a proposed effective date of January 1, 1994. The new sections will result in more consistent training, more effective arson investigators, possible prevention and deterrence of arson, and reduction of fire losses. The new sections on advanced certification will result in additional education focused on knowledge and skills which will increase effectiveness. The new sections increased the training requirements for Basic Fire and Arson Investigator Certification by requiring completion of a 122 class-hour curriculum (currently 90 class-hours) or possession of an associate degree, including 15 semester hours in fire investigation and fire protection courses (currently six semester hours and no degree required). The new sections provide requirements for higher levels of fire investigator certification which track the requirements for higher levels in other disciplines. No comments were received regarding adoption of new sections. The new sections are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324696 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1994 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 437. Fees 37 TAC sec.437.5 The Texas Commission on Fire Protection adopts an amendment to sec.437.5 (formally sec.239.5), concerning fees, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1667). The result of enforcing the section as adopted will be the deletion of obsolete language and a clearer understanding in the fire service of rules applicable to the certification period. The amendment deletes redundant language and clarifies the certification period to be from November 1 through October 31. No comments were received regarding adoption of amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.026, which authorizes the commission to set and collect fees for each certificate that the commission issues or renews. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324694 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1994 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 441. Continuing Education 37 TAC sec.sec.441.1, 441.3, 441.5, 441.7, 441.9 The Texas Commission on Fire Protection adopts the repeals of sec.sec.441.1 (formerly 247.1), 441.3 (247.3), 441.5 (247.5), 441.7 (247.7), and 441.9, concerning continuing education, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1668). The result of enforcing the repeals will be the replacement of obsolete language by new sections intended to give a clearer understanding in the fire service of rules applicable to continuing education. The sections when repealed will be replaced by new sections relating to the same subject matter published in this issue of the Texas Register as adopted new rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.032(b), which authorizes the commission to establish qualifications relating to continuing education or training programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324705 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 1, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 37 TAC sec.sec.441.1, 441.3, 441.5, 441.7, 441.9, 441.11, 441.13, 441.15 The Texas Commission on Fire Protection adopts new sec. sec.441.1, 441.3, 441. 5, 441.7, 441.9, 441.11, 441.13, and 441.15, concerning continuing education. Section 441.5 is adopted with changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1668). The change occurs in sec.441.5(i) and changes the word administration to administrative in the first line. Sections 441.1, 441.3, 441.7, 441.9, 441.11, 441.13, and 441.15 are adopted without changes and will not be republished. The result of enforcing these sections as adopted will be the deletion of obsolete language and a clearer understanding in the fire service of rules applicable to continuing education and that the competency of all certified fire protection personnel will be maintained or enhanced. The new sections replace repealed sections relating to the same subject matter for continuing education and establish continuing education requirements for all disciplines of fire protection personnel. The new sections more clearly define the types of continuing education known as "Track -A" and "Track-B," and apply restrictions on subject matter to both "Tracks." In addition, the new sections further limit the repetition of topics from the same subject (or section of the curriculum) in consecutive years. The new rules eliminate the provisions for a 60-day "extension period" and proficiency test requirement for correcting a deficiency and replace those provisions with a prohibition of assignment to or performance of duties authorized by the certificate until the deficiency is corrected and documented. Finally, the new sections impose a continuing education requirement for marine fire protection personnel, fire inspection personnel, and fire and arson investigation personnel for certification periods commencing after October 31, 1993. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.032(b), which authorizes the commission to establish qualifications relating to continuing education or training programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324706 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 1, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 443. Adoption By Reference 37 TAC sec.sec.443.1, 443.7, 443.9 The Texas Commission on Fire Protection adopts an amendment to sec.443.1 (formerly 247.1), concerning the adoption by reference of the basic fire suppression curriculum and new sec.443.7, and sec.443.9, concerning adoption by reference of the basic fire inspection personnel curriculum and the basic fire and arson investigation curriculum respectively, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1670). The result of enforcing the sections as proposed will be easier identification of source material for meeting curriculum competencies and objectives and more effective fire inspection and arson investigation. The amendment to sec.443.1 adopts a revised version of the basic fire suppression curriculum that adds new references to sec.119 and sec.129. The new sections concerning the fire inspection curriculum and arson investigation curriculum replace repealed sections concerning the same subject matter and have a proposed effective date of January 1, 1994. The new basic fire inspection curriculum includes 20 subject areas organized with competencies and objectives in the same manner as the basic fire suppression curriculum with total hours of training amounting to 226 hours. Persons holding basic structure certification are not required to repeat 52 hours in subjects already covered in the basic fire suppression curriculum. The new basic fire and arson investigator curriculum has 23 subject areas organized in the same manner with competencies and objectives totaling 122 class hours. No comments were received regarding adoption of the sections. The amendment and new sections are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.022(a)(5), which provides the commission with authorization to established qualifications for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324704 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1994 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 491. Voluntary Regulation of State Agencies and State Agency Employees 37 TAC sec.491.1 The Texas Commission on Fire Protection adopt an amendment to sec.491.1, concerning election of components for voluntary regulation, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1670). The result of enforcing the section as proposed will be the deletion of obsolete language and a clearer understanding in the fire service of rules applicable to the voluntary regulation of state agencies and state agency employees. The amendment clarifies the provisions for election of components and promotes consistency with terminology used in other chapters pertaining to fire protection personnel. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.083, which provides for voluntary regulation of certain state agencies and state agency employees under one or more discrete components of the commission's regulatory authority under the Texas Government Code, Chapter 419, Subsection B, as defined by commission rule. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324703 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 Chapter 493. Voluntary Regulation of Federal Agencies and Federal Agency Employees 37 TAC sec.493.1 The Texas Commission on Fire Protection adopts an amendment to sec.493.1, concerning election of components for voluntary regulation of certain federal agencies and federal employees, without changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1671). The result of enforcing the section as adopted will be the deletion of obsolete language and a clearer understanding in the fire service of rules applicable to the voluntary regulation of federal agencies and federal agency employees. The amendment clarifies the provisions for election of components and promotes consistency with terminology used in other chapters pertaining to fire protection personnel. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.084, which provides for voluntary regulation of certain federal agencies and federal agency employees under one or more discrete components of the commission's regulatory authority under the Texas Government Code, Chapter 419, Subsection B, as defined by commission rule. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 19, 1993. TRD-9324702 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: July 14, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 873-1700 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part III. Texas Commission on Alcohol and Drug Abuse Chapter 147. Approved Drug Offender Education Program General Provisions 40 TAC sec.sec.147.1-149.9 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.147.1-147.9, concerning Approved Drug Offender Education Programs. Sections 147.1, 147.2 and 147.4-147.6 are adopted with changes to the proposed text as published in the April 20, 1993, issue of the Texas Register (18 TexReg 2546) and sec.sec.147.3 and 147.7-147.9 are adopted without changes and will not be republished. These rules are adopted to define common terms used and to establish minimum standards and criteria for the operation of approved drug offender education programs for persons convicted of certain drug offenses and who are required to complete a drug offender education program approved by the Texas Commission on Alcohol and Drug Abuse in order to have their driver's license reinstated. In sec.147.1, in the definition of drug offender, the number "3" was added to sec.321 et seq in order to correct the legal citation. In sec.147.1, the purpose of the screening instrument was changed to more appropriately reflect the function of the instruments. In sec.147.2, the word "provide" was made plural and changed to "provides". In sec.147.4, the purpose for charging 6application fees was changed for clarity. In sec.147.5(a), the word "Texas" was deleted from the title of the education program and the word "Approved" was added to the title. In sec.147.6(a), the word "a" before Drug Offender Education Program was deleted and replaced with the words "an Approved". In sec.147.6(c), the word "Texas" was deleted from the title of the education program. The new sections are adopted to define what programs must do to become a drug offender education program approved by the Texas Commission on Alcohol and Drug Abuse. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 6687b, sec.24B, which provide the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of approved drug offender education programs for persons who are convicted of certain drug offenses and must complete an approved drug offender education program in order to have their driver's license reinstated. sec.147.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly states otherwise: Act-Texas Civil Statutes, Article 6687b, sec.24B. Approved drug offender education program-An educational program for convicted drug offenders approved by the Texas Commission on Alcohol and Drug Abuse pursuant to this chapter, and authorized under Texas Civil Statutes, Article 6687b, sec.24B. Approval period -That period of time beginning with the date the approval was granted and is valid for two years from the date of issuance. Certificates of course completion-Uniform certificates of completion issued by the Texas Commission on Alcohol and Drug Abuse which are serially numbered and provided to approved programs for dissemination to program participants. Class records-Personal data forms, pre- and post-tests, screening instrument(s) and any other written material required or utilized in the class instruction. Class roster-A form which shall include information on those participants officially enrolled and in attendance at the first class session and is used to collect data on those participants throughout the course. Class size-The number of participants officially enrolled and in attendance at each class session. Commission-The Texas Commission on Alcohol and Drug Abuse. Continuing education -The variety of forms of learning experiences, including, but not limited to, lectures, conferences, academic studies, in- service education, institutes, seminars and workshops undertaken by instructors for certification renewal. Continuing education hour-At least 50 minutes of participation in an organized, systematic learning experience which deals with and is designed for the acquisition of knowledge, skills, and information on drug-related topics. Department-The Texas Department of Public Safety, which with the Texas Commission on Alcohol and Drug Abuse will jointly adopt rules for the qualification and approval of providers of educational programs under this chapter. Drug offender-A person convicted of a felony offense under the Controlled Substances Act (21 United States Code, sec.321 et seq.), felony offense as assigned by 23 United States Code, sec.104, as amended by Public Law Number 101- 516, sec.333, or a felony under the Texas Health and Safety Code, Chapter 481. Reporting period -That period of time beginning with the date the approval of the drug offender education program was granted by the commission and ending August 31 of each year. Texas Drug Offender Education Program-An educational course for drug offenders which consists of prescribed registration and screening procedures, administrative records, classroom instruction, written coursework and post- course record keeping. Screening instrument -A written device approved by the commission and administered to each program participant for the purpose of: (A) identifying indicators of a potential drug abuse problem; and (B) making recommendations for further evaluation, where indicated. sec.147.2. Objective. The intent of the commission by adoption of this chapter and in cooperation with the Department of Public Safety is to promulgate written rules, regulations, and standards reflecting minimum standards for the uniform operation of programs designed to educate persons on the dangers of drug abuse. Adoption of these rules is authorized by Texas Civil Statutes, Article 6687b, sec.24B, which provides that persons convicted of felony drug offenses must attend and successfully complete an educational program approved by the commission designed to educate persons on the dangers of drug abuse prior to having their driver's licenses reinstated. sec.147.4. Fees. (a) In order to partially defray the costs of administering this chapter, fees will be assessed by the commission in accordance with the fee schedule set forth in subsection (b) of this section. (b) The schedules of fees shall be as follows: (1) initial application fee-$250; (2) application renewal fee-$125; (3) instructor recertification fee-$15; (4) participant certificates of completion-$200/batch (in batches of 100 at $2.00 per certificate); (5) program approval certificate duplication or replacement fee-$5.00; (6) instructor recertification certificate duplication or replacement fee- $5.00; (c) Fees paid to the commission by applicants are not refundable. (d) Remittances submitted to the commission in payment of fees may be in the form of cashier's check or money order. sec.147.5. Program Approval: Application and Issuance of Certificate of Approval. (a) Applications for initial program approval must be made by the entity or person who will administer and supervise the actual Approved Drug Offender Education Program. (b) Application for program approval shall be made on a form prescribed and furnished by the commission. (c) Each application for initial program approval shall be accompanied by the application fee. (d) upon successful completion of all requirements to obtain a certificate of approval under this chapter, the commission will issue a certificate. (e) A certificate of approval will become effective on the first day of the following month after approval and will expire on August 31 of every odd- numbered year. sec.147.6. Program Approval Expiration: Renewal. (a) Prior to the expiration of approval which is set forth on the certificate of approval, an Approved Drug Offender Education Program seeking renewal of approval by the commission shall be required to make application to the commission on a prescribed application form. (b) Each application for program renewal of approval must be accompanied by the application renewal fee. (c) Application for renewal of program approval must be made by the entity or person who has administered and supervised the actual Drug Offender Education Program originally approved. (d) Applicants for renewal must demonstrate to the commission that the applicant continues to meet the program and instructor requirements set forth in sec.147.35 and sec.147.40 of this title (relating to Program Operation Requirements and Instructor Recertification). (e) Upon successful completion of all requirements to obtain a certificate indicating program approval renewal under this chapter, the commission will issue a certificate of approval. Certificates issued under this chapter shall be valid for two years from the date of issuance. The expiration date shall be set forth on the certificate. (f) Approved Drug Offender Education Programs which fail to obtain renewal of approval prior to their expiration date shall be required to make application to the commission pursuant to sec.147.5 of this title (relating to Program Approval, Application, and Issuance of Certificate of Approval). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9324743 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: July 15, 1993 Proposal publication date: April 20, 1993 For further information, please call: (512) 867-8720 Drug Offender Education Program Standards 40 TAC sec.sec.147.31-147.44 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.147.31- 147.44, concerning Approved Drug Offender Education Programs. Sections 147.33- 147.35; and 147.42 are adopted with changes to the proposed text as published in the April 20, 1993, issue of the Texas Register (18 TexReg 2548) and Sections 147.31, 147.32, 147.36-147.41, 147.43, and 147.44 are adopted without changes and will not be republished. The new sections establish minimum standards and criteria for the operation of approved drug offender education programs for persons convicted of certain drug offenses and who are required to complete an approved drug offender education program in order to have their drivers license reinstated. This section is adopted to define what programs must do to become a drug offender education program approved by the Texas Commission on Alcohol and Drug Abuse. In sec.147.33(1), the correct legal citation was added to 23 United States Code, sec.104, as amended by Public Law Number 101-516, sec.333. In sec.147.34, the legal citation for the confidentiality statute was corrected. In sec.147.35(13) (H), the word "code(s)" was added. In sec.147.35(13)(J) the apostrophe indicating possession was omitted from the word "participant's." In sec.147. 35(15), the purpose of the use of a screening instrument was changed to more appropriately reflect the function of the instruments. In sec.147.35(19), a dash was entered in the course-evaluation and should be omitted. In sec.147. 35(24), the apostrophe indicating possession was omitted from the word "program's". In sec.147.42(b)(2), the word "program" was deleted and "course" was substituted. In sec.147.42(b)(6), the reporting requirement was changed to clarify what information from the screening instruments administered must be submitted. In sec.147.42(b)(7), the word "and" was deleted at the end of the sentence. In sec.142.42(b)(7), an apostrophe indicating possession was added to the word "instructor's". In sec.147.42(b)(8), the word "and" was added at the end of the sentence. Section 147.42(b)(9) was added to require programs to submit a copy of each certificate of course completion issued with their annual report. The section will establish information, standardization, and quality programming in drug offender education programs approved by the Texas Commission on Alcohol and Drug Abuse. No comments were received regarding the adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 6687b, sec.24B, which provide the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of approved drug offender education programs for persons who are convicted of certain drug offenses and must complete an approved drug offender education program in order to have their driver's license reinstated. sec.147.33. Program Admission. The following persons are eligible for admission to an Approved Drug Offender Education Program: (1) any person convicted of a felony drug offense under the Controlled Substances Act (21 United States Code, sec.321 et seq); a felony drug offense as assigned by 23 United States Code, sec.104, as amended by Public Law Number 101- 516, sec.333; or a felony under the Texas Health and Safety Code, Chapter 481; and (2) any other person the program administrator allows to attend. sec.147.34. Confidentiality. Approved Drug Offender Education Programs shall abide by all applicable federal and state laws requiring confidentiality of patient/client records including, without limitation, 42 United States Code sec.290dd-3 and sec.290ee-3; Title 42 Code of Federal Regulations, Part 2; and the Texas Health and Safety Code, Chapter 611. sec.147.35. Program Operation Requirements. All Approved Drug Offender Education Programs shall be required to: (1) utilize in the instruction the state-approved curriculum entitled the "Texas Drug Offender Education Program" and present the curriculum in the manner and sequence prescribed therein; (2) insure that all program instructors