ADOPTED RULES 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 10. COMMUNITY DEVELOPMENT Part I. Texas Department of Housing and Community Affairs Chapter 49. Low Income Housing Tax Credit Rules 10 TAC sec.49.15 The Texas Department of Housing and Community Affairs (the Department) Low Income Housing Tax Credit (LIHTC) Program adopts new sec.49.15, concerning low- income housing tax credits, without changes to the proposed text as published in the December 20, 1994, issue of the Texas Register (19 TexReg 10061). At its meeting on November 10, 1994, the governing board (the "Board") of the Texas Department of Housing and Community Affairs (the "Department") adopted an amendment to the rules and modification of the Qualified Allocation Plan of the Low Income Housing Tax Credit ("LIHTC") Program. The adoption of the new section would allow the Department to allocate up to 45% of the state's 1995 per capita credits to 1994 applicants under the 1995A Qualified Allocation Plan. As part of the rule making process, both the Department and the LIHTC Ad Hoc Committee held public hearings on the proposed rule change on January 11, 1995 and February 21, 1995, respectively. On February 23, 1995, the Board adopted the amendment without modification. Sections 49.1-49.15, which constitute the LIHTC rules and Qualified Allocation Plan 1995A, set forth the selection criteria and guidelines for the 1995A allocation of tax credits. On December 20, 1994, the proposed LIHTC rules were published in the Texas Register, thereby commencing the required 30-day comment period. Said comment period ended on January 20, 1995. During this period, the Department received comments both in writing and as a result of the January 11, 1995 public hearing. About 65% of the individuals offering comments expressed support for the proposed rule, while 35% were opposed or had reservations about the measure. Some of the legal issues raised by the commenters have been addressed below by the Department in consultation with its tax credit counsel. At the outset it may be helpful to distinguish between subsections (a)-(e) of the proposed sec.49.15 and subsection (f). The first five provisions are addressed to "forward commitments," pursuant to which the Department may obligate itself to make allocations of credit authority (either on a carryover or in-service basis) from a future year's credit ceiling. Subsection (f) of the proposed sec.49.15 deals with a different matter. It would permit the Department to make allocations from its 1995 per capita tax credits to projects with respect to which applications were received and ranked in a prior year. These would be allocations made in 1995 pursuant to the Department's Qualified Allocation Plan in effect in 1995 (1995A), notwithstanding that the applications which may be awarded credits were actually received in 1994. It is the authority of subsection (f) which is the basis of the 1995A Qualified Allocation Plan. Proposed Amendment is Retroactive-One of the commenters raised the question of whether an allocation pursuant to subsection (f) would be a "retroactive" commitment and, inferentially, whether the Department has authority under the Internal Revenue Code to allocate credits in this fashion. Department's Response-With respect to retroactively, the Department wishes to emphasize that it proposes to make allocations in 1995 of 1995 per capita tax credits pursuant to a plan in 1995. Thus, there is nothing retroactive about the actions being taken. As to legal authority generally, the Department does not believe that Section 42 of the Internal Revenue Code or the Regulations adopted pursuant thereto speak to the question of when applications must be sought or received by a housing credit agency. Section 42(m) of the Code requests that tax credit projects be selected in accordance with a qualified allocation plan which has been properly approved by the state and which incorporates certain selection criteria and preferences. The proposed sec.49.15(f) of the Rules requires that any projects receiving forward commitments have been ranked, that is evaluated, in accordance with the Department's qualified allocation plan. This plan has been prepared and adopted in accordance with the requirements of the Code and of Texas's administrative procedures statutes. Thus, the Department finds no reason that the Code should be read as prohibiting allocations under the 1995A Qualified Allocation Plan to projects simply because they were evaluated in 1994. Department's Discretion and Ranking of Projects-Several commenters also raised issues about the degree of discretion given to the Department in sec.49. 15(f), as well as some of the other provisions of sec.49.15. Thus, concern is expressed as to whether the general terms and descriptions used in sec.49.15 would permit abuse of developer applicants when the authority is actually implemented. A question is raised, too, about how the concept of "ranking previously assigned" would be applied to the various different categories of projects established by the Department. Department's Response-The language of proposed sec.49.15 is, in fact, drafted broadly. It was written in this fashion because it seemed that the authority provided would often be called upon to address unforeseen circumstances or cases. For example, if a particularly large volume of worthy projects appears within one or more categories at one time, the Department can choose to establish a pipeline of highly meritorious projects for the future. Thus, it will be up to the Department to specify the details of any particular action under the authority of sec.49.15, based upon the circumstances giving rise to the need for such action. In addition to giving the Department latitude to deal with unforeseen circumstances, the broad drafting of sec.49.15 seems consistent with the overall structure of the Rules, in that the Rules set forth general requirements and the framework within which decisions are to be made, and anticipate that more specific documentation and information will be made available when actions are taken. Thus, the various ranking factors, criteria and procedures are spelled out generally in the Rules and further details are provided in the Department's application package. However, the discretion granted in sec.49.15 does not permit the Department to override federal requirements. Thus, the commenter who expressed concern that the 10% set-aside required under sec.42(h)(5) of the Code for nonprofits might be disregarded should be reassured. The Proposed Amendment is Unfair-Several commenters noted that the proposed amendment is unfair because applicants had no prior knowledge of the possible changes in the rules and could not plan accordingly. Some further argued that adoption of the amendment would mean awarding credits to projects that were not worthy of an allocation under the state's 1994 credit ceiling at the expense of better 1995 applications. One commenter, while supportive of the idea of carrying forward 1994 applications pursuant to a waiting list, opposed the amendment on the grounds that it is retroactive, the 45% target contemplated is too large, and that nonprofits would be the prime beneficiaries. Department's Response-The Department recognizes the amount of time and resources expended by developers in submitting applications for tax credits. It is because of this awareness and the availability of many financially feasible and socially desirable projects that it elected to propose this measure to expedite the development of affordable housing in Texas, create jobs across the state and capture the efforts expended by both the staff and the development community. It is clearly apparent that given the huge demand for tax credits, many worthy projects must go unfunded year after year. In light of this, the Department is committed to ensuring that whenever feasible, as many projects as possible be funded to expedite the development of affordable housing for low income Texans. In addition, most of the applicants that could benefit from this measure have been scored and underwritten under identical guidelines as projects that have received 1994 tax credits. Proposed Amendment Prefers Nonprofits-Several commenters stated that the amendment would give undue preference to nonprofit applicants. One commenter specifically requested that the measure be dropped since it would unfairly trap a number of nonprofit applications seeking credits in the "other" set-aside because such applicants did not earn the nine points reserved for nonprofits seeking credits in the nonprofit set-aside. Another commenter argued that the amendment promotes nonprofits at the expense of for profits, circumvents the self-limiting nature of the annual allocations, and is contrary to the intent of Congress. Department's Response-The proposed amendment does not stipulate how the tax credits would be apportioned among the set-asides. It only states that "No more than 45% of the per capita component of the state housing credit ceiling" may be utilized pursuant to this rule. The Department's Board will make the final determination concerning the apportionment of the credits. The assumptions of many commenters that the proposed amendment would benefit only nonprofit applicants seems premature. As the Chairman of the Ad Hoc Committee noted at the January 11, 1995 public hearing, the credits would be distributed equitably. With respect to nonprofit applicants seeking credits in the "other" set-aside, the 1994 rules clearly states that all nonprofit points accrue only to "nonprofit projects which are seeking credits from the nonprofit set-aside. " Consequently, nonprofits applying in the "other" set-aside could not qualify for these points and should have no expectation to. The interpretation of this provision in 1994 is consistent with the Department's position in 1993 when nonprofits accounted for 45% of the state's total allocation. Regarding Congress' intent, the applicable code provision states that at least 10% of a state's housing credit ceiling shall be allocated to qualified nonprofit projects. Thus, Congress has provided wide discretion to the states in allocating the credits. Also, both Section 42 of the Internal Revenue Code of 1986, as amended, and related Treasury Regulations promulgated pursuant thereto, explicitly contemplate the possibility that a State may, in one year, make a commitment to allocate credits from a future year's ceiling. Thus, Section 42(h)(1)(C) and Treasury Regulations, Section 1.42-8(a)(2) specifically permit the allocation of credits in a future taxable year. The Department therefore believes that the basis for the amendment is clearly established in Federal Law. The Department has also received comments from several applicants supporting the amendment and requesting the allocation of the bulk of the credits to the nonprofit set-aside. Staff Representations to Developers-A commenter asked if the LIHTC staff promised 1995 tax credits to certain developers. If so, which properties were promised credits? If not, "Why were certain properties asked to achieve carryover status when they were not going to receive 1994 credits?" Department's Response-No member of the tax credit staff promised credits to any developer or developers at any time. To insure that all of our 1994 credits were allocated, the Department required that all project owners who are in receipt of a commitment notice meet all carryover requirements by December 8, 1994. We further stipulated that an applicant that has received a conditional commitment must also meet carryover in order to qualify for 1994 credits. This action was taken as a back-up measure in case some project owners failed to meet carryover. Amendment Requires Governor's Approval-Two commenters asked if the Department intends to get the Governor's approval prior to the allocation of these credits. Department's Response-The Department recognizes that the proposed amendment amounts to a substantive change in the rules and will accordingly seek the Governor's approval. Proposed Amendment and the Qualified Allocation Plan-One commenter argued that the amendment does not meet the requirements of a Qualified Allocation Plan, and hence cannot be the basis for an allocation of tax credits. He further argued that the amendment does not give the Department the ability to allocate 1995 tax credits to 1994 applications because Section (a) of the amendment states that " the Department may determine to issue reservations and commitments of tax credit authority with respect to projects from the state housing credit ceiling for the calendar year following the year of issuance (each a "forward commitment")." As a result of this language, he concluded, the Department could only issue forward commitments to 1995 applicants for 1996 tax credits. One commenter also challenged the Department's authority to carry forward 1994 applications and award them credits based on previously assigned rankings pursuant to subsection (f) of the proposed rule, implying that the Department cannot assign ranking unless it disregards its set-aside categories. Another commenter asked why this paragraph was added to the subsequent publication of the rule on December 20, 1994. Department's Response-The Department fully intends to allocate 1995 tax credits to 1994 applicants pursuant to the 1995A Qualified Allocation Plan and to subsequently adopt a 1995B Qualified Allocation Plan for the rest of the state's 1995 housing credit ceiling. Both Plans conform to the requirements of Section 42(m) of the Internal Revenue Code of 1986, as amended. With respect to the Department's ability to issue forward commitments beginning in 1995 for 1996 credits, the Department agrees with the commenter's conclusions. However, the proposed amendment contemplated two distinct scenarios: a "binding forward commitment" and a "carryover forward." Because of time constraints, the Department could not issue binding commitments and instead elected to carry forward 1994 applicants on a waiting list. The objection raised by the commenter with respect to forward commitment is therefore moot because the Department does not contemplate issuing binding commitments in allocating credits under 1995A. Regarding the assignment of rankings to projects in different set-asides, the Department finds no basis to support the premise that rankings can only be made without regard to set-asides. Although subsection (f) of the proposed rule provides broad discretion, the Department intends to award credits only to 1994 projects that have been carried forward based on previously assigned rankings. On the addition of subsection (f) in the December 20, 1994 publication in the Texas Register , the Department admits that this portion of the rule was inadvertently left out of its November 25, 1994 submission to the Texas Register . However, subsection (f) was part of the amendment adopted by the Board on November 10, 1994. The new section is adopted pursuant to the authority of the Texas Government Code, Chapter 2306 and Texas Civil Statutes, Article 4413(501) as amended by the 73rd Legislature, Chapters 725 and 141, and Texas Civil Statutes, Texas Government Code, Chapters 2001 and 2002. The Internal Revenue Code of 1986, Section 42, as amended, provides for credits against federal income taxes for owners of qualified low income rental housing projects. That section provides for the allocation of the available tax credits by state housing credit agencies. Pursuant to Executive Order AWR-91-4 (June 17, 1991), the Texas Department of Housing and Community Affairs was authorized to make housing credit allocations for the State of Texas. As required by the Internal Revenue Code, Section 42(m)(1), the Department developed a Qualified Allocation Plan which sets forth in Section 49.6 and sec.49.7 of this title (relating to Threshold Criteria; Evaluation Factors; Selection Criteria; Final Rankings; Credit Amount; Tax Exempt Bond Financed Projects; and Compliance Monitoring). 