Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 115. Building and Property Services Division State-Owned Property 1 TAC sec.115.8 The General Services Commission repeals sec.115.8, concerning the scheduling of state conference rooms, as published in the May 25, 1993, issue of the Texas Register . The rule is repealed because the responsibility for scheduling state agency use of certain state-owned conference rooms is transferred to the Travel and Transportation Division and new sec.125.25 is adopted in place of the repealed rule. No comments were received regarding the adoption of the repeal. The rule is repealed under Texas Civil Statutes, Article 601b, sec.14.01, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of Article 4. 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 July 27, 1993. TRD-9326404 Judith Porras General Counsel General Services Commission Effective date: August 17, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 463-3583 Chapter 125. Travel and Transportation Division Travel Management Services 1 TAC sec.125.25 The General Services Commission adopts sec.125.25, concerning the scheduling of state conference rooms, as published in the May 25, 1993, issue of the Texas Register . The new rule is adopted to transfer the responsibility of scheduling state agency use of certain state-owned conference rooms from Building and Property Services Division to the Travel and Transportation Division. The section specifies that reservations may be made orally or in writing and the responsibilities of the commission and the using agency. No comments were received regarding adoption of the rule. The new section is adopted under Texas Civil Statutes, Article 601b, sec.14. 01, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of Article 14. 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 July 27, 1993. TRD-9326405 Judith Porras General Counsel General Services Commission Effective date: August 17, 1993 Proposal publication date: May 25, 1993 For further information, please call: (512) 463-3583 TITLE 7. BANKING AND SECURITIES Part I. State Finance Commission Chapter 1. Consumer Credit Commissioner Subchapter B. Miscellaneous Appeals from Order to Desist or to Refrain 7 TAC sec.1.301 The State Finance Commission adopts an amendment to sec.1.301 concerning Appeals from Orders to Desist or Refrain, without changes to the proposed text as published in the April 20, 1993, issue of the Texas Register (18 TexReg 2510). The Texas Credit Code, Texas Civil Statutes, Article 5069-2.02(7), authorizes the Consumer Credit Commissioner to enter an order requiring a person to desist or to refrain from violating any provisions of Texas Civil Statutes, Title 79, Subtitles 2 and 3. Appeal of the order is to the Finance Commission. Previously appeal was to the Consumer Credit Section of the Finance Commission. This amendment provides that appeals shall be to the Finance Commission, and in accordance with the Administrative Procedure and Texas Register Act and its subsequent amendments. No comments were received regarding adoption of the rule. The amendment is adopted under Texas Civil Statutes, Article 342-114A, which provide the State Finance Commission with the authority to prescribe such rules or procedure as may be necessary for supervising the Consumer Credit Commissioner and for ensuring compliance with Texas Civil Statutes, Title 79, Article 5069-1.01 et seq. 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 July 23, 1993. TRD-9326329 Al Endsley Consumer Credit Commissioner State Finance Commission Effective date: August 16, 1993 Proposal publication date: April 20, 1993 For further information, please call: (512) 479-1280 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Customer Service and Protection 16 TAC sec.23.56 The Public Utility Commission of Texas adopts an amendment to sec.23.56, without changes to the proposed text as published in the May 28, 1993, issue of the Texas Register (18 TexReg 3393). The Commission adopts the amendment for the purpose of conforming sec.23.56 with the Federal Communications Commission rules adopted pursuant to the Americans with Disabilities Act of 1990. The section requires the state certified DPRS carrier to offer the carrier-of- choice option, in conformity with federal regulations mandated by Title IV of the Americans with Disabilities Act of 1990 (ADA). The carrier-of-choice option allows the user to choose an interexchange carrier for long-distance calls made through the DPRS. The section requires the state-certified DPRS carrier to provide interstate service. Funding for interstate service through the Universal Service Fund (USF) will be discontinued as of July 26, 1993, so that this service may be funded with federal funds through the shared-funding mechanism as required by the FCC. Under this plan, the state certified DPRS program will be eligible for settlements under the shared-funding mechanism. Only one entity, MCI Telecommunications Corporation (MCI), submitted comments. MCI agrees with the proposed changes and recommends that they be adopted by Commission as published. Additionally, MCI applauds the Commission for recognizing that persons who are hearing- and speech-impaired are entitled to select a carrier-of-choice to handle their telephone communications. MCI expressed its full support for removing from Substantive Rule 23.56 the temporary funding requirements for interstate relay service. There were no comments received opposing the adoption. The amendment is adopted under Texas Civil Statutes, Article 1446c, sec.96A, which provide the Public Utility Commission with the authority to make and enforce rules establishing a statewide telecommunications relay service for the persons who have hearing loss and the speech-impaired. 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 July 22, 1993. TRD-9326277 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: August 13, 1993 Proposal publication date: May 28, 1993 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.217.2 The Board of Nurse Examiners adopts an amendment to sec.217.2, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3547). This rule is adopted as a result of recommendations made by the Educational Rules Task Force convened by the Board to review licensure rules related to new graduates. The task force considered a 1992 survey from deans and directors of nursing programs in relation to reeducation or remediation of candidates who failed the NCLEX-RN. The results of the survey indicated a majority believe candidates who fail three times should be reeducated. This will assure greater public protection. Those candidates who fail the NCLEX-RN three times and/or have not passed the exam within four years from the date of graduation will be required to complete a nursing curriculum in its entirety. There were no comments received concerning the adoption. The amendment is adopted under Texas Civil Statutes, Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 22, 1993. TRD-9326265 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: August 13, 1993 Proposal publication date: June 4, 1993 For further information, please call: (512) 835-8650 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 15. Coastal Area Planning Subchapter E. Interim Approval of Local Government Dune Protection and Beach Access Plans 31 TAC sec.15.72 The General Land Office adopts an amendment to sec.15.72, concerning the interim approval of the Nueces County and Cameron County dune protection and beach access plans, the identification and preservation of critical dune areas, and the preservation and enhancement of public beach access in those counties, without changes to the proposed text as published in the June 8, 1993, issue of the Texas Register (18 TexReg 3615). The technical amendment corrects the date by which Nueces and Cameron counties will have to submit their final plans pursuant to the rules for Management of the Beach/Dune System (sec. sec.15.1-15.10). Section 15.72(a) incorrectly provided that the final plans be submitted to the General Land Office by August 2, 1993. The rules for the Management of the Beach/Dune System, which govern the submission of all plans, require that plans be submitted to the General Land Office by August 16, 1993. Therefore, the amendment modifies sec.15.72(a) by changing the date by which Nueces and Cameron counties must submit their final plans to the General Land Office from August 2, 1993, to August 16, 1993. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Natural Resources Code, sec.sec.61.011, 61.015(b), and 63.121, which provides the General Land Office with the authority to identify and protect critical dune areas and to preserve and enhance public beach access, as well as the Texas Natural Resources Code, sec.33.601, which provides the General Land Office with the authority to adopt rules on erosion; and the Texas Water Code, sec.16.321, which provides the General Land Office with the authority to adopt rules on coastal flood protection. 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 July 27, 1993. TRD-9326415 Garry Mauro Commissioner General Land Office Effective date: August 17, 1993 Proposal publication date: June 8, 1993 For further information, please call: (512) 463-5007 Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter A. Statewide Hunting and Fishing Proclamation 31 TAC sec.65.72 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing July 8, 1993, amended sec.65.72(d)(2)(A)(ii) to extend the regular commercial menhaden fishing season to be the third Monday in April-November 1 of each year, effective September 1, 1993. There were no changes to the proposed text as published in the June 1, 1993, issue of the Texas Register (18 TexReg 3495). The purpose of the change is to ameliorate problems associated with reductions in fishing time and effort that have occurred in recent years as a result of inclement weather, hurricanes, and down-sizing of the industry and fleet. The Texas Parks and Wildlife Department is a member of the Gulf States Marine Fisheries Commission (GSMFC), and Coastal Fisheries staff participate on the standing Menhaden Committee of the GSMFC. Scientists with the National Marine Fisheries Service and various states have reviewed the potential effects of this season extension. They, as well as Department staff, have concluded that the current stock of menhaden in the gulf is healthy and will not be adversely affected by this change. Based on recent Louisiana studies, any increase in the bycatch resulting from an extended menhaden fishing season will be minimal. Adoption of the season extension will aid the industry without appreciable negative impact on Texas marine stocks. The proposals was recommended by a unanimous vote of the Gulf States Marine Fisheries Commission. The amendment will extend the regular commercial menhaden fishing season which will be the third Monday in April-November 1 of each year, effective September 1, 1993. Comments made by the public concerning the proposed amendment were presented to the Texas Parks and Wildlife Commission. During June 14-18, 1993, 12 public hearings were held throughout the state, including two coastal counties. Approximately 139 people attended the public hearings with three people offering comments. Notice of the hearings was published in local newspapers of each county. Three people in the 12 county public hearings offered public comment on the proposed extension of the commercial menhaden season. One person supported the amendment, one person was conditionally against (i.e. if amendment would promote a local menhaden processing plant), and one person offered a cautionary statement. There were zero comments received by phone or by letter regarding extension of the commercial menhaden season. The commission did not disagree with comments received on the proposed amendment. The amendment is adopted under Texas Parks and Wildlife Code, Chapter 61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which provides the Texas Parks and Wildlife Commission with authority to establish wildlife resource regulations for this state. 