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 XIII. State Employee Incentive Commission Chapter 273. Program Definitions 1 TAC sec.273.27 The Texas Incentive and Productivity Commission adopts an amendment to sec.273.27, concerning Awards, without changes to the proposed text as published in the June 18, 1993, issue of the Texas Register (18 TexReg 3913). The amendment was made in response to a statutory change passed by a records vote from the 73rd Legislature regarding the State Employee Incentive Program. Section 273.27 is amended to clarify distribution of a bonus if a suggestion is submitted by more than one employee. No comments were received concerning the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6252-29a, sec.1, which authorize the Texas Incentive and Productivity Commission to promulgate rules for its programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 12, 1993. TRD-9327284 M. Elaine Powell Executive Director Texas Incentive and Productivity Commission Effective date: September 3, 1993 Proposal publication date: June 18, 1993 For further information, please call: (512) 475-2393 Chapter 275. Productivity Bonus Program 1 TAC sec.sec.275.1, 275.5, 275.11, 275.13, 275.17 The Texas Incentive and Productivity Commission adopts an amendment to sec.sec.275.1, 275.5, 275.11, 275.13, and 275.17, concerning Productivity Bonus Program, without changes to the proposed text as published in the June 18, 1993, issue of the Texas Register (18 TexReg 3913). All amendments, except those to sec.275.13, were made in response to statutory changes passed by a record vote from the 73rd Legislature regarding the Productivity Bonus Program. Changes to sec.275.5 expand the definition of division so that Productivity Plan submissions may be submitted by an identified group of employees other then those defined by having their own identifiable budget within an agency. Amendments to sec.275.5 change the timeframe that the commission has to review and inform the agency of its action on a Productivity Plan. Section 275.11 was amended to clarify that an element does not have to be totally eliminated to qualify as legitimate savings. Section 275.13 is amended to allow greater flexibility in certification of savings at the end of the fiscal year. Section 275.17 amends the amount of an award to be distributed by an agency. No comments were received concerning the adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 6252-29a, sec.1, which authorizes the Texas Incentive and Productivity Commission to promulgate rules for its programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 12, 1993. TRD-9327270 M. Elaine Powell Executive Director Texas Incentive and Productivity Commission Effective date: September 3, 1993 Proposal publication date: June 18, 1993 For further information, please call: (512) 475-2393 TITLE 10. COMMUNITY DEVELOPMENT Part V. Texas Department of Commerce Chapter 186. Smart Jobs Fund Program Subchapter A. General Provisions 10 TAC sec.sec.186.101-186.105 The Texas Department of Commerce adopts new sec.sec.186.101-186.105 implementing the Smart Jobs Fund program enacted by the 73rd Legislature in Senate Bill 130 through the addition of Subchapter J of Chapter 481 of the Government Code. Section 186.104 is adopted with changes to the proposed text as published in the June 25, 1993, issue of the Texas Register>> (18 TexReg 4165). Sections 186.101-186.103 and 186.105 are adopted without changes and will not be republished. Subchapter A, sec.186.101, concerning Authority, describes the statutory authority for the Smart Jobs Fund program rules. Section 186.102, concerning Purpose, describes the purpose of the Smart Jobs Fund program rules. Section 186.103, concerning Policy Board monitoring, provides that the Texas Department of Commerce (Commerce) Policy Board shall monitor the goals and results of the Smart Jobs Fund program on a regular basis. Section 186.104, concerning Definitions, defines words and terms used in sec.sec.186.101-186.308. Section 186.105, concerning Waivers, provides for waiver and suspension upon a showing of good cause and a finding that the public interest will be served by such action. Comments in opposition, or requesting changes or additions to the definitions set forth in sec.186.104 were submitted by the City of Austin, Employment Access for Retirees, the Creative Rapid Learning Center, the Texas Public Community Junior College Association, and the Harlingen Area Chamber of Commerce. Substantive comments received and any revisions to the rules made in response to those comments are discussed in the following narrative. Comment: Jobs change, leading to new position qualifications and requirements. Sometimes the new training requirements are less expensive. The amount spent on training alone is inadequate as a measure of whether the objectives of the Smart Jobs Program are being accomplished. The commenter recommended that sec.185.202(c)(3) be changed to add language to include "or change in the requirements for its positions." Section 185.202(c)(3) would then read as follows: the employer has reduced the amount of private money spent on non- managerial training due to economic necessity caused by downturns in the overall economy, increased competition, technological change, or change in the requirements for its positions. Response: Commerce believes that the current rule includes the commenter's concerns. "Jobs changes" is included within the scope of downturns in the overall economy, increased competition, and technological changes. Comment: What is "historically underutilized business?" Senate Bill 130 is clear on the definition of minority employer; the rules lead to more questions, rather than clarification. The citizenry of this state generally understand the term "minority employer", but do not understand the term "historically underutilized business." Response: "Historically underutilized business" is defined in amended Subdivision (1) of the Government Code, sec.481.101, as: a corporation formed for the purpose of making a profit in which at least 51% of all classes of the shares of stock or other equitable securities is owned by one or more persons who are socially disadvantaged because of their identification as members of certain groups, including black Americans, Hispanic Americans, women, Asian Pacific Americans, and American Indians, who have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control; a sole proprietorship formed for the purpose of making a profit that is 100% owned, operated, and controlled by a person described by Paragraph (A); a partnership formed for the purpose of making a profit in which 51% of the assets and interest in the partnership is owned by one or more persons described by Paragraph (A). Those persons must have proportionate interest in the control, operation, and management of the partnership's affairs; a joint venture in which each entity in the joint venture is a historically underutilized business under this subdivision; or a supplier contract between a historically underutilized business under this subdivision and a prime contractor under which the historically underutilized business is directly involved in the manufacture or distribution of the supplies or materials or otherwise warehouses and ships the supplies. Comment: The definition of "matching funds" as private contributions from the employer is unduly restrictive. Requiring matching funds to come from employers is unduly restrictive and may be a hardship on small employers. Response: The law requires the employer to match the contract funds. It also requires that Commerce's executive director attempt to award 50% of the funds to small businesses. In order to encourage small businesses to fully participate in the program, the rules require a 10% match from small businesses which employ fifty or fewer employees. Other businesses must, according to the law, provide a 50% matching contribution. Comment: Definition of existing job is not clear. Response: The definition is tied to the statutory definition of "existing employer" set forth in the Smart Jobs Fund Program Act, sec.481.151(6). It is written to distinguish an "existing job" from a "new job." Employers have to meet different wage targets, upon completion of the training, for each type of job. Smart Jobs Fund money comes from the Unemployment Insurance Trust Fund into which employers pay taxes. Comment: Definition of job security is too vague and difficult to quantify. Response: The definition of "family wage job" refers to long term job security, however neither family wage job or long term job security is required by statute. The only statutory requirements are to meet the wage levels specified for new and existing jobs and to retain the employee in the job for 90 days after the training is complete. Comment: The definition of "literacy skills" does not tie into the prescribed funding intent. There is a large demand for GED and ESL remedial training. Response: As with Job-Related Basic Skills, Commerce recognizes the demand in certain regions of Texas for such training. Here too, such training will be more effective in a work environment in order to meet the intent of the Act which is to train for high skill, high wage jobs. Comment: The rules do not specify who certifies minority firms as Historically Underutilized Businesses (HUBs). Response: Providing such information will be part of the technical assistance responsibilities of Commerce. The State General Services Commission will be responsible for such certification, and Commerce will provide the necessary referrals. The referral information will also be available in the Smart Jobs Fund application packet. Comment: The definition of "new job" is not clear. Response: The definition of "new job" is put into the rules as a companion definition to "existing job". These two definitions are tied to the statutory definition of "existing employer" set forth in sec.181.151(6). The definitions distinguishing the two are tied to the employer's payments to the Unemployment Insurance Trust Fund. Comment: The definition of "provider" doesn't refer to technical colleges; it refers to institutes. Response: The definition is intended to be inclusive of all technical colleges, proprietary schools and other higher education entities as defined in the Education Code, sec.61.003. The definition has been amended to address the commenter's concern. Comment: The definition of "reimbursable costs" requires further clarification. Response: The instructions for completing the application "Business and Training Plan" budget will provide clarification of allowable costs. Comment: The definition of "subcontract" is not clear as to intent. Response: Eligible applicants include consortia and partnerships. Commerce expects the members of such groups to have written agreements between themselves. Those agreements are subcontracts, each of which will become part of the contract with Commerce. Comment: Consider including in the rules criteria for defining targeted industries. Response: Commerce currently designates and promotes targeted industries in economic development using objective criteria and methodologies. Comment: High-technology areas should be defined and information about the demand occupations that provide high-skill, high-wage jobs should be publicized. Response: High-technology is an inclusive definition not required for eligibility. Eligibility for funding is based on high-wage jobs, defined by statute. Demand occupation is defined by statute and is varied by region. It will be determined based on statutory requirements and the best labor market information available. Comment: Provide definitions of new business/industry, existing business/industry, and business plan. Response: Commerce does not believe that such definitions are necessary. By way of clarification, the term "Business" includes "industry." Instructions for providing "business plan" information will be in the application packet. Comment: Rules need a clear statement that public sector employers are eligible. Response: Political subdivisions of the state which meet the requirements of the legislation pertaining to employers may be eligible, however, under the priorities for funding established by the Act, funding of public sector employers is prioritized after minority businesses, small businesses, and existing businesses which pay the Smart Jobs Fund assessment. In addition to the changes made in response to the comments summarized above, several grammatical and other nonsubstantive changes have been made by staff to clarify some of the definitions set forth in sec.186.104. As a result of the changes, 186.104 is reprinted below in its entirety. The new sections are adopted under the authority of Subchapter J of the Government Code, sec.sec.481.151 et seq, particularly sec.481.153, and the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. sec.186.104. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Benefits-Perquisites paid by an employer to an employee, either voluntarily or by collective bargaining agreement, in addition to the employee's wages, including vacation pay, holiday pay, sick leave, health insurance coverage, workers' compensation coverage, retirement or pension plans, and life insurance. Community-based organization -A public or private non-profit entity authorized to do business within the State of Texas and exempt from taxation under the United States Internal Revenue Code, sec.501(c), and which has as a purpose of the organization providing education, employment or training services. Competencies-The employer's measures of the participant's expected learning gains or skill mastery of the job-related occupational skills or job-related basic skills for which they are being trained. Such competencies may be specified by the employer, by industry associations, and be consistent with ISO 9000 certification standards, or other credible sources acceptable to the employer as evidenced by their inclusion in the application. The employer's measures shall be consistent with specifications in its business plan as essential to the business' competitiveness. Completed Application -A document submitted by an applicant on the forms provided by the Department that provides the information specified in sec.186.302 in sufficient detail to permit the Department to write a contract for a grant awarded under this chapter. Contract-The written agreement between the Department, the applicant, and each employer participating in a project that is signed after a project has been approved and a grant awarded, and which details the rights and responsibilities of each of the parties to that agreement. Department-The Texas Department of Commerce. Diversification-An increase in the variety of products produced. Employer organization -An organization funded by a group of employers that provides employment based training. Existing job-A position for which there is an incumbent employee or an opening on the day before the date on which the project is to begin and for which the employer has been liable to pay contributions under the Texas Unemployment Compensation Act in the year preceding the day before the project begins. Expansion-an increase in the product volume and number of jobs. Full time employment -Employment of at least 35 hours a week for a period of 25 consecutive weeks for a single employer, including normal days not worked by an employee such as a weekend or holiday. In-kind contribution -a noncash contribution of goods and services provided by an employer as all or part of the employer's matching share of a grant or project. Job security-Reasonable opportunity for continuation in an occupation. Job-related basic skills-The knowledge and abilities identified by the federal Department of Labor Secretary's Commission on Achieving Necessary Skills, known as the "SCANS Skills," including basic academic skills. There are no stand-alone curricula for training for these skills. Rather, they are to be integrated as part of the job-related vocational (occupational) skills training curricula. These skills specifications shall be consistent with the requirements of the employer's business plan. Job-related occupational skills-The same thing as "job-related vocational skills." The term means the knowledge and abilities the employer specifies as necessary for a specific job or demand occupation for which a participant is being trained and in which the participant will be employed at the end of the project consistent with the employer's certification. These skills specifications shall be consistent with the requirements of the employer's business plan. Labor market information-Economic, occupational, geographic and demographic characteristics of the labor market that encompasses population and labor force composition, industry and occupational trends and outlook, job opportunities, hiring and training practices, skills requirements and trends, wages, labor force estimates, career ladders, and occupational supply and demand. Labor organization -Any organization of any kind, or any agency or employee representation committee or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with one or more employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. Literacy skills -The knowledge and abilities necessary to communication in the workplace. Such skills may include reading, writing, mathematics, and language comprehension commonly assumed to have been learned in the public schools through the middle school level. Such skills may also include English as a Second Language or Spanish as a Second Language necessary for the job in which the participant will be employed at the end of the project consistent with the employer's certification. Literacy skills are considered part of job-related basic skills or SCANS skills. Matching costs -the dollar value of the private contributions from the employer required under the Smart Jobs Fund Program, whether they be dollar contributions or in-kind contributions. Calculation of the required matching amount is as follows. (A) Total dollar amount of the grant divided by the required per cent of matching cost equals the total project cost. The total project cost minus the total dollar amount of the grant equals the matching cost requirement. (B) An example follows: (i) $50,000 total grant amount / .50 (50% match requirement) = $100, 000 total project cost; (ii) $100,000 total project cost-$50,000 total grant amount = $50, 000 matching requirement. Minority employer status for application purposes -Meeting the qualifications for certification as an historically underutilized business. New job-A position which did not exist in the employer's business in this state on the day before the project begins and a position which had no incumbent employee for whom the employer had been liable to pay contributions under the Texas Unemployment Compensation Act in the year preceding the day before the project begins. Policy Board-The existing Board of the Texas Department of Commerce. Program expenses -the costs incurred by the Department for its operation of the program, which are not included in the cost of specific projects. Project-A specific employment training activity for which an applicant developed and implemented a plan and entered into a contract under the Texas Government Code, Subchapter J, sec.481.151 et seq. Provider-A person that provides employment-related training. The term includes employers, employer associations, labor organizations, community-based organizations, training consultants, public and private schools, technical institutes, junior or community colleges, senior colleges, universities, technical colleges, and other higher education entities as defined in the Education Code, sec.61.003, and proprietary schools as defined in the Texas Education Code, sec.32.11. Reimbursable costs -Those expenses in a training project that are reimbursed by a grant from the fund. Direct training costs and administrative costs for a project are reimbursable costs. Subcontract-A written agreement between an applicant and a provider of training or administrative services that is signed after a project has been approved and a grant awarded and that details the rights and responsibilities of each party to the agreement. Technological change -An advance in product design or production technique that enhances production efficiency or product marketability. Total project cost-The sum of the direct training-related costs plus administrative costs funded by a grant awarded under this chapter plus the employer's required matching contribution. It is calculated as follows: (A) Total dollar amount of the grant divided by the required per cent of matching cost equals the total project cost. (B) An example follows: $50,000 total grant amount / .50 [50% match requirement] = $100,000 total project cost. Turnover-The separation of an employee from his or her job. 