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 19. EDUCATION Part II. Texas Education Agency Chapter 67. Instructional Resources Subchapter A. State Textbook Program State Adoption, Acquisition, and Custody of Textbooks 19 TAC sec.67.97 The Texas Education Agency (TEA) adopts new sec.67.97, concerning state adoption, acquisition, and custody of textbooks, with changes to the proposed text as published in the June 18, 1993, issue of the Texas Register (18 TexReg 3916). The rule is necessary to help reduce errors in textbooks. It establishes the process for assessing penalties against publishers for such errors. The change to subsection (d)(1) raises to $10,000 the penalty for each uncorrected substantial error. The change to subsection (a) adds the definition of the term "editorial change." In response to comments submitted by Macmillan/McGraw-Hill School Publishing Company, TEA staff met with publishing company representatives to discuss the new rule. Publishers suggested amending the rule in three ways: by adding language to define editorial changes that would not be subject to penalties; eliminating requirements related to providing errata sheets for all uncorrected errors; and revising language to allow penalty assessment to be permissive and to provide for a range of penalties. The definition of the term editorial change was added to the rule. The State Board of Education (SBOE) disagrees with suggestions concerning errata sheets. As proposed, the rule ensures that teachers are aware of any substantial errors in textbooks adopted for use in the state. It also provides sufficient discretion, since errata sheets for uncorrected technical errors would be required only in compelling situations. The SBOE also disagrees with suggestions concerning penalty assessment. Revising the rule to increase permissiveness and provide a range of penalties would dilute the impact of the board's policy that textbooks must be error-free. As proposed, the rule states board policy regarding uncorrected errors in clear, unambiguous terms. The rule is adopted under the Texas Education Code, sec.12.16, which authorizes the SBOE to promulgate rules concerning the manner of selection for textbooks. sec.67.97. Penalties. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Editorial change-A change, agreed to by the agency, in the printing of a book or learning system from what was submitted to the state under sec.67.66(f) of this title (relating to Samples) that involves revisions such as design, color, placement of material, inclusion of references, style of print, size of print, type of print, or any other similar non-essential enhancement or deletion to the printed page. Editorial changes meeting this definition are not subject to penalties. (2) Substantial error-A verified error of fact that would interfere with student learning. The context, including the intended student audience and grade level appropriateness, shall be considered. (3) Technical error-A verified error not determined to be substantial. (b) An error repeated in a textbook or contained in both the student and teacher editions of textbooks shall be counted once for the purpose of determining penalties. (c) Penalties for errors in learning systems or electronic media systems, textbooks, or teacher editions of textbooks shall be recommended in increments. An error identified under this subsection shall not be counted when determining penalties if the affected publisher has provided prior notification of the error to the commissioner of education. (1) The following provisions shall apply for errors identified after the publisher has submitted a list of editorial corrections according to sec.67. 66(f) of this title and before the date established in the textbook proclamation by which the State Board of Education (SBOE) shall adopt textbooks. (A) A $300 penalty shall be assessed for each substantial error. (B) A $100 penalty shall be assessed for each technical error. (C) Penalties shall be assessed only if SBOE adopts the affected textbook or system. (2) The following provisions shall apply for errors identified after SBOE adopts the textbook or system but before the deadline established in the textbook proclamation by which publishers must have submitted corrected textbooks, teacher editions of textbooks, or systems. (A) A $1,000 penalty shall be assessed for each substantial error. (B) A $500 penalty shall be assessed for each technical error. (3) The following provisions shall apply for errors identified after the deadline established in the textbook proclamation by which publishers must have submitted corrected textbooks, teacher editions of textbooks, or systems. (A) A $3,000 penalty shall be assessed for each substantial error. (B) A $1,000 penalty shall be assessed for each technical error. (d) The following provisions shall apply for errors identified in the list of editorial corrections submitted by a publisher according to sec.67.66(f) of this title and errors identified in accordance with subsection (c)(1) of this section that are not corrected. (1) A publisher shall be assessed a $10,000 penalty for each substantial error. The publisher shall provide an errata sheet approved by the commissioner of education with each teacher edition of the textbook. (2) A publisher shall be assessed a $1,000 penalty for each technical error. The publisher may be required to provide an errata sheet approved by the commissioner of education with each teacher edition of the textbook. (e) The commissioner of education may recommend that a textbook or system not be adopted when 50 or more substantial errors are identified in the textbook or system. A substantial error shall not be counted if the affected publisher has provided prior notification of the error to the commissioner of education. This subsection applies to errors identified during the following time period: (1) after the publisher has submitted a list of editorial corrections according to sec.67.66(f) of this title; and (2) before the date established in the textbook proclamation by which additional written comments from persons scheduled to present testimony at the November public hearing before SBOE must have been received by TEA. (f) Each affected publisher shall provide, at no cost to the state, a number of textbooks equal to the amount of any penalty imposed under the provisions of this section. 