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 III. Office of the Attorney General 
  Chapter 51. State Employees-Workers' Compensation 
  
  Definition of Terms 
 
  1 TAC sec.51.1 
 
  The Workers' Compensation Division of the Office of the Attorney General 
adopts amendments to sec.51.1 concerning definitions, with changes to the 
proposed text as published in the May 14, 1993, issue of the Texas Register  (18 
TexReg 3085). 
 The Workers' Compensation Division of the Office of the Attorney General 
believes that, because of changes brought about by the enactment of the Texas 
Workers' Compensation Act in 1989, codified as Texas Civil Statutes, Article 
8308-1.01, et seq, by recent amendments to Texas Civil Statutes, Article 8309g, 
which governs workers' compensation for state employees, and by the enactment of 
the Texas Code of Criminal Procedure, Article 42.131, the amendments to this 
rule are necessary to ensure accuracy, clarity, and simplicity in providing 
state employees with the benefits to which they may becomes entitled because of 
an injury sustained in the course and scope of their employment. 
 The changes in the proposed text of the rule were also made to ensure accuracy, 
clarity, and simplicity, and were necessitated by the enactment after submission 
of the proposed text for publication, of the Texas Labor Code. That Code, 
effective September 1, 1993, rearranges, reformats, and renumbers certain 
statutes, including Article 8308-1.01, et seq, and Article 8309g, as well as 
restating the law in modern American English, all without substantive change. 
 The changes made to the proposed text of the rule are as follows: in definition 
of "employee", the reference to Article 8309g was changed to the new Chapter and 
Section designations in the Texas Labor Code, and the definitions of "director," 
"division," and "insurer" were changed to reflect the Texas Labor Code's new 
name for this Division. 
 This rule defines terns used in rules regulating an employee's right to receive 
worker's compensation benefits based upon an injury occurring in the course and 
scope of state employment, and in certain rules for the prevention of accidents 
and injuries. 
 There were no public comments against the adoption of the rules. 
 The following comments in favor of the adoption of the rule were received: do 
not appear to be any significant difficulties; finds them acceptable; approves 
of the changes and has no problem with them; agrees with the changes made; 
believes the proposed rule changes will facilitate the administration of 
workers' compensation activities, and anticipates no problems; and the proposed 
rule changes are beneficial and this entity supports them. 
 Commenting in favor of the amendment were the following: San Antonio State 
School, University of North Texas, Texas General Land Office, Texas Education 
Agency, Texas Employment Agency, and Texas Rehabilitation Commission. 
 The Workers' Compensation Division of the Office of the Attorney General agrees 
with the comments. 
 The amendment is adopted under Texas Civil Statutes, Article 8309g, sec.5, 
which authorize the making of such procedural rules as are necessary to the 
effective administration of that article. 
 
 
  sec.51.1. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
     Commission-The Texas Workers' Compensation Commission. 
   
     Director-The director of the Workers' Compensation Division of the Office 
of the Attorney General. 
   
     Division-The Workers' Compensation Division of the Office of the Attorney 
General. 
   
     Employee-Any person who is an "employee" as defined by Chapter 501 of the 
Texas Labor Code, sec.501.001(5) and  sec.501.024, or is otherwise considered 
under Texas law to be a state employee for purposes of that Chapter. 
   
     Employing Agency -The agency, department, office, board, commission, body, 
or entity of the state by which the injured person is employed. 
   
     Insured-The State of Texas. 
   
     Insurer-The director, Workers' Compensation Division of the Office of the 
Attorney General. 
 
  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 August 4, 1993. 
 TRD-9326782 
  Jerry Benedict 
 Administrative Counsel 
 Office of the Attorney General 
    Effective date: September 1, 1993 
 Proposal publication date: May 7, 1993 
 For further information, please call: (512) 475-4290 
         
           
  Procedures 
 
  1 TAC sec.sec.51.12-51.25, 51.29, 51.30, 51.34-51.37 
 
  The Workers Compensation Division of the Office of the Attorney General adopts 
amendments to sec.sec.51.12, 51.14, 51.16, and 51.29 with changes to the 
proposed text as published in the May 14, 1993, issue of the Texas Register  (18 
TexReg 3085). Sections 51.13, 51.15, 51.17-51.25, 51.29, 51.30, and 51.34-51.37 
are adopted without changes and will not be republished. 
 The Workers Compensation Division of the Office of the Attorney General 
believes that, because of changes brought about by the enactment of the Texas 
Workers' Compensation Act in 1989, codified as Texas Civil Statutes, Article 
8308-1.01, et seq; by recent amendments to Texas Civil Statutes Article 8309g, 
which governs workers compensation for state employees; by the repeal of 
Articles 601 and 601a; the enactment of Texas Civil Statutes, Article 601b; by 
the recent adoption of various rules by the Texas Workers' Compensation 
Commission; and because of certain grammatical errors in the existing rules, the 
amendments to these rules are necessary to ensure accuracy, clarity, and 
simplicity in providing state employees with the benefits to which they may 
become entitled because of an injury sustained in the course and scope of their 
employment. 
 The changes to the proposed text of the rules were also made to ensure 
accuracy, clarity, and simplicity, and were necessitated by the enactment, after 
submission of the proposed text for publication, of the Texas Labor Code. That 
Code, effective September 1, 1993, rearranges, reformats, and renumbers certain 
statutes, including Article 8308-1.01, et seq, and Article 8309g, as well as 
restating the law in modern American English, all without substantive change. 
The changes to the proposed text of the rules are as follows: sec.51.12 was 
changed to reflect the new statutory designation under the Texas Labor Code; 
sec.51.14 and sec.51.16 were changed to delete statutory designations that are 
no longer correct; sec.51.14 was changed to reflect the complete, correct title 
of Form TWCC-lS; and sec.51.29 was changed to reflect the Division's new name 
under the Texas Labor Code. 
 These rules relate to the procedure regulating an employees' right to receive 
workers compensation benefits based upon an injury occurring in the course and 
scope of state employments. They set out required forms, reports, notices, and 
other responsibilities of agencies, injured employees, injured employees 
representatives, and health care providers. 
 The following public comments against the proposed amendments to these rules 
were received. 
 One commenter stated that because of varying shift lengths, the phrase "one 
day's lost time" should be changed to "eight consecutive hours lost time," in 
sec.51.18; and that there is a conflict between sec.51.20, on the one hand, 
relating to when an employing agency must file a first report of injury, and the 
Texas Workers' Compensation Act and TWCC Rules, on the other hand, that may lead 
in some instances to unnecessary paperwork. 
 The following public comments in favor of the proposed amendments to these 
rules were received. 
 One commenter stated that there do not appear to be any significant 
difficulties; one commenter found the rules acceptable; one commenter approved 
of the changes and has no problem with them; one commenter agreed with the 
changes made; one commenter believed the proposed rule changes would facilitate 
the administration of workers' compensation activities, and anticipated no 
problems; and one commenter stated that the proposed rule changes are beneficial 
and this entity supports them. 
 The following groups and associations made comments in favor of adoption of the 
rules: San Antonio State School; University of North Texas; Texas General Land 
Office; Texas Education Agency; Texas Employment Commission; and Texas 
Rehabilitation Commission. 
 The following groups and associations commented against the adoption of the 
rules: San Antonio State School; University of North Texas; and Texas Department 
of Mental Health and Mental Retardation. 
 The Workers' Compensation Division of the Office of the Attorney General agrees 
with all of the comments except: The Division disagrees with the comments 
relating to sec.51.18, and believes that the existing language should be used 
because it is the language used in the Texas Workers' Compensation Act; and the 
Division disagrees with the comments relating to sec.51.20, because the Workers' 
Compensation Act's requirement that the first report of injury be filed with the 
Commission within eight days applies to the Division and not to the employing 
agency, and therefore, in order for the Division to fulfill its obligation, the 
employing agency must submit the report to the Division by the next working day 
after the injury. 
 The rules are adopted under Texas Civil Statutes, Article 8309g, sec.5, which 
authorize the making of such procedural rules as are necessary to the effective 
administration of that article. 
 
 
  sec.51.12. Employing Agency's Cooperation. All employing agencies shall 
cooperate with the division in all actions required for the proper 
administration of Chapter 501 of the Texas Labor Code, and any amendments 
thereto. 
 
   
  sec.51.14. Filing of Instruments. Any reference in this Chapter to a specific 
form to be used for giving notices, making reports, or otherwise transmitting 
information to the Commission is meant to include the form or forms prescribed 
for that particular purpose by the Commission's executive director, pursuant to 
the Texas Workers' Compensation Act, as of the time that the notice, report, or 
transmittal is required to be made. 
 The following shall be filed with the division office in Austin: 
 
  (1)  Employers First Report of Injury or Illness (Form TWCC-lS). 
   
  (2)  Any supplemental report of injury by the employing agency (Form TWCC-6). 
   