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 March 1, 1995. TRD-9502605 Henry Flores Executive Director Texas Department of Housing and Community Affairs Effective date: March 22, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 475-3340 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 9. Liquefied Petroleum Gas Division Subchapter A. General Applicability and Requirements 16 TAC sec.9.6 The Railroad Commission of Texas adopts an amendment to sec.9.6, relating to examination and course of instruction, with changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9438). The section lists examination general provisions and exemptions, discusses trainees, and explains fees, renewal of certified status, and when and where courses of instruction will occur. The proposed amendment would have changed the course of instruction from 40 hours to 120 hours. The adopted amendment changes the course of instruction from 40 hours to 64 hours. Only one association commented: the Texas Propane Gas Association (TPGA) submitted comments in favor of the amendment, but later during the comment period submitted additional comments stating that although TPGA could not find any industry opposition to the proposed rule, it was concerned with the length and expense of the course, and asked what activities the expanded course would include. The commission agrees that the length and expense of the course may deter some people from attending, but disagrees that this is a reason not to adopt the amendment. Because the longer course will permit the attendees to participate in hands-on instruction, the additional time and expense should be offset by having more knowledgeable and skilled individuals responsible for Category E activities. Certainly a company could shift some of the cost away from itself by making its hiring of the applicable management personnel conditional upon successful completion of all licensing requirements. The commission received one comment in favor of the proposed amendment, and four comments against the amendment. One comment stated that a company would be burdened by an employee being gone for three weeks and then possibly not passing the examination. The comment also suggested that the commission wait to increase the course hours until some combination of written and videotaped instruction could be developed. The commission disagrees with the first comment as being a reason not to adopt the change, because an employer could shift some of the cost away from itself by making its hiring of new employees conditional upon successful completion of all licensing requirements. The commission disagrees with the second comment because written and videotaped instruction would not allow for the hands-on training on equipment and procedures that this category of license requires. Another comment against the proposed amendment stated that better training is needed but that the commission should not increase the training time for the category of license that already has the most stringent requirements. The comment recommends that the commission conduct research to determine whether the licensees in this category are undertrained. The comment also suggests increasing the training for other categories of licenses. The commission agrees that other categories of licenses may need increased training, but the Category E license which would require the proposed 64-hour course is the license category which includes the most activities; this additional training time is necessary to ensure that licensees are thoroughly trained in the operation of equipment and procedures involved. In addition, changes to training requirements for other categories of license are beyond the scope of this rulemaking. Two comments opposed the proposed amendment because it would restrict competition among smaller companies and would be burdensome to have the applicable individual absent for three weeks while attending the course. The commission disagrees that this licensing requirement is a restraint of trade because the commission is authorized by statute to implement rules establishing an initial course of instruction as well as rules requiring attendance at approved academic, trade, professional, or commission-sponsored seminars or other continuing education programs. Reasonable conditions for licensure are not restraints of trade. The proposed amendment would have tripled the hours for the Category E course of instruction, from 40 hours to 120 hours. The adopted amendment changes the course of instruction to 64 hours, to be conducted over two weeks with 36 hours of training the first week and 28 hours of training the second week. This will allow attendees four hours of travel time on each Monday morning and conclude the class on Thursday of the second week, while still providing enough time for the addition of hands-on training on LP-gas equipment and procedures. The new section is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. sec.9.6. Examination and Course of Instruction. (a)-(e) (No change.) (f) Course of instruction. (1)-(2) (No change.) (3) The Category E course of instruction referenced in Table 1 of this subsection shall be held in Austin or any other facility of the Railroad Commission of Texas at times to be determined by the commission, and shall be a minimum of 64 hours of classroom instruction. 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 March 1, 1995. TRD-9502623 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: March 22, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 463-7008 Part III. Texas Alcoholic Beverage Commission Chapter 31. Administration Administrative Functions of the Commission 16 TAC sec.31.1 The Texas Alcoholic Beverage Commission adopts an amendment to sec.31.1, concerning powers delegated to the administrator by the commission, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10169). The amendment allows the administrator to designate persons to perform certain functions on his behalf. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Alcoholic Beverage Code, sec.5.31, which authorizes the commission to prescribe and publish rules necessary to carry out the provisions of the code, and Texas Alcoholic Beverage Code, sec.5. 12, which specifies that the commission shall by rule designate the duties of the administrator, assistant administrator and staff of the commission. 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 February 28, 1995. TRD-9502519 Lou Bright General Counsel Texas Alcoholic Beverage Commission Effective date: March 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 206-3204 Chapter 37. Legal Penalties 16 TAC sec.37.60 The Texas Alcoholic Beverage Commission adopts new sec.37.60, concerning methods for determining and imposing penalties on license and permit holders who are regulated by the Commission, with changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10169). This rule is adopted to give license and permit holders notice of what may be asked as a penalty in administrative cases involving health, safety and welfare provisions as well as major regulatory provisions of the Texas Alcoholic Beverage Code or other applicable rules or laws. This rule also serves to give consistency to field staff in the settlement of cases in all areas of the state. This rule allows for the agreed settlement of cases prior to an administrative hearing by providing suggested punishment ranges for specific violations. The Mothers Against Drunk Driving submitted comments suggesting adjustments of several specific punishments. Generally, Mothers Against Drunk Driving asserted that offenses contrary to health, safety and welfare should carry greater punishments than regulatory violations, and that the former category of violations should in all cases carry cancellation of the license or permit as a possible sanction. The Texas Restaurant Association made comments to suggest the amendment of several specific punishments. Subject to their earlier comments, the Mothers Against Drunk Driving were in favor of adoption of this rule. The Texas Restaurant Association was in favor of the adoption of this rule as amended. No groups appeared in opposition to the rule. New sec.37.60 is adopted under the Texas Alcoholic Beverage Code, Title 2, Chapter 5, sec.5.31, which authorizes the commission to prescribe and publish rules necessary to carry out the provisions of the code, and Texas Alcoholic Beverage Code, Title 2, Chapter 6, sec.6.01, which sets out that a license or permit grants only a privilege and not a right and is subject to revocation or suspension if the holder is found to have violated a provision of the code or a rule of the commission. The penalty chart indicates the cross-reference to the statutory or administrative code sections for each penalty. sec.37.60. Standard Penalty Chart. (a) Agents, compliance officers or other specifically designated commission personnel may offer settlements to persons charged with violating the provisions of the Alcoholic Beverage Code or rules of the commission. Settlement of those cases, unless otherwise provided for elsewhere in this rule, shall be in compliance with the following standard penalty chart. Figure 1: 16 TAC sec.37.60(a) (b) Each suspension of a permit or license shall run for consecutive days. An alcoholic beverage licensee or permittee penalized by the commission may pay a civil penalty in lieu of a suspension as provided by Alcoholic Beverage Code, sec.11.64, but no licensee or permittee may pay a civil penalty in lieu of a fraction of its suspension. In other words, any penalty assessed must be either a suspension or a civil penalty, but not a combination of both. (c) A repeat violation by a licensee or permittee justifies the penalty for a second or third violation if it is a health, safety and welfare violation and occurs within 36 months of the first violation and if it is a major regulatory violation within 24 months of the first violation. (d) A penalty for an alleged repeat violation shall not be assessed unless the alleged violation occurs after the permittee or licensee, as those terms are defined in the Texas Alcoholic Beverage Code, sec.1.04(11), has been notified, in writing, of the first alleged violation. Notwithstanding the preceding sentence, if an alleged violation is discovered during an undercover operation, then no notice of any prior alleged violations may be necessary to assess a penalty for a repeat violation. The requirement that written notice be given to a permittee or licensee shall not be interpreted to require that a notice of hearing for the violation be delivered to the permittee or licensee. (e) The list of violations in the standard penalty chart is not an exclusive list of violations of the Texas Alcoholic Beverage Code or rules of the commission. The administrator or his designee is authorized to assess penalties for any violation of any of the foregoing statutes or rules for which a penalty is not provided on the chart. Any penalty assessed for a violation not provided for on the standard penalty chart shall be approved by either the chief of enforcement or the director of compliance and licensing prior to its assessment. (f) Any person responsible for assessing a penalty for a violation may deviate from the standard penalty chart if mitigating circumstances are involved. If a recommendation deviating from the standard penalty chart is made, it must be made in writing and be filed with the case report. Final approval shall be made by the administrator or his designee. (g) The standard penalty chart does not bind a hearing examiner, the administrator, or his designee as to penalties for any violation determined to have occurred by the facts presented in an administrative hearing and the record of that proceeding shall be the determining factor as to the sufficiency of the penalty assessed. 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 February 28, 1995. TRD-9502520 Lou Bright General Counsel Texas Alcoholic Beverage Commission Effective date: March 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 206-3204 TITLE 22. EXAMINING BOARDS Part IV. Texas Cosmetology Commission Chapter 89. General Rules and Regulations 22 TAC sec.89.4, sec.89.5 The Texas Cosmetology Commission adopts an amendment to sec.89.4, concerning cosmetology instructor on duty; and new sec.89.5, concerning speciality instructor on duty, without changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 273). The amendment and the new rule are being adopted to add requirements for manicure speciality instructor and facial speciality instructor, instructor/student ratio, and speciality instructors on duty. These rules define the requirements for the speciality instructor on duty and instructor/student ratio. No comments were received regarding adoption of the amendment and new rule. The amendment and new section are adopted under Texas Civil Statutes, Article 8451a, sec.4(a), which provide the Texas Cosmetology Commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and welfare. 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 February 28, 1995. TRD-9502530 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: March 21, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 454-4674 22 TAC sec.89.15 The Texas Cosmetology Commission adopts an amendment to sec.89.15, concerning definition of license authorizations, with changes of the proposed text as published in the January 13, 1995, issue of the Texas Register (20 TexReg 193). The rule is being amended to ensure that all certificate holders and licensees comply with the requirements of the rules of the commission. The rule defines the authorization of all cosmetology and speciality licenses. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8451a, sec.4(a), which provide the Texas Cosmetology Commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and welfare. sec.89.15. Definition of License Authorizations. (a) Cosmetology Instructor License. A Cosmetology Instructor license authorizes the holder to instruct in any approved private cosmetology school, or program, and practice all phases of cosmetology in a beauty salon and any of the specialties in a licensed specialty salon. A current photograph approximately 1 1/2 inches by 1 1/2 inches of the licensee shall be attached to the front of the license. (b) Manicure Specialty Instructor License. A Manicure Specialty Instructor license authorizes the holder to instruct manicuring in any approved private cosmetology school, or program, and practice all phases of manicuring in a beauty salon or a licensed specialty salon. A current photograph approximately 1 1/2 inches by 1 1/2 inches of the licensee shall be attached to the front of the license. (c) Facial Specialty Instructor License. A Facial Specialty Instructor license authorizes the holder to instruct facials in any phase of an approved private cosmetology school, or program, and practice all phases of the application of Facial cosmetics, manipulations, eye tabbing, arches, lash and brow tints, and the temporary removal of superfluous hair by the use of depilatory, mechanical tweezers, or wax in a beauty salon and in a licensed specialty salon. A current photograph approximately 1 1\2 inches by 1 1\2 inches of the licensee shall be attached to the front of the license. (d) Cosmetologist. A cosmetologist (operator) license authorizes the holder to practice all phases of cosmetology in a beauty salon or any specialties in a specialty salon. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the license. (e) Wig Specialist. A wig specialist certificate authorizes the holder to practice wiggery, or perform eye tabbing in a beauty or specialty salon. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the license. (f) Manicurist. A manicurist license authorizes the holder to practice manicuring and pedicuring in a licensed beauty or specialty salon. A manicurist shall not treat or remove calluses, soft calluses, or ingrown nails. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the license. (g) Shampoo-Conditioning Specialist. A shampoo specialist certificate authorizes the holder to practice the art of shampooing, application of conditioners and rinses, scalp manipulation, and shampooing hair goods in a licensed beauty salon. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the certificate. (h) Facial Specialist. A facial specialist license authorizes the holder to practice facial, application of facial cosmetics, manipulations, eye tabbing, arches, lash and brow tints, and the temporary removal of superfluous hair by the use of depilatory, mechanical tweezers, or wax in a licensed beauty or specialty salon. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the license. (i) Hairweaving Specialist. A hairweaving, specialist certificate authorizes the holder to practice the art of hairweaving in a licensed beauty or specialty salon. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the certificate. No other service may be performed. To do so will lead to revocation of a specialty certificate. (j) Temporary License. A temporary license authorizes the holder of a valid license from another state or nation to practice cosmetology in the State of Texas for 60 days while waiting for reciprocity clearance or waiting to take the Commission examination. A temporary license is not renewable. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the license. (k) Student Permit. A student permit authorizes the holder to practice cosmetology only in an approved school, and only after 10% of the required hours for graduation (150 hours for public school students) are accrued. A current photograph of the licensee approximately 1 1/2 inches by 1 1/2 inches shall be attached to the front of the permit. (l) Corporate License or Permit Application . (1) General. Each corporate applicant for any license or permit defined or listed in Texas Civil Statutes, Article 8451a, The Cosmetology Act, must certify, before the license or permit is issued, that its state franchise taxes are current. Corporations exempt from the payment of the franchise tax and out- of-state corporation must certify that they are exempt and specify the reason. (2) A false statement regarding corporate franchise tax status will subject the corporation to suspension or cancellation of the license or permit. (m) Corporate Contractors Doing Business with the Cosmetology Commission . (1) General. Each corporate contractor doing business with the Cosmetology Commission must certify, before the contract is executed, that its franchise taxes are current. Corporations exempt from the payment of the franchise tax and out-of-state corporation must certify that they are exempt and specify the reason. (2) False Statements. A false statement regarding corporate franchise tax status will be treated as a material breach of contract and may be grounds for its cancellation at the option of the State. (n) Exemption. Persons licensed in this state to practice medicine, surgery, dentistry, podiatry, osteopathy, chiropractic, or nursing who practiced any phase of cosmetology as authorized in Texas Civil Statutes, Article 8451a, sec.39(2) (relating to Exemptions), may no longer continue this practice without a current license from the Texas Cosmetology Commission unless they are operating within the scope of their license. 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 February 28, 1995. TRD-9502532 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: March 21, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 454-4674 22 TAC sec.sec.89.17, 89.20, 89.31, 89.33, 89.35, 89.39, 89.53, 89.55, 89.76 The Texas Cosmetology Commission adopts amendments to sec. 89.17, concerning instructor applicants; sec.89.20, concerning length of courses; sec.89.31, concerning examination; sec.89.33, concerning cosmetology instructor, manicure instructor, facial instructor exam; sec.89.35, concerning uniforms; sec.89.39 concerning new salon requirements; sec.89.53, concerning minimum requirements for both private and public cosmetology schools; sec.89.55, concerning refresher course; and sec.89.76, concerning minimum requirements for cosmetology school separate facility, without changes to the text as published in the January 13, 1995, issue of the Texas Register (20 TexReg 193). These rules are being amended to ensure that all certificate holders and licensees comply with the requirements of the rules of the commission. These rules define the courses of study to become licensed and the process for obtaining facility licenses. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 8451a, sec.4(a), which provide the Texas Cosmetology Commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and welfare. 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 February 28, 1995. TRD-9502533 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: March 21, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 454-4674 22 TAC sec.89.54 The Texas Cosmetology Commission adopts an amendment to sec.89.54, concerning independent contractor/booth rental license, with changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 273). The rule is being amended to ensure that all independent contractors/booth renters comply with the requirements of the rules of the commission. The rule defines the requirements for independent contractors/booth renters. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8451a, sec.4(a) which provide the Texas Cosmetology Commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and welfare. sec.89.54. Independent Contractor/Booth Rental License . (a) To qualify as an independent contractor an applicant must make application for a booth rental salon license and have an area clearly defined that is their responsibility as far as sanitation is concerned. (1) Independent contractor in a cosmetology salon requirements: (A) one work station; (B) one styling chair ; (C) one wet disinfectant soaking container; (D) one dry storage container for disinfected implements ; (E) covered trash container . (2) Independent contractor in a facial salon : (A) one facial couch and facial chair; (B) one wet disinfectant soaking container ; (C) one dry storage container for disinfected implements ; (D) one mirror, wall hung, or 1 hand held mirror ; (E) covered trash can . (3) Independent contractor in a manicure salon : (A) one manicure table with light ; (B) one manicure stool ; (C) one professional type chair ; (D) one wet disinfectant soaking container; (E) one dry storage container for disinfected implements ; (F) covered trash can. (b) (No change.) (c) To qualify as an independent contractor the following guidelines apply: (1) Any person licensed by the Texas Cosmetology Commission, responsible for reporting their own taxes(IRS), social security taxes, unemployment taxes (TEC), or any other self employment taxes must obtain an independent contractor/booth rental license; (2) the independent contractor has sufficient floor space and equipment within their jurisdiction to adequately carry out the duties of his/her license; (3) independent contractors advertise only his/her own services, and/or has individual business cards; (4) independent contractor must control his/her own business hours; (5) independent contractors represent themselves to the public that they are independent contractors; and (6) a written contract is in effect with the lessor and the lessor does not exercise any control over the independent contractor. (d)-(e) (No change.) (f) Independent contractors must post in a location visible at all times the following information: (1) Operator's name. (2) Operator's license number. (3) Hours of business. (g) The lessor to an independent contractor must maintain a list of all renters that includes: (1) Name of the renter. (2) Cosmetology license number of the renter. (3) Hours of business of the renter. (h) The lessor must supply the inspector with a list of renters upon request. Failure to provide the list can result in a violation of such significance to require a hearing. 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 February 28, 1995. TRD-9502531 Dick G. Strader Executive Director Texas Cosmetology Commission Effective date: March 21, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 454-4674 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services Subchapter J. Ambulance Services On behalf of the State Medicaid Director, the Texas Department of Health adopts the repeal of existing sec.29.901 and sec.29.902, and new sec.sec.29.901- 29. 903, concerning ambulance services for Medicaid clients without changes to the proposed text as published in the December 13, 1994, issue of the Texas Register (19 TexReg 9831). The new sections clarify and streamline policies governing ambulance services for clients and providers. The new sections define terms associated with the program, specify additional claim information requirements intended to support the determination of the appropriateness and medical necessity of ambulance transports, and clarify criteria for emergency and nonemergency ambulance transports. A summary of the comments and the department's responses to the comments follows. Comment: Concerning sec.29.901, one commenter requested a clarification of the method the department uses to determine the "nearest appropriate facility. " Response: The department's designee identifies the nearest appropriate facility by determining the nearest Medicaid-enrolled medical facility that is equipped to provide medical care for the illness or injury of the Medicaid client involved. It is the institution, equipment, personnel, capability to provide the services necessary to support the required medical care, and the distance to the facility that determine whether a facility is appropriate. Mileage determinations are based on The Official State Mileage Guide of the State of Texas. Comment: Concerning sec.29.901, one commenter requested that the definition of the term "severely disabled" include a clarification that the client must be "bed-confined at the time of transport." Response: The intent of the department in requiring that the client's condition meets at least one of the defining criteria for "severely disabled" is to ensure that non-emergency transports are both appropriate and medically necessary. In effect, the condition of the Medicaid client is such that the use of any other method of transportation is contraindicated and, in the case of a client who is severely disabled, there is no other suitable transportation. The department is aware that the condition of the client may change at any time. Therefore, the department considers the criteria for a non-emergency transport to relate to the condition of the client at the time of the transport. However, to ensure the appropriateness and medical necessity of non-emergency transports, the department would also like to emphasize that the decision on whether a non- emergency transport is appropriate and medically necessary is based on the supporting documentation submitted by the ambulance provider with the claim for services. The department did not make a change as a result of the comment, however, the criteria will be monitored and future modifications will be considered if warranted. Comment: Concerning sec.29.902(4), one commenter requested a clarification of the example "traffic patterns." Response: "Traffic patterns" relate to the current traffic patterns affecting the ground transport of a client to the nearest appropriate facility. Comment: Concerning sec.29.903(1), one commenter stated that the Client Acknowledgment Statement makes the provider of services responsible for services that were requested/ordered by an attending physician. It requires the provider and the Medicaid client to question the medical decision of the physician. Response: The department disagrees with this comment. The Client Acknowledgment Statement is not specific to services delivered through the Ambulance Program. It is a universal statement applicable to all Medicaid-covered services and is intended to inform the client that the client may be liable for any service requests that are deemed not to be appropriate or medically necessary. The department's intent in having the ambulance provider obtain the signed statement for non-emergency transports is to assist the department in ensuring that the client is informed of his potential liability, and to assist the provider in determining when the provider may bill the client for a transport. Comments were received from the Texas Ambulance Association and one ambulance provider. The commenters were in support of the new sections, however, both requested clarification of specific sections. 25 TAC sec.29.901, sec.29.902 The repeal is adopted under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 March 1, 1995. TRD-9502617 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 1, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 25 TAC sec.sec.29.901-29.903 The new sections are adopted under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 March 1, 1995. TRD-9502616 Susan K. Steeg General Counsel Texas Department of Health Effective date: April 1, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 Chapter 31. Special Supplemental Nutrition [Food] Program for Women, Infants, and Children (WIC) 25 TAC sec.31.2 The Texas Department of Health (department) adopts under federal mandate an amendment to sec.31.2, concerning the Special Supplemental Nutrition Program for Women, Infants and Children (WIC). Section 31.2 adopts by reference the Fiscal Year 1995 WIC State Plan of Operations. The amendment to federal regulations in 7 Code of Federal Regulation (CFR), Part 246, require the United States Department of Agriculture (USDA) to approve an annual update of the WIC State Plan of Operations. The amendment covers the annual update for the fiscal year 1995, which was approved by the USDA effective October 1, 1994. The amendment covers the following policy changes as a result of changes to federal regulations in 7 CFR, Part 246, as amended by the Final Coordination Rule for the Special Supplemental Nutrition Program for Women, Infants, and Children, effective March 11, 1994. The first policy change, regarding adjunctive income eligibility, ensures that eligible WIC participants receive a full certification period as long as they remain adjunctively income eligible, or income eligible. The second policy change, concerning the definition of income, excludes additional sources of income, such as payments to various Indian tribes, and payments received through the Disaster Relief Act of 1974 and the Agent Orange Compensation Exclusion Act, for certification purposes when determining income eligibility. The third policy change, concerning the provision of information about food stamps, Aid to Families with Dependent Children (AFDC), Medicaid, Early and Periodic Screening, Diagnosis and Treatment (EPSDT), and child support enforcement information to WIC participants, adds a requirement that written information about the EPSDT program and Medicaid income limits for pregnant women, infants, and children up to five years of age must be provided on a least one occasion to each adult participant and to each applicant for the WIC program. The fourth policy change authorizes the state agency to decide whether, in the interest of program effectiveness and efficiency, to conduct reviews more frequently than once every two years. The following additional policy changes were authorized by the "Healthy Meals for Healthy Americans Act of 1994" which amended the Child Nutrition Act of 1966 and reauthorized the WIC program. The revised policy regarding the definition of an "economic unit" for determination of income eligibility allows a pregnant woman to satisfy the standards by increasing the number of individuals in her family by one individual, if she is ineligible for participation in the program because her family is too small. The name of the WIC program has been changed from the Special Supplemental Food Program for Women, Infants and Children to the Special Supplemental Nutrition Program for Women, Infants and Children. The following amendment is a result of the review by USDA of the 1995 WIC State Plan of Operations. Under the first policy change, food vouchers will no longer be mailed if, by doing so, the number of required nutrition contacts per certification period will not be met. Additionally, vouchers will be mailed only by first class mail and will be stamped "Do Not Forward" to ensure accountability. The second policy change requires local agency staff to inform proxies of procedures concerning redeeming food vouchers, the nutrition education aspects of the program, and their right to make a complaint when those proxies document their participation in the program on behalf of clients. The amendments are adopted under federal mandate for the following reasons. Under federal and state enabling legislation (the Child Nutrition Act of 1966, Title 42, United States Code, sec.1786; and the Texas Omnibus Hunger Act of 1985, Acts 1985, 69th Legislature, Chapter 150, Title II), the WIC Program is 99% federally funded and governed by federal regulations. Funds are made available to the department by a federal grant. The federal statute (42 United States Code, sec.1786), federal regulations (7 CFR, Part 246), and the federal grant (Federal-State Special Supplemental Food Program Agreement) authorize the USDA to make the funds available to the department to administer the WIC Program in the State of Texas, provided that the department administers the program in accordance with the federal regulations. The amendment is adopted under Health and Safety Code, sec.12.001(b), which provides the Texas Board of Health (board) with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.31.2. WIC State Plan of Operations. (a) The Texas Department of Health (department) adopts by reference the publication titled "WIC State Plan of Operations", as amended in October, 1994. This plan has been developed by the department's WIC Program and approved by the United States Department of Agriculture. (b) (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 authority. Issued in Austin, Texas, on February 27, 1995. TRD-9502451 Susan Steeg General Counsel Texas Department of Health Effective date: March 19, 1995 Proposal publication date: N/A For further information, please call: (512) 458-7236 Chapter 123. Respiratory Care Practitioner Certification The Texas Department of Health (department) adopts the repeal of sec.123.3 and new sec.123.3, concerning the Respiratory Care Practitioners Advisory Committee. New sec.123.3 is adopted with changes to the proposed text as published in the December 27, 1994, issue of the Texas Register (19 TexReg 10291). The repeal of sec.123.3 is adopted without changes and will not be republished. The new section covers the committee, applicable law, purpose, tasks, review and duration, terms of office, officers, meetings, attendance, staff, procedures, subcommittees, statements by members, reports to the board, and reimbursement of members' expenses. The repeal allows the adoption of the new section which implements Texas Civil Statutes, Article 6252-33, which requires the department to determine whether its committees should be continued, modified, consolidated with other committees, or abolished. The board has determined that the committee should continue. The new section establishes procedural requirements for the committee. A summary of the comments received and the department's response to the comments follows: Comment: Concerning the title of the section and references to the advisory committee throughout, a comment was received that "advisory board" should be replaced by "advisory committee." Response: The department agrees and has changed the references throughout the section. The department has also added subsection (q) to reflect the clarification. Comment: A commenter requested that the statutory authority for the establishment of the committee be clarified. Response: The department agrees and has changed the wording in subsection (a)(2). 