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 October 18, 1993. TRD-9330592 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: November 8, 1993 Proposal publication date: June 18, 1993 For further information, please call: (512) 463-9701 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Texas Commission on Jail Standards Chapter 253. Definitions 37 TAC sec.253.1 The Texas Commission on Jail Standards adopts an amendment to sec.253.1, concerning Definitions, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6075). The amendment adds "disabled" to the definitions of terms used in Minimum Jail Standards. The amendment will allow the term "disabled" to be used throughout standards to incorporate the federal Americans with Disabilities Act. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the custody, care, and treatment of prisoners. 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 October 15, 1993. TRD-9330552 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 257. Construction Approval Rules 37 TAC sec.257.11 The Texas Commission on Jail Standards adopts new sec.257.11 concerning Construction Approval, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6076). The new rule adds the requirement for all construction documents for facilities to be submitted to the Texas Department of Licensing and Regulation for review and approval of accessibility features. The rule will function to ensure all construction documents submitted meet applicable state regulations. No comments were received regarding adoption of the new section. The new rule is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330553 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publicatiion Date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 259. New Construction Rules The Texas Commission on Jail Standards adopts amendments to sec.sec.259.37, 259.38, 259.137, 259.138, 259.225, 259.226, 259.326, and 259.327, concerning New Construction, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6076). The amendments change language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendments function to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendments. New Jail Design, Construction, and Furnishing Requirements 37 TAC sec.259.37, sec.259.38 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330551 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 New Lockup Design, Construction, and Furnishing Requirements 37 TAC sec.259.137, sec.259.138 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330550 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 New Low-Risk and Medium-Risk Design, Construction, and Furnishing Requirements 37 TAC sec.259.225, sec.259.226 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330549 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Modular/Direct Supervision Design, Construction, and Furnishing Requirements 37 TAC sec.259.326, sec.259.327 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330548 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 260. County Correctional Centers CCC Design, Construction, and Furnishing Requirements 37 TAC sec.260.44, sec.260.45 The Texas Commission on Jail Standards adopts amendments to sec.260.44 and sec.260.45, concerning County Correctional Centers, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6077). The amendments change language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendments function to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendments. The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330554 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 261. Existing Construction Rules The Texas Commission on Jail Standards adopts amendments to sec.sec.261.26, 261.27, 261.126, 261.127, 261.214, and 261.215, concerning Existing Construction without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6078). The amendments change language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendments function to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendments. Existing Jail Design, Construction, and Furnishing Requirements 37 TAC sec.261.26, 261.27 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330555 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Existing Lockup Design, Construction, and Furnishing Requirements 37 TAC sec.261.126, sec.261.127 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330557 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Existing Low-Risk Design, Construction, and Furnishing Requirements 37 TAC sec.261.214, sec.261.215 The amendments are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330556 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 263. Life Safety Plans and Drills for Emergencies 37 TAC sec.263.40 The Texas Commission on Jail Standards adopts an amendment to sec.263.40, concerning Life Safety, without changes to the proposed text as published in the September 10, 1993 issue of the Texas Register (18 TexReg 6079). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendment functions to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330558 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 265. Admission of Inmates to County Jails 37 TAC sec.265.4, sec.265.20 The Texas Commission on Jail Standards adopts an amendment to sec.265.4, and new sec.265.20, concerning Admission of Inmates to County Jails, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6079). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The new section sets forth nondiscriminatory guidelines. The amendment and new section function to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendment and new section. The amendment and new rule are adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330559 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 271. Classification and Separation of Inmates 37 TAC sec.271.3 The Texas Commission on Jail Standards adopts an amendment to sec.271.3, concerning Classification and Separation of Inmates, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6079). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendment functions to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330560 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 273. Medical Services in County Jails 37 TAC sec.273.2 The Texas Commission on Jail Standards adopts an amendment to sec.273.2, concerning Medical Services in County Jails, without changes to the proposed text as published in the September 10, 1993 issue of the Texas Register (18 TexReg 6080). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendment functions to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendments. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330561 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 285. Recreation and Exercise In County Jails 37 TAC sec.285.1 The Texas Commission on Jail Standards adopts an amendment to sec.285.1, concerning Recreation and Exercise in County Jails, without changes to the proposed text as published in the September 10, 1993 issue of the Texas Register (18 TexReg 6080). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendment functions to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330562 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 287. Education and Rehabilitation Programs for County Jails 37 TAC sec.287.1 The Texas Commission on Jail Standards adopts an amendment to sec.287.1, concerning Education and Rehabilitation Programs for County Jails, without changes to the proposed text as published in the September 10, 1993 issue of the Texas Register (18 TexReg 6080). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendment functions to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330563 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 295. Plans for Emergencies, Fire Prevention, Critical Articles in County Jails 37 TAC sec.295.1 The Texas Commission on Jail Standards adopts an amendment to sec.295.1, concerning Plans for Emergencies, Fire Prevention, Critical Articles in County Jails, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6081). The amendment changes language to include terms relating to the disabled in accordance with the federal Americans with Disabilities Act. The amendment functions to include in standards terms relating to the disabled. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330546 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 297. Compliance and Enforcement 37 TAC sec.297.8 The Texas Commission on Jail Standards adopts an amendment to sec.297.8, concerning Compliance and Enforcement, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6081). The amendment clarifies requirements concerning a county's response to a Notice of Non-Compliance. The amendment allows the Commission to issue a remedial order following issuance of a Notice of Non-Compliance if a county does not correct the deficiencies. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt, amend, and rescind rules for the conduct of its proceedings. 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 October 15, 1993. TRD-9330564 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 463-5505 Chapter 300. Fees and Payments 37 TAC sec.300.24 Emergency Overcrowding Relief The Texas Commission on Jail Standards adopts an amendment to sec.300.24, without changes to the proposed text as published in the August 13, 1993, issue of the Texas Register (18 TexReg 5389). The amendment revises the section to clarify the requirement for inclusion of the state identification number in reporting only after that number is issued by the Department of Public Safety. The amendment will allow reporting without the state identification number if that number has not been issued. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 15, 1993. TRD-9330545 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: November 5, 1993 Proposal publication date: August 13, 1993 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 12. Special Nutrition Programs Child and Adult Care Food Program 40 TAC sec.12.3 The Texas Department of Human Services (DHS) adopts an amendment to sec.12. 3, with changes to the proposed text as published in the July 2, 1993, issue of the Texas Register (18 TexReg 4291). Sections 12.4, 12.7, 12.20, and 12.26, which were proposed in the same issue of the Texas Register, were previously adopted. The justification for the amendment is to establish fair and equitable standards for determining if an applicant can reasonably be expected to operate the Child and Adult Care Food Program (CACFP). The amendment will function by improving program efficiency and increasing program integrity. During the comment period, DHS received several written comments on the proposal. DHS received comments from Child Inc.; Children's Nutrition Services; Nutriservice, Inc.; Youngcare, Inc.; and All Seasons Nutritional Services, Inc. A summary of the comments and DHS's responses follow. Comment: Overall, commenters were in favor of the establishment of eligibility criteria for day care home sponsors and several commended DHS for its effort in developing the criteria. Response: DHS acknowledges and appreciates their comments. Comment concerning sec.12.3(a)(4): Four commenters observed that the requirement that an appropriate representative be available at a designated location during normal business hours would impose an undue financial and administrative burden on small day care home sponsoring organizations who frequently must leave their primary place of business unattended to carry out program monitoring requirements. Response: DHS agrees and is adopting sec.12.3(a)(4) with changes to require that an appropriate representative of the sponsoring organization be available during normal business hours, and to delete the requirement that the person be available at a specific location. Comment concerning sec.12.3(b): One commenter suggested that contractors that sponsor day care homes as part of an overall community service ("center based") program be eligible to participate with fewer than 50 day care homes. Another commenter recommended that the 50 day home limit be implemented immediately with no exceptions granted to existing sponsoring organizations to allow them time to enroll the minimum number of day care homes. Another commenter suggested that DHS consider the proximity of a potential sponsor to the day care homes they would sponsor, that the size of a sponsoring organization is not indicative of its ability to administer the program, and that this requirement seems inconsistent with CACFP federal regulations. Response: Commenter (1) DHS agrees that programs which are providing an ongoing community service should be allowed to integrate the sponsorship of day care homes into their overall program. Therefore, DHS has amended this requirement to include a provision allowing applicants with fewer than 50 day care homes to participate if sponsorship of day care homes is an integral, but subordinate, part of an existing community