  (3) Any special reports required by the director. 
   
  (4) Any other forms prescribed or required from the employing agency by the 
Commission will be submitted to the director who will be responsible for filing 
with the Commission. 
 
     
  sec.51.16. Medical Reports.  Any health care provider, as defined in the Texas 
Workers Compensation Act,  sec.1.03, rendering care to an injured employee must 
render reports to the director in keeping with that Act and Commission rules. 
 
   
  sec.51.29. Agency Policies Regarding Workers' Compensation.  In formulating 
agency personnel policies, no agency should disseminate any guidelines or 
instructions at variance with the Texas workers' compensation statutes or 
Workers Compensation Division rules. 
 
  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 August 4, 1993. 
 TRD-9326783 
  Jerry Benedict 
 Administrative Counsel 
 Office of the Attorney General 
    Effective date: September 1, 1993 
 Proposal publication date: May 7, 1993 
 For further information, please call: (512) 475-4290 
         
         
  1 TAC sec.sec.51.27, 51.28, 51.31 
 
  The Workers' Compensation Division of the Office of the Attorney General 
adopts the repeal of sec.sec.51.27, 51.28, and 51.31 concerning procedures, 
without changes to the proposed text as published in the May 14, 1993, issue of 
the Texas Register (18 TexReg 3085). 
 The Workers' Compensation Division of the Office of the Attorney General 
believes that these sections duplicate other provisions of Texas substantive and 
procedural law, and are therefore not necessary. 
 The rules defined certain legal and ethical responsibilities of attorney's 
physicians, and other persons, and set out part of the procedures for filing 
suits concerning workers' compensation for state employees. 
 There were no public comments against the proposed repeal of these rules. 
 The following public comments in favor of the proposed repeal of these rules 
were received: do not appear to be any significant difficulties; finds them 
acceptable; approves of the changes and has no problem with them; agrees with 
the changes made; believes the proposed rule changes will facilitate the 
administration of workers' compensation activities, and anticipates no problems; 
and the proposed rule changes are beneficial and this entity supports them. 
 Commenting in favor of the repeals were the following: San Antonio State 
School, University of North Texas, Texas General Land Office, Texas Education 
Agency, Texas Employment Commission, and Texas Rehabilitation Commission. 
 The Workers' Compensation Division of the Office of the Attorney General agrees 
with the comments. 
 The repeals are adopted pursuant to Texas Civil Statutes, Article 8309g, sec.5, 
which authorize the making of such procedural rules as are necessary to the 
effective administration of that article. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on August 4, 1993. 
 TRD-9326784 
  Jerry Benedict 
 Administrative Counsel 
 Office of the Attorney General 
    Effective date: September 1, 1993 
 Proposal publication date: May 7, 1993 
 For further information, please call: (512) 475-4290 
         
       
  1 TAC sec.51.27 
 
  The Workers' Compensation Division of the Office of the Attorney General 
adopts sec.51.27 concerning legal responsibilities of injured employee, without 
changes to the proposed text as published in the May 14, 1993, issue of the 
Texas Register (18 TexReg 3085). 
 The Workers' Compensation Division of the Office of the Attorney General 
believes that this rule will make it clear that nothing contained in any of the 
rules of the Division is intended to change any of the legal requirements or 
responsibilities, relating to giving notice of injury or filing a claim for 
compensation, placed upon injured state employees by the workers' compensation 
statutes of the State of Texas. 
 The new rule relates to the procedure regulating an employee's right to receive 
workers' compensation benefits based upon an injury occurring in the course and 
scope of state employment. 
 There were no public comments against the proposed rule. 
 The following public comments in favor of the proposed rule were received: do 
not appear to be any significant difficulties; finds them acceptable; approves 
of the changes and has no problem with them; agrees with the changes made; 
believes the proposed rule changes will facilitate the administration of 
workers' compensation activities, and anticipates no problem; and the proposed 
rule changes are beneficial and this entity supports them. 
 Commenting in favor of the amendments were as follows: San Antonio State 
School, University of North Texas, Texas General Land Office, Texas Education 
Agency, Texas Employment Commission, and Texas Rehabilitation Commission. 
 The Workers' Compensation Division of the Office of the Attorney General agrees 
with all of the comments. 
 The new section indicated is adopted under Texas Civil Statutes, Article 8309g, 
sec.5, which authorize the making of such procedural rules as are necessary to 
the effective administration of that article. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on August 4, 1993. 
 TRD-9326785 
  Jerry Benedict 
 Administrative Counsel 
 Office of the Attorney General 
    Effective date: September 1, 1993 
 Proposal publication date: May 7, 1993 
 For further information, please call: (512) 475-4290 
         
         
  Employee Entitlement to Compensation 
 
  1 TAC sec.sec.51.53, 51.55, 51.56, 51.58, 51.59, 51.61 
 
  The Workers' Compensation Division of the Office of the Attorney General 
adopts amendments to sec.sec.51.53, 51.55, 51.56, 51.58, 51.59, and 51.61 
concerning employee entitlement to compensation, without changes to the proposed 
text as published in the May 14, 1993, issue of the Texas Register  (18 TexReg 
3085). 
 The Workers' Compensation Division of the Office of the Attorney General 
believes that, because of changes brought about by the enactment of the Texas 
Workers' Compensation Act in 1989, codified as Texas Civil Statutes, Article 
8308-1.01, et seq, by recent amendments to Texas Civil Statutes, Article 8309g, 
which governs workers' compensation for state employees, and by changes in the 
General Appropriations Act, accuracy, clarity, and simplicity in providing state 
employees with the benefits to which they may become entitled because of an 
injury sustained in the course and scope of their employment. 
 The rules relate to the procedure regulating an employees' right to receive 
workers' compensation benefits based upon an injury occurring in the course and 
scope of state employment. The rules specifically set out the procedure for the 
utilization of sick and emergency leave. 
 There were no public comments against the proposed amendment. 
 The following public comments in favor of the proposed amendments to these 
rules were received: specifically agrees with the changes made; sees no 
difficulty with the changes but asks for clarification on whether or not the 
changed definition of sick leave includes over-time and vacation; seeking 
clarification of their policy of not granting pooled sick leave for use during 
the waiting period, the utilization of leave should be mandatory; clarify the 
rule concerning additional sick leave that accrues while the employee is 
utilizing sick leave, by adding language that specifies that such sick leave 
will not be credited to the employee until after he or she returns to work; will 
be able to provide timely notice of the granting or utilization of leave; do not 
appear to be any significant difficulties; finds them acceptable; approves of 
the changes and has no problem with them; agrees with the changes made; believes 
the proposed rule changes will facilitate the administration of workers' 
compensation activities, and anticipates no problems; and the proposed rule 
changes are beneficial and this entity supports them. 
 Commenting in favor of the amendments were: San Antonio State School, 
University of North Texas, Texas General Land Office, Texas Education Agency, 
Texas Employment Commission, Texas Rehabilitation Commission, Texas College of 
Osteopathic Medicine, Denton State School, and Texas Employment Commission. 
 The Workers' Compensation Division of the Office of the Attorney General agrees 
with all of the comments, and offers the following clarification and response. 
 The new definition of sick leave does not include overtime and vacation, and an 
agency's policy concerning the granting of pooled sick leave is solely within 
its discretion. 
 The law would prohibit the Division from making the utilization of sick leave 
mandatory; Texas Civil Statutes, Article 8309g, sec.12(a), specifically gives an 
employee the option. 
 Clarification of the rule concerning additional sick leave that accrues while 
the employee is utilizing sick leave may occur at a later date. 
 The amendments are adopted under Texas Civil Statutes, Article 8309g, sec.5, 
which authorize the making of such procedural rules as are necessary to the 
effective administration of that article. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on August 4, 1993. 
 TRD-9326786 
  Jerry Benedict 
 Administrative Counsel 
 Office of the Attorney General 
    Effective date: September 1, 1993 
 Proposal publication date: May 7, 1993 
 For further information, please call: (512) 475-4290 
         