25 TAC sec.123.3 The repeal is adopted under Texas Civil Statutes, Article 6252-33, which sets standards for the evaluation of advisory committees by the agencies for which they function; Health and Safety Code, sec.11.016 which allows the board to establish advisory committees; and under Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. 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 February 27, 1995. TRD-9502454 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 20, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 458-7236 The new section is adopted under Texas Civil Statutes, Article 6252-33, which set standards for the evaluation of advisory committees by the agencies for which they function; Health and Safety Code, sec.11.016, which allows the board to establish advisory committees; and under Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.123.3. Respiratory Care Practitioners Advisory Committee. (a) The committee. An advisory committee shall be appointed under and governed by this section. (1) The name of the committee shall be the Respiratory Care Practitioners Advisory Committee (committee). (2) The committee is established under the Health and Safety Code, sec.11.016 which allows the Texas Board of Health (board) to establish advisory committees. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33 relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to recommend rules and examinations for the approval of the board. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the certification of respiratory care practitioners. (2) The committee shall carry out any other tasks given to the committee by the board. (e) Review and duration. By November 1, 1999, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date. (f) Composition. The committee shall be composed nine members appointed by the board. The composition of the committee shall include: (1) three consumer representatives; (2) one physician who is a qualified chest physician; (3) one physician who is a qualified anesthesiologist; (4) one physician who is a qualified expert in thoracic medicine; and (5) three certified respiratory care practitioners. (g) Terms of office. The term of office of each member shall be six years. (1) Members shall be appointed for staggered terms so that the terms of three members will expire on January 1st of each even-numbered year. (2) If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of Texas Department of Health (department) staff and either the presiding officer or at least three members of the committee. (2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with quorum present. (7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Staff support for the committee shall be provided by the department. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any action taken by the committee must be approved by a majority vote of the members present once quorum is established. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in anyway by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each January. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. (q) Any reference in this chapter to the Respiratory Care Practitioners Advisory Board shall mean Respiratory Care Practitioners Advisory Committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 27, 1995. TRD-9502455 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 20, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 458-7236 Chapter 143. Medical Radiologic Technologist The Texas Department of Health (department) adopts the repeal of sec.143.3 and new sec.143.3, concerning the Medical Radiologic Technologist Advisory Committee. The new sec.143.3 is adopted with changes to the proposed text as published in the December 27, 1994, issue of the Texas Register (19 TexReg 10296). The repeal of existing sec.143.3 is adopted without changes and will not be republished. The new section covers applicable law, purpose, tasks, review and duration, composition, terms of office, officers, meetings, attendance, staff, procedures, subcommittees, statements by members, reports to the board and reimbursement of members' expenses. The repeal allows the adoption of the new section. The new section is a result of actions taken in accordance with Texas Civil Statutes, Article 6252-33, which required the department to determine whether its advisory committees should be continued, modified, consolidated with other committees, or abolished. The committee's structure was revised to create a better balance between professional and public members and reduce the number of members from 12 to 9. A summary of the comments received and the department's response to the comments follows. Comment: Concerning the title of the section and references to the advisory committee throughout, a comment was received that "advisory board" should be replaced by "advisory committee." Response: The department agrees and has changed the references throughout the section. A new subsection (q) was also added for clarification purposes. Comment: A commenter requested that the statutory authority for the establishment of the committee be clarified. Response: The department agrees and has changed the wording in subsection (a)(2). 25 TAC sec.143.3 The repeal is adopted under Texas Civil Statutes, Article 6252-33, which sets standards for the evaluation of advisory committees by the agencies for which they function; Health and Safety Code, sec.11.016 which allows the board to establish advisory committees; and the Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. 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 February 28, 1995. TRD-9502609 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 22, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 458-7236 25 TAC sec.143.3 The new section is adopted under Texas Civil Statutes, Article 6252-33, which set standards for the evaluation of advisory committees by the agencies for which they function; Health and Safety Code, sec.11.016, which allows the board to establish advisory committees; and the Health and Safety Code, sec.12. 001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.143.3. Medical Radiologic Technologist Advisory Committee. (a) The committee. An advisory committee shall be appointed under and governed by this section. (1) The name of the committee shall be the Medical Radiologic Technologist Advisory Committee. (2) The committee is established under the Health and Safety Code, sec.11.016 which allows the Board of Health (board) to establish advisory committees. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33 relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to recommend rules and examinations for the approval of the board. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the certification of medical radiologic technologists and limited medical radiologic technologists. (2) The committee shall carry out any other tasks given to the committee by the board. (e) Review and duration. By November 1, 1999, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee or abolished. If the committee is not continued or consolidated, the committee will be abolished on that date. (f) Composition. The committee shall be composed of nine members appointed by the board. The composition of the committee shall include: (1) two consumers; (2) one licensed physician who is a radiologist; (3) one licensed medical physicist or a hospital administrator; (4) three certified medical radiologic technologists; (5) one certified medical radiologic technologist whose primary practice is in nuclear medicine technology; and (6) one certified medical radiologic technologist whose primary practice is in radiation therapy. (g) Terms of office. The term of office of each member shall be six years. (1) Members shall be appointed for staggered terms so that the terms of three members will expire on January 1 of each even numbered year. (2) If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of Texas Department of Health (department) staff and either the presiding officer or at least three members of the committee. (2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with quorum present. (7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, is absent from more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Staff support for the committee shall be provided by the department. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any action taken by the committee must be approved by a majority vote of the members present once quorum is established. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in anyway by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the board each January. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. (q) Any references in this chapter to the Medical Radiologic Technologist Advisory Board shall mean Medical Radiologic Technologist Committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 28, 1995. TRD-9502610 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 22, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 7. Corporate and Financial Regulation Subchapter M. Regulatory Fees 28 TAC sec.7.1301 The Texas Department of Insurance adopts an amendment to sec.7.1301, concerning regulatory fees to be charged all authorized insurers writing classes of insurance in Texas, with changes to the proposed text as published in the January 13, 1995, issue of the Texas Register (20 TexReg 211). The amendment is necessary to implement House Bill 1461, 73rd Legislature, which amended Insurance Code, Article 4.07, to require that all authorized insurers writing classes of insurance in Texas be charged fees for the use of the state in an amount to be determined by the Texas Department of Insurance. The amendment also reflects the updated title of the Texas Department of Insurance and corrects a typographical error in sec.7.1301(d)(13). The amendment to sec.7.1301 will require all authorized insurers writing classes of insurance in Texas to pay fees for various filings in an amount to be determined by the Texas Department of Insurance. Those fees are set in sec.7. 1301, and the amendment does not alter the amounts of the fees. The amendment makes all authorized insurers writing any class of insurance in Texas subject to certain filing fees, along with the classes already subject to the fees before the amendment was adopted. The authorized insurers which will now be subject to the fees are those classes of insurance in this state which are regulated by the Insurance Code, Chapters 1-3, 6-20, 20A, 22, and 23. The section is adopted with two nonsubstantive changes. Subsection (f)(3) was amended to also reflect the updated title of the Texas Department of Insurance, and subsection (d)(22) corrects a typographical error in the existing rule. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Insurance Code, Articles 1.03A and 4.07. Article 1.03A authorizes the Commissioner of Insurance to promulgate and adopt rules and regulations for the conduct and execution of duties and functions by the Department. Article 4.07 authorizes the Texas Department of Insurance to charge and receive fees for the use of the State by all authorized insurers writing classes of insurance in Texas. The proposed rule affects Insurance Code, Article 4.07. sec.7.1301. Regulatory Fees. (a) Regulated entities subject to fees. The regulated entities subject to the fees imposed by this section shall include all authorized insurers writing any class of insurance in this state which are regulated by the Insurance Code, Chapters 1-3, 6-20, 20A, 22, and 23. For filings and other actions on and after September 1, 1987, the Texas Department of Insurance shall charge these entities fees in amounts in accordance with the provisions of this section. (b) Fees for insurers with annual gross premium receipts less than $450, 000. As provided in the Insurance Code, Article 4.07, any insurer to which the Article applies and whose gross premium receipts are less than $450,000 according to its annual statement for the preceding year ending December 31, shall be required to pay only one-half the amount of the fees required to be paid under subsection (d) or subsection (e) of this section. The fees will be collected at the higher rate unless the applicant can provide the Texas Department of Insurance with satisfactory documentation that gross premium receipts were less than $450,000. (c) (No change.) (d) Fees for authorized insurers writing classes of insurance in this state which are regulated by the Insurance Code, Chapters 1-3, 6-20, 20A, 22, and 23. For the following filings and actions, the fees shall be as follows. (1) For classes of insurance for which statutory authority exists for collecting annual statement fees, the fee for filing annual statements shall be $250 unless otherwise specified. (2)-(12) (No change.) (13) For filing a direct reinsurance agreement pursuant to the Insurance Code, Article 22.19, the fee shall be $150. (14)-(21) (No change.) (22) For filing a statement pursuant to the Insurance Code, Article 21. 49-1, sec.5, if the purchase price or consideration exceeds $9,900,000, an additional $250 for each $10 million exceeding $9,900,000 but not more than a $5,000 total fee. (23)-(25) (No change.) (e) (No change.) (f) Administrative procedures. (1) When a reinsurance agreement or merger agreement is filed with the Texas Department of Insurance, as enumerated in subsection (d)(11)-(15) of this section, the ceding or merged company will be the company upon which the determination of the appropriate fee to be assessed will be based. (2) The fee relating to reinsurance transactions entered into pursuant to the Insurance Code, Article 21.49-1, sec.4, and subsection (d)(24) of this section shall be determined using the ceding company as a basis for such fee. (3) When an amendment to a reinsurance agreement between affiliated insurers is filed with the Texas Department of Insurance, as mentioned in paragraph (1) of this subsection, the ceding company will be the insurer upon which the determination of the appropriate fee to be charged will be based. (4) An amendment to the charter would constitute any change in the original charter, including, but not limited to, name change, home office change, increase in capital, conversion, and increase in lines. (5) The fee relating to affixing the official seal and certifying to the seal, shall be applied to all requests for certification, irrespective of requesting party. (6) The fees for filing an acquisition statement pursuant to the Insurance Code, Article 21.49-1, sec.5, and subsection (d)(21) and (22) of this section shall apply to and be collected from the applicant whenever: (A) the applicant is a regulated entity subject to this section; or (B) the company being acquired is a regulated entity subject to this section. (g) Fees pursuant to the Texas Health Maintenance Organization Act, sec.32. For the following filings and actions, the fees shall be as follows. (1)-(2) (No change.) (3) For all examinations made on behalf of the State of Texas by the Texas Department of Insurance or under its authority, the fee shall be in such amounts as the commissioner shall certify to be just and reasonable. (4)-(5) (No change.) (h)-(i) (No change.) (j) Fees under the Insurance Code, Chapter 3. For the following filings and actions, the fees shall be as follows. (1) For valuing policies of life insurance, and for each one million dollars of insurance or fraction thereof, $10. (2) For filing the annual statement, $250. 