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 July 21, 1993. TRD-9326198 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: August 12, 1993 Proposal publication date: June 1, 1993 For further information, please call: 1 (800) 792-1112, Ext. 4433 or (512) 389- 4433 Subchapter N. Early Season Migratory 31 TAC sec.sec.65.311, 65.314, 65.316 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held July 8, 1993, adopts amendments to sec. sec.65.311, 65.314, and 65.316, concerning the Early Seasons Migratory Game Bird Proclamation, with changes to the proposed text as published in the June 1, 1993 issue of the Texas Register (18 TexReg 3496). The changes were made as a result of the United States Fish and Wildlife Service's denial of early season migratory proposals made by department staff. The denial by the Service was made in the Service's regularly scheduled public hearing June 24, 1993, in Washington, D. C., where the Central Flyway representatives presented proposed flyway recommendations for the final rulemaking. The changes to the text as proposed are listed by sections below: (1) Clarified by separating definition of baiting into two parts at sec.65.314. (2) Provided dove hunting during the Christmas Holidays in the Central and South Zones of Texas; the Thanksgiving Holiday period was denied in sec.65. 311. (3) Returned to a white-winged dove bag limit of two per day rather that the proposed six white-wings per day in those four Rio Grande Valley Counties as a result of the Service's decision. (4) Moved the extended falconry season from the January-February period to the November-December period in sec.65.316. These adopted amendments are consistent with biological studies which indicate stable or increasing early season migratory game bird populations in Texas. The adopted rules regulate the taking of migratory game birds compatible with the Texas populations to ensure viable future numbers. The rules will provide limited sport harvest consistent with the populations of the various species. A total of 32 comments were received concerning the proposed amendments. Eight persons favored and seven opposed the proposed three-way split of the mourning dove season in the Central and South Zones. Four persons wanted the mourning dove season opened on September 20 in the South Zone instead of opening September 24. Other persons commented on rules that were not proposed for amending. No persons representing groups spoke for or against the proposed rules. The three-way split in the Central and South Zones was denied by the U. S. Fish and Wildlife Service. The opening date of the dove season in the South Zone was delayed to September 24 in order to incorporate Friday as part of a three-day weekend. The amendments are proposed under the Texas Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Texas Parks and Wildlife Commission with authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird wildlife resources. sec.65.311. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Baiting-The placing, exposing, depositing, distributing, or scattering of shelled, shucked, or unshucked corn, wheat, or other grain, salt, or other feed so as to constitute for migratory game birds a lure, attraction, or enticement to, on, or over areas when hunters are attempting to take such birds. Baited area-Any area where shelled, shucked, or unshucked corn, wheat, or other grain, salt, or other feed capable of luring, attracting, or enticing such birds is directly or indirectly placed, exposed, deposited, distributed, or scattered; and the area shall remain a baited area for ten days following complete removal of all such corn, wheat, or other grain, salt or other feed. Legal shotgun-A shotgun not larger than ten gauge, fired from the shoulder, and incapable of holding more than three shells. (Guns capable of holding more than three shells must be plugged with a one-piece filler which is incapable of removal without disassembling the gun, so the gun's total capacity does not exceed three shells). sec.65.314. Open Seasons, Shooting Hours, Bag and Possession Limits. (a) Rails. Statewide: (1) Dates: September 1-November 9. (2)-(3) (No change.) (b) Mourning doves. (1) North Zone: That portion of the state north of a line beginning at the International Bridge south of Fort Hancock; thence north along FM 1088 to State Highway 20; thence west along State Highway 20 to State Highway 148; thence north along State Highway 148 to Interstate Highway 10 at Fort Hancock; thence east along Interstate Highway 10 to Interstate Highway 20; thence northeast along Interstate Highway 20 to Interstate Highway 30 at Fort Worth; thence northeast along Interstate Highway 30 to the Texas-Arkansas state line. (A) Dates: September 1-November 9, 1993. (B)-(C) (No change.) (2) Central Zone: That portion of the state between the North Zone and the South Zone. (A) Dates: September 1-October 31, 1993, and December 26-January 3. (B)-(C) (No change.) (3) South Zone: That portion of the state south of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to Interstate Highway 10 at San Antonio; thence east along Interstate Highway 10 to the Texas-Louisiana State Line. (A) Dates: September 24-November 14, 1993 (except in the special white-winged dove area the season is September 24-November 10), and December 26-January 12. (B)-(D) (No change.) (c) White-winged doves. Special white-winged dove area: That portion of the state south and west of a line beginning at the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to United States Highway 83 at Uvalde; thence south along U.S. Highway 83 to State Highway 44; thence east along State Highway 44 to State Highway 16 at Freer; thence south along State Highway 16 to State Highway 285 at Hebbronville; thence east along State Highway 285 to FM 1017; thence southeast along FM 1017 to State Highway 186 at Linn; thence east along State Highway 186 to the Mansfield Channel at Port Mansfield; thence east along the Mansfield Channel to the Gulf of Mexico. (1) Dates: September 4, 5, 11, and 12. (2)-(3) (No change.) (d) Gallinules. (Moorhen or common gallinule and purple gallinule) Statewide: (1) Dates: September 1-November 9. (2)-(3) (No change.) (e) Teal ducks. (blue-winged, green-winged, and cinnamon). Statewide: (1) Dates: September 11-September 19. (2)-(3) (No change.) (f)-(g) (No change.) sec.65.316. Extended Falconry Season. (a) (No change.) (b) It is lawful to take migratory game birds by means of falconry during the open seasons prescribed in sec.65.314 and during the following Extended Falconry Seasons: (1) Rails: November 15-December 21, from one-half hour before sunrise to sunset. (2) Mourning doves: November 15-December 21, from one-half hour before sunrise to sunset. (3) White-winged doves: November 15-December 21, from one-half hour before sunrise to sunset. (4) Gallinules: November 15-December 21, from one-half hour before sunrise to sunset. (c)-(d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 27, 1993. TRD-9326390 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: September 1, 1993 Proposal publication date: June 1, 1993 For further information, please call: 1 (800) 792-1112, Ext. 4443 or (512) 389- 4443 Part III. Texas Air Control Board Chapter 101. General Rules 31 TAC sec.sec.101.24, 101.27, 101.28, The Texas Air Control Board (TACB) adopts amendments to sec.sec.101.24, 101. 27, and 101.28, concerning Inspection Fees, Emissions Fees, and Asbestos Fees, with changes to the proposed text as published in the May 7, 1993, issue of the Texas Register (18 TexReg 2935). The proposed revisions add wording to indicate that fees must be paid to any successor of the TACB due to the merger of the TACB into a new environmental agency in September of 1993 and also to clarify the definition of fiscal year. In sec.101.27(c), the TACB proposes to raise the emissions fee rate for fiscal year 1994 from $5.00 to $25 per ton, and for fiscal year 1995, to $26 per ton. The minimum emissions fee is being increased from $25 to $26 for fiscal year 1995, for consistency with the new fee rate. In sec.101.28(a), the term "contractor" was replaced with the term "owner/operator." A public hearing was held in Austin on June 1, 1993. Testimony was received from nine commenters. The following discussion addresses the comments received. In response to proposed changes to sec.101.27, an individual opposed reporting either allowable or actual emissions. The commenter indicated that both values should be reported so that maximum potential emissions (allowables) will be known from the site and that actual emissions are known. The individual believed the TACB must require written verification of actuals and that actual sampling should be used, not just emissions factors. The commenter stated that this reporting should include upsets and other releases not permitted. The commenter indicated that this will ensure that the TACB gets more money and will not have to subsidize industry by not knowing actual emissions. The subject of these comments was not part of the proposed changes; however, although the rule permits the use of either allowable or actual emissions for fee purposes, the option to use actual emissions where a permit allowable exists requires considerable additional documentation, including an emissions inventory based on data that was actually monitored just as the commenter suggests. In addition, the TACB requires actual emissions on emissions inventories. Maximum potential emissions from permitted units are known, are listed on permits, and are stored on the TACB computer. If no permit exists, the TACB requires written documentation of the method used for calculating fees. The TACB does not include upsets because these are not considered normal operating conditions. Ethyl Corporation provided written testimony on the revisions proposed in sec.101.27 and stated support for the development and implementation of sound environmental technology and strongly believes that protection of the environment is essential to public health. The commenter strongly supported the comments presented by the Texas Chemical Council (TCC) and also believes that carbon monoxide (CO) should be excluded from fee assessment. The TCC strongly objected to the assessment of fees for CO emissions. TCC indicated that by controlling nitrogen oxide this will increase CO. The subject of assessment of fees on CO emissions was not part of the current proposed changes to sec.101.27. Similar testimony was given when the original rule was evaluated in 1991. The staff indicated at that time that while CO is not included in the Federal Clean Air Act (FCAA) provisions relating to emissions fees, states are not precluded from considering CO. Since the FCAA allows the states flexibility in the establishment of program requirements and CO clearly is a regulated pollutant, the staff continues to support that inclusion. Furthermore, the United States Environmental Protection Agency (EPA) does not appear to have used any technical justification for excluding CO from the fee base. It should also be noted that inclusion of CO in the fee base has allowed the fee rate to be lower than it would have been had CO been excluded from the fee base. If CO were to be excluded from the fee base, the fee rate would have risen by approximately $5. 