         
  Accident Prevention 
 
  1 TAC sec.51.71, sec.51.72 
 
  The Workers' Compensation Commission Division of the Office of the Attorney 
General adopts amendments to sec.51.71 and sec.51.72, with changes to the 
proposed text as published in the May 14, 1993, issue of the Texas Register  (18 
TexReg 3085). 
 The Workers' Compensation Division of the Office of the Attorney General 
believes that, because of changes brought about by recent amendments to Texas 
Civil Statutes, Article 8309g, which governs workers' compensation for state 
employees, and because of certain grammatical errors in the existing rule, the 
amendments to these rules are necessary to ensure accuracy, clarity, and 
simplicity in providing state employees with the benefits to which they may 
become entitled because of an injury sustained in the course and scope of their 
employment. 
 The changes to the proposed text of the rules were also made to ensure 
accuracy, clarity, and simplicity, and were necessitated by the enactment, after 
submission of the proposed text for publication, of the Texas Labor Code. That 
Code, effective September 1, 1993, rearranges, reformats, and renumbers certain 
statutes, includes Article 8308-1.01, et seq, and Article 8309g, as well as 
restating the law in modern America English, all without substantive change. The 
changes to the proposed text are as follows: sec.in  sec.51.71, the reference to 
Article 8309g were changed to reflect the new chapter and section designations 
of the Texas Labor Code; and sec.51.72 was changed to reflect the Texas Labor 
Code's new name for the Division. 
 The rules apply to state agencies and relate to the prevention of accidents and 
injuries. They specifically adopt certain OSHA standards as accident prevention 
rules. 
 There were no public comments against the adoption of the rules. 
 The following comments in favor of the adoption of the rules were received: 
There did not appear to be any significant difficulties. One commentor found the 
rules acceptable; approved of the changes and had no problem with them; agreed 
with the changes made; believes the proposed rule changes would facilitate the 
administration of workers' compensation activities, and anticipates no problems; 
and one commentor said the proposed rule changes are beneficial and the entity 
supports them. 
 Commenting in favor of these amendments were the following: San Antonio State 
School, University of North Texas, Texas General Land Office, Texas Education 
Agency, Texas Employment Commission, and Texas Rehabilitation Commission. 
 The Workers' Compensation Division of the Office of the Attorney General agrees 
with all of the comments. 
 The rules are adopted under Texas Civil Statutes, Article 8309g, sec.6, which 
authorize the making of reasonable rules for the prevention of accidents and 
injuries. 
 
 
  sec.51.71. Authority for Accident Prevention Rules. 
 
  (a) Compliance with these rules is mandated by the Texas Labor Code, 
sec.501.043. 
   
  (b) The director's responsibility is mandated by the Texas Labor Code, 
sec.501.043. 
   
  (c) Each agency under the Texas Labor Code, sec.501.043, has the general duty 
to furnish each of its employees' places of employment free from recognized 
hazards likely to cause physical harm. 
   
  (d) Each employing agency will designate one or as many accident prevention 
coordinators as may be required, who will be responsible for the implementation 
within that department of the safety rules promulgated by the director. 
 
  (1) The employing agency will report to the director any changes in personnel 
designated as an accident prevention coordinator. 
   
  (2) Within 60 day after an inspection report has been received by an agency-if 
it contains recommendations requiring corrective action-a reply will be made 
delineating items on which action has been taken, or is to be taken. Where 
action cannot be taken, it should be so stated and reasons listed. 
 
       
  sec.51.72. Accident Prevention Rules. The following is adopted by reference as 
accident prevention rules of the director, Workers' Compensation Division of the 
Office of the Attorney General. Copies of the Occupational Safety and Health 
Standards may be obtained by writing superintendent of documents, United States 
Government Printing Office, Washington, D.C., 20402. The Occupational Safety and 
Health Standards, Department of Labor, Occupational Safety and Health 
Administration being. 
 
  (1) 29 Code of Federal Regulations, Part 1910, republished in its entirety as 
of November 7, 1978 (commonly known as OSHA); and 
   
  (2) 29 Code of Federal Regulations, Part 1926, Occupational Safety and Health 
Regulations for Contractors, republished in its entirety February 9, 1979, and 
amendments thereto. 
 
  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 August 4, 1993. 
 TRD-9326790 
  Jerry Benedict 
 Administrative Counsel 
 Office of the Attorney General 
    Effective date: September 1, 1993 
 Proposal publication date: May 7, 1993 
 For further information, please call: (512) 475-4290 
         
                   
  TITLE 7. BANKING AND SECURITIES 
 Part VII. State Securities Board 
  Chapter 113. Registration of Securities 
  
  7 TAC sec.113.12 
 
  The State Securities Board adopts an amendment to sec.113.12, concerning 
applicability of guidelines to add Chapter 124 of this title (relating to 
Administrative Guidelines for Registration of Periodic Payment Plans) to the 
list of guidelines set forth in the rule. The rule is adopted without changes to 
the proposed text as published in the May 11, 1993, issue of the Texas Register 
(18 TexReg 3013). 
 The rule provides guidance to persons who are unsure whether particular 
guidelines apply to securities offerings which are exempt from registration. 
 The rule clarifies that compliance with the listed guidelines is required only 
when the securities offering in question is being registered. 
 No comments were received regarding adoption of the new rule. 
 The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide the Board with the authority to make or adopt rules or regulations 
governing registration statements, applications, notices, and reports, and in 
the adoption of rules and regulations; to classify securities, persons, and 
matters within its jurisdiction, and to prescribe different requirements for 
different classes. 
 
  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 August 2, 1993. 
 TRD-9326718 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: August 23, 1993 
 Proposal publication date: May 11, 1993 
 For further information, please call: (512) 474-2233 
         
         Chapter 133. Forms 
  
  7 TAC sec.133.27 
 
  The State Securities Board adopts new sec.133.27, concerning the year-end 
report of sales by a money market fund. Simultaneously, the Board is adopting 
the repeal of sec.133.28. The overall effect of the new rule and the repeal is 
to provide a form that is easier to complete and will lessen the likelihood of 
reporting errors. The rule is adopted without changes to the proposed text as 
published in the February 9, 1993, issue of the Texas Register (18 TexReg 798). 
 The rule provides a simplified reporting form for money market funds. 
 The rule sets forth the information required from money market funds to be 
disclosed in their year-end report of sales. 
 No comments were received regarding adoption of the new rule. 
 The new rule is adopted under Texas Civil Statutes, Article 581, sec.28-1, 
which provide the Board with the authority to make or adopt rules or regulations 
governing registration statements, applications, notices, and reports, and in 
the adoption of rules and regulations, to classify securities, persons, and 
matters within its jurisdiction, and prescribe different requirements for 
different classes. 
 
  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 August 2, 1993. 
 TRD-9326721 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: August 23, 1993 
 Proposal publication date: February 9, 1993 
 For further information, please call: (512) 474-2233 
         
       
  7 TAC sec.133.28 
 
  The State Securities Board adopts the repeal of sec.133.28, concerning the 
year-end report of sales of money market funds. Simultaneously, the Board is 
adopting a new rule, sec.133.27. The overall effect of the repeal and the new 
rule is to provide a form that is easier to complete and will lessen the 
likelihood of reporting errors. The repeal is adopted without changes to the 
proposed text as published in the February 9, 1993, issue of the Texas Register 
(18 TexReg 799). 
 The rule is no longer needed. 
 An unnecessary rule will be eliminated. 
 No comments were received regarding adoption of the new section. 
 The repeal is adopted under Texas Civil Statutes, Article 581, sec.28-1, which 
provide the Board with the authority to make or adopt rules or regulations 
governing registration statements, applications, notices, and reports, and in 
the adoption of rules and regulations, to classify securities, persons, and 
matters within its jurisdiction, and prescribe different requirements for 
different classes. 
 
  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 August 2, 1993. 
 TRD-9326722 
  Richard D. Latham 
 Securities Commissioner 
 State Securities Board 
    Effective date: August 23, 1993 
 Proposal publication date: February 9, 1993 
 For further information, please call: (512) 474-2233 
         
             
  TITLE 16. ECONOMIC REGULATION 
 Part I. Railroad Commission of Texas 
  Chapter 5. Transportation Division 
  
  (EDITOR'S NOTE: In the July 23, 1993 issue of the Texas Register an 
administrative transfer was published transferring the regulation and operation 
of tow trucks and storage facilities from the Texas Department of Licensing and 
Regulation to the Railroad Commission of Texas (Texas Civil Statues, Article 
6687-9b), effective September 1, 1993. 
 In the table published, the transfer of rules in Chapter 79, Part IV. Texas 
Department of Licensing and Regulation to Subchapter DD, Part I. Railroad 
Commission of Texas, sec.79.83 was inadvertently omitted. Below is a corrected 
table in its entirety.) 
 
         
 
 
  
   
         Part IV. Texas Department of Licensing and Regulation 
  
  (EDITOR'S NOTE: In the July 23, 1993 issue of the Texas Register an 
administrative transfer was published transferring the regulation and operation 
of tow trucks and storage facilities from the Texas Department of Licensing and 
Regulation to the Railroad Commission of Texas (Texas Civil Statues, Article 
6687-9b), effective September 1, 1993. 
 In the table published, the transfer of rules in Chapter 79 to Subchapter DD a 
rule was inadvertently omitted. Below is a corrected table.) 
 
         
 
 
  
   
  
         
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 38. Chronically Ill and Disabled Children's Services Program 
  
  25 TAC sec.38.11 
 
  The Texas Department of Health (department) is withdrawing the proposed 
amendment to sec.38.11, which was published in the March 5, 1993, issue of the 
Texas Register  (18 TexReg 1393). Due to the large number of comments received 
on the proposal and due to the reorganization of the department's Bureau of 
Chronically Ill and Disabled Children's Services, the department has decided to 
repropose changes to the rules at a later date. 
 For further information, please contact John E. Evans, Chief, Bureau of 
Chronically Ill and Disabled Children's Services, Texas Department of Health, 
1100 West 49th Street, Austin, Texas 78756; (512) 458-7355. 
 