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 March 1, 1995. TRD-9502621 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: March 22, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 335. Industrial Solid Waste and Municipal Solid Hazardous Waste Subchapter O. Land Disposal Restrictions 30 TAC sec.335.431 The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.335.431, concerning land disposal restrictions, without changes to the proposed text as published in the January 13, 1995, issue of the Texas Register (20 TexReg 212). The adopted section adopts by reference certain federal regulations promulgated by the U.S. Environmental Protection Agency relating to hazardous waste land disposal restrictions, under Title 40 Code of Federal Regulations, Part 268. The revised rule includes a major improvement in the land disposal restrictions program that simplifies and provides consistency in these requirements through the promulgation of "universal" treatment standards; establish treatment standards for certain newly listed and identified hazardous wastes; prohibit injection into deep wells of high Total Organic Carbon ignitable wastes and Toxicity Characteristic organic pesticides, unless they are treated to meet applicable treatment standards or the deep well has received a no-migration variance; change requirements for land disposal of lab packs containing prohibited hazardous wastes; and simplify paperwork requirements. The adopted section also corrects a typographical error at subsection (d)(5). The comment period on the proposal closed February 13, 1995. Written comments were received from the Texas Chemical Council and from the Eastman Chemical Company. The commenters were supportive of the rule as proposed. One commenter noted that, with regard to the cost of implementing the land disposal restrictions, the regulated community should realize an overall cost reduction due to the benefits inherent in the federal standards which are being adopted by reference. The staff agrees with this commenter and in fact, the preamble proposed rule noted that the costs required to comply with this section "...will be significantly offset by operation cost savings brought on by the new universal treatment standards." The amendment is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 26.011, which provides the TNRCC the authority to adopt rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The amendment is also adopted under the Health and Safety Code, sec.361. 024, which provide the TNRCC the authority to adopt rules necessary to manage solid waste. 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 February 28, 1995. TRD-9502587 Kevin McCalla Acting Director, Legal Division Texas Natural Resource Conservation Commission Effective date: March 22, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 239-6087 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales And Use Tax 34 TAC sec.3.361 The Comptroller of Public Accounts adopts new sec.3.361, concerning administrative practice and procedure for denying, suspending, or revoking Texas Customs Broker's Licenses, with changes to the proposed text as published in the December 9, 1994, issue of the Texas Register (19 TexReg 9723). Due to additions to Tax Code, Chapter 151, effective June 19, 1993, it has become necessary to promulgate rules of procedure specific to customs brokers. The rule discusses contested cases, notice, and appeals. The change appears in subsection (b)(3)(C) and clarifies the submission date for evidence to be used in administrative hearings. No comments were received regarding adoption of the new section. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Tax Code, sec.151.157. sec.3.361. Practice and Procedure for Texas Customs Broker's License Denial, Suspension, and Revocation. (a) Applicability of rules of practice and procedure. The following rules of practice and procedure contained in Part I, Chapter I, Subchapter A of this title (relating to Practice and Procedures) shall apply to hearings involving the denial, revocation, or suspension of a Texas Customs Broker's License: sec.sec.1.1, 1.2, 1.4, 1.8, 1.19, 1.21-1.27, 1.29-1.36, 1.38, 1.41, and 1. 42. For information about licensing procedures and requirements, see sec.3.360 of this title (relating to Customs Brokers). (b) Special rules governing hearings on the denial, revocation, or suspension of a Texas Customs Broker's License. (1) Contested cases. A contested case is a proceeding in which the legal rights, duties, or privileges of an applicant or licensee are to be determined by the agency after an opportunity for adjudicative hearing. It includes a request for relief from actions initiated by the agency to deny, suspend, or revoke a Texas Customs Broker's License. Contested cases are within the jurisdiction of the administrative law judges. (2) Initiation of an oral hearing. (A) If the comptroller determines that an applicant is not eligible for a Texas Customs Broker's License, the applicant will be notified, in writing, by personal service, or by registered or certified mail, return receipt requested, that the application has been denied. The notice will state the reasons for the denial. The applicant may, within 15 days of the date of the notice of denial, make a written request for an oral hearing to contest the denial. If the applicant does not request a hearing within 15 days of the date of the notice of denial, the hearing is waived and a final decision will be issued. (B) If the comptroller determines that a Texas Customs Broker's License should be suspended or revoked, the comptroller will notify the licensee, in writing, by personal service or by registered or certified mail, return receipt requested, that the license will be suspended or revoked and will state the reasons for the action. The licensee may, within 15 days of the date of the notice of suspension or revocation, make a written request for an oral hearing to contest the action. If the licensee does not request a hearing within 15 days of the date of the notice of suspension or revocation, the hearing is waived and a final decision will be issued. (3) Content of request for an oral hearing. (A) A request for an oral hearing must contain the reasons the applicant or licensee disagrees with the action of the agency. The applicant or licensee must list and number the factual and legal grounds why the action of the agency should be reversed. Legal authority must be cited if the applicant or licensee disagrees with the agency's interpretation of the law. (B) Evidence regarding issues raised in the request for hearing may be obtained through: (i) a preliminary conference; and (ii) discovery. (C) Time limits on discovery or preliminary conferences will be set by the assigned administrative law judge if the parties cannot reach agreement. Evidence that a licensee or applicant will rely upon must be submitted to the assigned administrative law judge and hearings attorney at least ten days prior to the hearing date. (D) A request for hearing may be amended up to ten days prior to the time that the hearing date is set, and not later, unless by permission of the assigned administrative law judge, and unless all evidence upon which the applicant or licensee intends to rely and that was not previously filed is filed with the amended request for hearing. (4) Extensions of time. (A) A motion for extension of the due date for submitting a request for hearing on the denial of an application or on the proposed suspension or revocation of a license may be granted in case of emergency or extraordinary circumstances. A motion for extension will not be routinely granted and each request will be closely scrutinized to ensure that the applicant or licensee has made every effort to comply with the original deadline. A motion filed after the expiration of the original due date will not be considered. A motion must be directed to the chief administrative law judge or his designee, who will grant or deny the motion. (B) A motion for an extension of any other deadline will not be granted unless good cause is established and the need for the extension is not due to the moving party's neglect, indifference, or lack of diligence. A motion must be made in writing at least seven days prior to the deadline. In the event of an emergency, a motion may be accepted if it is postmarked, sent by facsimile transmission, or deposited with a private mail or courier service, postage or delivery charges paid, not later than the date of the original deadline. (5) Motion to dismiss; request for extended hearing. (A) The agency may move to dismiss the hearing on the ground that the request for hearing was not timely filed or failed to state a claim upon which relief could be granted as required by paragraph (b)(3) of this subsection. (B) An applicant or licensee who believes it will require more than two hours for a hearing must file a written request for an extended hearing at the time the request for hearing is filed, and state the reasons why more time will be required; however, any party may later request an extended hearing for good cause shown. (6) Notice of setting. Upon receipt of a timely and sufficient request for hearing, the assigned administrative law judge will send a notice to the parties giving: (A) the date, time, place, and nature of the oral hearing; (B) the legal authority and jurisdiction under which the hearing is to be held; (C) a reference to the particular statutes and rules involved; and (D) upon request, briefing and evidentiary prefiling dates, and other appropriate orders. (7) Administrative law judge to hear case. Hearings will be conducted by an assigned administrative law judge who has authority to examine witnesses, to rule on motions, and to rule upon the admissibility of evidence. The administrative law judge has the authority to continue or recess any hearing, to control the record, and to propose decisions to the comptroller. If for any reason the assigned administrative law judge cannot continue on a contested case, another administrative law judge will become familiar with the record and perform any functions remaining to be performed without the necessity of repeating any previous proceedings in the case. (8) Filing of documents. All documents submitted after the notice of setting has been issued must be filed with the assigned administrative law judge with a copy to each party. In addition to any other order by the assigned administrative law judge, the time limit for filing documents with the administrative law judge and an opposing party shall be not later than ten days prior to the hearing. (9) Continuances (postponement of hearing). A motion for continuance of a contested case set for oral hearing must be in writing and filed with the assigned administrative law judge at least seven days prior to the date that the matter is to be heard. If an emergency occurs less than seven days prior to the hearing date, a motion for continuance may be filed. The motion must show that there is good cause for the continuance and that the need is not caused by neglect, indifference, or lack of diligence. A copy of the motion must be served upon all other parties of record at the time of filing. (10) Comptroller's decision. The proposed decision of the assigned administrative law judge must be approved by the Comptroller of Public Accounts before it is given effect. The comptroller's decision will be sent to the applicant or licensee and any authorized representative. The decision is final 20 days from the date mailed, unless a motion for rehearing is filed at or before midnight of the 20th day. If the motion for rehearing is granted, the decision is vacated pending a subsequent decision upon rehearing. If the motion for rehearing is overruled, whether by order or operation of law, the decision is final on the date the motion is overruled. A final decision of the comptroller to deny, suspend, or revoke a Texas Customs Broker's License is subject to judicial review by trial de novo in the district courts of Travis County. (11) Joint hearings. An applicant, licensee, or the agency may file a written motion to have two or more cases involving only that applicant or licensee joined for purposes of hearing; or the assigned administrative law judge, acting independently, may join two or more such cases. (12) Dismissal of case. (A) If a motion to dismiss is filed upon agreement between the applicant or licensee and the agency, or upon the applicant's or licensee's decision to abandon the case, a decision will be issued that conforms with such disposition. (B) The agency may move to dismiss a case based upon agreement reached between the applicant or licensee and the agency, for failure to state a claim upon which relief can be granted as required by paragraph (3) of this subsection, or for want of prosecution. The motion must be served on the applicant or licensee and its authorized representative at its last address of record. If there is no reply from the applicant or licensee to the agency's motion to dismiss within 15 days, a decision will be issued denying the relief sought by the applicant or licensee. (C) All motions to dismiss that are based upon a representation that both parties have agreed to dismiss a contested case on the basis that all issues have been settled shall be in writing and signed by both parties or their authorized representatives. (13) Burden of proof. In all contested cases the agency has the burden of proving a prima facie case; the burden of proof then shifts to the applicant or licensee, with the standard of proof being by a preponderance of the evidence. 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 March 1, 1995. TRD-9502619 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 22, 1995 Proposal publication date: December 9, 1994 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 90. Nursing Facilities and Related Institutions The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.90. 1, 90.18-90.21, 90.41, 90.61-90.73, 90.161-90.174, 90.231, 90.232, 90.234-90. 236, 90.238, and 90.261; adopts amendments to sec.sec.90.2, 90.3, 90.11-90.17, 90. 191, 90.192, 90.214-90.217, 90.233, 90.237, 90.262, 90.263, and 90.281- 90.286; and adopts new sec.sec.90.18-90.20, 90.60, 90.70, 90.80, 90.232, and 90.234-90.236, in its Chapter 90, Intermediate Care Facilities Serving Persons with Mental Retardation or a Related Condition (ICF-MR/RC) (formerly Nursing Facilities and Related Institutions). The amendments to sec.sec.90.3, 90.12, 90.13, 90.16, 90. 17, 90.191, 90.192, 90.215, 90.217, 90.233, 90.237, 90.262, 90.263, 90.281, 90. 282, 90.285, and 90.286, and new sec.sec.90.19, 90.20, 90.60, 90.70, 90.80, 90.234, and 90.236 are adopted with changes to the proposed text published in the October 7, 1994, issue of the Texas Register (19 TexReg 8007). The repeal of sec.sec.90.1, 90.18-90.21, 90.41, 90.61-90.73, 90.161- 90.174, 90.231, 90. 232, 90.234-90.236, 90.238, and 90.261, the amendments to sec.sec.90.2, 90.11, 90. 14, 90.15, 90.214, 90.216, 90.283, and 90.284, and new sec.90.18, 90.232, and 90.235 are adopted without changes and will not be republished. DHS withdrew from consideration for permanent adoption its proposed repeal of sec.sec.90.92-90.105 and new sec.90.90, which were also proposed in the October 7, 1994, issue of the Texas Register (19 TexReg 8007) effective October 21, 1994. DHS subsequently proposed amendments to sec.sec.90.92 and 90.102 in the October 28, 1994, issue of the Texas Register (19 TexReg 8602). These amendments are adopted in this issue of the Texas Register . The justification for the repeals, amendments, and new sections is to delete nursing facility licensure standards from Chapter 90. DHS has combined the nursing facility licensure standards from old Chapter 90, Nursing Facilities and Related Institutions, with the Medicaid nursing facility certification requirements in DHS's Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification. Removing the nursing facility licensure standards from Chapter 90 leaves in that chapter licensure standards addressing only facilities serving persons with mental retardation and related conditions. Those standards have been revised to reflect changes in the nursing facility licensure standards to keep the processes similar. Additionally, editorial and organizational changes have been made. The repeals, amendments, and new sections will function by making a separate chapter of rules applicable to licensure of ICF-MR/RC facilities. No comments were received regarding the proposal; however, DHS is adopting the rules with changes as follows: Section 90.3-Edits in definitions of "resident" and "standards". Section 90.12-Deletion of specific requirements of local fire authority. Sections 90.13, 90.16, and 90.17-Changes necessary to track DHS's Nursing Facility Requirements for Licensure and Medicaid Certification (NFR/LMC). Section 90.19-Edits in subsection (c). Section 90. 20-Edits in subsection (f). Section 90.60-Edits in subsections (a)(4) and (5) and (c)(8) and (9). Section 90.70-Changes necessary to track DHS's NFR/LMC. Section 90.80- Deletion of "health department" from subsection (b)(1) and edits in (b)(3)(H). Section 90.191-Edits in subsection (f)(1). Section 90. 