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 13, 1993. TRD-9327374 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: September 3, 1993 Proposal publication date: June 25, 1993 For further information, please call: (512) 320-9401 Subchapter B. Methodologies for Determining Certain Variables 10 TAC sec.sec.186.201-186.204 The Texas Department of Commerce adopts new sec.sec.186.201-186.204 implementing the Smart Jobs Fund Program enacted by the 73rd Legislature in Senate Bill 130 through the addition of Subchapter J of Chapter 481 of the Government Code. Section 186.204 is adopted with changes to the proposed text as published in the June 25, 1993, issue of the Texas Register (18 TexReg 4165). Sections 186.201-186.203 are adopted without changes and will not be republished. Section 186.201, concerning State Average Weekly Wage; Regional Variances, describes the process to be followed by the Texas Department of Commerce (Commerce) in determining regional variances in the annual average of the average weekly wage of manufacturing production workers. Section 186.202, concerning Full-time Employment, provides that grants cannot be awarded to projects unless they train employees for full-time employment, unless a waiver is granted upon a showing of good cause. Section 185.203, concerning Maintenance of Effort, provides that employers must certify in their application(s) that approval of a project will not result in a net decrease in the average amount of private money spent by the employers on non-managerial training in Texas. Section 186.203 also provides that Commerce may require an employer to document the amount spent on non-managerial training in the two year period prior to the application being made. Finally, sec.186.203 establishes a procedure for modification of its requirements. Section 186.204, concerning Positive Growth to Replacement Ratios, sets forth the formula to be used by Commerce in calculating the growth to replacement ratio. Comments in opposition, or to request changes or clarification to portions of Subchapter B, sec.sec.186.201-186.204, were submitted by the Harlingen Area Chamber of Commerce, and Loral Space Information Systems. The Texas Employment Commission commented, in response to sec.186.204, that it should be considered only one source of data for computation of growth to replacement ratios since it publishes such data infrequently. Substantive comments received and any revisions to the rules made in response to those comments are discussed in the following narrative. Comment: Correct typographical error in description of when the Department publishes the state average weekly wage; change "of" to "or" in sec.186.201. Response: There is no typographical error. Section 186.201 provides that "Between September 1 and October 1 of each year, the Department shall contact the Texas Employment Commission to determine the state average weekly wage as of September 1 of that year". Comment: Concerning sec.186.201, which references that regional adjustment of the State Average Weekly Wage, comment was made that this ceiling or base is artificial. Response: Section 481.151(15) of the Smart Jobs Fund Program Act defines "State average weekly wage" as the annual average of the average weekly wage of manufacturing production workers in this state as of September 1 of each year, as determined by the Texas Employment Commission under sec.3(b), adjusted for regional variances. The use of the State Average Weekly Wage is required by statute and Commerce is responsible for regional adjustment. Comment: Concerning sec.186.204, the proposed rules state that the Texas Employment Commission will provide the data necessary to calculate the growth to replacement ratio for occupations. The Texas Employment Commission collects and publishes the data to compute this ratio infrequently and for a limited number of occupations and should be considered only one source of the data. Response: Commerce agrees with this comment. The rules have been amended to allow Commerce to use all the best sources of this data, including, but not limited to, the Texas Employment Commission. Comment: The methodology for determining the entry-level norms for the number of hours an employee works is unrealistic and will create audit problems. Section 185.202(D)(3). Response: The published version of the proposed rules does not contain a methodology for determining the entry-level norms for the number of hours an employee works, therefore, no change needs to be made in response to this comment. Section 186.202 states that "[e]xcept as provided by this section, the Department may not award a grant to a project that does not train employees for full-time employment. The executive director may waive the requirements of this section on a showing of good cause as it relates to the purposes of the Program." Comment: Language requiring employers to commit to a work week above thirty- five hours per week is too restricting and needs to be more flexible. Section 185.202(D)(4). Response: Commerce disagrees with the comment. Section 186.202(D)(4) does not contain such a requirement, however, the definition in sec.186.104(11) of "full time employment" states that employment must be at least 35 hours per week for a period of 25 consecutive weeks for a single employer, including normal days not worked by an employee such as a weekend or holiday. Commerce believes that training for high skill, high wage jobs requires, as a general rule, training for full time employment. Comment: Tie percentage award for employees working less than thirty-five hours per week after a year to the 25% retained monies. Section 185.202(F). Response: It is important in developing high skill, high wage jobs that the award of grants generally be limited to training for full-time employment. However, there is a waiver provision in Section 186.202 of the rules. Sections 186.201-186.204 are adopted under the authority of Subchapter J of the Government Code, sec.sec.481.151 et seq, particularly sec.481.153, and the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. sec.186.204. Positive Growth to Replacement Ratio. Growth to replacement ratio is calculated by dividing the estimated number of job openings due to growth by the estimated number of job openings due to labor turnover. Commerce will utilize the best data sources available including, but not limited to, the Texas Employment Commission and the United States Department of Labor to determine the numerator and denominator. When the ratio is greater than 1.0, more openings occur through growth than replacement. 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 13, 1993. TRD-9327375 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: September 3, 1993 Proposal publication date: June 25, 1993 For further information, please call: (512) 320-9401 Subchapter C. Application for Grants 10 TAC sec.sec.186.301-186.308 The Texas Department of Commerce adopts new sec.sec.186.301-186.308 implementing the Smart Jobs Fund program enacted by the 73rd Legislature in Senate Bill 130 through the addition of Subchapter J of Chapter 481 of the Government Code. Section 186.302 and sec.186.308 are adopted with changes to the proposed text as published in the June 25, 1993, issue of the Texas Register (18 TexReg 4165). Section 186.301 and sec.sec.186.303-186.307 are adopted without changes and will not be republished. Subchapter C, sec.186.301, concerning Eligibility, requires the Texas Department of Commerce (Commerce) to evaluate applications submitted by one or more employers or by one or more employer organizations, labor organizations, community-based organizations or providers acting in partnership with one or more employers. Section 186.302, concerning Application Requirements, describes who may submit applications, who is not eligible for a grant, the form the grant application must follow and what information the grant application must provide. It also describes the application process and timeline. Section 186.303, concerning Technical Assistance, provides that Commerce may provide technical assistance to applicants in formulating business and training plans and in completing the application, upon request. Section 186.304, concerning the Application Packet and its Review, provides that the executive director of Commerce shall approve a staff designed application packet, and shall review it annually to ensure that it contains the necessary information while being no longer than necessary, does not contain unreasonable demands for information and is readable and understandable. Section 186.305, concerning Funding of the Contracts, provides that the executive director of Commerce shall attempt to award a grant for all approved projects, subject to funds availability, in accordance with funding priorities of sec.186.306. It also provides that the Policy Board of Commerce shall annually review the funding priorities of sec.186.306 and advise the executive director of any changes thereto. Section 186.306, concerning Funding Priorities, describes the funding priorities that shall guide Commerce in awarding money under the Smart Jobs Fund program. It also requires the executive director to attempt to insure that employers throughout the state are aware of the program. Section 186.307, concerning Provider Registration, requires providers to register with Commerce, certifying that they have been in business at least one year and that during that period they have met the definition of "existing employer" set forth in the Smart Jobs Fund Program Act. Section 186.308, concerning Contracts, requires Commerce to enter into contracts with successful grant applicants and each employer designee participating in the project. It establishes requirements for the contracts, provides for the withholding of 25% of the training grant for ninety days after the training is completed, which money is to be remitted to the employer if all trainees have been retained in jobs ninety days subsequent to the date of termination of the contract, establishes caps on allowable attrition rates, establishes record retention requirements, contract terminations provisions and certain certification requirements. Comments in opposition, or requesting changes or additions to Subchapter C. of the rules were received from the Texas Public Community/Junior College Association, the Texas Employment Commission, Representative Steve Holzheauser, Representative Jim Horn, Representative Yvonne Davis, Representative Rob Junell, Representative Jim Pitts, Representative John Shields, Employment Access for Retirees, Sandra Steen & Associates, the San Angelo Chamber of Commerce, the Creative Rapid Learning Center, Design Plastics, Inc., the Harlingen Area Chamber of Commerce and Texas State Technical College Sweetwater. A letter concerning the legislative intent of the Smart Jobs Fund Program Act, sec.481.159(c), was received from Senator John T. Montford and Senator Rodney Ellis. Representative Steve Holzheauser submitted comments in which he requested that Commerce delay further action on the rules pending further study of the rules by the House Economic Development Committee. Commerce cannot delay adopting the rules because the Smart Jobs Fund Program Act becomes effective September 1, 1993. Substantive comments received and any revisions to the rules made in response to those comments are discussed in the following narrative. Comment: Smart Jobs application process should be simple, but actual application process proposed in the rules is very difficult. Response: Commerce has attempted to develop rules for the application process that are accessible to employers and provide maximum simplicity and that will be consistent with Commerce's responsibilities under the requirements of Senate Bill 130. Every attempt has been made to ensure that the application form and process are as simple as possible and do not contain unreasonable demands. Comment: Businesses will not understand the requirements of the Smart Jobs program which will create a business in Texas composed of consultants to the Smart Jobs process. Response: Commerce staff will be available to provide technical assistance to the employer in all phases of the program. The application package will contain all information necessary to explain the program and complete the application form. Comment: The requirement for providers to be in business for one year will impact those individuals and/or businesses who are just starting. Response: Commerce believes it is important for providers to have been in business for one year so that they are well established, have a track record, and have the demonstrated capability and experience to design curriculum for varied projects. Comment: There is a lack of emphasis on managerial training, we feel that the rules should recognize the importance of managerial and executive training. Response: The rules are consistent with the statutory directive of sec.481. 159(b) that reimbursable contract costs may include only those expenses related to direct training in job-related basic skills, including literacy skills, or job-related vocational skills. Comment: Smart Jobs rules should contain a statement about their limitations and always be distributed with the law as a package. Response: The commenter seems to suggest that the rules should have a statement that they do not contain the Smart Jobs Fund Program Act. The rules are to implement the Smart Jobs Fund Program Act. In an effort to assist applicants, however, Commerce intends to include a copy of the Act and the rules implementing the Act in the application packet. Comment: No mention in the rules of the "attempt to ensure that at 20% of the total amount of grants awarded under the program are awarded to minority employers", as if this was somehow less important than the commitment to small business. Response: This is in sec.481.155(a) of Senate Bill 130, the Smart Jobs Fund Program Act. Commerce intends to include a copy of the Act in the application package. Commerce also intends to include additional information emphasizing the 20% goal for minority businesses in the application package and in all marketing literature. Comment: Smart Jobs rules should contain a commitment to disadvantaged workers. Under funding priorities, a commitment of at least a percent of the money should be for disadvantaged or minority workers, as has been done for small business. And possibly give preference to those applications including commitments to disadvantaged workers. Response: The Smart Jobs Fund Program Act was designed to serve the entire work force and business community. It is an economic development program which is intended to create jobs. The Act, sec.481.152(a), states that the program is created as a work force development incentive program to enhance employment opportunities and to meet the needs of existing and new industries in the state. There is a statutory goal of 25% of the funding to assist minority businesses. Comment: Two commenters expressed concern that the rules do not limit the size of the contracts which a business may request. These commenters felt that this would limit the number of companies that will benefit and encourage very large firms to enhance monies already available to them. One of the commenters further commented that there are many small, medium, and medium-large firms that rarely have the opportunities which will become available with Smart Jobs. Response: There is no provision in the law to limit the size of contracts or the number of contracts an employer or other applicant might get. In order to provide flexibility, Commerce will negotiate each contract separately, keeping in mind the Government Code, sec.481.155(g), which requires that it attempt to ensure that at least 50% of the total dollar amount of grants awarded under the Smart Jobs Fund Program Act be awarded to small businesses. In addition, the rules allow for a smaller matching requirement for small businesses. Comment: One commenter stated that there had been some indication some of the Smart Jobs Fund program funds would target defense-related firms due to the heavy downsizing our state has experienced. The commenter believed that the emphasis should be on those small to medium-sized firms reeling under the ripple effect of the downsizing, but for whom there has been little assistance. Response: The Smart Jobs Fund Program Act, sec.481.152(b) sets a goal of 50% of the money be used to fund projects which assist small businesses. The law speaks also to regional effects of various economic and technological change factors in the state as a possible reason to modify applicant requirements. These effects may include the results of defense downsizing. Comment: A commenter recommends that the Department not tie the availability of funds to whether or not a firm participates in the Texas Workman's Compensation System. Response: Such participation is not a requirement of the law or the rules for submitting an application or for receiving a grant award. The law does require Commerce to report to the Legislature on the extent of such coverage among the employers receiving grants. Commerce will ask for such information in the application. Comment: Two commenters stated that wage levels for a job existing at the start of the project, increasing to the greater of either 10% of the wage the day before the project started or 75% of the state average weekly wage will prevent many companies from participating-a 10% increase is almost impossible in this economy. Response: Section 481.155(c)(1) and (2) of the Smart Jobs Fund Program Act require such wage increases. The increase is to be tied to the state average weekly wage for manufacturing production as determined by the Texas Employment Commission on a yearly basis, adjusted for regional variances. Commerce is responsible for specifying the regional adjustments. Comment: Job-related basic skills training should not have to be hidden in the vocational curriculum. Doing so prevents employers from being able to provide solely basic skills training which is often a prerequisite to technical training. Response: Commerce recognizes the possibility that occupational skills training curriculum development which includes basic skills (defined as SCANS skills) training may be new to employers or to providers. However, the Smart Jobs Fund training is to focus on high skill, high wage jobs which require an emphasis on occupational skills training leading to higher wages, higher skills, job security, and the ability to care for oneself and one's family. In addition, the SCANS skills cannot be taught in a vacuum and are learned more effectively when related directly to worksite experience or occupationally-related skills training. Where basic skills are needed they should remain within the context of occupational training. Comment: How will calculations of variances to the state average weekly wage be handled? Response: Commerce will use regional wage data from Councils of Government Planning Regions in the state to benchmark adjustments based on how the wage data for each region vary from the state's average. Comment: Two commenters suggested that the rules should contain language identifying a fiscal agent for the contract. Response: Commerce believes that this comment has merit but that it is unnecessary to specifically address fiscal agents in the rules. Rather, designation of a fiscal agent for consortia or partnership applicants will be a part of the contract with Commerce. Contracts with individual employers will provide that the employer will serve as the fiscal agent. Comment: The language referring to eligible applicants as employers and providers is not clear. Response: The definition of "employer" is found in the Smart Jobs Fund Program Act, sec.481.151(4). "Existing employer" is defined in the Act, sec.481. 151(6). "Provider" is defined in the Act, sec.481.151(14). An employer and a training provider may form a partnership for submitting an application resulting in training provided to the employer's business supported by the Smart Jobs Fund program. Comment: The language specifying grant funds will pay for job-related occupational skills training and job-related basic skills training conflicts with the rule that there are no stand-alone curricula for the basic skills training. Response: Section 186.302(d) specifies both types of skills training. Since there are no stand-alone curricula for training in job-related basic skills (defined as SCANS skills) the training in those skills would become part of the job-related occupational skills curricula, if an employer elects to propose job- related basic skills training. Without applied references based on occupational worksite or occupation-related classroom training content, it is ineffective to attempt to train in job-related basic skills. The Smart Jobs Fund Program Act requires that employers specify the expected skills and competencies achieved by the projects' participants resulting from the training funded by the Smart Jobs Fund program. Section 186.302(d) further requires employers to specify the assessment method(s) by which they will ascertain the participants' pre- and post-training competencies. Where an employer proposes job-related basic skills training, they will have to specify the assessment method(s) for ascertaining those pre- and post-training competencies as well as the participants' job- related occupational skills competencies. Comment: List the allowable costs in the development of the application. Response: The application will be as brief as possible, as required by the Smart Jobs Fund Program Act, sec.481.156(d), while meeting the requirements of the Smart Jobs Fund Program Act. The cost categories in the budget portion of the application which employers will have to complete will be clear in the application. Comment: Define what would be a "significant economic benefit to an entire region." This requirement implies a larger burden for small businesses to meet this criteria, and it is a disincentive for them. Response: Section 186.302(f)(4) of the rules provides that projects which provide significant economic benefits to an entire region of the state may have all matching requirements waived, at the discretion of the executive director. A list of criteria is included in the rules which will assist in the determination of significant economic development on an individual basis. The Smart Jobs Fund Program Act, sec.481.157(b), allows Commerce to waive the matching requirements of the Act, sec.481.157(a), for projects which provide significant economic benefits to an entire region of the state. The provision has significance only for those employers seeking specific waivers to the rules as permitted by the legislation. The rule allows the applicant to explain the economic and social variables relating to reduction in public assistance and increasing personal income. Each applicant may describe whether its business has a significant regional effect. Comment: Will the Department have funds for technical assistance? Response: Yes. The Smart Jobs Fund Program Act, sec.481.156(c), allows Commerce to provide assistance to applicants in formulating a business and training plan. Section 186.303 of the rules explains how Commerce will provide such assistance. Commerce has a skilled and experienced staff and a broad network of referral allies and partners which it will use. Comment: The funding priorities in the proposed rules are too restrictive and 40% of the money will go to new businesses. Further clarification is required. Response: The Smart Jobs Fund Program Act, sec.481.152(b), requires that at least 60% of the funds be used to assist existing employers. Existing businesses can also create new jobs; in fact, the proposed rule is that at least 20% of the 60% funding will be spent on training for new jobs. The funded percentage could be higher under this rule. The intent of the Act is to provide resources to help the economy grow. One way for it to grow is to create new jobs, which often come from new businesses. The legislation also allows partnerships or consortiums and emphasizes small businesses. The purpose of sec.186.306(b) is to encourage small business partnerships and consortia to apply since this may be a less costly way for small businesses to apply. Comment: Since Commerce has to contract with each employer and the applicant under sec.186.308(a) of the rules, will a budget have to be prepared for each employer participating in the project? Response: Each application will have to show certain costs pertaining to the project. The application budget will have to show matching funds from private employers. Consortia or partnership employers will have to clearly show the extent of their participation in the project. Comment: Direct training costs should include stipends or wages for participants. Dependent care should be allowable regardless of the length of training. Several members of the Legislature commented that they never understood that dependent care and transportation costs would be included as reimbursable expenses. Their understanding is that this program is an economic development program, not an entitlement program. Response: It is not the intent of the Act to pay participants' wage stipends. However, the legislation specifically allows trainee wages to be counted as matching contributions from employers. In response to comments concerning dependent care expenses, sec.186.308(f)(1) has been revised to provide that in considering whether to include reasonable child care and transportation expenses, the executive director will consider the ability of the employer to provide matching funds to cover the cost of such expenses and the accessibility of other public and private funds to be used for such expenses. This is an economic development program to stimulate the economy and dependent care costs will be limited. Comment: There should be a schedule of matching funds based on the number of employees, and the requirement should be waived for consortia. "Private" contributions is too restrictive for public sector employers. Response: The Smart Jobs Fund Program Act, sec.481.157(a), requires that money provided under a grant for a project must be matched by private funds provided by the employer benefiting from the project. The Act does allow a modification of the rules for small employers with 50 employees or less. Section 186.302(f)(4) of the rule lowers the match to 10% for these employers. Comment: Comments were received that absolute employer accountability for retention of employees for 90 days, as required by sec.186.308(c) of the rules, is unreasonable for several reasons. Specifically, an employee may obtain employment with someone other than the original employer; uncontrollable events may preclude retention (death, illness, need to relocate, etc.). One commenter suggested that there should be a provision to allow for an attrition rate of at least 25% given the projected length of training and the lower skill levels of the targeted trainee population. Two senators commented that the Smart Jobs Fund Program Act was not intended to unduly penalize employers who, despite their best efforts and for reasons beyond their control, are not able to achieve a 100% success rate for trainees during the training period plus 90 days. They commented that it would be appropriate to implement the employer accountability provision in a manner that incorporates attrition rates for both the training period and the 90-day retention period. The senators also stated that one would expect the attrition rate during the 90-day retention period to be significantly lower than the attrition rate during the training period. Response: Commerce agrees that the concerns about absolute employer accountability are reasonable. Employers may develop agreements between themselves and their employees in training whereby the employee stays for 90 days or reimburses the employer for training costs. In addition, flexibility for the employers is allowed at the beginning of the project where they are allowed state funds for screening of their new employees before entering the training project. The selectivity of the employee is done before the projects begins with total discretion at the will and ability of the employer. In response to the comments received, an attrition rate will be set, capped at 3. 