  The agency hereby certifies that the withdrawal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on August 3, 1993. 
 -TRD-9326743 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health. 
    Filed: August 3, 1993 
         
         Chapter 145. Long Term Care 
  
  Subchapter E. Procedures on Long-Term Care Facilities 
 
  The Texas Department of Health (department) adopts new  sec.145.235, 
concerning administrative penalties, with changes to the proposed text as 
published in the April 13, 1993, issue of the Texas Register (18 TexReg 2547). 
The repeal of sec.145.91 is adopted without changes to the proposed text and 
will not be republished. 
 The adopted section concerns administrative penalty requirements for nursing 
facilities and facilities serving persons with mental retardation and related 
conditions (ICF-MR). 
 The enforcement provisions have been strengthened in order to provide for 
better care of residents and the rule more closely tracks the statutory mandate 
in the Health and Safety Code, Chapter 242. 
 The department received numerous comments from groups, individuals, and 
associations concerning the proposed new rule. A summary of the comments 
received and the department's response are as follows. 
 Comment: Concerning the cost note to nursing facilities in the proposed 
preamble and the deletion of existing provisions in the current administrative 
penalty rules, a commenter expressed a specific concern. The commenter's 
concerns are with regard to: the cost note which states that "Nursing facilities 
participating in the Texas Department of Human Services (TDHS) Medicaid program 
will probably not experience increased cost due to the proposed administrative 
penalties because other sanctions are available under the TDHS Medicaid 
certification rules for non-compliant facilities," and to language in current 
administrative penalty rules which specifically provide waiver of administrative 
penalties if penalties under certification are applied. The commenter stated 
that the rules should be changed to state that facilities will not be subject to 
double jeopardy by applying penalties from two separate penalties systems. The 
commenter felt that this addition would be consistent with the department's 
expressed intent to have a more uniform penalty system and be consistent with 
the intent expressed in the preamble. 
 Response: The department believes that for facilities participating in the 
Medicare and/or Medicaid program, the federal and state sanctions/remedies 
options will be applied to most non-compliance findings of significance. 
However, the Licensing Act authorizes the department to assess administrative 
penalties when appropriate and staff will be trained to utilize the sanctions 
and administrative penalties judiciously as needed to bring facilities into 
compliance. The department made no change to the rule. 
 Comment: A commenter stated that the licensure rules should be amended to 
provide for a clearer coordination of the penalties available to the department 
under licensure and certification. 
 Response: The department 's position is addressed in the previous comment. The 
department made no change to the section. 
 Comment: A commenter stated that there is no clearly developed coordination of 
the use of administrative penalties and possible referral to the Attorney 
General's Office for possible injunction and/or assessment of civil monetary 
penalties. Criteria should be developed to determine when a case may be referred 
to the Attorney General in lieu of monetary penalties and it should be clearly 
stated that both administrative penalties and civil monetary penalties will not 
be applied simultaneously. 
 Response: The department believes that the Licensing Act gives it the authority 
to use both options of assessing administrative penalties and referral to the 
Attorney General for civil penalty consideration. Through training and 
evaluation of the findings in each situation, the appropriate penalty 
recommendation or combination of recommendations will be made. The department 
made no change to the section. 
 Comment: A commenter stated that the rules should require the department to 
immediately notify the facility if it has decided to pursue either 
administrative penalties or to refer the alleged violation to the Attorney 
General. 
 Response: The department does not concur with the comment. In subsections (g) 
and (h), the rules address the notification process to inform facilities of the 
assessment of administrative penalties. The department believes that these rules 
allow the facility proper notice and an opportunity to respond or appeal the 
assessment. Procedures for the referral of cases to the Attorney General for 
consideration of civil penalties are a separate issue and are covered in other 
licensing rules. The department made no change to the section. 
 Comment: Concerning nonperformance of physicians or outside consultants and 
violations beyond the facility's control, a commenter recommended the following 
wording changes: subsection (d) to read "No facility shall be penalized because 
of a physician's or consultant's nonperformance beyond the facility's control"; 
then, create a new subsection (e) that reads "No facility shall be penalized if 
the violation is beyond the facility's control if the situation is clearly 
documented;" and next, reorder all of the remaining items. 
 Response: The department believes that both thoughts are clearly covered in the 
proposed wording in subsection (d) and no change is necessary. 
 Comment: Concerning subsection (e), a commenter questioned does the first 
sentence in this item mean that any offense from the second survey will 
automatically be in the second offense column? What if the facility had offenses 
with different deficiencies? Is the progression of fines tied to the same 
offense? The same deficiencies? 
 Response: The department's response is that no change to the rules is needed, 
but offers the following clarifications. To clarify subsection (e), the first 
sentence means that if the offense from the second survey is the same penalty 
element as the first survey's offense was, then the assessment will be in the 
Second Offense column (unless two years have elapsed from the first survey to 
the second survey). If during the second survey a facility has offenses with 
different deficiencies but the deficiencies pertain to the same penalty element, 
then the penalty assessment will be in the Second Offense column. If during the 
second survey, the deficiencies are the same as the first survey, then a penalty 
assessment could be cited to the same element in the Second Offense column. 
However, if over two years have elapsed between the first and second survey, 
then the penalty assessment at the second survey would be in the First Offense 
column. 
 Comment: Concerning subsection (i), a commenter requests that current language 
that ties penalties in the schedule to references to the applicable standard 
should be retained. The current proposal deletes these references. 
 Response: Based on the surveyor's/investigator's training and professional 
judgment, the penalty elements are specifically written to cover the areas of 
resident rights, health, welfare, and safety, lending themselves to consistent 
application without specific reference to licensing standards. The department 
feels that no change is necessary. 
 Comment: Concerning Schedule A, A(1-2), this item does not seem to be 
consistent with the spirit of these proposed rules. It only refers to paper 
compliance and not to the care of the patient, which is outside the scope of the 
defined intent. The commenter recommended that Schedule A, A (1-2) be deleted. 
 Response: State law requires licensed facilities to report a change of 
administrator to the licensing agency. The department believes that 30 days is 
adequate time to hire an administrator to fill the key position. The department, 
therefore, made no changes. 
 Comment: Concerning Schedule A, E-1, a commenter recommended the following 
wording change for clarification: "Medications are administered by a person who 
is not a physician..." 
 Response: The department concurs with the comment and has changed the wording. 
 Comment: Concerning Schedule A, G-1, a commenter recommended that this element 
be clarified by changing it to: "Catheter is inserted without a physician's 
order." 
 Response: The department feels that no change is necessary. Proposed wording is 
appropriate to cover situations where there is no physician's order and where 
the catheter is inserted improperly, etc. Both situations can be detrimental to 
the resident's health. 
 Comment: Concerning Schedule A, K-4, a commenter stated that this element does 
not track the licensing standards. The standard addresses when the medication 
should be ordered. It does not address availability prior to administering the 
last dose. Also, this element is covered sufficiently in E-4. The commenter 
recommended deleting Condition K, Element 4. 
 Response: The element coincides with sec.19.1306(c) as adopted by reference by 
the department in 25 TAC sec.145.41(l)(1), relating to Pharmacy Services of the 
licensing standards, which will be effective August 31, 1993. This element does 
not cover the same topic as E-4. The department made no change to Schedule A, K-
4. 
 Comment: Concerning Schedule A, K-5, a commenter suggested that this wording 
does not track the standards. The commenter recommended the following change to 
this element: "Drug administration errors or adverse drug reactions are not 
reported in a timely manner to the resident's physician." 
 Response: The department concurs with the comment and changed the wording. 
 Comment: Concerning Schedule A, L-3, a commenter suggested that in order to 
follow the licensing regulations closer, the element should be changed to: "The 
facility fails to prevent food-borne illness through the practice of storage, 
preparation, or distribution of foods." 
 Response: The proposed wording follows acceptable food storage and sanitation 
regulations and practices which assure protection to the residents. Therefore, 
the department made no changes. 
 Comment: Concerning Schedule A, M, one commenter questioned whether this 
condition be tied only to "identified" psychosocial needs. The commenter 
recommended adding the word "identified" before "psychosocial." 
 Response: The department believes that the proposed wording more effectively 
describes the rights of residents to have their psychosocial needs met and made 
no changes. 
 Comment: Concerning Schedule A, N-2, which specifically addresses gas driers, a 
commenter recommended adding "gas" before "clothes driers." 
 Response: The department believes that the reference to clothes driers is 
correct since lint buildup can cause fires in gas and electric clothes driers. 
Protection of the residents is the goal. No changes were made to the section. 
 Comment: Concerning Schedule A, 0-2, a commenter recommended changing this 
element to "required fire alarm system is not functioning in a majority of 