00 per ton. It should also be noted that the presumed minimum emissions fee level under the FCAA is $25 per ton adjusted for inflation since 1989, and this yields a fee rate of approximately $30 per ton if CO is excluded from the fee base. TCC strongly supported replacing the term "contractor" with the term "owner/operator" in sec.101.28(a) as proposed. The TACB staff appreciates this support. Exxon Company, U.S.A. (Exxon), discussed sec.101.27 with concerns that the fee increased from $5.00 per ton to $25 per ton. The commenter indicated that the TACB should establish a fee structure that will generate revenues equal to the projected cost of the Title V operating permit program and that the fees collected should be used only for that program. The commenter also indicated that the TACB is giving the appearance that it will have a surplus of fees and that this surplus should be retained and mitigate future fees. The commenter also indicated that the TACB does not clarify which calendar year the fiscal year begins. The staff believes that the fee structure as proposed will generate revenues adequate to cover the costs of the Title V operating permit program. The emissions fee system has been in place for two years and the need for an increase in fees to at least $25 per ton by fiscal year 1994 was indicated during the development of this system. The FCAA requires that the TACB use the fees collected to support only Title V activities. There is no projected surplus of emissions fees. The figures on cost of the program per year were not adjusted for inflation in the calculations presented by the commenter in arriving at the conclusion there would be a surplus. The TACB agrees that any surplus should be used by the TACB. House Bill 2049 provides that after September 1, 1993, all money obtained from fees will remain in the Clean Air Fund. The staff agrees that the definition of a fiscal year needs to indicate the calendar year in which a fiscal year begins. The staff has added wording to both sec.101.24 and sec.101.27 to clarify this issue. Texas Mid-Continent Oil & Gas Association (TMOGA) also provided comments concerning sec.101.27 and suggested that additional language be added concerning revisions to emissions reported. TMOGA stated that companies revising their original emissions reported and fee payments should provide an explanation as to why the amounts changed, should pay the difference with prime rate interest, and should not be subject to enforcement action. The TACB has always accepted revisions to fee payments and has not taken the position of filing for enforcement action when this occurs. If an audit were to indicate underpayment, the account would be given notice of the discrepancy and a chance to remit the full fee prior to enforcement action. El Paso Natural Gas Company commented on sec.101.27 and suggested that the 4, 000 ton limit be dropped, the limit be increased yearly, or natural gas companies be allowed to consolidate their emissions. The commenter stated that companies with less than 4,000 tons will be subsidizing those companies with substantially higher emissions because companies with lesser emissions cannot take advantage of this limit. The commenter indicated that there could be a need for companies to pay fees on their Hazardous Air Pollutants (HAP) emissions as identified by EPA. The commenter indicated that companies should be able to pay a fee retroactively without the worry of enforcement action. The TACB does not believe the 4,000 ton limit should be dropped. The limit provides a reasonable ceiling forcing a broad distribution of responsibility for fee payment, instead of the larger emitters paying most of the fees. Emissions levels alone are not the only factor involved in assessing impacts on agency resources. The emissions fee does include Title III HAP emissions except for those that are classified as a listed pollutant such as volatile organic compounds. As mentioned with an earlier commenter, the TACB does allow for revisions to fee payments and does not take the position of filing for enforcement action when this occurs. Southwestern Public Service Company (SPSC) commented on sec.101.27 and requested that the TACB conservatively employ the revenues generated for the direct and indirect costs of FCAA implementation. SPSC and Exxon were concerned about the language in the Texas Register stating "There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rules as proposed." The revenues will be spent on Title V activities as required by the FCAA. The two sentences were added by the Texas Register after the proposal was filed. These were not intended to be in the proposal and are not valid. Houston Lighting & Power (HL&P) is in support of dropping language from sec.101.28 that would imply that asbestos fee payments must accompany renotifications. The staff appreciates HL&P's comment and has proposed dropping this language which was inadvertently left in the rule when it was originally adopted. EPA stated that sec.101.27 does not include a fee adjustment which will increase the fees according to the CPI. EPA stated that there needs to be a clear demonstration of how the emissions fee rate will increase equal to or greater than the annual CPI adjustment. The commenter believed that it was also important that the Texas fee adequately demonstrate that the emissions fee rate is greater than the presumptive minimum plus the CPI adjustment. EPA also recommended that additional language be added to sec.101.24(b) and sec.101. 27(b) which states "or any successor or agency successor" which would clarify who the fees are to be paid to after the merger. The fees are adjusted biennially and adjustment for the CPI will be included at this time. The staff believes that the CPI adjustment is adequately taken care of. The language stating "or any successor or agency successor" has been added. In compliance with the Americans With Disabilities Act, this document may be requested in alternate formats by contacting Air Quality Planning Program staff at (512) 475-2245, (512) 908-1500 FAX or 1-800-RELAY-TX (TDD), or by writing or visiting at 12124 Park 35 Circle, Austin, Texas 78753. The amendments are adopted under the Texas Health and Safety Code (Vernon 1990), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.24. Inspection Fees. (a) Applicability. The owner or operator of each account to which this rule applies, as defined in this subsection, shall remit to the Texas Air Control Board (TACB) or any successor or agency successor an inspection fee each fiscal year. A fiscal year is defined as the period from September 1-August 31. A fiscal year, having the same number as the next calendar year, begins on the September 1 prior to that calendar year. An account subject to both an inspection fee and an emissions fee, pursuant to sec.101.27 of this title (relating to Emissions Fees), is required to pay only the greater of the two fees. For purposes of this section, an account shall be defined as all of the facilities located at a property, including those that are permitted, nonpermitted, exempted, and grandfathered. Properties under common ownership, but containing separate operations, or managed independently, or carried on the records of this agency under separate account numbers, will be charged a separate fee for each such account, even if the properties are contiguous or are contiguous except for intervening roads, railroads, rights-of-way, waterways, and the like. The inspection fee shall apply to each account which contains one or more of the types of plants, facilities, and/or processes described in the TACB Inspection Fee Schedule, dated August 30, 1991, as filed with the Secretary of State's Office and herein adopted by reference. References for the industrial categories used are provided in the Standard Industrial Classification (SIC) Manual (Executive Office of the President, Office of Management and Budget, 1987). If more than one SIC category can apply to an account, the fee assessed shall be the highest fee listed for the applicable classifications in the fee schedule. Provisions of the section apply to all accounts, including accounts which have not been assigned specific TACB account numbers. The owner or operator of an account subject to an inspection fee requirement is responsible for contacting the appropriate TACB regional office to obtain an account number. The TACB will not initiate the combination or separation of accounts solely for fee assessment purposes. If an account is operated at any time during the fiscal year for which the fee is assessed, a full inspection fee is due. In the event that an account is not operated for the entire fiscal year for which the fee is assessed, an inspection fee is not due, provided the TACB is notified in writing that the plant is not and will not be in operation during that fiscal year. If an account commences or resumes operation later during the fiscal year, a full inspection fee will be due prior to commencement or resumption of operations. (b) Payment. Fees shall be remitted to the Texas Air Control Board or any successor or agency successor, (Attention: Inspection Fees), 12124 Park 35 Circle, Austin, Texas 78753, in the form of a check or money order made payable to the Texas Air Control Board. A completed fee return form shall accompany fees remitted. The fee return form shall include, at least, the company name, property address, mailing address, TACB account number, the SIC category on which the fee was determined, and the name and telephone number of the person to contact in case questions arise regarding the fee payment. (c)-(d) (No change.) sec.101.27. Emissions Fees. (a) Applicability. The owner or operator of each account to which this rule applies, as defined in this subsection, shall remit to the Texas Air Control Board (TACB) or any successor or agency successor an emissions fee each fiscal year. A fiscal year is defined as the period from September 1-August 31. A fiscal year, having the same number as the next calendar year, begins on the September 1 prior to that calendar year. An account subject to both an emissions fee and an inspection fee, pursuant to sec.101.24 of this title (relating to Inspection Fees), is required to pay only the greater of the two fees. For purposes of this section, an account shall be defined as all of the facilities located at a property including those that are permitted, non-permitted, exempted, and grandfathered. Properties under common ownership, but containing separate operations, or managed independently, or carried on the records of this agency under separate account numbers, will be charged a separate fee for each such account, even if the properties are contiguous or are contiguous except for intervening roads, railroads, rights-of-way, waterways, and the like. Provisions of the section apply to all accounts, including accounts which have not been assigned specific TACB account numbers. The owner or operator of an account subject to an emissions fee requirement is responsible for contacting the appropriate TACB regional