have attended and successfully completed the Administrator/Instructor Texas Drug Offender Education Training Program approved by the commission; (3) insure that all classes are conducted by certified instructors; (4) provide a minimum of 15 hours of instruction per course; (5) insure that instruction does not exceed three hours per class session; (6) conduct no more than one class session per day; (7) conduct the program a minimum of two times during each reporting period; (8) conduct classes no larger than 30 participants; (9) insure that participants attend the class sessions in the sequence prescribed in the Texas Drug Offender Education Program; (10) make provisions for persons unable to read and/or speak English; (11) complete all registration, data collection, and screening procedures as outlined in the Texas Drug Offender Education Program prior to the first class; (12) maintain attendance records, class rosters, and other administrative records as outlined in the Texas Drug Offender Education Program; (13) insure that class rosters contain the following information for each participant: (A) date of enrollment in course; (B) date of completion of course; (C) participant's name; (D) participant's drivers license number (or if participant does not possess a drivers license, the date of birth and social security number); (E) individual pre- and post-test scores; (F) pre- and post-test class averages; (G) percent of knowledge increase; (H) screening instrument indicator code(s); (I) screening instrument utilized; (J) participant's attendance record; and (K) certificate of completion number for each participant; (14) administer and evaluate pre- and post-test instruments; (15) administer and evaluate a screening instrument which has been approved by the commission for the purpose of identifying indicators of a potential drug abuse problem, which screening shall be performed by program administrators and instructors, or if performed by support staff, under the direct supervision of program personnel. The purpose of the testing is to make recommendations for further evaluation where indicated; (16) utilize all required videos, transparencies, participant workbooks, booklets, and any other resources or written materials required in the Texas Drug Offender Education Program; (17) display transparencies and videos in a manner which: (A) produces a clear image when projected on a surface; (B) utilizes a television monitor which should be at least 25 inches in diameter; (C) utilizes high quality videotapes; and (D) allows all participants to have an unobstructed view; (18) insure that any supplemental videotapes used in the program have received prior approval from the commission according to the following criteria: (A) the program uses the required videotapes in the appropriate modules; and (B) the program exceeds the minimum of 15 hours of instruction; and (C) the videotapes relate directly to the objectives of the curriculum module in which it is used; (19) administer a participant course evaluation at the end of each course; (20) conduct an exit interview with participants as outlined in the Texas Drug Offender Education Program; (21) insure that a commission issued certificate of completion is provided to all participants successfully completing the course for use by the participant to document to the convicting court clerk successful completion; (22) provide appropriate facilities for class instruction which are in compliance with the Americans with Disabilities Act-1990; (23) set definite and reasonable course fees; (24) course fees should be utilized to maintain and enhance the program's operations; and (25) prominently display the certificate of program approval at the principal location where services are provided. sec.147.42. Record Keeping and Reporting. (a) Data Collection. (1) The program administrator shall be responsible for collecting and maintaining data on each class participant as required in sec.147.35 of this title (relating to Program Operation Requirements). (2) Class rosters and copies of the issued certificates of completion shall be retained by the program administrator for at least three years from the date of course completion. All other records shall be retained for a period of one year from the date of course completion. (b) The following items shall be submitted to the commission by September 15 of each year: (1) total number of participants entering the course; (2) total number of participants successfully completing the course; (3) total number of courses held annually; (4) drivers license numbers of all participants, or, in the absence of a driver's license number, the social security number and date of birth of each participant completing the course; (5) average percent of knowledge increase from pre-test to post-test for all courses conducted during the reporting period; (6) percent of total participants indicating potential drug abuse problem as defined in the required screening procedure; (7) names of all certified instructors employed by the program and number of courses each conducted during each year of the instructors certification period; (8) completed critiques on instructors observed during the reporting period; and (9) a copy of each certificate of course completion issued. (c) The program administrator shall notify the commission within 30 days of any change in address, telephone number, or change of program administrator or instructors. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 24, 1993. TRD-9324744 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: July 15, 1993 Proposal publication date: August 20, 1993 For further information, please call: (512) 867-8720