zones", because there could be a small item not functioning and not jeopardizing 
the resident's health. 
 Response: The department feels that no changes are necessary since the proposed 
wording covers fire alarm systems in both large and small facilities and fully 
protects all residents. 
 Comment: Concerning Schedule A, P, one commenter recommended that this should 
address "safe temperature" instead of "safe condition." 
 Response: The department concurs with the comment and changed the wording 
accordingly. 
 Comment: Concerning Schedule A, P-1, a commenter stated that a maximum 
temperature should be specific and not a range, and that a resident should not 
be put in water that is 149 degrees Fahrenheit. The commenter recommended 
deleting "to 149 degrees Fahrenheit." 
 Response: The department concurs with the comment and the wording was changed 
to reflect that for water temperatures exceeding 125 degrees Fahrenheit a 
penalty will be assessed. 
 Comment: Concerning Schedule, A, Q-1, a commenter stated that this element is 
not consistent with the law since there are many crimes not included in the 
criminal history law. The condition is better written and adequately covers the 
intent. The commenter recommended deleting Q1. 
 Response: The department concurs with the comment and wording will be clarified 
to delete the subpart wording and retaining the condition paragraph. 
 Comment: A commenter stated that, as a part of our contracting requirements 
with the Texas Department of Human Services, ICF-MR facilities have been subject 
to various sanction provisions to include vendor hold on state Medicaid 
payments; decertification; revocable facility license; contract cancellation; 
and before long, a disbarment option as well. If this is not sufficient, the 
department has an enforcement problem, not a regulation problem and the addition 
of administrative penalties will simply compound the problem. Thus, 
administrative penalties are already in place and easily enforceable to insure 
compliance with Title XIX ICF-MR contractual agreements and standards. 
 The Association for Retarded Citizens (ARC)/Texas favors development of a 
strong ICF-MR sanctions policy and recommends that a formal workgroup be 
established to develop a plan and proposed policy applicable to all ICF-MR 
providers. ARC/Texas would be pleased to participate in this workgroup. 
 Response: State law authorizes the licensing agency to develop and implement 
administrative penalties in addition to the Medicaid program sanctions options. 
The department made no changes as a result of the comment. 
 Comment: One commenter suggested that this rule, as written, will not be 
applied equally to all agencies providing residential services. The penalties 
would apply only to private providers, which is discriminatory. Since it has 
been placed under the code related to licensure, no state or county operated 
facilities have the threat of penalty for non-compliance with the standards. 
This places consumers of these programs at a disadvantage as they will not 
receive the same protection from harm as the proposed section intends to 
provide. Although it is hoped that these types of programs would receive 
monitoring from their agency, there is no guarantee that compliance will be 
enforced when the external penalties are less severe than for licensed 
facilities. Mandating this penalty on licensed facilities only raises a stigma 
of improper services which public agencies avoid as it will be said that they 
have never paid fines for non-compliance with the standards. Please consider the 
possibility of placing an administrative penalty component under the current 
Sanctions rules which would apply to all agencies providing this kind of 
service. If state schools are exempted (based on the technicality that they 
don't have a license because Department of Health attorneys have interpreted the 
State Constitution to say that one state agency cannot license another), then 
all ICF-MR providers should be exempted from ICF-MR administrative penalties. 
Five comments were received on this issue. 
 Response: The department realizes that the administrative penalties apply only 
to licensed intermediate care facilities serving persons with mental retardation 
or related conditions (ICF-MR/RC) facilities. The department also believes that 
a similar penalties system should apply to all ICF-MR/RC facilities whether 
operated by the public or private sector. However, current state law exempts 
state-operated facilities from compliance with the department's licensure law. 
 Comment: A commenter suggested that another obvious disparity of the rule is 
the significant burden placed on smaller facilities when the penalty amount is a 
set figure rather than one based on bed capacity. The publication of the rule 
points this out quite clearly with the smallest facilities (6 bed) paying $167 
per bed while the largest pay a mere $1.67 per bed, a 10,000% difference for the 
same first offense! The vast majority (492 out of 572) of facilities subject to 
the proposed rule are composed of six beds or less. To help put this in 
perspective, the $500 amount proposed for the first offense is the entire 
monthly food budget for a six-bed home while a large facility would spend that 
amount on soft drinks and snack foods! Please consider establishing the penalty 
on a sliding scale based on bed size or a set amount which is multiplied by bed-
size as this would ensure the same threat of punitive action regardless of size. 
 Response: While ICF-MR/RC facilities are of different bed size, the daily 
Medicaid reimbursement rate is from approximately $80 to $130 per day per 
resident. The cost of a $500 administrative penalty would probably not cause 
serious economic consequences in and of it itself. The penalties are designed to 
be assessed if a pattern/trend or serious danger to resident health or safety is 
based on the finding of the visit. The elements are based on the licensing 
standards which are minimum requirements. The department made no changes as a 
result of the comment. 
 Comment: In order to validly exercise rule-making authority related to ICF-MR 
programs, the agency must first satisfy the legislative mandate of Senate Bill 
1426, 71st Legislature, which requires interagency dialogue as a prerequisite to 
rule-making which affects ICF-MR programs. Dialogue is defined in Webster's 
Dictionary as "a conversation between two or more persons; an exchange of ideas 
and opinions." Such a dialogue did not take place with regard to the proposed 
rule making at issue. The concept of "exchange" between the department and other 
affected agencies and providers was not realized. The agency has been advised of 
this on more than one occasion. The rule is therefore issued in violation of 
Texas Civil Statutes, Article 6252-13a, sec.5(c-1)(3). 
 Response: Senate Bill 1426, 71st Legislature, requires a dialogue between 
agencies and such a dialogue has occurred via the Advisory Committee for Mental 
Retardation Facilities involvement in the development and comments on the 
proposed and reproposed administrative penalty rules. The department, based on 
the licensing act and the Texas Administrative Procedures Act has the authority 
to publish proposed rules for every duty imposed by law. The proposed 
administrative penalties rules were published twice in accordance with the state 
law and rules and public and advisory committee comments were received and 
considered by the Board of Health. The department feels that no change to the 
rules is necessary as a result of the comment. 
 Comment: One commenter suggested that by mixing nursing home with ICF-MR 
facilities, the proposed administrative penalties now mix the proverbial "apples 
and oranges" theme. Nursing homes and ICF-MR facilities have different missions; 
populations with different needs and goals; and different staffing and 
programming patterns for compliance with Federal and State standards. The 
systems are completely different. It is illogical that such be done to the ICF-
MR program. Three comments were received on this issue. 
 Response: The department's response is that while the administrative procedural 
portion of the proposed rules is the same for both nursing facilities and ICF-
MR/RC facilities, the elements are separated and specifically apply to each type 
of facility based on the pertinent standards and services offered to the 
residents. The proposed rules recognize that ICF-MR/RC facilities serve a 
different clientele than nursing facilities. Residents in an ICF-MR/RC 
facilities have the right to a safe and healthy environment and quality active 
treatment services and the proposed administrative penalty elements take those 
areas into consideration. It is not illogical to apply the administrative 
penalty system to ICF-MR/RCs. No changes were made as a result of the comment. 
 Comment: In revising this rule, one commenter suggested that the agency has 
already exempted maternity homes from the proposed rule. The agency has 
supported this exemption by a mis-focused analysis on the distinctions within 
"long-term care." Instead of focusing their inquiry on the meaning of "care", 
the agency's focus ended with an analysis of "long-term." A focus on the meaning 
of "care" would reveal that the services of the majority of ICF-MR facilities 
more closely pattern the home-like atmosphere created by the exempted maternity 
homes. Thus there is no reasoned justification for including ICF-MR facilities 
with nursing facilities when services more closely match providers exempted from 
the penalty. 
 Response: While some of the services offered in an ICF-MR/RC may be similar to 
those offered by a licensed maternity home, we do not believe that the same 
level of active treatment services is generally needed by maternity home 
residents. Regardless of this, the licensing law specifically exempts maternity 
homes from the administrative penalty system. Furthermore the 73rd Legislature 
passed a bill which transfers the regulation of maternity homes from the 
department to the Department of Protective and Regulatory Services. The 
department made no change as a result of the comment. 
 Comment: The remainder of the Association's comments relate to the absence of a 
reasoned justification for the rule as required by Texas Civil Statutes, Article 
6252-13a, sec.(c)(1) (1). As related earlier, one assumption of the Board of 
Health in approving this rule was " the general consensus is that the facilities 
are expected to and usually will provide safe and adequate care, and in so doing 
will not face penalties. It is only the exceptional circumstances, where a 
pattern of problems occur, that penalties will be invoked." A review of the 
Texas Department of Health's records for deficiencies cited in 1992, Tag Numbers 
W159, W164, W186, W189, and W195, alone reveals that 407 facilities were cited 
for a deficiency which would carry a $500 or greater fine under the proposed 
rule. With only 572 privately owned facilities in Texas, the clear majority of 