192-Deletion of language in subsection (e) concerning DHS's inspection summary. Section 90.215-Changes necessary to track DHS's NFR/LMC. Section 90.217-Edits in subsection (b). Section 90.233 and sec.90.234-Changes necessary to track DHS's NFR/LMC. Section 90.236 and sec.90.237-Edits in subsection (c) of each section. Section 90.262- Edits in subsection (b). Section 90.263-Edits in subsection (e). Section 90.281- Correction of Health and Safety Code reference. Section 90.282-Adds "plan of care" and "respite care". Section 90.285 and sec.90.286-Changes "institution" to "facility". Subchapter A. Introduction 40 TAC sec.90.1 The repeal is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeal implements the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502589 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 40 TAC sec.90.2, sec.90.3 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions which are specific to the subchapter. Facility-A facility serving persons with mental retardation or related conditions licensed under this chapter as described in sec.90.2 of this title (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 242. Incident-An unusual or abnormal event or occurrence in, at, or affecting the facility and/or the residents of the facility. Manager-A person having a contractual relationship to provide management services to a facility. Person-An individual, firm, partnership, corporation, association, or joint stock company, and any legal successor of those entities. Person with a disclosable interest-Any person who owns 5. 0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 242. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility. Resident-An individual who resides in a facility. Standards-The minimum conditions, requirements, and criteria with which a facility will have to comply to be licensed under this chapter. 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 March 1, 1995. TRD-9502590 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter B. Application Procedures 40 TACsec.sec.90.11-90.20 The amendments and new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments and new sections implement the Health and Safety Code, sec.sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.12. Building Approval. (a) Local fire authority. All applications for licensure must include the written approval of the local fire authority having jurisdiction that the facility and its operation meet local fire ordinances. (b) Local health authority. The following procedures allow the local health authority to provide recommendations to DHS concerning licensure of a facility. (1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility must provide to DHS a copy of a dated written notice to the local health authority that construction or modification has been or will be completed by a specific date. The sponsor must also provide a copy of a dated written notice of the approval for occupancy by the local fire marshal or local building code authority, if applicable. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. (2) Increase in capacity. The license holder must request an application for increase in capacity from DHS. DHS provides the license holder with the application form, and DHS notifies the local fire marshal and the local health authority of the request. The license holder must arrange for the inspection of the facility by the local fire marshal. Upon completion of the inspection, the license holder must notify the local health authority and DHS in writing if the facility meets local code requirements. DHS approves the application only if the facility is found to be in compliance with the standards. Approval to occupy the increased capacity may be granted by DHS prior to the issuance of the license covering the increased capacity after inspection by DHS if standards are met. (3) Change of ownership. The applicant for a change of ownership license must provide to DHS a copy of a letter notifying the local health authority of the request for a change of ownership. (4) Renewal. DHS sends the local health authority a copy of DHS's license renewal notice specifying the expiration date of the facility's current license. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. The local authority may also recommend that a state license be issued or denied; however, the final decision on licensure status remains with DHS. (5) Inspection and plan review. An applicant for licensure who has an existing building must submit either a plan for review and approval or request a feasibility inspection to be performed by DHS to determine construction or renovation requirements. The fees for inspection and plan reviews must be in accordance with sec.90.19 of this title (relating to License Fees). sec.90.13. Applicant Disclosure Requirements. (a) Scope of section. No person may apply for a license, change of ownership, increase in capacity, or renewal of a license to operate or maintain a facility without making a disclosure of information as required in this section. (b) Disclosure form. All applications must be made on forms prescribed by and available from the Texas Department of Human Services (DHS). Each application must be completed in accordance with DHS instructions, signed, and notarized. (c) General information required. An applicant must file with DHS an application which contains: (1)-(4) (No change.) (5) for initial applications and change of ownership only, evidence of the right to possession of the facility at the time the application will be granted, which may be satisfied by the submission of applicable portions of a lease agreement, deed or trust, or appropriate legal document. The names and addresses of any persons or organizations listed as owner of record in the real estate, including the buildings and grounds must be disclosed to DHS; (6) (No change.) (7) for initial applications and change of ownership only, the certificate of incorporation issued by the secretary of state for a corporation or a copy of the partnership agreement for a partnership. (d) Disclosure requirements. Applicants must disclose the following information for the two-year period preceding the application date, concerning the applicant, persons with a disclosable interest, officers, affiliates, and manager, without regard to whether the data required relates to current or previous events: (1) denial or revocation of a license to operate a nursing facility, facility serving persons with mental retardation or related conditions, personal care facility, or similar facility in any state; (2) federal or state long term care facility sanctions or penalties; (3) (No change.) (4) unsatisfied final judgments; (5) operation of a facility that has been decertified in any state under Medicare or Medicaid; (6) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (7) eviction involving any property or space used as a facility in any state; (8) orders from any court restraining or enjoining the applicant, manager, or any person with a controlling interest from operating a facility in any state; or (9) any of the adverse actions referenced in this subsection taken against the applicant by all relevant licensing and certification agencies in all other states in which the applicant owns, operates, or manages nursing facilities, facilities serving persons with mental retardation or related conditions, personal care facilities, or similar facilities in any state. The applicant must obtain letters or other documentation from those agencies attesting to the adverse actions or the absence of any such adverse actions. (e) Required ownership and management information for the past two years. (1) Each applicant for a license to operate a facility must disclose to DHS the name and business address of: (A)-(C) (No change.) (2) If any person described in this section has served or currently serves as an administrator, general partner, limited partner, trustee or trust applicant, sole proprietor, or any applicant or licensee who is a sole proprietorship, executor, or corporate officer or director of or has held a beneficial ownership interest of 5.0% or more in any other long term care facility, the applicant must disclose to DHS the relationship, including the name and current or last address of the facility and the date the relationship commenced and, if applicable, the date it was terminated. (3) If the applicant or licensee is a subsidiary of another organization, the information must include the names and addresses of the parent organization and the names and addresses of the officers and directors of the parent organization. (4) If the facility is operated by, or proposed to be operated under, a management contract, the names and addresses of any person or organization, or both, having an ownership interest of 5.0% or more in the management company must be disclosed to DHS. (5) The information required by this section must be provided to DHS upon initial application for licensure, and changes in the information must be provided to DHS on an annual basis, except that a licensee must notify DHS within 30 days of any change of the facility's manager or management services. (f) Exemptions. The provisions of this section do not apply to a bank, trust company, financial institution, title insurer, escrow company, or underwriter title company to which a license is issued in a fiduciary capacity except for provisions that require disclosure relating to the manager of the facility. sec.90.16. Change of Ownership. (a) (No change.). (b) To avoid a gap in the license because of a change in ownership of the facility, the prospective purchaser must submit to DHS a complete application for a license under sec.90.11 of this title (relating to Criteria for Licensing) at least 30 days before the anticipated date of sale or other transfer for ownership. The applicant must meet all requirements for a license. If the applicant has filed a timely and sufficient application for a license and otherwise meets all requirements for a license, DHS will issue the applicant a license effective on the date of transfer of ownership. DHS considers an individual has filed a timely and sufficient application for a license if the individual submits: (1) a complete application to DHS, and DHS receives the complete application at least 30 days before the anticipated date of sale or other transfer of ownership; (2) an incomplete application to DHS with a letter explaining the circumstances which prevented the inclusion of the missing information, and DHS receives the incomplete application and letter at least 30 days before the anticipated date of sale or other transfer of ownership; (3) a complete application to DHS, DHS receives the application during the 30- day period ending on the anticipated date of sale or other transfer of ownership, and the individual pays a fine under the administrative penalties described in sec.90.236(h)(H) of this title (relating to Administrative Penalties); or (4) an application to DHS, DHS receives the application by the date of sale or other transfer of ownership, and the individual proves to DHS's satisfaction that the health and safety of the facility residents required an emergency change of ownership. (5) If the application is postmarked by the filing deadline, the application will be considered to be timely filed if received in the Licensing Section of the state office of Long Term Care-Regulatory, Texas Department of Human Services, within 15 days of the postmark. sec.90.17. Criteria for Denying a License or Renewal of a License. (a) The Texas Department of Human Services (DHS) may deny an initial license or refuse to renew a license if an applicant, manager, or affiliate: (1) substantially fails to comply with the requirements described in sec.90.42 of this title (relating to Standards for Facilities Serving Persons with Mental Retardation or Related Conditions), including, but not limited to: (A)-(B) (No change.) (2)-(4) (No change.) (5) fails to pay the following fees, taxes and assessments when due: (A) licensing fees as described in sec.90.19 of this title (relating to License Fees); (B) reimbursement of emergency assistance funds within one year from the date on which the funds were received by the trustee in accordance with the provisions of sec.90.263(e) of this title (relating to Involuntary Appointment of a Trustee); (C) administrative penalties within 60 days of the order assessing the penalties in accordance with sec.90.236 of this title (relating to Administrative Penalties); or (D) (No change.) (6) discloses any of the following actions within the two-year period preceding the application: (A) (No change.) (B) federal or state long term care facility sanctions or penalties, including, but not limited to, vendor holds, monetary penalties, downgrading the status of a facility license, proposals to decertify, directed plans of correction, or the denial of payment for new Medicaid admissions; (C)-(F) (No change.) (b)-(e) (No change.) (f) DHS will not approve as meeting licensing standards new beds or the expansion of a facility serving persons with mental retardation or related conditions that participates in the medical assistance program under Title XIX of the Social Security Act, as provided by the Health and Safety Code, sec.222. 042, unless: (1) the new beds or the expansion was included in the plan approved by the Health and Human Services Commission in accordance with Health and Safety Code, sec.533.061; and (2) (No change.) (g) If DHS denies a license or refuses to issue a renewal of a license, the applicant or licensee may request an administrative hearing. Administrative hearings will be held in accordance with DHS's formal hearing procedures under sec.sec.79.1601-79.1614 of this title (relating to Formal Hearings) and the Administrative Procedures Act (APA), Title 10 of the Texas Government Code, sec.sec.2001.051 et seq. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502591 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 40 TAC sec.sec.90.18-90.21 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec.sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502592 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter C. Standards for Licensure 40 TAC sec.90.41 The repeal is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeal implements the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502593 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter D. General Requirements for Facility Construction 40 TAC sec.sec.90.60, 90.70, 90.80 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The new sections implement the Health and Safety Code, sec.sec.242.001- 242.186, and the Human Resources Code, sec. sec.22.001-22.024. sec.90.60. Plans, Approvals, and Construction Procedures. (a) Submittal of preliminary plans. (1) When construction is contemplated for new buildings, additions, conversion of buildings not licensed by the Texas Department of Human Services (DHS) (including formerly licensed facilities), or remodeling of existing licensed facilities, one copy of the preliminary proposed plans must be submitted to DHS (Architectural Section) for review prior to the preparation of working drawings. For additions, an overall plan similar to that described in sec.90.80(c)(3) of this title (relating to Construction and Initial Survey of Completed Construction) must be included. (2) Fees for plan reviews will be required in accordance with sec.90.70 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). (3) The project will be considered abandoned and the plans will be destroyed if final plans are not submitted to DHS within 24 months from the submittal date of the preliminary plans for review and approval. (4) The plans must be drawn to scale and must indicate the usage of all spaces, sizes of areas and rooms, and the type and location of fixed equipment. New construction or additions must include a site plan showing all pertinent conditions including grades and all structures on the site. Written approval of the local building department and the local fire marshal must be submitted. (5) A general description of the surrounding area and vicinity including, but not limited to, commercial, residential, rural, and shopping areas, and available transportation must be furnished for new locations. (b) Submittal of final plans. (1) Before construction is begun, one copy of working drawings and specifications (contract documents) in sufficient detail to interpret compliance with these standards and assure proper construction must be submitted to DHS for review within 60 days of receipt of such documents and required plan review fee. These documents must be prepared according to accepted architectural practice and must include general construction, special conditions, schedules, and any other pertinent information that DHS may require. In addition, two extra copies of the floor plan (only) must be submitted with the complete set. (2) The project will be considered abandoned and the plans destroyed if the project is not under construction and continuing progress shown 12 months from the date of the final review of the plans. Resubmittal of plans and full plan review fee will again be required if, after the abandonment period, the project will be constructed. Fees will be as required in accordance with sec.90.70 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). (3) Final copies of plans must have (in the reproduction process by which plans are reproduced) a title block