0% during the 90- day retention period, and at 12% during the training period. In order to allow small training programs some attrition, the executive director will have authority under the rules to approve different attrition caps for small training programs. Commerce believes that these attrition caps reasonably accommodate unforeseeable circumstances, beyond an employer's control, which result in some trainees leaving prior to the completion of training and the ninety day employment period, while maintaining a high level of employer accountability for providing high skill, high wage employment. Commerce believes that the suggested attrition rate of 25% is too high to maintain employer accountability for providing high skill, high wage jobs. Commerce agrees with the senators that attrition rates should be higher during the training period than they should be during the 90-day employment period, therefore, the cap for attrition during training is significantly higher than the cap allowed for attrition during the employment period. Comment: Concerning sec.186.307, consider including criteria to demonstrate provider's qualifications and encourage quality of training considerations and "exemplary practices." Response: The Act provides criteria for providers which rules support under this section. Further qualification will be based on the employer's needs, judgment, and technical assistance from Commerce staff. Commerce will encourage the best training possible for employers without establishing bureaucracy. Comment: Establish criteria and qualifications for instructors/trainers and guidelines for instructor hourly pay. Response: Each employer will design its own training plan and the overall cost, including salaries, through negotiation. Each employer will also be responsible for matching costs. Additional restrictions are not needed. Comment: Develop an application review process that is based on objective, independently validated criteria. Response: The Act establishes several criteria which Commerce will follow in establishing such an objective review process. Comment: Establish and schedule workshops to explain to businesses and providers the criteria that will be used to evaluate applications and proposals. Response: Commerce is developing a complete marketing plan which will include this information. Comment: Keep the application process as simple as possible. Response: In order to meet the statutory goal of 50% of the grants going to small businesses, the application forms will be simple. Commerce will also provide technical assistance which will help simplify the application process. Comment: Using a set percentage of the state average weekly wage could obstruct some placement because existing wage structures may be lower than the state average weekly wage. If so, employers are likely to refuse to participate. The development of a quality work force must include the least advantaged in our communities. Smart Jobs should not assume that other funding, in particular JTPA, will address training for the economically disadvantaged. It is critical to the future of the state work force that Smart Jobs specifically commit to serving the economically disadvantaged. Low literacy plan participants should be approved for extra time in training. Response: Section 186.308(h) is required by the statutory requirements of the Smart Jobs Fund Act Program, sec.481.155(c). Neither the Act nor the rules specify or assume projected lengths of training or skill levels of the targeted trainee population. In fact, the Act does not have a targeted trainee population, and it does not segment the Texas work force. The legislation is employer and job-driven and addresses employers' needs for the entire work force of the state. The rules do not make assumptions about the relationship of other programs or their eligible participants to the Smart Jobs Fund Program. The length of the training contract is determined by the employer in the Business and Training Plan. Comment: It is unclear whether Smart Jobs Fund money can subsidize trainee wages placed after training. Response: Smart Jobs Fund program money cannot be used to subsidize trainee wages placed after training. Such subsidization is not the intent of the Act, the purpose of which is to provide training for high skill, high wage jobs. Comment: Concerning sec.186.306, the 0.1% assessment that employers will pay to support the Smart Jobs Fund will be levied against the replenishment tax and the entry level tax employers new to Texas pay until they have established a tax rate based on their experience. Two groups will not pay the Smart Jobs assessment: reimbursing employers, including state government and education institutions, and governmental employers that pay a special tax rate calculated annually. The Department may wish to consider whether employers who do not pay the assessment should have a lower priority in receiving grant funds. Response: While Government entities are eligible, they are a lower priority than those businesses which meet the definitions of small businesses, historically underutilized businesses, and existing businesses which do pay the Smart Jobs investment assessment. This is especially true during the initial start-up of the program when funds are limited. Comments: Concerning sec.186.306, where funds available for existing Texas' businesses have been earmarked for new jobs comment has been made that this is too restrictive. Response: The rules provide that at least 20% of the funds for existing businesses are for new jobs, while allowing for a higher percentage. Without this rule, there is no reservation of any of these funds for new jobs. Comment: Concerning sec.186.308(b) which requires Commerce to withhold 25% of a training grant for 90 days after the end of a contract. Paragraphs (1) and (2) require the employer to submit certain documentation at the end of the 90 days to prove that 90 days of employment was provided to trainees. Paragraph (2) requires the employer to submit the most current employment record for each trainee participant as submitted to the Texas Employment Commission. The document routinely submitted to the Texas Employment Commission containing evidence of employment is the Employer's Quarterly Report (TEC Form C-3) and the Wage List that is part of the quarterly report (TEC Form C-4). These reports are submitted during the month following the close of each calendar quarter, i.e. during January, April, July, and October. Unless a trainee moved into employment status at the beginning of the calendar quarter, an employer's most recent Quarterly Report would not necessarily show that the requisite 90 days' work had been provided to the trainee after the end of the contract. Response: Commerce agrees that an employer's most recent quarterly report to the Texas Employment Commission may not show the requisite 90-day retention in the job for which the employee was trained. Paragraph (2) has been deleted and language has been added to sec.186.308 to allow Commerce to utilize the best source of data available for its monitoring purposes. Comment: Concerning sec.186.302, where partnerships are allowable with training providers, comment was made that where when a local training need is identified that a local community college should fill that need. Response: The Smart Jobs Fund grants will be made based on employers' needs, not regional or local needs. It is also "customized training" where employers determine their needs which may not be part of a standard curriculum. Where there are courses taught which meet local demands, the Smart Jobs Fund will not pay for services (i.e. instructors' salaries) already paid by tax dollars. In addition to the changes made in response to the comments summarized above, the staff of Commerce modified sec.186.302(g)(3) and (5) to allow ten business days, rather than five, in which to notify an applicant concerning the completeness of his or her application, and in which to prepare a contract for execution by the applicant subsequent to the approval of the executive director. The staff also added to sec.186.302(d)(7) a requirement that business and training plans specify the wages to be paid to trainees upon successful completion of training. This information is required by the Smart Jobs Fund Program Act, sec.481.156(b)(3). Section 186.302 and sec.186.308 are republished below in their entirety. Sections 186.301-186.308 are adopted under the authority of Subchapter J of the Government Code, sec.sec.481.151 et seq, particularly sec.481.153, and the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. sec.186.302. Application Requirements. (a) The following may submit an application for a grant under the Smart Jobs Fund Program: (1) one or more employers to secure training for demand occupations in a particular industry; (2) one or more employers acting in partnership with an employer organization, labor organization, or community-based organization to secure training for demand occupations in a particular industry; or (3) one or more employers acting in partnership with one or more providers to secure training for demand occupations in a particular industry. (b) Employee leasing firms, including firms contracting for temporary employees, are not eligible for a grant or to participate in grant applications. Employees obtained from agreements with such firms are not eligible to participate as trainees unless the employer complies with the applicable certification requirements of this chapter. (c) Grant applications must be filed in a form approved by the Department and must include a complete business and training plan and a project budget. (d) Grant funds awarded hereunder shall pay for job-related occupational skills training and job-related basic skills training that enhance the employer's ability to carry out its business plan. An approved business and training plan will become part of any contract or subcontract for grant funds awarded. The business and training plan will specify a project start date and a project end date. Each business and training plan must contain the information required by the Smart Jobs Fund Program, sec.481.156(b). Each business and training plan shall also: (1) describe how the proposed training is consistent with, and will enhance the employer's ability to carry out, its business plan to retain and increase its competitiveness; (2) describe the job-related occupational skills training curricula for each course to be funded by the grant, including how the course will integrate job- related basic skills training and the length of time each curriculum will require; (3) describe the job-related occupational skills and job-related basic skills and the competencies the employer expects the participant to achieve upon completion of training; (4) describe the method(s) used to assess each participant's competencies in the skills for which the project will train both immediately prior to the start date of the project and upon completion of the training; (5) specify the number of people to be trained in each curriculum including the number of current employees undergoing retraining for each demand occupation; the number of new hires for each demand occupation; and the number who will occupy new jobs at the completion of training for each demand occupation; (6) specify the projected cost per person enrolled, trained, hired, and retained in employment; (7) specify the number and kind of jobs, specified in terms of demand occupations, related to the project training that are available at the start of the project, and that will be available at the end of the project; and the wages to be paid to trainees on successful completion of the project; (8) specify the geographic location of all training to be provided with grant funds. All trainee travel will be specified in the proposed budget. All trainee travel outside the geographic location in which the employer is located and all trainee travel to locations outside of Texas will be at the discretion of the executive director as specified in the contract. No trainee travel will be reimbursed from grant funds for any purpose other than training as specified in the employer's business and training plan. (e) The application shall include the following information: (1) whether the employer is a small business as defined by the Texas Government Code, sec.481.101(3); and (2) whether the employer is a woman or minority group member, and if so, to which minority group the employer belongs. (f) Each application shall include a budget consistent with the requirements of the Smart Jobs Fund Program and these rules. The budget shall include three parts: specification of direct training-related costs; specification of administrative costs; specification of matching contributions. An approved budget will become part of any contract or subcontract for grant funds awarded hereunder. (1) Direct training-related costs may include: tuition; fees; books and classroom materials; instructor wages and salaries and reasonable benefits if the instructor is not an employee of a public education institution if grant funds are paying tuition and fees; instructor travel and per diem reimbursed at the State of Texas allowable rate; trainee travel outside the employer's specified region of the state as approved by the executive director; reasonable equipment lease or rental costs during the term of the project; reasonable costs of pre- and post-training participant assessment, including recruiting and identifying trainees; costs of purchasing approved curricula specified in the applicant's business and training plan if they are not already a course offering at a convenient public education institution for which the grant is paying tuition and fees; costs of job analysis, task analysis, curriculum design, and job development as defined by the Department; wages, salaries, and reasonable benefits of instructional aides and trainees' counselors if such personnel are not employees of a public education institution if grant funds are paying tuition and fees; and such other reasonable direct training-related costs as may be appropriate such as preparation and printing of training materials, communications, and consumable supplies. Such costs may include reasonable childcare expenses (except for existing employees who participate in training during normal working hours) in cases approved by the executive director and the costs associated with supporting dependent care expenses of trainees undergoing training in an approved curricula with a term of 6 months to 2 years. These costs may include reasonable childcare expenses and trainees' public transportation expenses (excluding taxi cab fares) related to training. In considering whether to include reasonable childcare and transportation expenses, the executive director will consider the ability of the employer to provide matching funds to be used for such expenses and the accessibility of other public and private funds to be used for such expenses. Continued payments of such expenses is contingent on the employer's satisfaction with the participant's progress during training. (2) Reimbursement for direct training-related costs will not include the lease, rental, purchase, or construction of facilities, the purchase of capital equipment, salaries, wages, or benefits paid to personnel assigned to manage or report on the project or the contract agreement. (3) Administrative costs may include the lease or rental of facilities excepting those facilities belonging to public education institutions where the curriculum specified in the business and training plan will be provided and for which the grant is paying tuition and fees; salaries, wages, and reasonable benefits paid to personnel assigned to manage or report on the project or the contract agreement; and such other reasonable expenses not included in direct training-related costs as are necessary to the successful completion of the project. (4) Employers with fewer than 50 employees receiving a grant must provide a matching amount of private funds in an amount at least equal to 10% of the total project cost. Projects that provide significant economic benefits to an entire region of the state may have all matching requirements waived at the discretion of the executive director. Such projects must provide information describing the region to which benefits will accrue and projected economic information, in addition to other relevant macroeconomic and microeconomic data that shows positive effects on the region's average weekly wage, tax base, employment rates, family income, purchasing power, expenditures on unemployment insurance, Aid to Families with Dependent Children, Medicaid, and other public assistance, and the availability of job openings in demand occupations. Employers may meet matching requirements by providing in-kind contributions. Documentation for in- kind contributions which are submitted as part of the employer's match must specify the dollar value of facilities, equipment, personnel, and consumable supplies contributed to the project. New equipment will be valued at cost. Existing equipment and facilities will be valued on a pro rata basis for the time used for training consistent with the United States Internal Revenue Service depreciation schedules for such assets based on data provided by the employer. Personnel contributions will be valued on a pro rata basis for the time spent on the project. In-kind contributions may not include the value of facilities, equipment, or personnel existing in public education institutions where such resources already are available to the employer as part of the institution's course offerings and for which the grant is paying tuition and fees. In-kind contributions may match either direct training-related costs or administrative costs. The sum of such contributions will be used to determine the total matching costs required for any grant awarded. (5) The Smart Jobs Fund shall not pay for the costs of preparing an application nor shall it reimburse an applicant or any employer for retroactive training costs incurred prior to the start date of the contract. (g) Application Process and Timeline. (1) Any eligible entity desiring to request funds from the Smart Jobs Fund Program shall submit a completed application for funding. (2) Within three business days after receiving an oral or written request for an application from an applicant, the Department shall send an application packet to the applicant. (3) Within ten business days of receiving an application, the Department shall notify the applicant whether the application is complete. If the application is incomplete, the Department shall specify the additional information required to complete the application. With this notification to the applicant, the Department shall identify a contact person on its staff who is available to assist the applicant in completing the application. (4) Within 30 business days of receiving a completed application, the Department will complete all further negotiations and the executive director will act on the application. In acting on the application the executive director may approve the application and award a grant; approve the application pending the award of the grant; disapprove the application or request the applicant to modify all or part of the application. (5) Within ten business days after the executive director approves an application, the Department will have a contract for the project available for execution by the applicant. sec.186.308. Contracts. (a) The Department shall enter into a contract for an approved application with the grant applicant, and each employer designee participating in the project. Each trainee may be required to enter into an agreement with the employer to remain in the job for which they were trained for 90 days after the completion of the training. The contract will be executed by the grant applicant's signature authority, employer designee signature authority, and the Department executive director or executive director designee (notarized signatures for consortium applicants). Four original contracts will be mailed by first class mail to the grant applicant and employer(s) for signature. The original contracts must be returned to the Department within 15 days from the date on the contract cover page for execution by the executive director. A copy of the executed contract signed by the executive director will be mailed by first class mail to the grant applicant and each employer within 5 days of receipt of the signed contract from the grant applicant or employer by the Department. The date of execution by the executive director is the effective date of the contract. (b) Within 20 days after the expiration of the ninety day training period, the applicant shall submit to the Department for verification the employment records for each trainee and such other data as the Department may require to verify training and employment. (c) If all trainees in the project have been retained in employment 90 days subsequent to the date of termination of the contract, the amount of the grant award withheld shall be remitted to the employer(s). For each trainee who is not retained in employment for that 90 day period, an amount withheld shall be reduced by the amount of the training costs for that trainee that is derived from grant money, and any balance shall be remitted to the employer. If there is a negative balance, the employer is liable for the amount for the negative balance and shall remit that amount to the Department not later than the 30th day after the date of correspondence on which the grant applicant or employer(s) is notified of the negative balance by the Department. Notwithstanding any other provision of these rules, there may be an attrition rate for trainees established for the period during the training and for the 90 day period after the training is complete. The attrition rate will be established based on the criteria of each submitted proposal. During the training period there will be a cap on the attrition rate of 12%. During the 90 day period after the training is complete there will be a cap on the attrition rate of 3.0%. The executive director may approve different numerical caps for small training programs in order to allow reasonable attrition in the small programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on August 13, 1993. TRD-9327376 Sedora Jefferson General Counsel Texas Department of Commerce Effective date: September 3, 1993 Proposal publication date: June 25, 1993 For further information, please call: (512) 320-9401 TITLE 22. EXAMINING BOARDS Part XXII. Texas State Board of Public Accountancy Chapter 511. Certification as CPA Experience Requirements 22 TAC sec.511.122 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 122, concerning acceptable experience, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3548). The amendment will enable the Board to count toward the experience requirement, experience acquired through an accounting internship program. The Board will consider, on a case-by-case basis, experience acquired through an accounting internship program to determine whether it can be counted toward the experience requirement for certification. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules regarding approved areas of work experience for CPA candidates. 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 12, 1993. TRD-9327240 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: September 3, 1993 Proposal publication date: June 4, 1993 For further information, please call: (512) 505-5566 Certification 22 TAC sec.511.161 The Texas State Board of Public Accountancy adopts an amendment to sec.511. 161, concerning qualifications for issuance of a certificate, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3548). The amendment will enable the Board to delete the requirement for an FBI fingerprint card for certification based on reciprocity. The Board will save time and expense by acquiring the same information from the Texas Department of Public Safety at a substantial savings. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 41a-1, sec.6(a), which provide the Texas State Board of Public Accountancy with the authority to promulgate rules regarding certification. 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 12, 1993. TRD-9327238 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: September 3, 1993 Proposal publication date: June 4, 1993 For further information, please call: (512) 505-5566 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 407. Internal Facilities Management Financial Services 25 TAC sec.sec.407.1-407.6, 407.22-407.24 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts amendments to sec.sec.407.1-407.6 and sec.sec.407.22-407.24, concerning financial services. Sections 407.2-407.4, 407.6, 407.22, and 407.24 are adopted with changes to the proposed text as published in the March 12, 1993, issue of the Texas Register (18 TexReg 1617-1621). Sections 407.1, 407. 5, and 405.23 are adopted without changes and will not be republished. This amendment provides for more uniform procedures for fiscal operations regarding: trust funds and personal effects; deposit and investments of funds; use and control of benefit funds; mail opening procedures; and processing warrants and vouchers after the death of a payee. Minor changes have been made to the text of the rules to clarify the intended policy. In sec.407.2, language has been added which clarifies that consent to administer a trust fund account may be withdrawn at any time. Language added to sec.407.5 (f)(2) provides for the client to be informed of the availability of a trust fund and how monies can be securely sent. Section 407.22 clarifies that: a restriction placed on funds by a donor does not apply when the client is 18 years old or older and deemed competent; a copy of the cash receipt will be forwarded to the client when funds have been deposited in that client's trust fund; and clients with active trust funds will be informed of their right to request a balance of their trust fund at any time. Comments were received from one individual. The commenter expressed concern over the terminology "patient" and "client" used to identify persons receiving services. The commenter also objected to the term "merit/demerit" when referring to a specific behavior therapy program. The department responds that although referring to persons receiving services as "clients" is not ideal, it does convey the intended meaning without adding cumbersome language. The term "patient" has either been replaced with "client" or deleted. The department also responds that the term "merit/demerit" has been replaced with more appropriate language. The same commenter questioned the use of religious funds being limited to Protestant and Catholic accounts. The department responds that the language which limits the use of religious funds has been deleted. The commenter expressed concern that the rule did not allow for clients to be informed of trust fund issues and procedures or notified of any deposits made into their trust fund account. The department responds that language has been added to reflect the commenter's concern. The commenter also felt that any restrictions a donor wishes to place on funds deposited into a client's trust fund should be arranged directly with the client, donor, and the client's interdisciplinary team. The department responds that language has been added to clarify that restrictions placed on funds by a donor do not apply when the client is 18 years old or older and deemed competent. The commenter believed that the posting of a list of former clients who have unclaimed funds violates confidentiality regulations. The department responds that language has been added clarifying that the posting should not identify the persons listed as clients or former clients. The amended sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.407.2. Trust Funds and Personal Effects. (a) All funds received at the facility for the personal use of an individual client who has given consent for the facility to administer the client's personal trust funds will have his or her funds deposited to the client trust fund. Consent may be withdrawn at any time. These funds shall be deposited in national or state banks that are insured by the Federal Deposit Insurance Corporation or in savings and loan associations domiciled in the State of Texas that are insured by the Federal Savings and Loan Insurance Corporation. (b) At least 75% of the balance of the total amount held in trust at each facility shall be invested with insured Texas financial institutions. Any remaining balance that is not required for current operations of the trust fund shall also be invested. (c) Each client's trust fund account is separately insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation provided that each client's trust fund records are maintained by the facility. This makes it possible to maintain the trust fund balance in one demand deposit account, bank investment account, and/or savings and loan account. (d) Earnings from the investment of pooled trust funds are to be prorated to individual client trust fund accounts in one of the following ways: (1) Prorated to each client on an actual interest-earned basis, or (2) Prorated to each client on the basis of the average monthly balance for the period of proration. (e) When a client dies and there are funds remaining in the client's trust fund, such funds should be disposed of as follows: (1) Where no demand is made for disbursement of funds remaining in the deceased client's account, the facility should dispose of such funds in accordance with the Texas Health and Safety Code, sec.551.005. The facility shall hold such funds in the client's trust fund account for a period of three years. If at the end of three years, no demand has been made for disbursement of the funds, the facility shall turn such funds over to the State Treasurer. The State Treasurer shall hold the funds for a period of five years; and if, at the end of that five-year period, no demand has been made, the funds shall escheat to the State and shall become a part of the General Fund. (2) Where demand is made, the facility may release the deceased client's funds in one of the following ways: (A) Small Estates Affidavit. The facility shall require the claimant to produce a copy of the small estates affidavit which has been filed in and approved by the probate court and certified by the clerk of said court in order to prove that the claimant has been authorized to collect the assets or a portion of the assets of the deceased client's estate. (B) Guardian of the Estate. The facility shall release any remaining trust funds to such guardian. In order to prove that the person claiming the remaining trust funds is the guardian of the deceased client's estate, the facility shall require the claimant to provide letters of guardianship which indicate that the claimant is guardian of the deceased client's estate. (C) Executor or Administrator of the Estate. The facility shall release any remaining trust funds to the representative appointed by the probate court to administer the estate. The facility shall require the representative to produce testamentary letters or letters of administration in order to prove that the representative has been authorized by the probate court to collect all assets of the deceased client's estate. (D) If the probate court has determined that there is no necessity for administration of the deceased client's estate, the facility shall release any remaining trust funds to the distributees of the deceased client. The facility shall require a claimant to produce the court order refusing application for administration in order to prove that the claimant is collecting the remaining trust funds pursuant to the Texas Probate Code, sec.180. In the event the court order does not set forth the manner in which the assets of the deceased client's estate are to be distributed, the facility shall require the claimant to obtain a court order which shows that the claimant has been determined by the probate court to be a lawful heir of the deceased client's estate. (E) When any questions arise concerning the proper distribution of assets remaining in a deceased client's trust fund, the facility is advised to seek legal counsel. (F) In cases where the remaining funds are $100 or less and the facility feels reasonably sure that the person claiming the funds is the lawful heir and there would probably not be a future dispute over distribution of said funds, the facility may use its discretion as to whether to distribute the funds with the caveat that the release of such funds would be without any legal protection from potential liability by wrongfully distributing assets of the estate. (3) Exceptions. Any funds deposited in a deceased client's trust fund pursuant to a specific trust arrangement or any funds which have been designated for a specific purpose by the facility prior to the death of the client shall be disposed of pursuant to the terms of that arrangement or pursuant to the purpose designated by the facility. Examples would include where funds are specifically set aside by a grantor for funeral expenses or where the facility has designated specific funds prior to the death of the client to be used to pay funeral expenses. (4) In order to comply with the Texas Department of Human Services' rules concerning funds of deceased clients, the facility should, within 45 days after the death, forward a notarized affidavit outlining the disposition of the funds to the Texas Department of Human Services. sec.407.3. Deposit and Investment of Funds. (a) All funds received shall be deposited with the state treasurer or in a national or state bank which is a member of the Federal Deposit Insurance Corporation or in a savings and loan institution which is a member of the Federal Savings and Loan Insurance Corporation. The balance of any bank account must never exceed the FDIC/FSLIC-insured limit unless it is secured by a bank pledge of collateral under the provisions of Texas Civil Statutes, Article 342- 603. All funds which are required to be deposited in the State Treasury must be deposited within three working days of receipt. (b) It is desirable, if practical, that the funds of the department be deposited in more than one bank in the immediate area, without preference to any one bank. Conflict of interest situations resulting from relationships between facility employees with any degree of control over bank accounts or investments and employees or officers of a financial institution shall be avoided. (c) Funds which are not required for current use should be invested with insured Texas financial institutions in time deposit certificates, savings accounts, or the Central Office investment plan. The rate of return and the availability for withdrawal in case of emergency shall be considered in making the selections. (d) The investment source selected must provide adequate security for the total amount invested. (e) The Central Office offers a temporary, current interest rate, investment plan for the benefit of all facilities. Funds may be transferred to the Central Office in multiples of $5,000 for immediate return when requested. Interest payments are remitted by the Central Office at the end of each month. (f) Earnings from investment of clients' trust funds shall be allocated to individual trust fund accounts. Earnings on invested funds other than trust funds shall be added to the funds from which earnings are derived. (g) A register of all investments shall be maintained in the office of the business manager/assistant superintendent for administration. It shall include a description of each investment, the amount and date, interest due dates, interest paid dates, maturity date, and reinvestment information. The business manager/assistant superintendent for administration shall use this register to verify collection of income and principal and to plan the investment program. sec.407.4. Benefit Funds: Use and Control. (a) The Texas Health and Safety Code, sec.551.004 provides that the superintendent/ director shall be the trustee of a special fund to be designated the benefit fund. The superintendent/director may expend the monies in any such fund for the education or entertainment of the clients of the facility or for the actual expense of maintaining the fund at the institution. (b) The source of benefit funds are: (1) private donations or gifts; (2) interest earned from investment of benefit funds; (3) proceeds, rentals, or commissions received from vending machines; and (4) proceeds, rentals, or commissions received from pay station telephones. (c) Except for specific purpose funds, benefit funds may be used only for the purposes of education or entertainment of clients as a body. Each expenditure must be of general benefit to the population of the facility. This does not mean or imply that every client must benefit from each expenditure from the benefit fund. The guiding principle in the expenditure of these funds is that no partiality or preferential treatment is shown individuals or selected groups of clients. Expenditures from benefit funds must be properly documented to show the exact purpose and, if practical, to show the name of the clients benefiting from the expenditure. (d) The following are examples of expenditures that meet the requirement pertaining to education or entertainment. (1) purchase of supplies for a client behavior therapy program which involves a token economy or point level system; (2) client outings, including necessary admission fees and meals for those employees who are required to accompany a group of clients; (3) coffee for clients; (4) religious items; (5) educational books and supplies; (6) salaries of teachers on a temporary basis (includes athletic instructors and recreation assistants); (7) playground equipment, T.V. sets, record players, and stereos, for use by the clients as a whole in the living areas; and (8) grocery items purchased for a class in home economics. (e) The following are examples of expenditures that do not meet the requirement pertaining to education or entertainment. (1) travel of state employees; (2) operating supplies. (3) maintenance supplies-lumber, circuit breakers, and other similar items; (4) supplies for training programs in volunteer center; (5) nursery stock; (6) clothing for individual clients; (7) Regular cash issues to clients with no trust funds; (8) purchase of canteen coupon books for issue to clients with no trust funds; (9) extra pay for facility employees; (10) individual transportation for home visits by clients; and (11) furniture and equipment normally purchased from state-appropriated funds. (f) Some funds may be donated for a specific purpose in which case they should be used for that purpose if state regulations permit. In case of a conflict, the donor should be contacted and requested to specify a purpose that will permit expenditure of the funds in compliance with state regulations. (g) The chaplain fund is a special purpose fund which may be provided for recording contributions at religious services and special gifts designated for such fund by the donor. The following lists indicate the approved source for purchase of chaplaincy equipment and supplies. While most of the items listed in paragraphs (2) and (3) would be considered in the categories of "education or entertainment" under the procedure for handling benefit funds, the proper handling of a chaplain's fund must be based on the understanding by the donors that the funds will be used for the purposes which are listed. Expenditures from the fund should be limited to the items on the list which have been approved by the chaplains, the advisory committee, or the chaplain coordinator. (1) Items to be provided by the facility. (A) adequate space for worship (with necessary equipment); (B) chaplain offices accessible to clients, family, staff, and public (with necessary equipment); (C) classroom(s)and conference room(s)(with necessary equipment); (D) altar and altar equipment (i.e., pulpit, lectern, confessional stand, kneeling rails, cross, candles, Star of David, etc.); (E) hymnals and missalettes; (F) weekly church bulletins; (G) communion service supplies (i.e., candies, hosts, wine or grape juice, portable communion/altar set, etc.); (H) audiovisual equipment; (I) organ and piano for religious services and fellowships; (J) public address system; (K) religious classroom supplies (i.e., blackboards, maps, text materials, etc.); and (L) counseling room(s) in living areas; and (M) personnel (i.e., chaplain assistants, musician, and secretary). (2) Items to be provided by facility if current appropriations are available or through donations to the chaplain's fund. Items in paragraph (1) of this subsection are also included here if current appropriations are not available. (A) choir and vestment robes; (B) religious books, magazine, audio tapes, video tapes, etc. for medical and client libraries; (C) classroom supplies; (D) sheet music for choir organ and piano music scores for dramas; (E) religious records, audio tapes, video tapes, etc.; (F) musical instruments (i.e., portable organ, guitar, bells, rhythm instruments, etc.); (G) pulpit supplies; (H) printed materials for local clergy (educational and announcement); and (I) refreshments for chapel socials. (3) Important items for chaplaincy ministry. These items cannot be the responsibility of the facility and must come from the chaplain's fund or other types of gifts (most of these items become the property of clients). (A) Bibles, New Testaments, Koran, and Hebrew scriptures (Spanish and English); (B) devotional and prayer booklets, tracts; (C) personal religious articles (i.e., rosaries, medals, statues, holy cards, scapulars, crucifixes, crosses, prayer cards, etc. ); (D) special religious year remembrances (i.e., Holy Week, Easter, Christmas, Ramadan, Rosh Hashanah, etc.); (E) drama equipment (i.e., props, puppets, costumes, etc.); and (F) other religious materials. (h) In accordance with approved procedures, all receipts should be deposited in a bank account and all expenditures should be made by check signed by the business manager/assistant superintendent for administration or administrator and countersigned by the superintendent/director or designees. Approved purchasing procedures applicable to other funds should be adhered to in every respect. (i) The actual expense of maintaining benefit funds may include expenditures to cover administrative errors which arise in the administration or disbursement of benefit funds and trust funds, provided the following restrictions are met: (1) the amount of benefit funds expended to cover any single loss shall not exceed $250; (2) in each instance of loss, prior approval for the use of benefit funds to cover the administrative error must be obtained from the superintendent or director of the facility; (3) the circumstances surrounding each administrative error must be fully documented; (4) for auditing purposes, the expenditure, if approved and made, must be charged to cash shortage; (5) benefit funds shall not be used to cover losses which result from the gross negligence of any employee or employees; (6) the facility in which the administrative error occurred shall take such action as is necessary to correct the error and/or prevent its recurrence, including, but not limited to, the counseling of employees on correct procedure for the administration and disbursement of benefit funds and trust funds; and (7) employees responsible for administrative errors in the administration or disbursement of benefit funds and trust funds may be subject to disciplinary action as described in the department's Human Resource Services Operating Instruction, 406-3. sec.407.6. Commercial Solicitation on Grounds. Commercial solicitation on the grounds of the state facility shall be only in accordance with the instruction and direction established by the superintendent/director. Such solicitation should be at times and places specifically authorized for that special area of concern. For instance, general salesmen should be directed to the purchasing and supply office. Drug salesmen should be given instructions as to what times and at what places they may meet with the formulary committee or the pharmacist or other medical staff. Employees are to be reminded that they are prohibited by law from accepting gifts from salesmen or others. If such gifts are offered, they must either be rejected or handled as any other donated item to the facility. sec.407.22. Trust Fund Procedures. (a) Amounts received for benefit of clients specified by name are recorded in that client's trust fund account. A subsidiary ledger account is established for each client and any restriction imposed by the donor is recorded on that ledger account. Each receipt or disbursement