providers would be fined under the proposed rule. The rule therefore does not 
involve "exceptional circumstances". The penalties incurred for a first offense 
of only a small portion of the regulations now proposed to be subject to 
penalties total $340, 000. It is clear from the gross disparity between the 
factual basis reported in the Texas Register to support the proposed rule and 
the actual numbers maintained by the department that the impact of this rule on 
the private provider industry is not supported by an accurate much less reasoned 
justification. 
 Response: The department believes that if facilities comply with the minimum 
standards in providing quality services then no administrative penalties will be 
assessed. No changes were made. 
 Comment: One commenter noted that the majority of penalties relate to 
deficiencies in "active treatment." The area of mental health and mental 
retardation is not conducive to standardization in this area. Unlike a geriatric 
or convalescent situation, the needs of ICF-MR residents are individual and not 
easily quantified much less subjected to a $500 penalty. Reasoned justification 
does not exist for a rule which imposes penalties on active treatment decisions 
within ICF-MR facilities. 
 Response: The department disagrees with the commenter that ICF-MR/RC residents 
needs are more individualistic and less easily quantified than nursing facility 
residents. State and federal requirements for both types of facilities mandate 
that the residents be assessed and treated on an individualistic basis. Because 
the developmental and habilitation needs of ICF-MR/RC residents are called 
"active treatment", the penalty elements were designed to coincide with those 
areas of service. No changes were made as a result of the comment. 
 Comment: One commenter suggested that the stated purpose for administrative 
penalties for ICF-MR facilities on page 2458 of the April 13, 1993 Texas 
Register  is "to provide for better care of residents." How would the assessment 
of fines help the ICF-MR facility increase services, if necessary, "to provide 
better care of residents"? The assessment of fines will likely have the opposite 
effect and simply limit an ICF-MR facilities' ability to improve services. 
Sanction provisions for ICFs-MR have been in place for many years. Adding 
administrative penalties to these sanctions make an enforceable, workable system 
burdensome and punitive. A longitudinal study by the department to assess how 
administrative penalties added to existing sanctions would "provide better care 
of residents" is essential before any additional regulations are contemplated. 
 Response: The administrative penalty system is an option allowed by the 
licensing law to be a disincentive to facilities, who are not meeting the 
minimum standards, to continue that action. The department will gather 
information about the assessment of penalties and their relationship to 
decreased punitive actions. The department made no changes to the section. 
 Comment: A commenter stated that although the proposed rules listed fewer 
conditions for which a provider could be assessed a penalty, the proposed rule 
maintained a condition which addresses the service concept called "active 
treatment". Active treatment is integral to the ICF-MR program. The term 
encompasses many activities and numerous judgements by ICF-MR facility staff 
about when and how to assist an ICF-MR recipient develop age appropriate 
competence in balance with the limitations of the person's disability(ies). 
While some measures of active treatment can be readily recognized, others 
cannot. This one condition has the potential to create a classic "bureaucratic 
nightmare" and incur considerable illwill from many ICF-MR providers. The 
condition reads, as follow: "Failure to ensure or provide continuous, 
consistent, and aggressive program of training, treatment, and activities which 
are directed towards acquisition of behaviors and/or the prevention or 
deceleration of regression or loss of optimal functional status." This condition 
is not stated in measurable or observable terms. Determining compliance during a 
survey requires staff well-trained in ICF-MR survey technique and highly 
knowledgeable about the intent and implementation of ICF-MR standards. Under the 
best of conditions the department will likely find itself challenged to identify 
when and where an administrative penalty should be assessed and will face 
numerous provider appeals of fine assessments. 
 Response: The wording of Schedule B, Element C is taken from state licensing 
and federal Medicaid requirements relating to active treatment for residents. 
The department is committed to employing qualified surveyors/investigators and 
providing them with the orientation and training needed to evaluate facilities' 
compliance with the pertinent state and federal laws and rules. If a facility 
believes that a penalty assessment is not warranted, they have an appeal 
mechanism available under these rules. No changes were made as a result of the 
comment. 
 Comment: One person commented that a well-trained, professional survey staff is 
essential to promote credibility in the ICF-MR survey process. The large number 
of newly recruited surveyors and the difficulty in filling vacancies on the 
survey staff may compromise consistent interpretation of the "active treatment" 
condition. 
 Response: The department believes that it hires qualified staff and that they 
are oriented and trained adequately. The department is committed to continued 
training of the staff. No changes were made as a result of the comment. 
 Comment: One commenter stated that ICF-MR facilities are subject to more than 
525 different standards with no less than five probes per standard in the 
interpretive guidelines. Added to this is the inconsistent interpretation by 
surveyors in the various regions. To complicate this burdensome system with 
additional administrative penalties seems harsh and unreasonable for the 
surveyor and facility -and ultimately the resident! Legal and administrative 
challenges to such administrative penalties are a given and will complicate the 
process even further. 
 Response: As stated previously, the department continues to provide training 
for all surveyors/investigators on the application of all regulatory law and 
rules. In addition, training will be given to the providers on the 
implementation of the administrative penalty rules. The administrative penalty 
rules include provisions for the appeal of penalty assessments which the 
department believes facilities will use as they believe appropriate. The 
reference to other legal actions is not new to the department and any provider 
has access to due process based on democratic laws of our country. No changes 
were made. 
 Comment: One commenter suggested that the "Description of Conditions and 
Elements of Conditions" in the April 13, 1993, Texas Register, (18 TexReg 2465), 
are highly subjective. The department's surveyors already have enough difficulty 
applying their interpretation to the standards consistently from region to 
region. As it is now, words such as "continuous," "aggressive," "adequate" and 
"sufficient" are simply not measurable by the provider or the surveyor in or out 
of a court of law. 
 Response: The terms referenced as being "subjective" are terms currently used 
in the licensing and federal Medicaid rules adopted by reference in 
sec.145.42(c) of the new licensing standards, effective August 31, 1993. The 
department believes that the trained survey/investigative staff can make sound 
professional judgments in the application of the administrative penalty rules. 
No changes were made as a result of the comment. 
 Comment: One commenter pointed out that the proposed Administrative Penalties, 
Schedule B-Penalties for Facilities Serving Persons with Mental Retardation 
and/or Related Conditions, paragraph (A) under Description of Conditions and 
Elements of Conditions, exempts facilities less than 15 beds. All "small" 
facilities do not have all items listed, i.e., items 3, 4, and 5; however, they 
do have items 1, 2, and 6, and therefore should not be exempt from these rules. 
It is recommended the following be deleted from paragraph (A) . Also, there are 
some 15-bed ICF-MR facilities that were approved when the program first began. 
 Response: The department concurs with the comment and the rewording of the 
element will cover application to all sizes of facilities. Rewording should be, 
"A. Failure to maintain requirements in accordance with the appropriate Life 
Safety Code Standards." 
 Comment: One commenter stated that the proposed rule purports to apply the Life 
Safety Code requirements to facilities of 15 beds or more. It is the 
Association's understanding that a 15-bed facility would not be subject to the 
Life Safety Code and that these requirements would apply to facilities with more 
than 15 beds. This is consistent with the present standards which exempt a 15-
bed facility from compliance standards imposed upon larger facilities. 
 Response: The department does not concur with the comment as 15-bed or less 
facilities do have to comply with some of the sub-elements under paragraph (A). 
Rewording for clarification was done based on the previous comment. 
 Comment: Concerning Schedule B, A-2, a commenter suggested there could be a 
small item not functioning and not jeopardizing the resident's health. The 
commenter recommended changing this element to "required fire alarm system is 
not functioning in a majority of zones." 
 Response: The department believes that the wording is appropriate and provides 
protection to residents in all size facilities and made no changes to the 
section. 
 Comment: The department's Mental Retardation Facilities Advisory Committee, 
established to provide advice and expertise on applicable department public 
policy directives, has expressed significant reservations regarding the proposed 
rules. ARC/Texas has been an active partner in the Advisory Committee's 
deliberations. The commenter shares the concerns expressed by the Committee in 
their most recent meeting on this topic. They also believe it is ill-advised for 
the department to promulgate rules which directly contradict its own Advisory 
Committee's recommendations. 
 Response: The input and comments of the Advisory Committee were considered by 
the Long Term Care Committee and the Board of Health, however, the department 
made no changes to the section. 
 The following submitted comments and were in favor of the proposed amendments:: 
Texas Healthcare Association and Roy Crenwelge, Bureau of Long Term Care, Texas 
Department of Health. The following were against penalties for ICF-MR/RC 
facilities: the Texas Council of Community Mental Health and Mental Retardation 
Centers, Inc.; Advo Care, Inc.; Mission Road Development Center; Association for 
Retarded Citizens/Texas, and Private Provider Association of Texas. The Texas 
Association of Homes for the Aging was generally for penalties for nursing 
facilities and against penalties for ICF-MR/RC facilities. 
   