office to obtain an account number. The TACB will not initiate the combination or separation of accounts solely for fee assessment purposes. If an account is operated at any time during the fiscal year for which the fee is assessed, a full emissions fee is due. In the event that an account is not operated for the entire fiscal year for which the fee is assessed, an emissions fee is not due, provided the TACB is notified in writing that the plant is not and will not be in operation during that fiscal year. If an account commences or resumes operation later during the fiscal year, a full emissions fee will be due prior to commencement or resumption of operations. All regulated air pollutants, as defined in subsection (c) of this section, including, but not limited to, those emissions from point and fugitive sources during normal operations with the exception of (for applicability purposes only) hydrogen, oxygen, carbon dioxide, water, nitrogen, methane, and ethane, are used to determine applicability of this section. In accordance with rules proposed by the U.S. Environmental Protection Agency at 40 Code of Federal Regulations (CFR) 70, concerning the use of fugitive emissions in major source determinations, fugitive emissions shall be considered toward applicability of this section only for those source categories listed at 40 CFR sec.51.166(b)(1)(iii). For purposes of this section, an affected account shall have met one or more of the following conditions: (1)-(9) (No change.) (b) Payment. Fees shall be remitted to the Texas Air Control Board or any successor or agency successor, (Attention: Emissions Fees), 12124 Park 35 Circle, Austin, Texas 78753, in the form of a check or money order made payable to the Texas Air Control Board. A completed fee return form shall accompany fees remitted. The fee return form shall include, at least, the company name, property address, mailing address, TACB account number, the allowable levels and/or actual emissions of all regulated air pollutants at the account for the reporting period, and the name and telephone number of the person to contact in case questions arise regarding the fee payment. (c) Basis for fees. (1) The emissions fee shall be based on allowable levels and/or actual emissions at the account during the last full calendar year preceding the beginning of the fiscal year for which the fee is assessed. The fee applies to the tonnage of regulated pollutants at the account, including those emissions from point and fugitive sources during normal operations. Although certain fugitive emissions are excluded for applicability determination purposes pursuant to subsection (a) of this section, all fugitive emissions must be considered for fee calculations after applicability of the fee has been established. A maximum of 4,000 tons of each regulated pollutant will be used for fee calculations. The fee for each fiscal year is set at the following rates: [graphic] The account shall pay the calculated emissions fee or the minimum fee, whichever is greater. (2)-(3) (No change.) (d)-(e) (No change.) sec.101.28. Asbestos Notification Fees. (a) Applicability. On or after September 1, 1992, the owner/operator of a demolition or renovation activity shall remit to the Texas Air Control Board (TACB) or any successor or agency successor a fee that is based upon the amount of asbestos subject to the reporting requirements of the National Emission Standards for Hazardous Air Pollutants (for Asbestos) promulgated in the Code of Federal Regulations (CFR) at 40 CFR 61, Subpart M. (b) Payment. Within 30 calendar days of the date on the TACB Asbestos Billing Invoice, the billed fee(s) which are calculated by the TACB from the notification form shall be payable to the Texas Air Control Board or any successor or agency successor in the form of a check or money order and the original TACB Billing Invoice shall be remitted to the Texas Air Control Board or any successor or agency successor, (Attention: Asbestos Fees), 12124 Park 35 Circle, Austin, Texas 78753. (c) (No change.) (d) Schedule. A check or money order for the dollar amount of the fee due shall be remitted within 30 calendar days of the date on the Asbestos Billing Invoice sent by the TACB. The following fee schedule shall apply for all notification revisions: (1) (No change.) (2) If a revision is made with an official TACB notification form in which the original amount of asbestos reported is less than the actual amount removed, an additional fee covering the difference shall be invoiced. (3) If a revision is made with an official TACB notification form in which the original amount of asbestos reported remains unchanged, no additional fee will be assessed. (e) Nonpayment of fees. The provisions of this section, as first adopted and as amended thereafter, are and shall remain in effect for purposes of any unpaid assessments, and the fees assessed pursuant to such provisions, as adopted or as amended, remain a continuing obligation. Failure to remit the full asbestos fee with the original TACB Asbestos Billing Invoice shall result in formal enforcement action under the Texas Clean Air Act, sec.382.082 or sec.382.088. In addition, sec.382.091(a)(2) provides for criminal penalties for those failing to pay fees. This agency hereby certifies that the 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 July 28, 1993. TRD-9326417 Lane Hartsock Deputy Director Texas Air Control Board Effective date: August 18, 1993 Proposal publication date: May 7, 1993 For further information, please call: (512) 908-1451 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 1. Organization and Administration Personnel and Employment Policies 37 TAC sec.1.41 The Texas Department of Public Safety adopts new sec.1.41, concerning Personnel and Employment Policies, without changes to the proposed text as published in the June 18, 1993, issue of the Texas Register (18 TexReg 4016). The adoption of the rule is necessary to ensure the public that the department complies with applicable statutes and that applicants for employment and those served by programs and activities sponsored by the department are afforded procedures that provide for prompt and equitable resolution of complaints regarding the Americans with Disabilities Act. The federal rule found in 28 Code of Federal Regulations, sec.35.107 requires public entities that employ 50 or more persons to adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by Title II of the Americans with Disabilities Act. This section states the policy of the department and establishes complaint procedures for program compliance and the complaint procedure for employment compliance. No comments were received regarding adoption of the rule. The new section is adopted under the Texas Government Code, sec.411.006(4), which provide the director with the authority to adopt rules, subject to commission approval, considered necessary for the control of the department. 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 July 20, 1993. TRD-9326332 James R. Wilson Director Texas Department of Public Safety Effective date: August 16, 1993 Proposal publication date: June 18, 1993 For further information, please call: (512) 465-2000 (Editor's note: In the July 16, 1993, issue of the Texas Register, the Texas Register inadvertently withdrew 37 TAC sec.3.62 (18 TexReg 4637). The Texas Department of Public Safety adopted sec.3.62 in the same issue of the Texas Register (18 TexReg 4642). The effective date for 37 TAC sec.3.62 is July 27, 1993.) Part VI. Texas Department of Criminal Justice Chapter 152. General Allocation Rules Subchapter A. Institutional Division Admissions 37 TAC sec.sec.152.1-152.3 The Department of Criminal Justice adopts amendments to sec.sec.152.1-152.3, concerning allocations of admissions to the Texas Department of Criminal Justice-lnstitutional Division with changes to the proposed text as published in the June 11, 1993, issue of the Texas Register (18 TexReg 3664). Under the Texas Government Code, sec.499.071, as amended, the Texas Board of Criminal Justice is required to promulgate a formula for allocation of admissions to the Institutional Division, and is further required to amend that formula annually. The board is required by law to include certain statutory factors in the formula, and has discretion to add other factors. The board is further required to use updated data each time it revises the formula. Database changes produce some alterations in the percentages of admissions allocated to each county, even if the board did not alter the factors included in the formula or the weights assigned to those factors. The amendment to sec.152.2, concerning definitions, updates the definition of capacity to include new construction and the adjustments to capacity permissible under the Texas Government Code, sec.499.101 and the implementing rules as published at sec.152.11 and sec.152.12. The proposed amendment to sec.152.3(b) added a new discretionary factor for the county's percentage of the total number of paper-ready felons confined in all jails in all counties during the preceding 12-month period. This new factor also appeared in the formula set out in sec.152.3(c), where it was denominated "jail backlog." The proposed amendment to sec.152.3(c) for the allocation of admissions included the following proposed changes to the weights to be assigned to the factors which are mandated by statute: the weight for violent index crimes was reduced from 15 to 10; the weight for all index crimes was reduced from 20 to 10; and the weight for parole releases was increased from 10 to 15. The proposed amendment to sec.152.3(c) included the amendments to the discretionary factors used in the Fiscal Year (FY) 1993 allocation formula. The Board proposed the following changes to the discretionary factors: the weight for probation placements was decreased from 10 to 5; the weight for juvenile probation funding was decreased from 10 to 5; and the Board added a new factor for the "jail backlog population" and gave that new factor a weight of 20. The Board did not adopt the proposed 11th factor or the proposed weights. Instead the Board adopted the same formula as was used in FY 1993. That formula consisted of the 10 factors and the same percentage weights as used in FY 1993 and, as statutorily required, updated the factor data. This yields a "data driven" formula. In sec.152.2(a)(1) the percentage of special circumstance inmate intake of . 