is posted to that ledger account. Funds received for the general use of clients are considered as benefit funds. (See sec.407.23 of this title (relating to Benefit Fund Procedures). (1) The cashier receives all cash for clients, prepares five copies of the official cash receipt, furnishes the original receipt to the donor, forwards one copy to the client, forwards one copy to accounting, forwards one copy to the reimbursement office, and retains one copy in the receipt book. At close of business each day, the cashier forwards the cash receipts to accounting for posting to the trust fund and for preparing cash vouchers. After the receipts are posted to the subsidiary ledger, they are marked to indicate action completed and filed with the cash voucher. (2) Disbursements from trust funds are made for canteen merchandise coupons, cash withdrawals given to the client and cash given to an employee to make an authorized purchase for a client or pay a client debt. The request for disbursement is approved by the subsidiary ledger clerk as to availability of funds and absence of donor restrictions (Donor restrictions do not apply when the client is 18 years old or older and deemed competent.); the cashier then makes the disbursement and secures supporting documentation. (A) If cash is given to the client the client may sign beside an entry on the list of disbursements. When authorized purchases are made for a client, sales slips, receipted bills, or other vouchers signed by the client (or two employees acting for the client) are secured, posted to the subsidiary ledger, and filed in support of the check voucher in the same manner as cash receipts are filed with the cash voucher. (B) A cash withdrawal request list or a canteen merchandise coupon request list may be prepared for several clients and the total disbursed by the cashier to an authorized employee. This list shall provide space for the client's signature or mark. Two employees shall act as a team in making disbursements and shall sign a certification on the list, that the monies or coupons listed were disbursed to the payees on the date shown. The disbursing team members shall be rotated frequently. If the superintendent /director desires that a caseworker be a permanent member of the team, the second team member shall be rotated. (3) Funds are deposited and invested in accordance with sec.407.2 of this title (relating to Trust Funds and Personal Effects) and sec.407.3 of this title (relating to Deposit and Investment of Funds). Earnings from investment of funds are deposited to the each client's trust fund account. (4) Control accounts for trust funds are 1113xxx0, Trust Fund, and 23110000, Trust Fund Payable. The balances of the 23110000 account must equal the total of all subsidiary ledger accounts at the close of business each month. (b) When a client leaves a facility, the balance in his/her trust fund is refunded. If the refund check is outstanding for three months, a request that the check be cashed shall be sent to the payee. If no reply is received after one additional month, a "stop-pay" order shall be issued and the amount restored to the trust fund account. (c) The trust fund clerk reviews all inactive accounts at least once a year and furnishes the chief accountant with a list of all applicable account balances for escheat to the state under provisions of current statutes. At this time, all balances subject to escheat to the state shall be processed as follows: (1) Identify all accounts held for former clients who are deceased, on unauthorized leave, discharged, or furloughed for a period longer than three years. (2) Mail a letter to the last known address of the client or to donor. This letter should advise that the money will be escheated to the state treasurer if not claimed within 10 days. (3) At least 10 days before turning the funds over to the state treasure, post a list of clients' names and funds to be escheated in the hall of the administration building of the facility. The posting should not identify the persons listed as clients or former clients. (d) Trust fund ledger entries shall include descriptions or codes indicating source of funds and purpose of disbursements. (e) Clients who have an active trust fund account shall be informed of their right to request the balance of their trust fund at any time. sec.407.24. Processing Warrants and Vouchers after Death of Payee. (a) In the event that a person who had provided goods or services to the state dies before having executed the purchase voucher for payment for those goods or services, another person may complete the form. The business manager/assistant superintendent for administration of the facility, the spouse of the deceased, or other responsible party may complete a purchase voucher for goods or services furnished to the state, by adding a statement such as "prepared from records of the deceased." (b) The business manager/assistant superintendent for administration or delegated authority must be satisfied that the claimant to a warrant drawn to the estate of the deceased is entitled to the warrant before releasing the warrant. (c) A warrant payable to the estate of the deceased is payable by the state treasurer as follows: (1) If endorsed by the administrator, a copy of the court certificate of appointment must be attached and accompany the warrant to the state treasurer's office. (2) If endorsed by the payee's heirs, an affidavit shall be signed by two reputable persons stating that the endorsers are the sole surviving heirs, and are all of age and competent to act for themselves. This affidavit shall be attached and accompany the warrant to the state treasurer's office. (3) If endorsed by the guardian of an heir, the warrant shall have a certified copy of the court certificate of guardianship attached when presented to the state treasurer's office for payment. (4) One of the heirs may endorse the warrant, attaching a power of attorney or certified copy thereof, signed by all of the remaining heirs. The power of attorney shall state that the signers are the sole surviving heirs and are all of age and competent. 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 10, 1933. TRD-9327065 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: August 31, 1993 Proposal publication date: March 12, 1993 For further information, please call: (512) 465-4670 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 103. Procedural Rules Adjudicative Hearings 31 TAC sec.103.46 The Texas Air Control Board (TABC) adopts an amendment to sec.103.46, concerning Prehearing Conference, without changes to the proposed text as published in the May 7, 1993, issue of the Texas Register (18 TexReg 2937). The proposed changes have been developed in response to an initiative by the Hearings Oversight Committee of the TACB to improve the hearings process. The proposed changes require that all parties to the hearing make pertinent information available to all other parties at a time and place to be determined by the hearing examiner. The previous language only required such disclosure of the permit applicant. A public hearing was held in Austin on June 1, 1993, to receive testimony regarding the proposal. Written testimony was received from three commenters during the comment period which ended June 11, 1993: the Texas Chemical Council (TCC); the Ethyl Corporation (Ethyl); and one individual. TCC and Ethyl expressed support of the proposal and urged its adoption. The individual expressed the opinion that the proposed rule will increase the difficulty for the public in participating in a contested case hearing. The proposed rule has been developed to improve the hearings process and encourage public input. All parties to the hearing will now be required to disclose pertinent information to the public, instead of just the permit applicant. While this may require more work for the public participants in advance of the hearing, it should allow the hearing to proceed more expeditiously. The individual commenter further expressed concern that the person requesting the hearing be given at least 90 days from the hearing date to prepare the information, as opposed to 30 days. Under the proposed rule it is up to the hearing Examiner to determine the appropriate date for the exchange of information. Each case is different and it is appropriate to let the Examiner make the determination of the best date for the exchange in consideration of the factual circumstances of that case. The amendment is adopted under the Texas Health and Safety Code (Vernon 1990), 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. 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 13, 1993. TRD-9327384 Cyril J. Durrenberger Assistant Deputy Director, Air Quality Planning Texas Air Control Board Effective date: September 6, 1993 Proposal publication date: May 7, 1993 For further information, please call: (512) 908-1482 TITLE 34. PUBLIC FINANCE Part IV. Employees Retirement System of Texas Chapter 71. Creditable Service 34 TAC sec.sec.71.14, 71.19, 71.21 The Employees Retirement System of Texas (ERS) adopts new sec.sec.71.14, 71. 19, and 71.21, concerning Creditable Service. New sec.71.19 is adopted with changes to the proposed text as published in the July 2, 1993, issue of the Texas Register (18 TexReg 4287). New sec.71.14 and sec.71.21 are adopted without change and will not be republished. The new sections are justified in order to implement legislation passed by the 73rd Legislature that allows members to establish service credit in yearly increments by lump-sum purchase and payroll deduction, permits the transfer of service credit between the Teacher Retirement System of Texas (TRS) and the ERS, and transfers the membership of certain state employees from membership in the TRS to membership in the ERS. The new sections will function by providing alternate ways for members to purchase service credit, providing for efficient service credit transfers between the TRS and the ERS, and providing for the transfer from the TRS to the ERS membership of certain state employees. The agency received no comments regarding adoption of these new sections. The new rules are adopted under the Government Code, sec.815.102, which gives the Employees Retirement System of Texas the authority to adopt rules for the administration of the fund of the retirement system. sec.71.19. Transfer of Service Between the Teacher Retirement System of Texas (TRS) and the Employees Retirement System of Texas (ERS). (a) Purpose. These rules are intended to implement the provisions of the Government Code, Chapter 805, concerning the transfer of credit between the Teacher Retirement System of Texas and the Employees Retirement System of Texas. (b) Forms. (1) Applications for transfer will be made using forms prescribed by the ERS. (2) The ERS will cooperate with the TRS in an effort to make such application forms for the ERS comparable to those used by the TRS. (c) Notice. (1) A person who elects to transfer service credit pursuant to these rules must file the appropriate form to make such transfer not more than 90 days prior to the person's retirement effective date, but not later than said effective date. (2) The ERS will notify the TRS of the pending transfer not later than 30 days following said effective date. (d) Manner of transfer. (1) Service credit and assets will be transferred through electronic and hard copy documentation pursuant to these rules, and the ERS will maintain records of such transfer permanently. (2) Any transfer of service credit to the ERS must reflect years of credit, average salary, periods of service, method of calculation, and the manner used to calculate the time period involved, including and military credit purchased. (3) Any transfer of service credit to the ERS must include specific data regarding the pre-tax and after tax contributions by the person, penalty interest, earned interest, and any other dollar amount which will be part of the transfer. (4) Assets to fund the portion of the annuity attributable to service with the TRS will be transferred to the ERS pursuant to agreement with the TRS. (5) Service transferred from the TRS will be established in an employee class account for the benefit of the member. (e) Calculation of asset value. The value of assets transferred pursuant to these rules will be calculated on the basis of the 1983 Group Annuity Mortality Table and a discount rate equal to the yield for ten-year United States Treasury notes averaged during the August prior to the effective transfer date and rounded to the nearest 0.25%. The actuarial value of an annuity paid on the basis of these calculations will be determined as of the date the first payment is due. (f) Purchase of refunded service. (1) A member of the TRS who cancelled membership in the ERS by taking a refund of his individual account prior to September 1, 1993 may repurchase his service credit at any time prior to retirement. Such persons do not have to become a contributing member of the ERS in order to purchase such cancelled service credit. (2) A person who cancels membership in the ERS by taking a refund of his individual account after August 31, 1993, must meet the general requirements for reinstatement of puchase of service credit in the ERS. (g) Military credit. Any transferred military service which would result in a member receiving service credit in excess of that permitted under the ERS rules will not be accepted. (h) Termination of membership. The transfer of ERS credit to the TRS will terminate membership in the ERS, and will cancel all rights to benefits from the ERS based on that service. (i) Service in the month following retirement. A retirement shall be cancelled and membership reinstate if a member, who transferred service and retired pursuant to this chapter, holds a position during the month following retirement with the retirement system on which benefits are based. 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 11, 1993. TRD-9327194 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: September 1, 1993 Proposal publication date: July 2, 1993 For further information, please call: (512) 867-3336 Chapter 73. Benefits 34 TAC sec.73.33 The Employees Retirement System of Texas (ERS) adopts new sec.73.33, concerning Benefits, without changes to the proposed text as published in the July 2, 1993, issue of the Texas Register (18 TexReg 4287). The new section is justified in order to implement legislation passed by the 73rd Legislature which allows certain members to receive additional retirement benefits if they retire by a certain time during the next biennium. The new section will function by allowing members to retire at the earliest eligible date and to receive additional benefits if retirement takes place during the next biennium. The agency received no comments regarding the adoption of the new section. The new section is adopted under the Government Code, sec.815.102 which give the Board of Trustees of the Employees Retirement System of Texas the authority to adopt rules and for the administration of the funds of the retirement system. 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 11, 1993. TRD-9327197 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: September 1, 1993 Proposal publication date: July 2, 1993 For further information, please call: (512) 867-3336 Chapter 77. Judicial Retirement 34 TAC sec.77.15 The Employees Retirement System of Texas (ERS) adopts new sec.77.15, concerning Judicial Retirement, without changes to the proposed text as published in the July 2, 1993, issue of the Texas Register (18 TexReg 4287). The new section is justified in order to implement legislation passed by the 73rd Legislature that allows Judicial Retirement System of Texas Plan One and Plan Two members to establish service credit in yearly increments by lump-sum purchase and payroll deduction. The new section will function by allowing members to purchase service credit in way other than lump-sum purchase. The agency received no comments regarding the adoption of the new section. The new section is adopted under the Government Code, sec.835.002 and sec.840. 002, which give the Board of Trustees of the Employees Retirement System of Texas the authority to adopt rules and provide for forms as it finds necessary for the administration of the retirement system. 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 11, 1993. TRD-9327195 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: September 1, 1993 Proposal publication date: July 2, 1993 For further information, please call: (512) 867-3336 Chapter 81. Insurance 34 TAC sec.sec.81.1, 81.3, 81.7, 81.11 The Employees Retirement System of Texas (ERS) adopts amendments to sec.sec.81.1, 81.3, 81.7, and 81.11, concerning Insurance. Section sec.81.7, is adopted with changes to the proposed text as published in the July 2, 1993, issue of the Texas Register (18 TexReg 4288). Sections 81.1, 81.3, 81. 11, are adopted without changes and will not be republished. The amendments are justified in order to implement changes to the composition of the Group Benefits Advisory Committee (GBAC) enacted by the 73rd Legislature in Senate Bill 1181; the coordination of Chapter 81, Insurance program rules, with Chapter 85, Flexible Benefits program rules; and the coordination of coverage and leave rules with the recently enacted federal Family and Medical Leave Act of 1993. The amendments will function by improving the representation of program members through an expanded, reconstituted GBAC; the coordination of existing procedures with the Family and Medical Leave Act of 1993; and the requirements of the Flexible Benefits program. The agency received no comments regarding the adoption of the amendments. The amendments are adopted under the Insurance Code, Article 3.50-2, sec.4, which provides the Board of Trustees of the Employees Retirement System of Texas with the authority to promulgate all rules, regulations, plans, procedures, and orders reasonably necessary to implement and carry out the purposes and provisions of the Texas Employees Group Insurance Benefits Act. sec.81.7. Enrollment and Participation. (a)-(e) (No change.) (f) Changes in coverages beyond the first 31 days of eligibility. (1) An employee or retiree who wishes to add or increase coverage, add eligible dependents to the basic plan, or change coverage from an HMO to the basic plan more than 30 days after the initial date of eligibility must make application for approval by providing evidence of insurability acceptable to the Employees Retirement System of Texas. Unless not in compliance with Chapter 85 of this title (relating to Flexible Benefits), coverage will become effective on the first day of the month following the date approval is received by the employee's agency benefits coordinator or by the Employees Retirement System, if the applicant is a retiree or an individual in a direct pay status. If the applicant is an employee in a leave without pay status, it will become effective on the date the employee returns to active duty if the employee returns to active duty within 30 days of the approval letter. If the date the employee returns to active duty is more than 30 days after the date on the approval letter, the approval is null and void and a new application shall be required. An employee or retiree may withdraw the application at any time prior to the effective date of coverage by submitting a written notice of withdrawal. (2) The evidence of insurability provision applies only to those employees, retirees, or eligible dependents who: (A)-(B) (No change.) (C) enrolled in any coverage under the basic plan and later dropped or were canceled from such coverage, except as provided in subsections (h)(2) and (3) of this section. (3) An employee or retiree who wishes to add eligible dependents to his or her HMO coverage may do so during the annual enrollment period, when a spouse loses employment and/or health coverage for reasons other than voluntary cancellation, when a dependent moves into the service area of the employee's or retiree's HMO, and as provided in paragraph 10 of this subsection, unless not in compliance with Chapter 85 of this title. (4)-(8) (No change.) (9) Unless not in compliance with Chapter 85 of this title, an employee or retiree who wishes to decrease or cancel coverage may do so at any time. Coverage will continue through the last day of the month following the date of application. (10)-(11) (No change.) (g) (No change.) (h) Reinstatement in the program. (1) Unless specifically prohibited by these sections or contractual provisions, an employee who terminates employment and returns to active duty within the same contract year may reinstate health coverage for himself and his dependents identical to, and optional coverages no greater than, those that were in effect when the employee terminated by submitting an application for the coverages. The application must be submitted on the first day the employee returns to active duty, and, unless the employee completes the application indicating coverages are to be effective on the first day of the month following the date the employee returns to active duty, the coverages will be effective on the day the employee returns to active duty. Dependents acquired during the break in employment may be added on the application. A returning employee who has selected coverages less than those for which the employee is eligible may reinstate any waived coverages by submitting the appropriate application during the 30 days following the date the employee returns to active duty. The change in coverage will become effective on the first day of the month following the date of application. If the coverage of an employee returning to active duty within the same plan year is affected by Chapter 85 of this title, the employee must reinstate all coverages that were in effect on the termination date, and the effective date of reinstated coverage must be the date the employee returns to active duty. (2) (No change.) (i) Continuing coverage in special circumstances. (1) (No change.) (2) An employee in a leave without pay status may continue the types and amounts of health, life, and dental coverages in effect on the date the employee entered that status for a maximum period of up to 12 months. The maximum period may be extended for up to 12 additional months for a total of 24 continuous months, provided the extension is certified by the department to be for educational purposes. During this period, the employee, other than an employee whose leave without pay status is a result of the Family and Medical Leave Act of 1993 (Public Law 103-3), may not change coverage except that, employees in a leave without pay status may: add new dependents, including newborns; reduce or cancel coverage; and make such coverage changes as are permitted during the annual limited enrollment period as described in subsection (f)(7) of this section. Disability income coverage for an employee in a leave without pay status, other than an employee whose leave without pay status is a result of the Family and Medical Leave Act of 1993 (Public Law 103-3), will be suspended beginning on the first day of the month in which the employee enters the leave without pay status and continuing for those months in which the employee remains in that status. Suspended disability income coverage for an employee returning to active duty from a leave without pay status will be reactivated effective on the first day the employee returns to active duty if the entire period of unpaid leave was certified by the agency as approved leave without pay. The coverages of an employee whose leave without pay status is a result of the Family and Medical Leave Act of 1993 may continue at the same level of benefits and contributions that would have been in place if the employee had not taken the leave. (3)-(11) (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 August 11, 1993. TRD-9327196 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: September 1, 1993 Proposal publication date: July 2, 1993 For further information, please call: (512) 867-3336 Chapter 85. Flexible Benefits 34 TAC sec.85.3 The Employees Retirement System of Texas adopts an amendment to sec.85.3, concerning Flexible Benefits, without changes to the proposed text as published in the July 11, 1993, issue of the Texas Register (18 TexReg 3664). The amendment is justified in allow a state or higher education employee who has elected to not participate in premium conversion to continue this election from year to year without executing a new form each plan year. The employee may again participate in premium conversion by executing a form to do so. The amendment will function by simplifying administrative procedures and by not requiring state and higher education employees to re-execute a form to not participate in premium conversion each year. The agency received no comments regarding the adoption of the amendment. The amendment is adopted under Insurance Code, Article 3.50-2, sec.4(k), which provides the Employees Retirement System of Texas with the authority to promulgate all rules and regulations necessary to implement and to administer a Flexible Benefits (Cafeteria Plan) program for state employees. 