  25 TAC sec.145.91 
 
  The repeal is being adopted under the Health and Safety Code, sec.242.066 
which provides the department with the authority to assess administrative 
penalties; sec.12.001 with provides the Board of Health with authority to adopt 
rules to implement every duty imposed by law on the board, the department and 
the Commissioner of Health; and Texas Civil Statutes, Articles 6252- 13a, which 
establishes the procedure for a state agency to adopt a rule. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on August 4, 1993. 
 TRD-9326795 
  Susan K. Steeg 
 General Counsel, Office of General Counsel 
 Texas Department of Health 
    Effective date: August 31, 1993 
 Proposal publication date: April 13, 1993 
 For further information, please call: (512) 834-6770 
         
         
  Subchapter H. Enforcement 
 
  25 TAC sec.145.235 
 
  The amendment is adopted under the Health and Safety Code, Chapter 242. 066, 
which provides the department with the authority to assess administrative 
penalties; sec.12.001, which provides the Board of Health with authority to 
adopt rules to implement every duty imposed by law on the board, the department, 
and the Commissioner of Health; and Texas Civil Statutes, Article 6252-13a, 
which establish the procedure for a state agency to adopt a rule. 
 
 
  sec.145.235. Administrative Penalties. 
 
  (a) The department may recommend assessment of administrative penalties 
against a person who violates the Health and Safety Code, Chapter 242, as 
provided in this section. 
   
  (b) When a violation cited by the department is determined to be within the 
scope and description of the penalty schedules as stated in subsection (i) of 
this section, known as Schedule A and Schedule B, the violation is cause for 
assessment of a penalty as described in this section and as listed in the 
schedules. In determining whether a violation limits the facility's ability to 
comply with the law, a violation must be: 
 
  (1) of a number of existing simultaneous occurrences such that a pattern or 
trend is established; 
   
  (2) recurrent in nature and type; 
   
  (3) of a type presenting danger to the health and safety of at least one 
resident; 
   
  (4) of a magnitude or nature that constitutes a health and safety hazard 
having a direct or imminent adverse effect on resident health, safety, or 
security, or which presents even more serious danger or harm. 
     
  (c) The criteria for penalty assessment as described in subsection (b) of this 
section applies to nursing facilities and facilities serving persons with mental 
retardation or related conditions. 
   
  (d) No facility shall be penalized because of a physician's or consultant's 
nonperformance beyond the facility's control or if the violation is beyond the 
facility's control if the situation is clearly documented. 
   
  (e) An offense is defined as all deficiencies cited during a particular 
survey. The first offense carries the penalty shown in the "first offense" 
column on the schedule. The second offense carries the penalty shown in the 
"second offense" column on the schedule. The third offense carries the penalty 
shown in the "third offense" column of the schedule. 
   
  (f) The progression of offenses described in subsection (e) of this section 
applies to facilities regardless of license renewals, however, when a facility 
has not had an offense for a period of two years, the facility's next offense 
will be in the "first offense" column of the schedule. A suspension of a license 
and subsequent reinstatement does not interrupt the progression. 
   
  (g) Within 20 days after the date on which written notice of recommended 
assessment of a penalty is sent to a facility, the facility must give the 
department written consent to the penalty or make a written request for a 
hearing. If the facility does not make a response within the 20-day period, the 
department will request that the penalty be assessed. 
   
  (h) The procedures for notification of recommended assessment, opportunity for 
hearing, actual assessment, payment of penalty, judicial review, and remittance 
will be in accordance with  sec.145.238 of this title (relating to 
Administrative Hearings) and the formal hearing procedures of the department 
under Chapter 1 of this title (relating to Board of Health). 
   
  (i) Conditions and assessments for violations warranting administrative 
penalties for licensed facilities are described in Schedule A and Schedule B 
which are 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 Austin, Texas, on August 4, 1993. 
 TRD-9326793 
  Susan K. Steeg 
 General Counsel, Office of General Counsel 
 Texas Department of Health 
    Effective date: August 31, 1993 
 Proposal publication date: April 13, 1993 
 For further information, please call: (512) 834-6770 
         
           Part VIII. Interagency Council on Early Childhood Intervention 
  Chapter 621. Early Childhood Intervention Program 
  
  Early Childhood Intervention Service Delivery 
 
  The Interagency Council on Early Childhood Intervention (council) adopts 
amendments to sec.sec.621.22, 621.23, 621.41-44, 621.46, and 621.64 concerning 
the early childhood intervention program, without changes to the proposed text 
as published in the May 25, 1993, issue of the Texas Register  (18 TexReg 3345). 
The sections cover the program's service delivery, administrative hearings 
concerning individual child rights, and the advisory committee. The amendments 
will clarify service delivery requirements and definitions in order to comply 
with federal regulations, Part 303, which implement Public Law 102-119, 
Individuals with Disabilities Education Act Amendments of 1991. 
 No comments were received regarding adoption of the amendments. 
   
  25 TAC sec.621.22, sec.621.23 
 
  The amendments are adopted under the Human Resource Code, sec.73.003, which 
provides the Interagency Council on Early Childhood Intervention with the 
authority to establish rules regarding services provided for children with 
developmental delays. 
 
  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 August 3, 1993. 
 TRD-9326746 
  Tammy Tiner, Ph.D. 
 Chairperson 
 Interagency Council on Early Childhood Intervention 
    Effective date: August 24, 1993 
 Proposal publication date: May 25, 1993 
 For further information, please call: (512) 458-7236 
         
       
  25 TAC sec.621.25 
 
  The Interagency Council on Early Childhood Intervention (council) adopts an 
amendment to sec.621.25, concerning the early childhood intervention (ECI) 
program, without change to the text as published in the June 8, 1993, issue of 
the Texas Register  (18 TexReg 3614). The rule covers service delivery 
requirements; specifically, application requirements. The amendment updates and 
clarifies the section in compliance with the Individuals with Disabilities 
Education Act Amendments of 1991, Public Law 102-119, Part 303. 
 The amendment corrects citations, clarifes language, improves consistency, and 
recent changes in the federal regulations under the Individuals with 
Disabilities Education Act, (IDEA) Part H. 
 No public comments were received concerning the adoption of the rule.. 
 The amendment is adopted under the Human Resource Code,  sec.73.003, which 
provides the Interagency Council on Early Childhood Intervention with the 
authority to establish rules regarding services provided for children with 
developmental delays. 
 
  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 August 3, 1993. 
 TRD-9326747 
  Tammy Tiner, Ph.D. 
 Chairperson 
 Interagency Council on Early Childhood Intervention 
    Effective date:August 24, 1993 
 Proposal publication date:June 6, 1993 
 For further information, please call:(512) 458-7673 
         
         
  Procedural Safeguards and Due Process Procedures 
 
  25 TAC sec.sec.621.41-621.44, 621.46 
 
  The amendments are adopted under the Human Resource Code, sec.73.003, which 
provides the Interagency Council on Early Childhood Intervention with the 
authority to establish rules regarding services provided for children with 
developmental delays. 
 
  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 August 3, 1993. 
 TRD-9326745 
  Tammy Tiner, Ph.D. 
 Chairperson 
 Interagency Council on Early Childhood Intervention 
    Effective date: August 24, 1993 
 Proposal publication date: May 25, 1993 
 For further information, please call: (512) 458-7673 
         
         
  Early Childhood Intervention Advisory Committee 
 
  25 TAC sec.621.64 
 
  The amendment is adopted under the Human Resource Code,  sec.73.003, which 
provides the Interagency Council on Early Childhood Intervention with the 
authority to establish rules regarding services provided for children with 
developmental delays. 
 
  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 August 3, 1993. 
 TRD-9326744 
  Tammy Tiner, Ph.D. 
 Chairperson 
 Interagency Council on Early Childhood Intervention 
    Effective date: August 24, 1993 
 Proposal publication date: May 25, 1993 
 For further information, please call: (512) 458-7673 
         
               
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part III. Texas Youth Commission 
  Chapter 91. Discipline and Control 
  
  Control 
 
  37 TAC sec.91.65 
 
  The Texas Youth Commission (TYC) adopts an amendment to  sec.91.65, concerning 
procedures in the security units in TYC institutional facilities, with changes 
to the proposed text as published in the July 2, 1993, issue of the Texas 
Register (18 TexReg 4290). Text has been rearranged with no change in content. 
 The justification for amending the section is to prevent injury to staff and 
youth in the security unit. 
 Youths are placed in individual rooms in the security units when immediate 
behavior meets specific criteria, including engaging in serious physical harm to 
him/herself or others. The amendment allowing locked doors on individual rooms 
in the security unit will prevent continuing injuries to staff working in TYC's 
institutional security units, and to delinquent youth confined to those units, 
by restricting violent behavior. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code,  sec.61.075, which 
provides the Texas Youth Commission with the authority to determine appropriate 
treatment, including confinement. 
 
 
  sec.91.65. Security Unit. 
 