03333 was changed to .08333. Historically, the 5 per day has equated to .03333 of the 750 estimated intake. Out of the new projected FY 1994 weekly intake of 300, TDCJ-ID will continue to use approximately 5 per day of the inmate intake for this "other" category. It will equate to .08333 of 300 per week. No comments were received regarding adoption of the rules. The amendments are adopted under the Texas Government Code Title 4, Subchapter D, sec.499.071, which provides the Texas Department of Criminal Justice with the authority to promulgate a formula for allocation of admissions to the Institutional Division and to amend that formula annually. sec.152.1. Purpose. The Texas Government Code, sec.499.071, et seq. requires the board to adopt and enforce an allocation formula to fairly and equitable allocate to each county the available institutional division admissions until sufficient capacity is available in the institutional division to accept all prisoners eligible for transfer to the institutional division. An annual determination by the board that there is insufficient capacity in the institutional division to accept all prisoners from Texas county jails who are eligible for transfer into the institutional division as soon as they become eligible shall make it necessary to adopt and enforce such a formula. sec.152.2. Definitions and Exceptions. (a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Available institutional division admissions-The total number of beds available within the institutional division for intake of prisoners is based upon the estimated rate of release of prisoners from the institutional division, minus .08333 of those beds which is adequate to allow the institutional division to expeditiously receive from the counties any new prisoners who are sentenced to death, or who are recaptured escapees, pre-parole violators, institutional division prisoners returning from federal bench warrants, interstate corrections compact transfers, and out-of-state parole violators. Therefore, the number of admissions available is based upon the rate of prisoner flow through the institutional division, plus any new beds added to capacity through the mechanisms permitted under sec.152.11 and sec.152.12. (2) Institutional division capacity-The total number of beds available for use within the institutional division, in accordance with the limitations on capacity and its use imposed by federal court orders in Ruiz vs. Lynauh, Number H-78-987 (Southern District of Texas, Houston Division), and the rules concerning capacity set out at sec.152.11 and sec.152.12. (b) The institutional division may suspend or cancel admissions when the acceptance or transport of prisoners would be unsafe, such as in cases of extremely severe weather or civil disturbance, or would cause noncompliance with federal court orders. The institutional division is not required to make up for admissions so suspended or canceled. On days that the institutional division is closed due to holidays, the number of admissions is decreased by the number of days of closure multiplied by the current number of daily admission. The balance of admissions for the week is prorated out to the counties based upon their allocated percentage of intake. sec.152.3. Allocation Formula. (a) In creating the allocation formula, the board is required to consider and weigh each of the following factors: (1) the percentage of prison admissions for the entire state that were allocated to the county in the preceding 12 months; (2) the percentage of the state's violent index crime that occurred in the county in the preceding 12 months; (3) the percentage of the state's total index crime that occurred in the county in the preceding 12 months; (4) the percentage of the state's total arrests under the Texas Controlled Substances Act, the Health and Safety Code, Chapter 481, that occurred in the county or counties in the preceding 12 months; (5) the percentage of the state's population residing in the county or counties; (6) the percentage of the state's total unemployment in the county or counties; and (7) the percentage of all defendants serving sentences for felonies who were paroled from the institutional division, a jail in this state, or a jail or correctional institution in another state in the preceding 12 months and who were released to reside in the county or counties. (b) The board has discretion to add other factors which are not mandated by the legislature. In the exercise of that discretion, the board adds the following factors reflecting community effort: (1) the county's percentage of the state's total number of persons placed on probation during the preceding calendar year, as determined by the Criminal Justice Division of the Texas Department of Corrections. "Probation placements" are defined as including felons placed on regular probation, and felons placed in a special program, either through direct sentencing by the court or persons given shock probation; (2) the county's percentage of the state's total number of persons completing probation during the preceding calendar year (as determined by the Community Justice Assistance Division) whose probations were terminated either through early discharge or the expiration of the full term of probation; (3) the county's percentage of the state's total funds expended by counties for juvenile probation services in the most recently audited county fiscal year, as determined by the Texas Juvenile Probation Commission staff. (c) The Board assigns the following weight to each statutory and discretionary factor: Statutory Factors (1) Section 152.3(a)(1)-(historical admissions) -10 (2) Section 152.3(a)(2)-(violent index crime) -15 (3) Section 152. 3(a)(3)-(index crime)-20 (4) Section 152.3(a)(4)-(drug crime arrests)-10 (5) Section 152.3(a)(5)-(population)-5 (6) Section 152.3(a)(6)-(unemployment)-5 (7) Section 152.3(a)(7) -(parole releases)-10 Discretionary Factors (8) Section 152.3(b)(1)-(probation placements) -10 (9) Section 152.3(b)(2)-(probation completions) -5 (10) Section 152.3(b)(3)-(juvenile probation funding) -10 Total-100% (d) These weighted statutory factors and the community effort factors shall be applied to available institutional division admissions to determine, employing normal rounding practices and allowing for holidays in the 12-month period, the number of admissions available to each county. (e) The institutional division may establish a minimum level of admissions, based on the timing of admissions transportation cycles, for counties that would otherwise fail to receive a meaningful number of admissions, as determined by the institutional division. (f) This formula gives each county a fixed percentage of institutional division admissions, as follows: [graphic] 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 Huntsville, Texas, on July 25, 1993. TRD-9326385 Cynthia N. Milne General Counsel Texas Department of Criminal Justice-ID Effective date: September 1, 1993 Proposal publication date: June 11, 1993 For further information, please call: (409) 294-2140 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 29. Purchased Health Services Subchapter D. Medicaid Home Health Program 40 TAC sec.sec.29.302, 29.304, 29.308, 29.309, 29.311 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.29. 302, 29.304, 29.308, 29.309, and 29.311, concerning authorized home health services, limitations on home health services, written plan of care, time- limited authorizations, and additional claim information requirements, in its Purchased Health Services chapter. The amendments are adopted without changes to the proposed text as published in the April 6, 1993, issue of the Texas Register (18 TexReg 2291). The justification for the amendments is to allow DHS greater flexibility in certain administrative and procedural requirements as well as to make the documentation for the prior authorization process and claims filing easier for the provider. The amendments will function by allowing DHS to modify current administrative procedures resulting in ease of access and authorization of services. During the 30-day comment period, DHS received comments from the Texas Association for Home Care and the Texas Legal Services Center on behalf of the Houston Welfare Rights Organization. The Texas Association for Home Care supports adoption of the amendments as proposed. The following is a summary of comments from the Texas Legal Services Center and DHS's response to those comments. COMMENT: The commenter requested that DHS delete from sec.29.302 the "essentially homebound" and "prior authorization" requirements. RESPONSE: DHS amended sec.29.302 to add the "essentially homebound" requirement to make the rule consistent with the approved Title XIX State Plan. This requirement is not new to the Medicaid Home Health Program. RESPONSE: The "prior authorization" requirement was not a proposed amendment to sec.29. 302. It is an existing requirement; however, DHS proposed adding "as specified" to allow for more flexible administrative procedures, such as issuing the prior approval number over the telephone. Currently, for reimbursement to occur, written documentation is required to be received by the National Heritage Insurance Company (NHIC) before a prior-approval number can be issued to the provider, and this must occur before the 95-day claims-filing deadline for reimbursement. DHS is adopting the amendments as proposed. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1993. TRD-9326434 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: August 31, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 450-3765 Subchapter G. Hospital Services 40 TAC sec.29.609, sec.29.610 The Texas Department of Human Services (DHS) adopts the repeal of sec.29. 609 and sec.29.610 and adopts new sec.29.609 and sec.29.610 in its Purchased Health Services chapter. New sec.29.609 and sec.29.610 are adopted with changes to the proposed text as published in the May 7, 1993, issue of the Texas Register (18 TexReg 2938). The repeals are adopted without changes and will not be republished. The repeals and new sections are justified because they allow for improved health care and access to health care for Texas citizens. The repeals and new sections will function by providing a new methodology for identifying and providing additional reimbursement to hospitals that provide a disproportionate share of health care and access to health care to indigent clients. The proposal also will function by providing the basis for identifying eligible hospitals and for distributing disproportionate share funds. New sec.29.610, concerning Disproportionate Share Hospital Reimbursement Methodology for State-Owned Teaching Hospitals, will function the same as the current program. The department received oral and written comments regarding the adoption of the repeals and new sections. The Center for Rural Health Initiatives and the following rural hospitals submitted comments opposing trauma systems as a condition of participation in the disproportionate share hospital program: Seymour, Faith Community, Nocona General, Wilbarger General, Rankin County, Chillicothe, and Clay County Memorial. The department also received unfavorable comments concerning the trauma system requirement from North Texas Regional Advisory Council. The Center for Rural Health Initiatives suggested a change in the proposed rules to clarify trauma facility designation. The center also commended the department's efforts to encourage the development of a statewide trauma system using the disproportionate share hospital program. Three individuals spoke at the May 18, 1993, public hearing; two opposed trauma systems for rural hospitals and one commended the addition of charity care and the changes in the formulas. The following are the comments received and the department's responses. Responses have been coordinated with the Texas Health and Human Services Commission. Comment. All of the hospitals commenting stated that the development of trauma systems should not be made a condition of participation in the disproportionate share hospital program. The hospitals contended that participation in Level IV, Basic Trauma Facility, would seriously affect the financial future of rural hospitals and that their doors would close if made to operate without disproportionate share funds. Response. The purpose of developing trauma systems throughout the state is to better provide access to care for everyone. Level IV trauma systems, defined by the Texas Department of Health (TDH) according to the Trauma