service provided by the sponsor. Commenter (2) DHS believes that it would be unfair to deny sponsoring organizations currently participating in the program the opportunity to achieve compliance with the requirement that they sponsor a minimum of 50 day care homes. Therefore, DHS will not amend this requirement in response to this comment. DHS will allow sponsoring organizations participating in the program at the time these rules become effective the remainder of the fiscal year (FY) 1994 to achieve compliance with this requirement. Commenter (3) These requirements contain a provision that allows applicants to sponsor fewer than 50 day care homes if they can demonstrate that there is an unmet need. DHS believes that this provision allows all due consideration to the proximity of a potential sponsor to the day care homes they would sponsor. In addition, since the funds a contractor receives from DHS to operate the program are based on the number of day care homes sponsored, the ability of an applicant to identify a minimum number of day care homes it will sponsor is indicative of the applicant's ability to manage the program. Finally, DHS received confirmation from USDA before publication of these requirements that the requirements are consistent with CACFP regulations. Therefore, DHS will not amend this requirement in response to this comment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This amendment implements Chapter 33 of the Human Resources Code. sec.12.3. Eligibility of Contractors and Facilities. (a) To be eligible to participate in the Child and Adult Care Food Program (CACFP), contractors must: (1) meet the definitions in 7 Code of Federal Regulations sec.226.2 and the appropriate requirements of 7 Code of Federal Regulations sec.226.6 and sec.sec.226.15-226.19(a); (2) demonstrate that the governing authority is aware of the responsibilities and liabilities it accepts by agreeing to participate in the program; (3) submit a comprehensive financial statement showing all expenditures and sources of income to the organization for the three years preceding the year for which application is made; (4) designate the physical location at which they can be contacted. An appropriate representative of the contractor must be available during normal business hours. Contractors must notify DHS in advance of their intent to change their physical location; and (5) participate in program and program related training deemed reasonable and necessary by the Texas Department of Human Services (DHS). (b) To be eligible to participate in the CACFP as a day care home sponsor, contractors must demonstrate that at least 50 day care homes can be expected to participate under their sponsorship. DHS may approve applications for fewer than 50 day care homes, if the contractor demonstrates that there is an unmet need for services, or if sponsorship of day care homes is an integral but subordinate part of an existing community service provided by the sponsor. (c) Facilities must be licensed or otherwise approved by federal, state, or local authorities. Adult day care centers must be licensed by the Texas Department of Health (TDH), except that receipt of Title XIX funds (Medicaid) constitutes approval for program participation. Child care centers must be licensed or registered by DHS. General Exception: Facilities operated by federal and Indian tribal governments are not required to be licensed or otherwise approved by DHS or TDH. (d) DHS requires contractors to submit as proof of eligibility one or more of the following forms of documentation of tax-exempt status: (1) letter from the IRS notifying the contractor that he has been granted tax- exempt status under the Internal Revenue Code of 1954; (2) proof of participation in another federal program that requires non-profit status; (3) letter from the IRS acknowledging acceptance of the contractor's application for tax-exempt status under the Internal Revenue Code of 1954; and/or (4) letter certifying that at least 25% of the children enrolled in the institution making application received Title XX benefits in the month before the month in which the application is submitted. (e) DHS requires contractors to submit copies of a current licensure or registration to operate a day care facility when they: (1) apply to participate in the CACFP; or (2) receive a renewed or amended license or registration. (f) Contractors are ineligible for the CACFP if they have permitted a member of the governing body, an agent, a consultant, or an employee of the contractor to enter the facility when children are present and any of these persons have been convicted of: (1) a felony or misdemeanor classified as an offense against the person or the family, or as public indecency; or (2) a felony violation of any statute intended to control the possession or distribution of a substance included in the Texas Controlled Substances Act. (g) Contractors are ineligible for the CACFP if they have permitted a member of the governing body, an agent, a consultant, or an employee of the contractor to engage in any activity related to the administration of the CACFP and any of these persons have been convicted of a fraudulent activity, including cases in which adjudication is deferred. (h) Contractors are ineligible for the CACFP if they sponsor the participation of a day care home which, after being afforded due process by the contractor, has been terminated for cause, including, but not limited to, program abuse, deficient program operation, and fraudulent activities, unless DHS has granted prior approval. (i) DHS requires contractors to submit documentation of compliance with the requirements of the Single Audit Act. Contractors must submit as proof of eligibility one or more of the forms of documentation of compliance specified in paragraphs (1)-(3) of this subsection: (1) a copy of an organization wide audit which has been determined to meet the requirements of the Single Audit Act; (2) a copy of a contract or binding letter of engagement with an approved auditor to conduct an organization wide audit which will meet the requirements of the Single Audit Act; or (3) documentation that the contractor is not subject to the Single Audit Act. 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 October 15, 1993. TRD-9330573 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: November 5, 1993 Proposal publication date: July 2, 1993 For further information, please call: (512) 450-3765