  (a) Policy. The Texas Youth Commission (TYC) refers to security as the 
institutional unit or building, which is designed and operated for the 
segregation of youth from the general population and which is controlled 
exclusively by staff. Placement in security is a serious and extreme measure 
which may be imposed only in specific situations. Security shall not be used for 
retribution at any time. Also see General Operating Procedure 67.19, sec.91. 69 
of this title (relating to Detention). 
   
  (b) Rules. 
 
  (1) Admission to Security. 
 
  (A) A youth may be confined in security: 
 
  (i) when there are reasonable grounds to believe, based upon overt acts, that 
the youth is a serious and continuing escape risk; or 
   
  (ii) when the youth is a serious and immediate physical danger to himself or 
herself or others and staff cannot protect the youth or others except by 
referring the youth to security; or 
   
  (iii) when the confinement is necessary to prevent imminent and substantial 
destruction of property; or 
   
  (iv) to restrain behavior that creates substantial disruption of the routine 
of the facility; or 
   
  (v) upon the youth's own request. 
     
  (B) A youth may be admitted to security only with the approval of the 
superintendent, acting superintendent, the youth's caseworker, his substitute, 
or a child care professional designated by the superintendent. 
   
  (C) Within 50 minutes of the referral the responsible staff shall determine 
whether the youth meets admission criteria and whether to admit the youth to the 
security unit. The superintendent or his substitute may extend the 50-minute 
time limit up to one additional hour if requested and necessary. 
     
  (2) Release. 
 
  (A) A youth shall not remain in security more than 24 hours solely on the 
basis of the behavior for which he was admitted to security. 
   
  (B) No minimum length of time in security is imposed. 
     
  (3) Locked doors in security unit rooms. 
 
  (A) Doors of individual security rooms may be locked during the referral 
process prior to admission with the following restrictions: 
 
  (i) A youth may be placed in an individual room and the door locked when the 
youth is out of control and is a serious and immediate physical danger to 
himself or herself or others, and only after less restrictive methods of 
restraint have failed. 
   
  (ii) As soon as a youth is sufficiently under control so to no longer pose a 
serious and immediate danger to himself or others, he is released from the 
locked door. 
   
  (iii) Use of locked doors for this purpose shall be fully documented. 
     
  (B) Doors of individual security rooms are locked following a youth's 
admission to the security unit and placement in an individual room. 
     
  (4) Extended stay. 
 
  (A) A youth's stay in security may be extended beyond the 24 hours if there 
are reasonable grounds to believe that one of the admission criteria is 
occurring or will occur if the youth is released. 
   
  (B) Extended security confinement due process protections are provided to 
youth who remain in security longer than 24 hours. 
 
  (i) A hearing is afforded the youth before security confinement is extended 
past 24 hours. 
   
  (ii) The youth is informed of the reasons for the continued confinement. 
   
  (iii) A hearing administrator to review the reasons for the confinement and 
make a decision on the facts presented. 
   
  (iv) The youth is present and participates in the review and has an 
opportunity to make his own statement. 
   
  (v) The youth is given assistance in presenting his position if the youth 
requests such assistance. 
   
  (vi) The administrator's decision is based solely on the evidence presented. 
   
  (vii) A written statement of the decision setting forth the reasons for the 
decision and the appeal procedure is provided to the youth. 
   
  (viii) The superintendent will decide the appeal outcome and the youth is 
notified of the outcome of the appeal. 
     
  (C) Following the extended stay hearing, the superintendent may approve an 
additional 24-hour extension, every 24 hours thereafter, until the end of the 
fifth day or 120 hours. 
   
  (D) Following 120 hours of extended security placement, the director of 
institutions may approve an additional 24-hour extension, every 24 hours 
thereafter, until the end of the seventh day or 168 hours. 
   
  (E) Following 168 hours of extended stay security placement, the deputy 
executive director may approve an additional 24-hour extension every 24 hours 
thereafter until the youth is released. 
     
  (5) Security requirements. 
 
  (A) Youth placed in security who are on suicide alert are visually checked by 
staff no less frequently than every ten minutes. All other youth in security are 
visually checked by staff at least every 15 minutes. 
   
  (B) Youth in security are visited at least once each day by the superintendent 
or acting superintendent and by personnel from the psychology and medical 
departments. 
   
  (C) During normal sleeping hours a supervisor visits the security area at 
least once each hour (unless exceptional and unusual duties prohibit such 
visits) and shall make an entry into the log recording each such visit. 
   
  (D) Youth in security receive appropriate psychological and medical services. 
   
  (E) Youth in security receive the same food including snacks prepared in the 
same manner as for other youth except as special diets may be prescribed on an 
individual basis by medical personnel. 
   
  (F) Youth in security receive educational services. Academic assignments are 
expected to be completed on all school days by youth enrolled in academic 
classes; any youth not enrolled in an educational program or only involved in 
vocational shop activities may be given leisure reading or letter writing 
assignments in lieu of completing academic class assignments. 
   
  (G) Youth in security receive two periods of supervised large muscle activity 
daily. 
     
  (6) Documentation. Permanent log(s) are maintained stating the name of the 
person who authorized confinement or security, the superintendent or acting 
superintendent's daily approval of the placement, the names and times of the 
persons who visited the youth while so confined, and the date and time of the 
youth's placement into security or isolation and release. 
 
  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 August 2, 1993. 
 TRD-9326738 
  Ron Jackson 
 Executive Director 
 Texas Youth Commission 
    Effective date: August 24, 1993 
 Proposal publication date: July 2, 1993 
 For further information, please call: (512) 483-5244 
         
                     
  TITLE 40, Social Services & Assistance, 
 Part I, Texas Dept. of Human Services 
  Chapter 29, Purchased Health Services 
  
  Subchapter BB, Coordinated Care 
 
  40 TAC sec.29.2701 
 
  The Texas Department of Human Services (DHS) adopts new  sec.29.2701 
concerning DHS's Coordinated Care Pilot Project, in its Purchased Health 
Services rule chapter. The section is adopted without changes to the proposed 
text published in the June 29, 1993, issue of the Texas Register (18 TexReg 
4233). 
 The justification for the rule is to comply with sec.32.041 of the Human 
Resources Code which was adopted by the 72nd Texas Legislature in 1991. This 
legislation mandates that DHS develop an innovative and cost effective approach 
for delivery of health care services to Medicaid clients. In response to the 
adoption of sec.32.041, DHS developed the LoneSTAR (State of Texas Access 
Reform) Health Initiative. New sec.29.2701 states the objectives of this 
initiative, which will be tested in a pilot project in Travis county beginning 
August 1, 1993, and in Chambers, Jefferson, and Galveston counties beginning 
December 1, 1993. The pilot test will conclude in 1995. 
 The new rule will function by improving quality of health care coverage to 
eligible individuals without increasing overall health-care expenditures in the 
Texas Medicaid Program. 
 No comments were received regarding the adoption of the proposal. 
 The new section is adopted under the Human Resources Code, Title 2, Chapter 22, 
which provides the department with the authority to administer public assistance 
programs, and Chapter 32.041, which provides the department with the authority 
to conduct a Medicaid Managed Care Demonstration Project, and under Texas Civil 
Statutes, Article 4413 (502), sec.16, which provides the Health and Human 
Services Commission with the authority to administer federal medical assistance 
funds. 
 
 
  sec.29.2701. Coordinated Care Pilot Project. 
 
  (a) The Texas Department of Human Services is conducting a Coordinated Care 
Pilot Project in response to sec.32.041 of the Human Resources Code, which was 
enacted by the Texas Legislature in 1991. The objectives of the project are to 
ensure adequate access to primary health care, prevent unnecessary utilization 
of health care resources, reduce inappropriate utilization of health care 
resources, and enhance the cost effectiveness of the Medicaid program for Aid to 
Families with Dependent Children (AFDC) and AFDC-related clients. 
   
  (b)  All eligible AFDC and AFDC-related Medicaid clients in the counties 
specified in subsection (c) of this section must participate in the project. 
These clients: 
 
  (1) will receive the current services available under the Texas Medicaid 
program, except that the existing three-prescription drug limit for clients over 
the age of 21 is removed; and 
   
  (2) must select an individual Primary Care Provider (PCP) who will manage 
their medical care. 
     
  (c) Clients in Travis County begin participation in the project August 1, 
1993, and clients in the tri-county area of Chambers, Jefferson, and Galveston 
begin participation December 1, 1993. Clients in these counties will continue to 
participate in the project for a period of two years. 
 
  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 August 4, 1993. 
 TRD-9326814 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: August 31, 1993 
 Proposal publication date: June 29, 1993 
 For further information, please call: (512) 450-3765