Act, require the minimum of staff, training, and equipment to effectively serve in emergencies. To lower the standards may deny people access to adequate health care. To abandon the trauma system requirement, as a condition of participation in the disproportionate share program, may deny Medicaid clients access to health care in emergencies. The trauma system requirement has been reviewed and approved by the Hospital Payment Advisory Committee and Medical Care Advisory executive steering committee at the April 7, 1993, meeting. The department did not change its proposed rules as a result of this comment. Comment. The Center for Rural Health Initiatives commented on the trauma system requirement. The center was concerned about a hospital having to be designated as a trauma facility under state law and rules to participate in the disproportionate share hospital program. Because rules have not yet been adopted by TDH for Level IV trauma systems, the center suggested that the rules be changed to state that this requirement applies "only if rules and procedures to designate facilities have been adopted." Response. The department shared this comment with TDH. TDH is in the process of developing rules and procedures for trauma facility designation and is scheduled to have them in place and effective before the designation process begins. However, the department changed the text of the rule to include this comment. Although the department received no public comments on new sec.29.610, the reference to the Health and Human Services Commission was changed to "the single state agency" to be consistent with other language in the sections and state plan. As a result of questions from the Health Care Financing Agency (HCFA), the department has initiated the following changes for clarification and accuracy and to make the text consistent with the Title XIX State Plan. Section 29.609(c)(9) has been changed to comply with the Social Security Act, sec.1923(d)(1)(A)(ii). The revised sentence now reads, "The two-physician requirement does not apply to hospitals whose inpatients are predominantly under 18 years old or that did not offer nonemergency obstetrical services to the general population as of December 22, 1987." Section 29.609(f)(1), concerning state chest or mental hospitals, has been revised to clarify which hospitals qualify for disproportionate share payments under the proposed methodology. HCFA requested a clearer description for setting payment rates for state chest or mental hospitals. The department revised sec.29.609(f)(1) to better specify the intent of the rule and to clarify the reimbursement methodology. The department has clarified the cost report period and the definition of "total operating costs" in sec.29.609(b). The department has included in the rules how the monthly payments will be determined from the annual disproportionate share hospital payment amounts. The department revised sec.29.609(f) to include specific language for determining the amounts. The proposed rules specify that only two types of hospitals receive weighting factors other than 1.0: children's hospitals and hospital districts and city/county hospitals with greater than 250 licensed beds in the state's largest Metropolitan Statistical Areas (MSAs). Section 29.609(f)(2) has been changed to reflect specific weighting factors and reflect that all other hospitals receive weighting factors of 1.0. The department also changed sec.29. 609(f)(2) to define the cutoff for being in one of the largest MSAs. The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 32, which authorizes the department to administer medical assistance programs. The repeals are also adopted under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 26, 1993. TRD-9326323 Nancy Murphy Section Manger, Policy and Document Support Texas Department of Human Services Effective date: August 16, 1993 Proposal publication date: May 7, 1993 For further information, please call: (512) 450-3765 40 TAC sec.29.609, sec.29.610 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 32, which authorizes the department to administer medical assistance programs. The repeals are also adopted under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.29.609. Additional Reimbursement to Disproportionate Share Hospitals. (a) Introduction. Hospitals participating in the Texas Medical Assistance (Medicaid) program that meet the conditions of participation and that serve a disproportionate share of low-income patients are eligible for additional reimbursement from the disproportionate share hospital fund. The single state agency or its designee establishes each hospital's eligibility for and amount of reimbursement as specified in this section. For purposes of Medicaid disproportionate share eligibility determination, a multisite hospital is considered as one provider unless it has separate Medicare cost reports for each site. (b) Definitions. For purposes of this section, the following words and terms, shall have the following meanings, unless the context clearly indicates otherwise. (1) Charity care-Care provided to medically or financially indigent individuals who have no source of payment, third-party or personal. (2) Charity charges (excluding bad-debt charges)-Total amount of hospital charges for inpatient and outpatient services attributed to charity care in a cost reporting period. The total inpatient and outpatient charity charges attributable to charity care do not include contractual allowances and discounts (other than for indigent patients not eligible for medical assistance under an approved Medicaid State Plan); that is, reduction or discounts, in charges given to other third-party payers such as, but not limited to, Health Maintenance Organizations (HMOs), Medicare, or Blue Cross. The amount of total charity charges must be consistent with the amount reported on the Texas Department of Health's (TDH's) annual hospital survey. (3) Cost-to-charge ratio-Hospital's overall inpatient cost-to-charge ratio, as determined from its Medicare cost report it submitted for its fiscal year ending in the previous calendar year. (4) Financially indigent-Uninsured or underinsured patients accepted for care with no obligation or a discounted obligation to pay for services based on the hospital's formal eligibility system, which may include income levels and means testing (indexed to an accepted standard such as the federal poverty guidelines), or other criteria for determining a patient's inability to pay that are consistent with the hospital's mission and established policy. (5) Gross inpatient revenue-Amount of gross inpatient revenue (charges) reported by the hospital in the appropriate part of the Medicare cost report it submitted for its fiscal year ending in the previous calendar year. Gross inpatient revenue excludes revenue related to the professional services of hospital-based physicians, swing bed facilities, skilled nursing facilities, intermediate care facilities, and other long term care facilities. (6) Hospital eligibility criteria-Financial and other criteria used by the hospital to determine if a patient is eligible for charity care. (7) Low-income days-Number of days derived by multiplying a hospital's total inpatient census days by its low-income utilization rate. (8) Low-income utilization rate-The result of the following computation: ((Title XIX inpatient hospital payments plus total state and local revenue) divided by (gross inpatient revenue multiplied by cost-to- charge ratio)) plus ((total inpatient charity charges minus total state and local revenue) divided by (gross inpatient revenue)). (9) Medicaid inpatient utilization rate-Title XIX inpatient days divided by total inpatient census days. (10) Medically indigent-Patients who are responsible for their other living expenses but whose medical and hospital bills, after payment by third- party payers, where applicable, exceed a specified percentage of the patients' annual gross income (catastrophic medical expenses) according to the hospital's eligibility system in such instances where payment would require liquidation of assets critical to living or earning a living or other criteria for determining patient's inability to pay that are consistent with the hospital's mission and established policy. (11) Medicare inpatient utilization rate-Medicare inpatient days divided by total inpatient census days. (12) Rural area-Area outside a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA). MSA and PMSA are defined by the Office of Management and Budget. (13) Total inpatient census days-Total number of a hospital's inpa- tient census days during its fiscal year ending in the previous calendar year. (14) Total inpatient charity charges (excluding bad debt charges)-Total amount of the hospital's charges for inpatient hospital services attributed to charity care (care provided to individuals who have no source of payment, third-party or personal resources) in a cost reporting period. The total inpatient charges attributable to charity care will not include contractual allowances and discounts (other than for indigent patients not eligible for medical assistance under an approved Medicaid State Plan); that is, reduction or discounts, in charges given to other third-party payers such as, but not limited to, HMOs, Medicare, or Blue Cross. (15) Total Medicaid inpatient days-Total number of billed Title XIX inpatient days based on the latest available state fiscal year data for patients entitled to Title XIX benefits. (16) Total Medicaid inpatient hospital payments-Total amount of Title XIX funds, excluding Medicaid disproportionate share funds, a hospital received for admissions during the latest available state fiscal year for inpatient services. (17) Total operating costs-Total inpatient operating costs of a hospital during its fiscal year ending in the calendar year before the start of the current federal fiscal year, according to the hospital's Medicare cost report (tentative, or final audited cost report, if available). (18) Total state and local revenue-Total amount of state and local revenue a hospital received for inpatient care, excluding all Title XIX payments, during its fiscal year ending in the previous calendar year. (19) Urban-Area inside an MSA or PMSA. (20) Weighted low-income days-Low-income days multiplied by an appro- priate weighting factor. (21) Weighted Medicaid days-Medicaid days multiplied by an appropriate weighting factor. (c) Conditions of participation. Before the beginning of each state fiscal year, which begins September 1, the single state agency or its designee surveys Medicaid hospitals to determine which hospitals meet the state's conditions of participation. Hospitals must allow state personnel access to the hospital and its records to ensure compliance with the conditions of participation. Failure to meet all of the conditions of participation results in ineligibility for participation in the program. These conditions of participation do not apply to state-owned teaching hospitals as specified in sec.29.610 of this title (relating to Disproportionate Share Hospital Reimbursement Methodology for State-Owned Teaching Hospitals). The conditions of participation are as follows. (1) Hospital eligibility criteria for indigent patients needing medical care. Each Medicaid hospital must submit to the state Medicaid director its hospital eligibility criteria for indigent patients and the procedures for identifying those indigent patients eligible for emergency and