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 11, 1993. TRD-9327198 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: September 1, 1993 Proposal publication date: July 11, 1993 For further information, please call: (512) 867-3336 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 72. Memorandum of Understanding with Other State Agencies Memorandum of Understanding Concerning Coordination of Services to Disabled Persons The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.72.201-72.210 and new sec.sec.72.201-72.212. The new sec.sec.72.202, 72.203, 72.204, 72.207, 72.209, and 72.212 are adopted with changes to the proposed text published in the February 12, 1993, issue of the Texas Register (18 Tex Reg 924). The new sec.sec.72.201, 72.205, 72.206, 72.208, and 72. 210- 72.211 are adopted without changes to the proposed text, and will not be republished. The repeals are justified to delete obsolete language. The new sections are justified to clarify the financial and service responsibilities of each agency in relation to persons with disabilities and address how each agency will share data relating to services delivered to persons with disabilities. The repeals and new sections will function by coordinating services and ensuring that information, service planning, and service delivery for persons with disabilities is shared at the local level. Comments were received from the Texas Department of Protective and Regulatory Services, the Texas Department of Mental Health and Mental Retarda- tion, the Texas Commission for the Deaf and Hearing Impaired, the Texas Department of Health, the Texas Department of Mental Health and Mental Retardation Lufkin State School, and the Texas Physical Therapy Association. The comments offered numerous suggestions for changes that update and clarify the functions of the agencies. The suggestions contained no substantive policy changes. Response: To clarify the agencies responsibilities, DHS has incorporated the suggestions made by the Texas Department of Protective and Regulatory Services in sec.72.209, the Texas Department of Health in sec.sec.72.203; the Texas Department of Mental Health and Mental Retardation in sec.72.204; and the Texas Commission for the Deaf and Hearing Impaired in sec.72.207. The department has initiated minor editorial changes to sec.72.202. In sec.72.202(a)(4) DHS corrected the income eligibility ceiling for community care services to $1,302. In sec.72.202(a)(4)(A) DHS included the description of respite services by adding clause (vi) to include an additional in-home community care service. In sec.72.202(a)(4)(B) DHS replaced the term "certified foster homes" with "enrolled foster homes" and has changed the number of clients provided care in enrolled foster homes from three to four clients. In sec.72.202(a)(4)(C) DHS replaced the title for the shared attendant care project with the Client Managed Attendant Services Program. Also in that same subparagraph, DHS has updated the statistical information to show that 690 clients in nine sites throughout the state are served and that the FY 1993 budget is $5.5 million. One comment suggested adding a quarterly report of abuse and neglect in TXMHMR facilities. Response: DHS has determined that the reports produced by the various agencies will remain as proposed. One comment suggested adding physical therapy to the list of related services administered by TEA relating to the needs of children and youth to enable a student with disabilities to benefit from specialized instruction. Response: DHS believes that the rule sufficiently provides for services available to enable a student with disabilities to benefit from specialized instruction. DHS is adopting the section as proposed. The department has moved certain mandatory and optional Medicaid services from sec.72.202(a)(1)(C)(i) and (ii) to sec.72.203(a)(5) and (6). The department also moved the regulation of maternity homes from sec.72.203(a)(5)(A) to sec.72. 209(a)(2)(B). Additionally, the department has moved the functions of the Long Term Care Program under sec.72.203(a)(5) to sec.72.202(a)(5). These changes were made to reflect recent legislation that changed responsibilities for the agencies. The effective date for this agreement as proposed in sec.72.212 has been updated to September 1, 1993. 40 TAC sec.sec.72.201-72.210 The repeals 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 August 11, 1993. TRD-9327160 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 1, 1993 Proposal publication date: February 12, 1993 For further information, please call: (512) 450-3765 40 TAC sec.sec.72.201-72.212 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assis- tance funds. sec.72.202. Texas Department of Human Services (DHS). (a) Financial and service responsibilities to persons with disabilities. (1) Health care services. (A) One of the most important Medicaid benefits provided to low-income individuals is comprehensive health care services. In Texas, Medicaid services are funded by a combination of approximately 40% state funds and 60% federal funds. The federal matching rate is based upon the state's average per capita income. (B) Medicaid eligibility is linked by federal law to eligibility for Supplemental Security Income (SSI), the financial assistance program for low- income aged and blind persons, and persons with disabilities; Aid to Families with Dependent Children (AFDC), the financial assistance program for low-income families; and Medicaid for low-income children and pregnant women. Eligibility for AFDC and Medicaid (low-income families) is determined by client self-support services (CSS) eligibility staff. Eligibility for SSI benefits is determined by the Social Security Administration (SSA) based on income and resource requirements and a determination of disability. The SSA contracts with the Texas Rehabilitation Commission (TRC) to perform the disability determinations. Of the three million Texans living in poverty, the Texas Medicaid program covers about 790,000 individuals. Of that number, more than 128,000 are persons with disabilities under age 65. (C) Federal regulations specify which Medicaid services states must provide as well as a range of optional services states may elect to cover. (i) Mandatory Medicaid services. The mandatory Medicaid services are long-term institutional care services in nursing facilities. (ii) Optional Medicaid services. Optional Medicaid services include: day activity and health services and long-term institutional care services in intermediate care facilities (ICF) ; intermediate care facilities for the mentally retarded (ICF-MR); and skilled nursing facilities (SNF) for children under age 21. (iii) Medicaid waiver services. Under the provisions of 1915(c) of the Social Security Act, states have the option to provide certain home and community-based services to individuals who would otherwise require long-term institutional care. Pending approval of the waiver requests by the Health Care Financing Administration (HCFA), states may define the home and community- based services and make them available to a limited number of individuals on less than a statewide basis. The cost of these additional home and community- based services must be no greater than the cost of Medicaid services without a waiver. Texas currently has four 1915(c) Medicaid waiver programs which serve persons with disabilities. (I) The waiver program for medically-dependent children provides Medicaid benefits and in-home skilled nursing services to children under age 18 who would otherwise require nursing home care in an ICF or a SNF. Currently, this waiver program serves 517 children statewide. Eligible children are served on a first- come, first-served basis. (II) The 1915(c) waiver program for mentally-retarded individuals is designed to provide 11 different home and community-based services to individuals living in their own home or with family members, as alternatives to institutional care in an ICF-MR. Eligible clients use their SSI to pay room and board costs. Home and community-based services are delivered based on an individual plan of care. This waiver program is in its 11th year of operation and can serve a maximum of 1,350 clients located in 31 geographic catchment areas. This waiver program is administered through an inter-agency contract between DHS and the Texas Department of Mental Health and Mental Retardation (TXMHMR). The state matching funds are provided by TXMHMR. (2) Office on Services to Persons with Disabilities (OSPD). (A) In January 1991, the Texas Board of Human Services adopted a proactive position statement on community-based services to persons with disabilities. The philosophy of DHS became "... people with disabilities of all ages can live in the community when provided appropriate services and supports." DHS committed itself to take all appropriate and necessary actions to ensure the development of a system of community-based services and supports for persons with disabilities, and committed itself to the development of specific plans and policies whereby this philosophy would be implemented in all areas of DHS. The OSPD is responsible for coordination of this effort. (B) To specify how OSPD would facilitate the implementation of this philosophy organization wide, an OSPD strategic plan with specific goals, objectives, timeframes, and products was developed. Although it is located in the Health Care Services Division, which is one major program area of DHS, the OSPD's scope is within all DHS programs and services for persons with disabil- ities. (C) OSPD staff have five major roles: (i) advocating for persons with disabilities within DHS and externally; (ii) advocating for the implementation of the DHS position statement organization wide; (iii) facilitating and coordinating the development of community- based programs and supports for persons with disabilities; (iv) serving as a consumers, providers, advocates, and other agencies to raise issues and concerns; and (v) providing technical assistance and education on disability- related issues. (3) Client self-support services. Client self-support services is a group of DHS programs that provides basic maintenance services such as food stamps, AFDC, Medicaid coverage, nutrition, and energy assistance for eligible individuals, as well as services aimed at making clients self-sufficient, such as education, job training, child care, and transportation. (4) Community care services for aged and disabled persons. Community care services are provided to low-income, elderly persons; persons with disabilities; and persons with chronic health conditions, to help these persons remain at home or in community settings. These services also provide a support system to families caring for their elderly or disabled members. Eligibility for community care services is based on age; income; financial resources; the degree of functional impairment; and, in some cases, medical need. The income eligibility ceiling for community care services is $1,302 per month and the resource limit is $5,000. (A) In-home community care services. (i) Primary home care (PHC) provides medically necessary personal care or supportive care, supervised by a registered nurse, in the client's home. DHS contracts with licensed home health agencies to provide these services to individuals for up to 50 hours per week. (ii) Family care (FC) provides personal care, housekeeping, escort service, and meal preparation in the client's own home. These services are provided through contracts with home health agencies for up to 50 hours per week. (iii) Congregate and home-delivered meals provide nutritious meals in a central location or a client's home through community-based provider agencies. All menus are approved by a registered dietician or nutritionist. (iv) The Emergency Response System (ERS) is a 24-hour electronic monitoring service that permits quick response to emergencies using a network of volunteers and remote telephone-calling capability to a base station. Services are available to functionally impaired elderly or disabled adults who live alone or who are physically isolated from the community. (v) The In-home and Family Support Program (IHFSP) provides direct grant benefits to people with physical disabilities and their families who choose and purchase services which enable the person with the disability to remain in the community. Allowable services include pre-approved items and services that are directly related to the person's disability, such as special equipment; architectural modification of a home to improve access or facili- tate the care of a person with a disability; medical services; counseling and training programs which help provide proper care for a person with a disabili- ty; attendant care; respite care; and transportation. (vi) Respite services up to 336 hours per year of short-term care to elderly or disabled adults whose caregivers need temporary relief. (B) Out-of-home community care services. (i) Adult foster care (AFC) provides supervision and assistance with daily living to eligible adults in 24-hour living arrangements provided in enrolled foster homes, for up to four clients, and licensed group homes, for four to eight clients. Clients pay their own room and board costs, and DHS pays the caregiver for personal care and supervision. (ii) Day activity and health services (DAHS) provide personal care, nursing services, physical rehabilitation, and nutrition and supportive services in adult day-care facilities licensed by the Texas Department of Health (TDH) and certified by DHS. These services are available at least 10 hours per weekday and can provide respite for families. (iii) Special services for persons with disabilities provide counseling, personal care, help with independent living skills, and transpor- tation. (iv) Residential care services are provided to eligible adults who require access to personal care services on a 24-hour basis, but not daily nursing intervention. Services may include board, protective supervision, personal care, social and recreational services, housekeeping, laundry, and transportation. (C) Client Managed Attendant Services Program. The Client Managed Attendant Services Program is targeted to the needs of younger persons with physical disabilities who need personal care services to continue living in the community. It allows clients to hire and supervise their own attendants and schedule care according to their daily routines. This project serves approximately 690 clients in nine sites throughout the state. The fiscal year 1993 budget is $5.5 million. (5) Long-Term Care Program. (A) The purpose of the statewide Long-Term Care Program of DHS is to assure that quality care is provided to persons in long-term care and related facilities and that these facilities are properly utilized. DHS inspects and licenses nursing homes, custodial care homes, personal care homes, certain facilities for the mentally retarded, and certain adult day care and adult health care facilities. DHS surveys and certifies nursing homes and facilities for the mentally retarded that participate in Medicaid, and surveys and recommends certification of nursing home's participation in Medicare. DHS performs inspection of care visits relating to care and services provided to each Medicaid recipient in nursing homes and facilities for the mentally retarded and determines the appropriate level of care needed for each recipi- ent. (B) The contact for program information is the Associate Commissioner for Long-Term Care, (512) 450-4971. (C) DHS will continue the following memoranda of understanding with: (i) the Texas Department on Aging (TDoA) regarding that agency's ombudsman program and the responsibilities of both agencies in complaint investigations; and implementing the state long-term care plan for the elderly; (ii) the Texas Board of Licensure for Nursing Home Administrators for training of nursing home administrators; and (iii) TDoA to train ombudsmen and TDoA representatives on nursing facility standards and complaint investigation procedures. (D) In addition, DHS has entered into an inter-agency contract with the Texas Department of Corrections (TDC) to microfiche old records. (6) Other DHS services. All DHS services are available to low-income persons with disabilities based on the eligibility criteria associated with the various funding sources. (b) Service delivery data. DHS has a variety of data identifying the type of services, the number of clients receiving services, and expenditure data for all programs. The most comprehensive DHS documents that contain service delivery and expenditure data are: (1) Legislative appropriations request (LAR). The LAR is a document prepared and submitted to the Legislative Budget Board and the Governor's Budget Office prior to each legislative session. It contains DHS's request for appropriations for the next biennium based on four levels of funding for each program and activity. It also provides a summary of DHS's request. Specifical- ly, it provides the objective and a description of each program and activity as well as data for need indicators, performance measures, object of expense, and method of finance for a five-year period. This period includes two years of the appropriations request and the three previous years. (2) Fiscal year operating plan. The fiscal year operating plan is the budget for DHS based on appropriations received. It contains a breakdown of budgeted dollars by program area and activity at the state level. For each program, the document states the need, the description of program activities, the budget allocation for each activity, the performance measures or units of service, and the method of finance. The allocation covers a three-year period consisting of the current fiscal year and two previous years. (3) Annual report. The annual report is a fiscal-year description of DHS services, a review of the services, and an accounting of DHS's expenditures. The report contains a section of statistics that depicts estimated expenditures by method of finance; benefit expenditures by region; a summary by county of agency information; aged and disabled benefits, and families and children benefits; and data concerning the regulation of child care facilities. (A) In addition to client data, DHS has demographic data from the 1990 U.S. Census, the 1989 Special Texas Census, and population estimates and projections from the State Comptroller's Office and Texas A&M University. The 1989 Special Texas Census was a mailout survey to the general population of Texas. It was a data-collection effort comprising a sample of 44,000 Texas households to identify human service needs in support of the DHS budget and planning process. With an adjusted response rate of about 66% of the valid sample, data was collected for more than 23,000 households. The data collected for each person concentrated on money; income; demographics (age, sex, race/ethnicity, marital status, language, and education); employment status; medical insurance coverage; medical utilization; disability; functional impairment; help available for persons with disabilities; child care; child support payment; knowledge about runaways; child abuse and/or neglect; and family violence shelters. Based on the response rate and the selection of data variables, data may provide adequate representation for the state and for DHS regions. DHS service delivery and demographic data may be requested from the Budget Management Services Department. (B) The OSPD also develops an annual report containing the yearly activities of implementing the DHS position statement and recommendation of the task force on services to persons with disabilities and DHS advisory committee for the aged and disabled (ADAC). It describes the accomplishments toward achieving goals, objectives, and products detailed in the OSPD strate- gic plan. sec.72.203. Texas Department of Health (TDH). (a) Financial and service responsibilities to persons with disabilities. (1) Chronically Ill and Disabled Children's Services Bureau. (A) The Chronically Ill and Disabled Children's Services Bureau provides diagnosis and evaluation; restorative and corrective medical treat- ment; speech, occupational, and physical therapy; transportation; meals and lodging; and case management through purchased services for children below the age of 21 years who meet medical, financial, and residency requirements. Persons with the diagnosis of cystic fibrosis are eligible regardless of age. (B) The Chronically Ill and Disabled Children's Services Bureau also administers: (i) the Hemophilia Assistance Program, which provides assistance to adult hemophilia patients (over age 21) for the purchase of blood products; (ii) the Epilepsy Assistance Program, which provides diagnosis, treatment, and support services for persons with epilepsy, through contracts with private organizations; and (iii) the Children's Outreach Heart Program, which provides pre- diagnostic and follow-up evaluation services for cardiovascular disorders for children in south Texas who meet financial eligibility requirements, through a contract with the Children's Heart Institute of Texas. (C) The Chronically Ill and Disabled Children's Services Bureau also administers the Supplemental Security Income Disabled Children's Services Program (SSI-DCP). (D) The contact for program information is the Manager for Field and Provider Relations, Chronically Ill and Disabled Children's Services Bureau, (512) 458- 7355. (E) The Chronically Ill and Disabled Children's Services Bureau has written agreements with the Texas Commission for the Blind (TCB), the Texas Rehabilitation Commission (TRC), the Texas Education Agency (TEA), the Texas Youth Council, and the Texas Department of Human Services (DHS). These agreements specify that the Chronically Ill and Disabled Children's Services Bureau and the other agency which