nonemergency medical care. Hospital eligibility criteria should address financially indigent people as well as the medically indigent and are indexed to the federal poverty guidelines. Hospitals must identify the number of patients to whom they provide charity care and must make available to state personnel sufficient records to document the amount of charity care provided to those patients. A hospital must allow state personnel to observe the implementation of its stated charity policy and must permit state personnel access to the hospital or its records evidencing charity care. Exception: State mental hospitals and state chest hospitals are exempt. Indigent care criteria for these hospitals are defined in state law. (2) Charity charge requirements. Exceptions: Urban hospitals with com- bined Medicaid and Medicare inpatient utilization rates equal to or greater than 80% are exempt. Rural and children's hospitals with combined Medicare and Medicaid inpatient utilization rates equal to or greater than 65% are exempt. Any hospital that qualifies for Medicaid disproportionate share funds in a state fiscal year, and that did not get Medicaid disproportionate share funds in the previous year, is exempt from this specific condition. State mental hospitals and state chest hospitals are exempt. (A) In order to receive Medicaid disproportionate share funds in: (i) state fiscal year 1995, a hospital's fiscal year 1993 total charity charges must be equal to or greater than 10% of its net state fiscal year 1994 disproportionate share payments; (ii) state fiscal year 1996, a hospital's fiscal year 1994 total charity charges must be equal to or greater than 15% of its net state fiscal year 1995 disproportionate share payments; (iii) state fiscal year 1997, a hospital's fiscal year 1995 total charity charges must be equal to or greater than 20% of its net state fiscal year 1996 disproportionate share payments; (iv) state fiscal year 1998, a hospital's fiscal year 1996 total charity charges must be equal to or greater than 25% of its net state fiscal year 1997 disproportionate share payments. (B) The ratio of total charity charges to net disproportionate share payments must be equal to or greater than 25% in subsequent years. (3) Posting requirements. Each hospital must annually provide assurances to the state Medicaid director that it posts policies informing patients and prospective patients of its eligibility and charity care. These policies must be posted prominently and continuously in common, patient-entry points. Hospitals must advise all patients of the availability of no-cost medical care and the application procedures. The posting must be in English and Spanish. (4) Reporting requirements. Each hospital must report receipt and expenditure of Medicaid disproportionate share funds to the Medicaid director at least once a year. Each hospital must maintain records for the receipt and expenditure of its disproportionate share funds for five years. (5) Community health care assessment. Each hospital must annually furnish to the state Medicaid director a copy, developed at the direction of the hospital's governing board, of its assessment of the health care needs of its community. The assessment must demonstrate how the hospital is using its disproportionate share funds to address its community health needs. Exceptions: State mental hospitals and state chest hospitals are exempt because their expenditures are governed by state law. (6) Alternative access to primary care. Each hospital must annually report to the state Medicaid director the availability of alternative access (other than emergency care) to primary care in its community. Hospitals must have plans to arrange for nonemergency patients to receive care that is not in their emergency rooms, unless they can demonstrate that there is no feasible alternative in the community. Hospitals also must report their progress in treating nonemergency patients apart from their emergency rooms. Exceptions: The following hospitals are exempt from this condition: State mental and state chest hospitals; psychiatric hospitals licensed by TXMHMR; and certain hospitals licensed as "special" by TDH (i.e., long term care hospitals, ventilator hospitals, burn institutes, and alcohol-chemical dependency hospitals); rehabilitation hospitals; maternity hospitals; college infirma- ries; contagious disease hospitals; and hospitals for the terminally ill. (7) Trauma system. Disproportionate share hospitals must actively participate in the development of a regional trauma system, which includes trauma facility designation as defined in the state trauma laws (Health and Safety Code, sec.sec.773.111-773.120) and TDH rules. This condition applies only if rules and procedures to designate facilities have been adopted. Exceptions: The following hospitals are exempt from the trauma system condition: State mental and state chest hospitals; psychiatric hospitals licensed by TXMHMR; and certain hospitals licensed as "special" by TDH (i.e., long term care hospitals, ventilator hospitals, burn institutes, and alcohol-chemical dependency hospitals); rehabilitation hospitals; maternity hospitals; college infirmaries; contagious disease hospitals; and hospitals for the terminally ill. Pediatric and adolescent facilities are exempt from trauma facility designation requirements until the time that state law authorizes the designation of pediatric and/or adolescent trauma facilities. (A) Hospitals qualifying for the disproportionate share program for the first time must meet the regional trauma system development participation requirement in the first year of their participation, regional trauma system development participation and application for trauma facility designation in the second year of their participation, and regional trauma system development participation and trauma facility designation in subsequent years of their participation. (B) Hospitals can be designated as trauma facilities under four levels that range from "basic" (stabilization and transfer of major and severe trauma patients) to "comprehensive" (care and management of all trauma patients, plus education and research). Hospitals identified as disproportionate share hospitals effective September 1, 1993, must be designated as trauma facilities or hospitals participating in regional trauma system development by March 1, 1994. Participation in regional trauma system development and application for designation as a trauma facility are required in the second year of participation. Participation in regional trauma system development, application for trauma facility designation, and designation as a trauma facility are required in subsequent years. (C) Documentation of regional trauma system development participation is periodically provided to the Bureau of Emergency Management (Bureau) by the trauma service areas. Beginning January 1, 1994, and before January 1 of each subsequent year, the Bureau annually reports hospital participation in regional trauma system development, application for trauma facility designa- tion, and trauma facility designation status to the state Medicaid director. (8) Maintenance of effort. Hospital districts and city/county hospitals with greater than 250 licensed beds in the state's largest MSAs and PMSAs are not eligible for disproportionate share payments if local revenues are reduced as a result of disproportionate share funds received. (9) Two-physician requirement. In order to qualify for disproportionate share hospital payments, each hospital must have at least two physicians (M.D. or D. O.) who have hospital staff privileges and who have agreed to provide nonemergency obstetrical services to Medicaid clients. The two-physician requirement does not apply to hospitals whose inpatients are predominantly under 18 years old or that did not offer nonemergency obstetrical services as of December 22, 1987. (d) Qualifying formulas for determining disproportionate share status. The single state agency or its designee identifies the qualifying Medicaid disproportionate share providers from among the hospitals that meet the two- physician requirement and the state's conditions of participation, as specified in subsection (c)(1)-(8) of this section, by using the following formulas. Children's hospitals that do not otherwise qualify as disproportionate share hospitals are deemed disproportionate share hospitals. The formulas are as follows: (1) a Medicaid inpatient utilization rate at least one standard devia- tion above the mean Medicaid inpatient utilization rate for all hospitals participating in the Medicaid program; [graphic] (2) for rural hospitals, a Medicaid inpatient utilization rate greater than the mean Medicaid inpatient utilization rate for all hospitals partici- pating in the Medicaid program; or (3) a low-income utilization rate exceeding 25%. For a hospital, the low- income utilization rate is the sum (expressed as a percentage) of the fractions calculated as follows: (A) the total Medicaid inpatient payments paid to the hospital, plus the amount of revenue received directly from state and local governments for inpatient hospital care, excluding all Title XIX payments, in a cost reporting period, divided by the total amount of revenues of the hospital for inpatient services (including the amount of state and local revenue) in the same cost reporting period multiplied by the hospital's inpatient cost-to-charge ratio for the same cost-reporting period; [graphic] (B) the total amount of the hospital's charges for inpatient hospital services attributable to charity care (care provided to individuals who have no source of payment, third-party or personal resources), excluding bad debt charges, in a cost reporting period, minus the amount of revenue for inpatient hospital services received directly from state and local governments, excluding all Title XIX payments, in a cost reporting period, divided by the total amount of the hospital's charges for inpatient services in the hospital in the same period. The total inpatient charges attributable to charity care will not include contractual allowances and discounts (other than for indigent patients not eligible for medical assistance under an approved Medicaid State Plan); that is, reductions or discounts in charges given to other third-party payers such as but not limited to HMOs, Medicare, or Blue Cross; [graphic] (4) total Medicaid inpatient days at least one standard deviation above the mean Medicaid inpatient days for all hospitals participating in the Medicaid program. (e) Determining disproportionate share status. To determine Medicaid disproportionate share status: (1) the single state agency arrays each hospital's Medicaid utilization rate in descending order. The single state agency first selects hospitals, meeting the two-physician requirement or one of the exceptions to the requirement, whose Medicaid utilization rates are at least one standard deviation above the mean Medicaid inpatient utilization rate for all hospitals participating in the Medicaid program. The state considers these hospitals to be Medicaid disproportionate share hospitals; (2) the single state agency arrays each rural hospital's Medicaid utilization rate in descending order. The single state agency then selects rural hospitals, meeting the two-physician requirement or one of the exceptions to the requirement, whose Medicaid utilization rate is above the mean Medicaid utilization rate for all hospitals participating in the Medicaid program. The state considers these hospitals to be Medicaid disproportionate share hospitals; (3) the single state agency then arrays each remaining hospital's low income utilization rate in descending order. The single state agency selects hospitals, meeting the two-physician requirement or one of the exceptions to the requirement, whose low income utilization rates are greater than 25%. The state considers these hospitals to be Medicaid disproportionate share hospitals; (4) the single state agency arrays each remaining hospital's total Medicaid inpatient days in descending order. The single state agency selects hospitals, meeting the two-physician requirement or one of the exceptions to the requirement, whose total inpatient Medicaid days is at least one standard deviation above the mean Medicaid inpatient days for all hospitals participating in the Medicaid program. The state considers these hospitals to be Medicaid disproportionate share hospitals. (f) Reimbursing Medicaid disproportionate share hospitals. The single state agency reimburses Medicaid disproportionate share hospitals on a monthly basis. Monthly payments will equal one-twelfth of annual payments unless it is necessary to adjust the amount because payments will not be made for a full 12- month period, to comply with the annual state disproportionate share hospital allotment, or to comply with other state or federal disproportionate share hospital program requirements. Payments will be made in the following manner. (1) A state chest hospital (facility of the Texas Department of Health) or a state mental hospital (facility of the Texas Department of Mental Health and Mental Retardation) that meets the requirements for disproportionate share status and provides inpatient psychiatric care or inpatient hospital services will receive annually up to 100% of the hospital's net operating costs, which are the total inpatient operating costs, less Medicaid payments (other than disproportionate share adjustments), less all funding from nonstate and nonlocal government sources for services provided in the particular hospital's fiscal year. The percentage will be determined by the ratio of funds available under the annual state disproportionate share hospital allotment to the net operating costs (up to 100%), after annual payment amounts to all other disproportionate share hospitals are deducted from the total annual allotment. (2) For the remaining hospitals, payments will be based on both weighted inpatient Medicaid days and weighted low income days. The single state agency weights each hospital's total inpatient Medicaid days and low income days by the appropriate weighting factor. The state defines a low income day as a day derived by multiplying a hospital's total inpatient census days from its fiscal year ending in the previous calendar year by its low income utilization rate. Hospital districts and city/county hospitals with greater than 250 licensed beds in the state's largest MSAs would receive weights based proportionally on the MSA population according to the 1990 United States census. MSAs with populations greater than or equal to 150,000, according to the 1990 census, are considered as the "largest MSAs." Children's hospitals also receive weights because of the special nature of the services they provide. All other hospitals receive weighting factors of 1.0. The inpatient Medicaid days of each hospital will be based on the latest available state fiscal year data for patients entitled to Title XIX benefits. The available fund is divided into two parts. Two-thirds of the available fund will reimburse each qualifying hospital on a monthly basis by its percent of the total inpatient Medicaid days. One-third of the available fund will reimburse each qualifying hospital by its percent of the total low income days. Reimbursement for the remaining hospitals is determined monthly as follows; (A) The single state agency or its designee determines the average monthly number of weighted Medicaid inpatient days and weighted low-income days of each qualifying hospital. (B) A qualifying hospital receives a monthly disproportionate share payment based on the following formula: [graphic] (C) All MSA population data are from the 1990 United States census. The specific weights for certain hospital districts and children's hospitals are as follows. (i) Children's hospitals are weighted at 1.25. (ii) MSAs with populations greater than or equal to 150,000 and less than 300,000 are weighted at 2.25. (iii) MSAs with populations greater than or equal to 300,000 and less than 1, 000,000 are weighted at 2.50. (iv) MSAs with populations greater than or equal to 1,000,000 and less than 3,000,000 are weighted at 2. 75. (v) MSAs with populations greater than or equal to 3,000, 000 are weighted at 3.25. (g) Review of agency determination. The single state agency or its designee notifies hospitals of their eligibility or ineligibility and the estimated amount of payment before the beginning of the state fiscal year. The actual amount of payment may vary if a successful review request by one or more hospitals necessitates an adjustment in the amount of payments to the other hospitals in the program. Hospitals that do not qualify or that believe the amount of payment is incorrect may request a review by the single state agency or its designee. (1) The hospital's written request for a review must be made to the director of acute care services and must be received by the director within ten calendar days after the hospital receives notification of its eligibility or ineligibility. The hospital's request must contain specific documentation supporting its contention that factual or calculation errors were made, which, if corrected, would result in the hospital qualifying for payments or receiving payment in a corrected amount. (2) The review is: (A) limited to allegations of factual or calculation errors; (B) limited to a review of documentation submitted by the hospital or used by the single state agency or its designee in making its original determination; and (C) not conducted as an adversary hearing. (3) The single state agency or its designee conducts the review as quickly as possible and makes its decision before the first monthly payment is made for that fiscal year. Hospitals that have requested a review are notified of the results of the review at the time of the first monthly payment. Any adjustments made as a result of these reviews will not exceed the limits of available funds for implementing the applicable disproportionate share program. Once the first monthly payment is made, no additional review or appeal is available to hospitals. (h) Disproportionate share funds held in reserve. (1) Hospitals participating in the disproportionate share program are required to comply at all times with the conditions of participation specified in subsection (c) of this section. If the single state agency or its designee has reason to believe that a hospital is not complying with the conditions of participation, the single state agency or its designee notifies the hospital of possible noncompliance. Upon receipt of the notice of possible noncompliance, the hospital has 30 days to demonstrate its compliance with conditions of participation. If the hospital fails to demonstrate its compliance within 30 days, the single state agency or its designee has the authority to hold that hospital's disproportionate share payments in reserve until the: (A) hospital can demonstrate its compliance with the conditions of participation; (B) decision to hold payments in reserve is reviewed and the decision results in favor of the hospital; or (C) date the last monthly payment in the relevant state fiscal year occurs; whichever occurs first. (2) If a hospital's disproportionate share payments are being held in reserve on the date of the last monthly payment in the state fiscal year, the amount of the payments is divided proportionately among the hospitals receiving a last monthly payment and is not restored to the hospital. If the hospital demonstrates its compliance with the conditions of participation or if the hospital receives a favorable review decision, the funds are restored to the hospital. (3) Hospitals that have had disproportionate share payments held in reserve may request a review by the single state agency or its designee. (A) The hospital's written request for a review must: (i) be made to the director of acute care services; (ii) be received by the director within ten days after the hospital's disproportionate share payments are held in reserve; and (iii) contain specific documentation supporting its contention that it is in compliance with the conditions of participation. (B) The review is: (i) limited to allegations of compliance with conditions of participation; (ii) limited to a review of documentation submitted by the hospital or used by the single state agency or its designee in making its original determination; and (iii) not conducted as an adversary hearing. (C) The single state agency or its designee conducts the review as quickly as possible and notifies hospitals requesting the review of the results. Once the last monthly payment for the relevant state fiscal year is made, no additional review or appeal is available to hospitals. (i) Provision for reduction in federal disproportionate share cap. If the federal government reduces the amount of Medicaid disproportionate share funds allotted to Texas, the state must reduce the net amount allotted to each disproportionate share hospital during the state fiscal year by the same percentage. sec.29.610. Disproportionate Share Hospital Reimbursement Methodology for State-owned Teaching Hospitals. The single state agency or its designee provides additional disproportionate share reimbursement to state-owned teaching hospitals through a supplemental disproportionate share program. A state-owned teaching hospital is a hospital owned and operated by a state university or other agency of the state. Additional reimbursement is provided to each state- owned teaching hospital on a monthly basis using the following formula: [graphic] This agency hereby certifies that the 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 July 23, 1993. TRD-9326322 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: August 16, 1993 Proposal publication date: May 7, 1993 For further information, please call: (512) 450-3765 Chapter 56. Family Planning Subchapter C. Provider Program Requirements 40 TAC sec.56.302 The Texas Department of Human Services (DHS) adopts an amendment to sec.56. 302, without changes to the proposed text as published in the June 11, 1993, issue of the Texas Register (18 Tex Reg 3689). The text will not be republished. The justification for the amendment is to include advanced nurse practitioners among those who may provide family planning medical services to eligible clients under Title XIX and to include additional examples of agency clinics. The amendment will function by adding advanced nurse practitioners to those who provide family planning medical service. This will expand family planning services for the indigent population, thereby reducing the numbers of unexpected Medicaid covered births. The department received two comments in favor of the adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1993. TRD-9326433 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: August 31, 1993 Proposal publication date: June 11, 1993 For further information, please call: (512) 450-3765