is party to the agreement must: (i) coordinate service delivery, and (ii) provide services only to persons who have been determined eligible for services by both parties. (2) Supplemental Security Income Disabled Children's Program (SSI-DCP) (A) The SSI-DCP provides case management services for all children with disabilities who are below the age of 16 and receiving SSI benefits. Services provided directly include diagnostic, counseling, and referral services; inter- agency liaison; follow-up through case management provided by medical social workers; and the purchase of services and adaptive equipment, if these services are not available through any other resource. (B) The contact for program information is the Manager for Field and Provider Relations, Chronically Ill and Disabled Children's Services Bureau, (512) 458- 7355. (C) As the SSI-DCP program is administered by the Chronically Ill and Disabled Children's Services Bureau, inter-agency agreements are described in subsection (a)(1) of this section. (3) Kidney Health Program. (A) The Kidney Health Program provides assistance to Texas residents with end- stage renal disease (ESRD), as certified by a licensed nephrologist, with assistance in paying for drugs, hospitalization, medical services and supplies, and transportation. Clients are reimbursed directly for drugs and travel; reimbursement is made directly to the provider for medical services and supplies. The Kidney Health Program does not pay for services covered by Medicare, Medicaid, or private insurance. (B) The contact for program information is the Director of the Kidney Health Program, (512) 458-7796. (4) Vision, hearing, and speech services (VHSS). (A) VHSS has legal authority to establish standards and regulate screening for special senses and communication disorders, primarily vision and hearing problems, and to assure standardized performance of audiometric testing devices statewide. Legislation permits VHSS to provide services to identify individuals in need if services are not otherwise available. VHSS provides hearing aids and attendant services to medically indigent children, ages 0-20. (B) The contact for VHSS program information is the Director for Vision, Hearing, and Speech Services, Division of Maternal and Child Health, (512) 458- 7420. (C) VHSS and the DHS have entered into a contract for reimbursement of hearing aid services to Medicaid clients age 0-20. In order to carry out DHS's memorandum of understanding with the Commission for the Deaf, the VHSS developed and maintains a contract with DHS for the acquisition of interpreter services for Texas Department of Health's (TDH's) deaf and hearing-impaired patients, clients, and staff. (5) Mandatory Medicaid services. Mandatory Medicaid services include: physician services; inpatient and outpatient hospital; laboratory and X-ray; home health care; ambulance; rural health clinic; nurse midwife; early and periodic screening, diagnosis, and treatment (EPSDT) services for children up to age 21; certified pediatric nurse practitioners; certified family nurse practitioners; dentist's services; family planning; federally qualified health centers; ICF-MR dental; medical transportation; and renal dialysis services. (6) Optional Medicaid services. Optional Medicaid services include: eyeglasses, optometric, podiatric, and chiropractic services; ambulatory surgical centers; hearing aid services; limited oral surgery; post-surgical lenses; vendor drug services; primary home care; emergency hospital services; birthing center services; certified registered nurse anesthetist's services; diagnostic and evaluation services (MR); hospice care; in-home total parenter- al hyperalimentation services; in-home respiratory care services; maternity clinic services; outpatient counseling for chemical dependency; physical therapist; psychologist services; targeted case management services; mental health rehabilitation services; and services provided by Christian Science sanitoriums. (b) Service delivery data. (1) TDH produces several documents and reports on a department-wide basis either annually or biennially. These are: (A) Legislative appropriations request (LAR). The LAR is published biennially and includes program needs indicators for each TDH program, program objectives, descriptions of program performance measures, the TDH budget and expenditures, and activity profiles. (B) Texas hospital data inventory. Hospital data is collected annually, and routine and special reports are developed from the data. (C) Bureau of Health Data and Policy Analysis: Population Projection to the year 2000. Data is available by age, sex, and race/ethnicity for each year. (D) Bureau of Disease Control and Epidemiology: Epidemiology in Texas. This report is published annually. (E) Texas Vital Statistics. This report is published annually. (2) To examine these documents, contact the TDH Library, (512) 458-7559. (3) In addition, bureaus and programs of TDH generate annual reports for their programs specifically tailored to their program needs. Additional information may be requested by contacting the Office of the Commissioner, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7375. sec.72.204. Texas Department of Mental Health and Mental Retardation (TXMHMR). (a) Mission. The mission of the Texas Department of Mental Health and Mental Retardation (TXMHMR) is to offer an array of services which respond to the needs of people with mental illness and mental retardation and which enable them to make choices that result in lives of dignity and increase independence. Our vision is that the TXMHMR service system will become one that is permeated with a commitment to Continuous Quality Improvement (CQI) that is truly customer- driven. It embraces the belief that large public systems even with their inherent regulatory roles and resource limitations can become highly personalized, highly responsive, and highly innovative. (b) Financial and service responsibilities to persons with disabilities. The Texas MHMR Act requires that TXMHMR identify its priority populations and the minimum array of services necessary to address the needs of persons within these priority populations. This legislation also requires that services be offered first to those most in need and that state dollars be used only for services provided to the priority population (1) Mental retardation services. (A) Mental retardation priority population. (i) The priority population for mental retardation services consists of the 70,840 persons considered to be the most in need. That is approximately 15% of the 480,000 Texans with mental retardation. TXMHMR estimates that there are approximately 26,000 persons with mental retardation in the priority population who currently require our agency's services and are not receiving them. (ii) TXMHMR's priority population for mental retardation services includes those persons who request and need services and possess one or more of the following conditions: (I) mental retardation, as defined by Health and Safety Code, Title 7, sec.591.003(13). (II) autism, as defined in the current edition of the Diagnostic and Statistical Manual (DSM); (III) eligibility for Early Childhood Intervention Services; or (IV) eligibility for Omnibus Budget Reconciliation Act of 1987-mandated services for mental retardation or a related condition as per specific legislation. (iii) The presence of mental retardation must be determined through a recognized diagnosis and evaluation process or through the use of assessments performed by qualified professionals as per interagency memoranda of understanding. Results of evaluations by appropriately credentialed professionals can be used to determine the presence of autism. For persons with mental retardation or autism, the priority population includes only those individuals whose needs for services can be most appropriately met through programs currently or potentially offered by TXMHMR rather than some other service system. Services are to be offered in coordination with efforts of other agencies to ensure that all services are provided by agencies as required by laws, rules, and regulations. The priority population does not include persons whose service needs may be most appropriately met through other means, as determined by TXMHMR. (iv) Persons who are members of the priority population are eligible to receive services from TXMHMR. Since resources are insufficient to meet all the service needs of all the members of the priority population, services should be provided to meet the most intense needs first. (v) Service participant groups include only members of the priority populations. The purpose of grouping service participants is to provide a structure for gathering data about members of the priority population who have specific characteristics which seem to influence the type and intensity of services required to meet their needs. These groups are mutually exclusive. If an individual has characteristics of more than one group, assignment should be made to the group that most accurately characterizes the person's most intense service needs. No one group has priority over any other group. (vi) Service participant groups are comprised of members of the priority population who: (I) have a challenging behavior (CB) (with or without a mental illness diagnosis) or which requires frequent intervention or regular monitor- ing. The severity of the behavior is such that it interferes significantly with daily living or learning activities. (II) have a severely challenging behavior (SB)(with or without a mental illness diagnosis). The severity of the behavior is such that it seriously threatens the health and safety of this persons or others. The management of the behavior is a primary consideration in planning the individual's activities. (III) have a severe physical disability (PD) as evidenced by a need for an ongoing program designed and monitored by a professionally qualified habilitation therapist or specialist. Such programs are designed to alleviate the primary condition and decrease the effects of any secondary disability. These disabilities may include, but are not limited to, eating problems, ambulation problems, severe sensory (tactile, visual, or auditory) impairments, and other major physical disabilities. (IV) have a health care (HC) need so severe that its treatment and monitoring are the foremost considerations in planning the individual's activities. Immediate 24-hour response form nursing staff, weekly physician intervention, and monitoring of a health care plan by a professional nurse is often needed. (V) need either training or support (TS) to enable or maintain their community arrangements for living, working, or training. (VI) are eligible to receive early childhood intervention (ECI) services according to the following criteria: (-a-) A child is eligible for ECI services if the child is under three years of age, including those children authorized for services as visually or auditory impaired children under the Texas Education Code. (-b-) A child is eligible for ECI services if the child is documented as developmentally delayed or has a medically diagnosed physical or mental condition that has a high probability of resulting in developmental delay. (B) Community center services. (i) TXMHMR contracts with community MHMR centers to provide mental retardation services. Community MHMR centers are locally staffed and governed by a local board of trustees. The centers are usually designated as the Mental Retardation Authority (MRA) for their local service area and are responsible for the provision of a wide range of services as a condition for receiving state funds. These services include case management, emergency services, medical treatment, and respite care. Other services that may be provided are work-related activities including vocational training, vocational assessments, sheltered workshops, supported work programs, and job placements. Short and long-term residential care and developmental programs may also be a part of services. (ii) Eligible individuals receive care at 31 of the 35 community MHMR centers across the state. The four centers that provide care only to persons with mental illness are the Life Resource Center, Texas Panhandle Mental Health Authority, Navarro County MHMR Center, and Riceland Regional Mental Health Authority. Priority is given to clients who are most in need of treatment and support services from the TXMHMR system. (C) State center services. (i) Community services. State centers provide community-based services to persons with mental retardation in areas of the state not served by state schools or community MHMR centers. Services include in-home support services, respite services, family support, case management services, diagno- sis and screening,and training and treatment to enhance the individual's ability to function as independently as possible. Individuals may request services by contacting state centers located in Amarillo, Beaumont, El Paso, Harlingen, and Laredo. (ii) Campus-based services. Four of the five state centers provide short and/or long-term residential care and nonresidential service in areas of the state not served by state schools or community MHMR centers. The range of services includes vocational, medical and dental services, and physical, occupational, and recreational therapy. Also included are support services such as maintenance, food services, and laundry. Individuals have the opportu- nity to participate in activities occurring in the local community. Persons with special needs are served by qualified professionals with consultation from specialists in the medical, dental, and habilitation fields. The five state centers delivering inpatient services are located in Amarillo, Beaumont, El Paso, Harlingen, and Laredo. All of these centers except Beaumont have facilities that are certified as Intermediate Care Facilities for the Mentally Retarded (ICF/MR). (D) State school services. (i) Community services. (I) Community services provided by state schools are designed to meet the needs of persons who have returned to the community from institutional placement and/or to prevent eligible persons from requiring institutionalization. These services include in-home support services, respite services, family support services, case management services, and diagnostic and evaluation services designed to help the individual live independently. Vocational programs also offered include work adjustment training, pre- vocational services, sheltered workshops, support work, and independent employment. Services are both residential and nonresidential. (II) TXMHMR provides these services directly through 13 state schools located throughout Texas. The 13 state schools are certified as Intermediate Care Facilities for the Mentally Retarded (ICF-MR). Persons' needs are assessed by interdisciplinary teams, then the services are provided which best meet their individual needs. (ii) Campus-based services. (I) Campus-based services include residential services, therapeutic care and treatment, meals, education, medical care, and recreation for persons with mental retardation. Because many individuals have visual and hearing problems, muscular and/or skeletal anomalies or metabolic and nervous disorders, the facility also helps them cope with or correct their physical disabilities. (II) Under the Social Security Act (Medicaid), the federal government reimburses the state for a significant portion of the costs of providing ICF-MR services to eligible persons at a matching rate of approximately 36% state and 64% federal. The Texas State Legislature appropriates general revenue funds to TXMHMR to cover the costs of operating the schools. The reimbursement obtained from the federal government is returned to the state treasury and is not reflected in TXMHMR's budget. (2) Mental health services. (A) Mental health priority population. (i) There are an estimated 2.6 million persons with mental illness in Texas. TXMHMR's priority population consists of approximately 15% of these persons. It is estimated that in 1993, 347,248 of those were persons with a major diagnosis of mental illness and functional impairment. TXMHMR's esti- mates suggest that there are approximately 90,000 persons in the priority population who currently need our agency's services but are not receiving them. (ii) The department's priority population for mental health services consist of: (I) children and adolescents under age 18 who have a diagnosis of mental illness, exhibit severe emotional or social disabilities which are life- threatening, or require prolonged intervention; and (II) adults who have severe and persistent mental illnesses, such as schizophrenia, major depression, manic depressive disorders, or other severely disabling mental disorders which require crisis resolution or ongoing and long- term support and treatment. (iii) In targeting services to the priority populations, the choice of and admission to services is determined jointly by the person seeking service and the provider. Factors used to make these determinations are the level of functioning of the individual, the need of the individual, and the availability of resources. TXMHMR funding is directed to provide the identified core services which are designed to meet the needs of these priority populations. Providers who wish to offer services to people other than those in the priority populations may do so using non-department funds. (iv) The agency's Strategic Plan also identifies groups within the priority population with special needs. These include: (I) children and adolescents, (II) older adults; (III) minorities; and (IV) persons with mental illness in the criminal justice system. (B) Campus-based services. (i) Campus-based services include residential; therapeutic care and treatment; meals; medical care; and recreation for persons with mental illness. These services are provided at eight state hospitals, two state centers, and one state center for youth. The average daily census in these state facilities is approximately 3,3000. Nearly 18,000 persons receive residential services annually. (ii) All state hospitals are accredited by the Joint Commission on Accreditation of Hospitals (JCAH). Certain units providing services for elderly patients are also certified to receive Medicare funds. (C) Community services. (i) Community mental health services are provided by 63 mental health authorities. Included in these authorities are 35 community mental health and mental retardation centers which provide mental health services under contract with TXMHMR. The remaining mental health authorities are state hospital or state center programs provided through community service centers which are located in the local service areas of the hospitals or state centers. These programs currently provide services to over 150,000 individuals annually. (ii) Other programs include 24-hour emergency screening and assessment; community and state hospital liaison; family support programs; medication related services; psychosocial rehabilitation programs; day treatment; and case management services. (iii) Services provided by the local mental health authorities consist of individual support services; family support services; psychosocial rehabilitation services; service coordination; and residential services and housing, which may include supervised living arrangements. The crisis stabili- zation component of the residential services must be available to the resi- dents of a mental health authority. (D) Legislative mandates. (i) The Texas State Legislature and TXMHMR require the provision of core services aimed at meeting individual needs and enhancing personal skills for optimum community living. (ii) The Texas Mental Health and Mental Retardation Act specifies the core services as: (I) 24-hour emergency screening and rapid crisis stabilization services; (II) community-based crisis residential service or hospitalization; (III) community-based assessments, including the development of interdisciplinary treatment plans and diagnosis and evaluation; (IV) medication-related services, including medication clinics, laboratory monitoring, medication education, mental health maintenance education, and the provision of medication; (V) family support services, including respite care; (VI) psychosocial rehabilitation services, including social support activities, independent living skills, and vocational training; and (VII) case management services. (c) Service delivery data. The following data may be obtained by contacting the administrative head of the section or by contacting the Director of Planning and Policy Development, at (512) 465-4698 or STS 824-4698. (1) Public Information Office. This office produces the annual report and a directory of TXMHMR services. Telephone: (512) 465-4540. (2) Strategic planning. This office is responsible for demographic data and long-range planning. Telephone: (512) 465-4620. (3) Financial services. This area publishes the TXMHMR Annual Operating Budget and the Biennial Legislative Appropriations Request. Telephone: (512) 465-4550. (4) Information services. This office processes client data information from client assignment and registration system (CARE). Telephone: (512) 465- 4570. (5) Mental health services. Questions regarding mental health services program and/or policy issues can be directed to this section. Telephone: Adults-(512) 465-4511 and adolescents and children-(512) 465-4832. (6) Mental retardation services. This section responds to inquiries about Mental Retardation Services Program and/or policy issues. Telephone: (512) 465- 4521. (7) Consumer services and rights protection services. This area is responsible for information regarding issues or statistics regarding client rights. Telephone: (512) 323-3242 sec.72.207. Texas Commission for the Deaf and Hearing Impaired. (a) Financial and service responsibilities to disabled persons. (1) The Texas Commission for the Deaf and Hearing Impaired (TCDHI) is authorized to provide direct delivery services to persons who are deaf or hearing-impaired. These services are rendered through annual contracts with local service providers. TCDHI currently has contracts with service providers located in 16 cities: Abilene, Amarillo, Austin, Beaumont, Big Spring, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, Lubbock, McAllen, San Antonio, Sherman, Tyler, and Waco. (2) The number of staff, types of direct services, and number of clients at each service provider vary considerably. Many provide other direct services in addition to those authorized and subsidized by the state through TCDHI. The range of TCDHI-contracted services include: (A) Interpreter services. Interpreters are provided for clients who are deaf or hearing impaired to assist them in obtaining, medical, legal, governmental, and economic services. Interpreters are also available through the local service providers for state agencies, courts, and businesses; however, these entities must reimburse the service provider. Payment for interpreters is reimbursed monthly by TCDHI on an hourly basis for services provided. The rate of payment is determined by the fee schedule recommended for interpreters by TCDHI. (B) Information and referral services. Service providers disseminate information regarding general and specialized community services to persons who are deaf or hearing impaired, as well as information about deafness to the general public. (C) Services to older hearing impaired Texans (SOHIT). Clients who are age 60 or older and deaf or hearing impaired are assisted in obtaining information and/or services from agencies such as the Texas Department on Aging, local agencies on aging, social security offices, and local parks and recreation departments. Services provided may include case management, transportation assistance, nutrition, social interaction, and communication. This program reduces the need for long-term care, provides information to concerned individuals, and provides training to other personnel serving the elderly. These programs are referred to as Services to Older Hearing Impaired Texans (SOHIT). Currently, 11 local service providers offer SOHIT services. (D) Other services. In addition to the services described in subpara- graphs (A)-(D) of this paragraph, TCDHI has service and financial responsibil- ities to: (i) develop and implement a state-wide advocacy and education program to ensure the continuity of services to Texans who are deaf or hearing impaired. (ii) ensure more effective coordination/cooperation among public and nonprofit entities that serve persons who are deaf or hearing impaired. (iii) establish a board for the evaluation of interpreters which commission approval, conducts interpreter exams, prescribes qualifications, evaluates, and certifies interpreters at varying levels of skill. TCDHI is required to charge frees for these services. In addition, statutes require that the Board for Evaluation of Interpreters work with the Texas Rehabilita- tion Commission to develop a communication competency evaluation for TRC's vocational rehabilitation counselors and other staff who work with clients who are deaf or hearing impaired. Commission (TRC) a communication competency evaluation for vocational rehabilitation counselors who work at TRC with clients who are deaf or hearing impaired; (iv) establish a system to approve courses and workshops for the instruction and continuing education of interpreters; (v) annually review fees recommended by TCDHI for the payment of interpreters and adopt a schedule of reasonable fees for interpreters at varying levels of skill. This schedule of fees must be made available to and recommended for adoption by other state agencies; (vi) prescribe the qualifications for, and compile a list of, qualified interpreters available for assignment by state agencies, courts, and political subdivisions. This list is to be disseminated to these entities and the general public; (vii) adopt a schedule of reasonable fees recommended for the payment of interpreters required by law to be provided in proceeding s of state agencies, courts, and political subdivisions; (vii) adopt a sliding fee scale for persons who are deaf or hearing impaired who receive interpreter services in non-governmental settings which are reimbursed by TCDHI. The fee scale is based on the requestor's financial ability to pay; however, a client may not be denied this service because of his/her inability to pay; (viii) design and provide a decal to be attached to motor vehicles regularly operated by persons who are deaf or hearing-impaired with a cost of not more than $2 per decal; (ix) offer a one-week summer camp session for children and youth who are deaf or hearing-impaired to participate in barrier-free recreational and instructional activities. TCDHI annually contracts with a private facility for this program. Eligibility requirements are that students must be deaf or hearing-impaired, ages 8-17; (x) charge reasonable fees for TCDHI publications. Fees for publications may be waived for a client who is deaf or hearing-impaired if he/she is unable to pay; and (xi) publish an annual Directory of Services and an agency newsletter (based on available funding) and make available a Registry of Interpreters. (E) Interagency Contracts. Currently, TCD has interagency contracts primarily concerning interpreter services with the Texas Employment Commis- sion, Texas Commission on Alcohol and Drug Abuse, Texas Department of Criminal Justice, Texas Department of Mental Health and Mental Retardation, and the Texas Department of Health. (F) Memorandum of Understanding. House Bill 550, passed by the 70th Legislature, required TCDHI to write (and adopt by rule) memoranda of under- standing to coordinate the delivery of services to persons who are deaf and hearing impaired and to reduce duplication of services with each of the following agencies: Texas Department of Human Services, Texas Department of Mental Health and Mental Retardation, Texas Employment Commission, Texas Department of Health, Texas Higher Education Coordinating Board, Texas Education Agency, Texas Department on Aging, Texas School for the Deaf, Texas Rehabilitation Commission, and the institutional division of the Texas Department of Criminal Justice, and other state agencies that provide services to persons who are deaf or hearing impaired. TCDHI also participates in two multi-agency memoranda of understanding which facilitate the coordination of services to persons with disabilities and to inmates of the Texas prison system who have disabilities. (b) Service delivery data. (1) The contact person for TCD may be reached at (512) 444-3323 (Voice/TDD) and (512) 326-9639 (Fax machine). (2) Information regarding councils for the deaf is provided in: (A) the TCDHI Contracted Services Listing that provides lists of services provided by each service provider; (B) the Registry of Interpreters that makes available, on request, the names, locations, phone numbers, and interpreting skill levels of TCDHI- certified (or National Registry of Interpreters for the Deaf-certified) interpreters in Texas; (C) the Legislative Appropriations Request (LAR) which is the agency's request for biennium funding (and information about its program activities, goals, and objectives). The LAR is prepared and submitted to the Legislative Budget Office. (D) Resource Handbook on Interpreting, Interpreter Certification, and Principles of Ethical Behavior explains the interpreter certification proce- dure, the use of interpreters,and the laws relating to the use of interpret- ers. sec.72.209. Texas Department of Protective and Regulatory Services (PRS). (a) Financial and service responsibilities to persons with disabili- ties. (1) Protective services for children and adults. (A) Child protective services (CPS) is the branch of the Texas Department of Protective and Regulatory Services (PRS) that provides services to children at risk of abuse or neglect and to their families. These services include: intake/investigation of abuse/neglect referrals, in-home services, truant and runaway services, removal services, substitute care, family reunification, and adoption. Child protective services are provided without regard to income. If the court orders removal of a child from the child's home and places the child in the conservatorship of the state, foster care mainte- nance payments are made to the substitute care provider. Children in foster care are also eligible for Medicaid. (B) The Adult Protective Services (APS) Program of PRS investigates reports of abuse, neglect, or exploitation of elderly adults and adults with disabilities. When a report is validated, APS provides or arranges for services to remedy the situation in the least restrictive manner possible. Ongoing APS services provided include direct casework, specialized support services, and guardianship services. All services provided are voluntary, except in cases in which a client: (i) requires services to alleviate a threat to life, (ii) the client is refusing services, and (iii) the client does not appear to have the capacity to under- stand the situation. (C) PRS also has the responsibility of overseeing investigations of abuse, neglect, or exploitation conducted by other state agencies which operate, license, certify, or register facilities for persons with disabili- ties. PRS receives and reviews complaints about these investigations. Of the 30,235 clients served in fiscal year (FY) 1992, 34% (10,171) were nonelderly persons with disabilities. PRS expects to provide APS services to approximate- ly 11, 518 nonelderly persons with disabilities in FY 1993. (2) Licensing. (A) The Licensing Department of PRS regulates facilities that provide out-of- home care for children and regulates child-placing agencies that place children for foster care, residential child care, and adoption. The Child Day Care Licensing Program is responsible for regulating day care centers, kindergartens, and nursery schools; schools, grades kindergarten and above; drop-in care centers; group day care homes; and registered family homes. (B) The Residential Child Care Licensing Program is responsible for regulating institutions providing basic child care, residential treatment centers, halfway houses, therapeutic camps, institutions serving mentally retarded children, emergency shelters, foster group homes, foster family homes, child-placing agencies, and maternity homes. (C) The Licensing Program develops minimum standards, evaluates applications for licensure, certification and registration, and monitors regulated facilities on an ongoing basis for compliance with minimum stan- dards. Licensing staff investigate complaints and serious incidents in regulated facilities and allegations of illegal operation. Specialized staff investigate allegations of abuse and neglect in regulated child care facili- ties and allegations of illegal child-placing activities. (b) Service delivery data. (1) PRS has a variety of data identifying the type of services, the number of clients receiving services, and expenditure data for all programs. The most comprehensive PRS documents that contain service delivery and expenditure data are: (A) The Legislative Appropriations Request (LAR), a document prepared and submitted to the Legislative Budget Board and the Governor's Budget Office prior to each legislative session. It contains PRS's request for appropriations for the next biennium based on four levels of funding for each program and activity. It also provides a summary of PRS's request. Specifical- ly, it provides the objective and a description of each program and activity as well as data for need indicators, performance measures, object of expense, and method of finance for a five-year period. This period includes two years of the appropriations request and the three previous years. (B) The fiscal year operating plan is the budget for PRS based on appropriations received. It contains a breakdown of budgeted dollars by program area and activity at the state level. For each program, the document states the need, the description of program activities, the budget allocation for each activity, the performance measures or units of service, and the method of finance. The allocation covers the current fiscal year and the two previous years. (C) The annual report is a fiscal-year description of PRS services, a review of the services, and an accounting of PRS expenditures. The report contains a section of statistics that depicts estimated expenditures by method of finance, benefit expenditures by region, a summary of agency information by county, aged and disabled benefits by county, families and children benefits by county, and data concerning the regulation of child care facilities. In addition to client data, PRS has demographic data from the 1985 Special Texas Census and population estimates and projections from the Texas Department of Health. The 1985 Special Texas Census was a mailout survey to the general population of Texas. It was a data collection effort comprising a sample of 22,000 Texas households to identify human service needs in support of the Texas Department of Human Services'(DHS's) budget and planning process. With a response rate of over 64% of the valid sample, data was collected for more than 12,300 households or over 33,000 individuals. The data collected for each person concentrated on money income; demographics (age, sex, race/ethnicity, marital status, language, and education); employment status; medical insurance coverage; medical utilization; disability; functional impairment; help available for persons with disabilities; child care; child support payment; knowledge about runaways; child abuse and/or neglect; and family violence shelters. Based on the response rate and the selection of data variables, data may provide adequate representation for the state and for DHS regions. (2) PRS service delivery and demographic data may be requested from the Office of Public Information, (512)450-3645. sec.72.212. Effective Date. This agreement is effective September 1, 1993. 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 11, 1993. TRD-9327159 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 1, 1993 Proposal publication date: February 12, 1993 For further information, please call: (512) 450-3765 Part III. Texas Commission on Alcohol and Drug Abuse Chapter 145. Treatment Alternatives to Incarceration Programs General Provisions 40 TAC sec.sec.145.1-145.7 The Texas Commission on Alcohol and Drug Abuse adopts new sec.145.1-145.7 concerning Treatment Alternatives to Incarceration Programs (TAIP). Section 145.1 is adopted with changes to the proposed text as published in the March 26, 1993, issue of the Texas Register (18 TexReg 1921) and sec. sec.145.2-145.7 are adopted without changes and will not be republished. The rules establish minimum provisions and criteria for the operation of approved TAIP programs designed to provide substance abuse offenders with screening, assessment, referral, and placement into licensed and approved chemical dependency program if applicable. The rules are adopted to define what programs must do to become a TAIP program approved by the Texas Commission on Alcohol and Drug Abuse. In sec.145.1, the definition of treatment has been changed, replacing the term illegal drugs with chemical dependency. Without this change, it appears that only illegal drugs are being addressed. The rules establish quality programming in the Treatment Alternatives to Incarcerated Programs approved by the commission. No comments were received regarding adoption of the new sections. The new sections are adopted under Acts , of the 72nd Legislature, 1991, Chapter 490, sec.2, effective December 31, 1991, amending the Texas Health and Safety Code, Chapter 461, by adding sec.461.017, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of Treatment Alternatives to Incarceration Programs which are designed to provide substance abuse offenders with screening, assessment, referral, and placement into licensed and approved chemical dependency programs if appropriate. sec.147.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: Approved TAIP Program-A treatment alternatives to incarceration program (TAIP) approved by the Texas Commission on Alcohol and Drug Abuse as set forth under this chapter. Assessment-The process of determination of treatment needs by prescribed evaluation procedures. Commission-The Texas Commission on Alcohol and Drug Abuse. Education-A system of instruction provided in courses, which is based on a curriculum that provides alcohol and drug information and enhances life skills, and is comprehensive in scope and intent. Reporting period -That period of time beginning with the date the approval of the TAIP program was granted by the commission and ending August 31 of each year. Screening, Assessment, and Referral Unit (SAR) -A unit of the approved TAIP program assigned the task of administering and interpreting the screening instrument, performing the assessments, and making the indicated referrals to treatment providers. Screening instrument -A written device administered to each approved TAIP program participant for the purpose of: (A) identification of the existence of a substance abuse problem; and (B) making recommendations for further evaluation, counseling or treatment where indicated. TAIP-Treatment Alternatives to Incarceration Program Target Population -Persons arrested for an offense, other than a Class C misdemeanor, in which an element of the offense is the use or possession of alcohol or the use, possession, or sale of a controlled substance; persons arrested for an offense against property who are referred to an approved TAIP program by a judge; persons referred by the community supervision and corrections department; and persons referred to treatment who are determined to be in need of treatment. Treatment-A planned, structured, and organized program designed to initiate and promote a person's chemical-free status to maintain the person free of chemical dependency. 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 11, 1993. TRD-9327153 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1993 Proposal publication date: March 26, 1993 For further information, please call: (512) 867-8720 Performance Standards 40 TAC sec.sec.145.20-145.30 Texas Commission on Alcohol and Drug Abuse adopts new sec.145.20-145.30 concerning Treatment Alternatives to Incarceration Programs (TAIP), without changes to the proposed text as published in the March 26, 1993, issues of the Texas Register (18 TexReg 1923) and will not be republished. rules establish minimum standards and criteria for the operation of approved TAIP programs which are designed to provide substance abuse offenders with screening, assessment, referral and placement into licensed and approved chemical dependency program if appropriate. This section is being adopted to define what programs must do to become a TAIP program approved by the Texas Commission on Alcohol and Drug Abuse. rules establish quality programming in the Treatment Alternatives to Incarceration Programs approved by the commission. comments were received regarding adoption of the new sections. new sections are adopted under Acts of the 72nd Legislature, 1991Chapter 490, sec.2, effective December 31, 1991, amending the Texas Health and Safety Code, Chapter 461, by adding sec.461.017, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of Treatment Alternatives to Incarceration Programs designed to provide substance abuse offenders with screening, assessment, referral, and placement into licensed and approved chemical dependency programs if appropriate. 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 11, 1993. TRD-9327154 Bob Dickson Executice Director Texas Commission on Acohol and Drug Abuse Effective date: September 1, 1993 Proposal publication date: March 26, 1993 For further information, please call: (512) 867-8720 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. ) The State Board of Insurance, of the Texas Department of Insurance, at a public hearing held at 9:00 a.m. on July 22, 1993, under continuation of Docket Number 2002, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted the Texas Statistical Plan for Commercial Lines (the Plan) as proposed by Staff of the Texas Department of Insurance. The Plan collects data for regulatory purposes. The Plan is adopted in accordance with the Insurance Code, Articles 5.96, 5.05, 5.25, 17.25, 18.12, 19.08, and 21.69 which authorizes the Board to adopt statistical plans for motor vehicle insurance, fire and allied lines insurance, and multi-peril insurance. Article 5.05(a) requires the Board to promulgate statistical plans for the reporting of loss experience and other necessary data for use in the evaluation of rates and rating systems. Article 5.25 authorizes the Board to designate an agent to gather, audit, and compile experience of insurers writing fire and allied lines. Article 17.25, sec.18, authorizes the Board to compel written reports from county mutual insurance companies. Article 18.12 requires underwriters of a Lloyds Insurance Company to file with the Board on an annual basis such information as the Board may demand. Article 19.08 requires reciprocal exchanges to report information required by the Board. Article 21.69 authorizes the Board to contract with any qualified entity to collect historical premium and loss data as defined by the Board and pursuant to statistical plans promulgated or approved by the Board. Staff's proposal (Reference Number 0-0693-11-I), was published in the June 22, 1993, issue of the Texas Register (18 TexReg 4132). The State Board of Insurance has jurisdiction of this matter pursuant to the Insurance Code, Articles 5.96, 5.05, 5.25, 17.25, 18.12, 19.08, and 21.69. The Plan as adopted by the State Board of Insurance is filed with the Chief Clerk under Reference Number 0-0693-11-I and is incorporated by reference by Board Order Number 60447. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. Consistent with the Insurance Code, Article 5.96(h), prior to the effective date of this action, the Board will notify all insurers writing commercial lines insurance. Issued in Austin, Texas, on August 16, 1993. TRD-9327395 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance For further information, please call: (512) 463-6328 The State Board of Insurance of the Texas Department of Insurance, at a public meeting held at 9:00 a.m. on August 4, 1993 in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, Texas has adopted a filing by the Texas Workers' Compensation Commission ("Commission") consisting of new forms for its new Self-Insurance Program. Reference No. O-0793-15 was published in the July 23, 1993, issue of the Texas Register (18 TexReg 4868). The Texas Workers' Compensation Act (Act), Texas Civil Statutes, Article 8308, sec.3.51 (b)(2)(f), provide that the applicant (self-insured employer) must provide security for incurred liabilities for workers' compensation. One method of providing that security is a surety bond that names the director of the Commission as payee. The Commission's Rule 28 TAC sec.114.4(a)(1) provides for a security to be a surety bond. Other methods of meeting this security requirement are a deposit of cash or securities, or an irrevocable letter of credit issued by either a Texas chartered bank or a federally chartered bank. The Commission's new proposed forms consist of a surety bond entitled "Surety Bond, Form SI-210," two endorsements entitled "Surety Bond Increase/Decrease Rider, Form SI-215" and "Surety Bond Name Change Rider, Form SI-216." The Surety Bond is conditioned on the principal (self-insured employer) paying and furnishing compensation, pursuant to the terms, provisions and limitations of the Act. The term of the Surety Bond is continuous and the surety may terminate coverage on the 61st day after filing notice with the director of the Commission for any of the reasons stated in the bond. However, no termination will be effective for obligations or liabilities incurred prior to termination. If the principal is declared impaired by the Commission, then the surety becomes liable for their principal's obligations and liabilities. In that event the surety shall pay to the director of the Commission within ten days of receipt of demand the entire penal sum of the bond or any portion thereof which the director demands. The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.13, 5.15 and 5.97. The full text of the filing for the new bond and endorsement forms for the Self-Insurance Program as adopted by the State Board of Insurance is filed with the Chief Clerk under (Reference Number O-0793-15) and is incorporated by reference by Board Order Number 60443. This notification is made pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. This agency hereby certifies that the adopted filing herein has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on August 16, 1993. TRD-9327394 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance For further information, please call: (512) 463-6328