showing name of facility, person or organization preparing the sheet, sheet numbers, facility address, and drawing date. Certain parts of final plans, designs, and specifications must bear the seal of a registered professional engineer approved by the State Board of Registration for Professional Engineers to operate in Texas. These certain parts include sheets and sections covering structural, electrical, mechanical, and sanitary engineering. Contract documents for additions and remodeling and for the construction of an entirely new facility must be prepared by an architect licensed by the Texas State Board of Architectural Examiners. Drawings must bear the seal of the architect. (4) A final plan for a major addition to a facility must include a basic layout to scale of the entire building onto which the addition connects. North direction must be shown. Usually the entire basic layout can be to scale such as 1/16 inch per foot or 1/32 inch per foot for very large buildings. (5) Plans and specifications for conversions or remodeling must be complete for all parts and features involved. (6) It is the sponsor's responsibility to employ qualified personnel to prepare the contract documents for construction. If the contract documents have errors or omissions to the extent that conformance with standards cannot be reasonably assured or determined, a revised set of documents for review may be requested. For additions and remodeling to existing licensed facilities, construction must not be started until the final contract documents are reviewed and approved in writing by DHS within 60 days of receipt of final drawings and required plan review fee. (7) The review of plans and specifications by DHS is based on general utility, minimum licensing standards, and conformance with the Life Safety Code, and is not to be construed as all-inclusive approval of the structural, electrical, or mechanical components. (c) Contract documents. (1) Site plan documents must include grade contours; streets (with names); north arrow; fire hydrants; fire lanes; utilities, public or private; fences; unusual site conditions, such as ditches, low water levels, other buildings on- site; and indications of buildings five feet or less beyond site property lines. (2) Foundation plan documents must include general foundation design and details. (3) Floor plan documents must include room names, numbers, and usages; doors (numbered) including swing; windows; legend or clarification of wall types; dimensions; fixed equipment; plumbing fixtures; and kitchen basic layout; and identification of all smoke barrier walls (outside wall to outside wall) or fire walls. (4) For both new construction and additions or remodeling to existing buildings, an overall plan of the entire building must be drawn or reduced to fit on an 8 1/2 inch by 11 inch sheet; submit two reduced plans for file record. See sec.90.80(c)(3) of this title (relating to Construction and Initial Survey of Completed Construction). (5) Schedules must include door materials, widths, types; window materials, sizes, types; room finishes; and special hardware. (6) Elevations and roof plan must include exterior elevations, including material note indications and any roof top equipment; roof slopes, drains, and gas piping, and interior elevations where needed for special conditions. (7) Details must include wall sections as needed (especially for special conditions); cabinet and built-in work, basic design only; cross sections through buildings as needed; and miscellaneous details and enlargements as needed. (8) Building structure documents must include structural framing layout and details (primarily for column, beam, joist, and structural frame building); roof framing layout (when this cannot be adequately shown on cross section); cross sections in quantity and detail to show sufficient structural design and structural details as necessary to assure adequate structural design, also calculated design loads. (9) Electrical documents must include electrical layout, including lights, convenience outlets, equipment outlets, switches, and other electrical outlets and devices; service, circuiting, distribution, and panel diagrams; exit light system (exit signs and emergency egress lighting); emergency electrical provisions (such as generators and panels); fire alarm and similar systems (such as control panel, devices, and alarms); sizes and details sufficient to assure safe and properly operating systems; and a staff communication system. (10) Plumbing documents must include plumbing layout with pipe sizes and details sufficient to assure safe and properly operating systems, water systems, sanitary systems, gas systems, other systems normally considered under the scope of plumbing, fixtures, and provisions for combustion air supply. (11) Heating, ventilation, and air-conditioning (HVAC) documents must include sufficient details of HVAC systems and components to assure a safe and properly operating installation including, but not limited to, heating, ventilating, and air-conditioning layout, ducts, protection of duct inlets and outlets, combustion air, piping, exhausts, and duct smoke and/or fire dampers; and equipment types, sizes, and locations. (12) Sprinkler system documents must include plans and details of NFPA designed systems; plans and details of partial systems provided only for hazardous areas; electrical devices interconnected to the alarm system. (13) Other layouts, plans, or details as may be necessary for a clear understanding of the design and scope of the project; including plans covering private water or sewer systems must be reviewed by the local health or wastewater authority having jurisdiction. If no local authority, then the plans will be reviewed by DHS. (14) Specifications must include installation techniques, quality standards and/or manufacturers, references to specific codes and standards, design criteria, special equipment, hardware, painting, and any others as needed to amplify drawings and notes. sec.90.70. Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services. (a) Under Texas Civil Statutes, Article 4413(502) historical note (Vernon Supplement 1994) (Act of August 9, 1991, 72nd Legislature, First Called Session, Chapter 15, sec.1.11, 1991 Texas General Laws 298), the Texas Department of Human Services (DHS) has the authority to charge fees for providing services described in this section. Pursuant to this authority, DHS establishes the fees, as shown in the fee schedule in subsection (j) of this section, to cover plan review services, construction inspection services, and feasibility inspection services. The fees are designed not to exceed the costs to DHS to provide these services. (b) When DHS finds in a licensed facility a violation of standards and when plans are submitted for the purpose of showing how the violation will be corrected, there will be no fee for such plan review. There will similarly be no fee for a construction visit made pursuant to a plan review. (c) The plan review fees shown in the fee schedule in subsection (j) of this section cover the review of plans in all the stages of development. (d) In determining the cost of additions or remodeling, only the direct construction costs need to be considered, that is, construction contract amount plus any add-on costs by contractor or owner during construction. Costs do not include land acquisition, architectural/engineering fees, financing, legal fees, fund raising fees, furnishings, or movable equipment. (e) Remodeling is the construction, removal, or relocation of walls and partitions; the construction of foundations, floors, or ceiling-roof assemblies; the expanding or altering of safety systems (including, but not limited to, sprinkler, fire alarm, and emergency systems); or the conversion of space in a facility to a different use. (f) General maintenance and repairs of existing material and equipment, repainting, applications of new floor, wall, or ceiling finishes, or similar projects are not included as remodeling, unless as a part of new construction. DHS must be provided flame spread documentation for new materials applied as finishes. (g) Fees are due for payment as follows: (1) when plan development has reached the preliminary plan stage and preliminary plans are submitted for review, 30% of the plan review fee must accompany the plans. Before final plans are reviewed, the full fee, if preliminary plans were not submitted, or the balance of the plan review fee must be paid; (2) construction inspection fees for new facilities and for additions or remodeling of existing licensed facilities are due for payment before the facility is licensed or otherwise accepted by DHS under licensure; and (3) feasibility inspection fees are due for payment prior to the inspection being made. (h) Payment of fees must be by check or money order made payable to the Texas Department of Human Services. All fees are nonrefundable except as provided by Texas Government Code, Chapter 2005. (i) If the facility or institution requests construction inspections beyond those called for in the schedule, the appropriate additional fees must be submitted. If DHS elects to make additional construction inspections, there will be no charge for these inspections. (j) The fee schedule is as follows: Figure 1: 40 TAC sec.90.70(j) sec.90.80. Construction and Initial Survey of Completed Construction. (a) Construction phase. (1) The Texas Department of Human Services (DHS) must be notified in writing of construction start. (2) All construction must be done in accordance with the completed plans and specifications as submitted for review and as modified in accordance with review requirements. Any deviations therefrom must have prior DHS approval. Revised drawings may be required if the change is significant. (3) A preliminary stage construction inspection is required for most construction work unless otherwise instructed by DHS. A minimum of three weeks notification prior to applying interior wall and ceiling surfaces (except for smoke barrier wall surfaces which must be completed) must be given so that the inspector may schedule the preliminary visit. (b) Initial survey of completed construction. (1) Upon completion of construction, including grounds and basic equipment and furnishings, a final construction inspection (initial survey) of the facility is required to be performed by DHS (architectural section) prior to admitting residents. A minimum of three weeks advance notice is needed. The completed construction must have the written approval of the local authorities having jurisdiction, including the fire marshal, and building inspector. (2) After the completed construction has been surveyed by a representative of the architectural section of DHS and found acceptable, this information will be conveyed to the licensing officer as part of the information needed to issue a license to the facility. In the case of additions or remodeling of existing facilities, a revision or modification to an existing license may be necessary. Note that the building, grades, drives, parking and grounds must be essentially 100% complete at the time of this initial survey visit for occupancy approval and licensing, including basic furnishings and operational needs. (3) The following documents must be available to DHS's architectural inspecting surveyor at the time of the survey of the completed building: (A) written approval of local authorities as called for in paragraph (1) of this subsection; (B) written certification of the fire alarm system by the installing agent (Form FML-009 of the Texas State Fire Marshal); (C) documentation of materials used in the building which are required to have a specific limited fire or flame spread rating, including, but not limited to, special wall finishes or floor coverings, flame retardant curtains (including cubicle curtains), and rated ceilings. This must include a signed letter from the installer verifying that the material installed is the same material named in the laboratory test document; (D) approval of the completed sprinkler system installation by the Texas Department of Insurance or the designing engineer. A copy of the material list and test certification must be available; (E) service contracts for maintenance and testing of systems, including, but not limited to, alarm systems and sprinkler systems; (F) a copy of gas test results of the facility's gas lines from the meter; (G) a written statement from an architect/engineer stating that, to the best of his/her knowledge, the building was constructed in accordance with the approved drawings; and (H) any other such documentation as needed. (c) Non-approval of new construction. (1) If, during the initial on-site survey of completed construction, the surveyor finds certain basic requirements not met, he may recommend to DHS that the facility not yet be licensed and approved for occupancy. Such basic items may include the following: (A) substantial changes made during construction which were not submitted to DHS for review and which may require revised as-built drawings to cover the changes. This may include architectural, structural, mechanical, and electrical items (reference subsection (a)(2) of this section); (B) construction which does not meet minimum code or licensure standards for basic requirements such as corridor widths being less than eight feet clear width, ceilings installed at less than the minimum seven feet six inches height, resident bedroom dimensions less than required width, and other such features which would disrupt or otherwise adversely affect the residents and staff if corrected after occupancy; (C) no written approval by local authorities; (D) fire protection systems not completely installed or not functioning properly including, but not limited to, fire alarm systems, emergency power and lighting, and sprinkler systems; (E) required exits are not all usable according to Life Safety Code requirements; (F) telephone not installed or not properly working; (G) sufficient basic furnishings, essential appliances and equipment are not installed or not functioning; and (H) any other basic operational or safety feature which the surveyor, as the authority having jurisdiction, encounters which in his/her judgment would preclude safe and normal occupancy by residents on that day. (2) If the surveyor encounters deficiencies that do not affect the health and safety of the residents, licensure may be recommended based on an approved written plan of correction by the facility's administrator. (3) Copies of reduced size floor plan (on an 8 1/2 inch by 11 inch sheet) must be submitted in duplicate to DHS for record/file use and for such uses by the facility as evacuation planning and fire alarm zone identification. The plan must contain basic legible information such as overall dimensions, room usage names, actual bedroom numbers, doors, windows, and any other pertinent information. (d) Feasibility inspections. A feasibility inspection may be requested on any existing structure that is proposed to be converted to a facility. This inspection must be requested through DHS. A fee will be charged as required by sec.90.70 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). 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 March 1, 1995. TRD-9502594 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter D. Facility Construction Construction Standards for Additions, Remodeling, and New Nursing Facilities 40 TAC sec.sec.90.61-90.73 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502595 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 40 TAC sec.90.92, sec.90.102 The Texas Department of Human Services (DHS) adopts amendments to sec.90. 92 and sec.90.102, concerning introduction, application, and general requirements for facilities serving persons with mental retardation or related conditions; and plumbing (all facilities), in its Intermediate Care Facilities Serving Persons with Mental Retardation or a Related Condition rule chapter (formerly Nursing Facilities and Related Institutions), with changes to the proposed text as published in the October 28, 1994, issue of the Texas Register (19 TexReg 8602). The justification for the amendment to sec.90.92 is to state that Intermediate Care Facilities for the Mentally Retarded with 16 beds or fewer must meet the evacuation requirement for their designated rating under the National Fire Protection Association. The justification for the amendment to sec.90.102 is to update references to the Texas Natural Resource Conservation Commission. The amendments will function by updating rule language in these sections. No comments were received regarding adoption of the amendments; however, DHS is adopting sec.sec.90.92(b)(2) and 90.102 with editorial changes. The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.92. Introduction, Application, and General Requirements for Facilities Serving Persons with Mental Retardation or Related Conditions. (a) (No change.) (b) Purpose. (1) (No change.) (2) The method of determining the evacuation capability of residents under NFPA 101, Chapter 21, is by rating each resident and each staff member to determine an evacuation difficulty score (E-score). If the E-score is 1.5 or less, the evacuation capability of the facility is prompt, greater than 1.5 to five is slow, greater than five is impractical. The worksheets to be completed are located in NFPA 101, 1985 Edition, Appendix F. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) with 16 beds or less must meet the evacuation requirement for their designated Chapter 21 rating. The ratings and their requirements follow: (A)-(C) (No change.) (3) (No change.) (c)-(f) (No change.) sec.90.102. Plumbing (All Facilities). (a) The water supply must be of safe, sanitary quality, suitable for use, and adequate in quantity and pressure. The water must be obtained from a water supply system; the location, construction, and operation of which are approved by the Texas Natural Resources Conservation Commission (TNRCC). (b) Sewage must be discharged into a state-approved sewerage system or septic system; otherwise, the sewage must be collected, treated, and disposed of in a manner which is approved by TNRCC. 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 March 1, 1995. TRD-9502588 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 28, 1994 For further information, please call: (512) 450-3765 Subchapter E. Medication Aides 40 TAC sec.sec.90.161-90.174 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502596 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter F. Inspections, Surveys, and Visits 40 TAC sec.90.191, sec.90.192 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.191. Procedural Requirements. (a) (No change.) (b) An inspection may be conducted by an individual qualified surveyor or by a team, of which one member is a qualified surveyor. (c) To determine standard compliance which cannot be verified during regular working hours, night or weekend inspections may be conducted to cover specific segments of operation and will be completed with the least possible interference to staff and residents. (d) Generally, all inspections, surveys, complaint investigations and other visits, whether routine or non-routine, made for the purpose of determining the appropriateness of resident care and day-to-day operations of a facility will be unannounced; any exceptions must be justified. (e) Certain visits may be announced, including, but not limited to, consultation visits to determine how a physical plant may be expanded or upgraded and visits to determine the progress of physical plant construction or repairs, equipment installation or repairs, or systems installation or repairs, or conditions when certain emergencies arise, such as fire, windstorm, or malfunctioning or nonfunctioning of electrical or mechanical systems. (f) Persons authorized to receive advance information on unannounced inspections include: (1) citizen advocates invited to attend inspections, as described in subsection (g) of this section; (2) representatives of the Texas Department on Aging serving as ombudsmen or authorized to attend or participate in inspections; (3) representatives of the United States Department of Health and Human Services whose programs relate to the Medicare/Medicaid Long Term Care Program; and (4) representatives of DHS whose programs relate to the Medicare/Medicaid long term care program. (g) DHS will conduct at least two unannounced inspections each licensing period for each institution licensed under Health and Safety Code, Chapter 242, except as provided for in this subsection. (1) A sufficient number of inspections will be conducted between the hours of 5:00 p.m. and 8:00 a.m. In randomly selected institutions, a cursory after-hours inspection will be conducted to verify staffing, assurance of emergency egress, resident care, medication security, food service or nourishments, sanitation, and other items as deemed appropriate. To the greatest extent feasible, any disruption of the residents will be minimal. (2) For at least two unannounced inspections each licensing period, DHS will invite to the inspections at least one person as a citizen advocate from the American Association of Retired Persons, the Texas Senior Citizen Association, the Texas Retired Federal Employees, the Texas Department on Aging Certified Long Term Care Ombudsman, or any other statewide organization for the elderly. DHS will provide to these organizations basic licensing information and requirements for the organizations' dissemination to their members whom they engage to attend the inspections. Advocates participating in the inspections must follow all DHS protocols. Advocates must provide their own transportation. The schedule of inspections in this category will be arranged confidentially in advance with the organizations. Participation by the advocates is not a condition precedent to conducting the inspection. (h) The facility must make all of its books, records, and other documents maintained by or on behalf of a facility accessible to DHS upon request. (1) DHS is authorized to photocopy documents, photograph residents, and use any other available recording devices to preserve all relevant evidence of conditions found during an inspection, survey, or investigation that DHS reasonably believes threaten the health and safety of a resident. (2) Examples of records and documents which may be requested and photocopied or otherwise reproduced are resident medical records, including nursing notes, pharmacy records medication records, and physician's orders. (3) When the facility is requested to furnish the copies, the facility may charge DHS at a rate not to exceed the rate charged by DHS for copies. The procedure of copying is the responsibility of the administrator or his designee. If copying requires the records be removed from the facility, a representative of the facility is expected to accompany the records and assure their order and preservation. (4) DHS protects the copies for privacy and confidentiality in accordance with recognized standards of medical records practice, applicable state laws, and DHS policy. (i) DHS will provide for a special team to conduct validation surveys or verify findings of previous licensure surveys. (1) At DHS's discretion, based on record review, random sample, or any other determination, DHS may assign a team to conduct a validation survey. DHS may use the information to verify previous determinations or identify training needs to assure consistency in deficiencies cited and in punitive actions recommended throughout the state. (2) Facilities are required to correct any additional deficiencies cited by the validation team but are not subject to any new or additional punitive action. sec.90.192. Determinations and Actions Pursuant to Inspections. (a) The Texas Department of Human Services (DHS) will determine if a facility meets the licensing rules, including both physical plant and facility operation requirements. (b) (No change.) (c) Violations found during complaint investigations will be furnished in writing and discussed with the facility management at the exit conference. The source of the complaint will not be revealed. (d) At the conclusion of an inspection or survey, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list (when the official final list was not issued at the exit conference) will be communicated to the facility in writing within ten working days of the exit conference, and the facility will have ten working days to reply before the additional violation is made a part of the permanent record. Copies of any narratives or similar papers written to further describe the conditions will be furnished to the facility. (e) A clear and concise summary in nontechnical language of each licensure inspection, and/or complaint investigation will be provided by DHS at the time the report of contact or similar document is provided. 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 March 1, 1995. TRD-9502597 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter G. Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations 40 TAC sec.sec.90.214-90.217 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.215. Investigations of Incidents and Complaints. (a) In accordance with the memorandum of understanding between the Texas Department of Human Services (DHS) and the Texas Department of Protective and Regulatory Services (relating to Memorandum of Understanding Concerning Protective Services for the Elderly), DHS receives and investigates reports of abuse, neglect, and exploitation of persons who are elderly and persons with disabilities or other residents living in facilities licensed under this chapter. In investigating allegations of abuse and neglect of children residing in facilities, the definitions of "abuse," "neglect," and "person responsible for a child's care, custody, or welfare" are those found in the Texas Family Code, sec.34.012. (b) DHS will investigate complaints of abuse, neglect, or exploitation when the act occurs in the facility, when such licensed facility is responsible for the supervision of the resident at the time the act occurs, or when the alleged perpetrator is affiliated with the facility. Complaints of abuse, neglect, or exploitation not meeting this criteria will be referred to the Texas Department of Protective and Regulatory Services. (c) The primary purpose of an investigation is the protection of the resident. If, before the completion of an investigation, DHS determines that the immediate removal of the resident is necessary to protect the resident from further abuse or neglect, DHS will petition a court to allow the immediate removal of the resident from the facility. (d) (No change.) (e) Investigations of reports do not preclude actions under the provisions of Subchapter H of this chapter (relating to Enforcement). (f)-(g) (No change.) sec.90.217. Reporting of Resident Death Information. (a) All licensed facilities must submit to the Texas Department of Human Services (DHS) a report of deaths of any persons residing in the facility and those persons transferred from the facilities to a hospital who expire within 24 hours after transfer. (b) The facility must submit to DHS a standard DHS form within ten workdays after the last day of the month in which a resident death occurs. The form must include: (1)-(4) (No change.) (c) These reports are confidential under the Health and Safety Code, sec.242. 134; however, licensed facilities must make available historical statistics provided to them by DHS, if requested by the applicants for admission or their representative. (d) DHS produces statistical information of official causes of death to determine patterns and trends of incidents of death and makes this information available to the public upon request. 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 March 1, 1995. TRD-9502598 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter H. Enforcement 40 TAC sec.sec.90.231, 90.232, 90.234-90.236, 90.238 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502599 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 40 TAC sec.sec.90.232-90.237 The new sections and amendment are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The new sections and amendment implement the Health and Safety Code, sec.sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.233. Revocation. (a) The Department of Human Services (DHS) may revoke a facility's license when the facility's violation of the licensure rules jeopardizes the health and safety of residents. (b) In addition, DHS may revoke a license if the license holder: (1)-(3) (No change.) (c) Revocation of a license may occur simultaneously with any other enforcement provision available to DHS. (d) The facility will be notified by certified mail of DHS's intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has an opportunity to show compliance with all requirements of law for the retention of the license as provided in sec.90.18 of this title (relating to Informal Reconsideration). If the facility requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action. (e) The facility will be notified by certified mail of DHS's intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has 15 days from receipt of the certified mail notice to request a hearing in accordance sec.sec.79. 1601-79.1614 of this title (relating to Formal Hearings). The revocation will take effect when the deadline for appeal of the revocation passes, unless the facility appeals the revocation. If the facility appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter. Upon revocation, the license must be returned to DHS. sec.90.237. Open Hearing. (a) The Texas Department of Human Services (DHS) will hold an open hearing in a facility if DHS: (1) has taken a punitive action against the facility in the preceding 12 months; or (2) receives a complaint from an ombudsman, advocate, resident, or relative of a resident relating to a serious or potentially serious problem in the facility and DHS has reasonable cause to believe the complaint is valid. (b) Only one hearing regarding a specific facility will be held each year unless DHS determines that, in the interest of resident health and safety, more should be held. (c) Notice of the time, date, and place of the hearing will be mailed, not less than ten days prior to the hearing, to: (1) the facility; (2) the designated closest living relative or legal guardian of each resident; and (3) appropriate state and federal agencies that work with the facility. (d) The facility is responsible for furnishing DHS a listing of the name and current mailing address of each resident's designated closest living relative, legal guardian, or responsible party. (e) DHS may exclude a facility's administrator and personnel from the hearing. (f) DHS will notify, confidentially, the complainant of the results of the investigation which followed the complaint. (g) DHS will notify the facility of any complaints received at the hearing and provide a summary of those complaints to the facility. In providing this information to the facility, the source of the complaints will not be identified. 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 March 1, 1995. TRD-9502600 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter I. Trustees for Facilities 40 TAC sec.90.261 The repeal is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeal implements the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. 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 March 1, 1995. TRD-9502601 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 40 TAC sec.90.262, sec.90.263 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. a Trustee by Agreement. (a) A person holding a controlling interest in a facility may, at any time, request the Texas Department of Human Services (DHS) to assume the operation of the facility through the appointment of a trustee. (b) If DHS believes that the appointment of a trustee is desirable, DHS may enter into an agreement with the person holding the controlling interest for the appointment of the trustee to take charge of the facility. (c) Any agreement entered into under this section must: (1)-(2) (No change.) (d) The agreement will terminate either at a time specified in the agreement or upon receipt of notice of intent to terminate sent by either party. (e) If DHS determines that termination of the agreement by the person holding a controlling interest in the facility would not be in the best interest of the residents, DHS will petition a court for an involuntary appointment under the terms of sec.90.263 of this title (relating to Involuntary Appointment of a Trustee). (f) The appointment of a trustee by agreement does not suspend the obligation of a facility to pay assessed civil money or administrative penalties. of a Trustee. (a) The Texas Department of Human Services (DHS) may petition a court of competent jurisdiction for the involuntary appointment of a trustee to operate a facility if one or more of the following conditions exist: (1)-(3) (No change.) (4) an emergency exists that presents an immediate threat to the health and safety of the residents; and/or (5) (No change.) (b) A trustee appointed under this section is entitled to a reasonable fee as determined by the court to be paid from the Nursing and Convalescent Home trust fund. (c) The trustee may use the emergency assistance funds in the trust fund only to alleviate an immediate threat to the health and safety of the residents, through such disbursements as payments for food; medication; sanitation services; minor repairs; supplies necessary for personal hygiene; or services necessary for the personal care, health and safety of the residents. (d) Before emergency assistance funds may be dispersed, a court order must be entered authorizing DHS to disburse emergency assistance funds to the facility. (e) A facility that receives emergency assistance funds under this section must reimburse DHS for the amounts received not later that one year after the date on which the funds were received by the trustee. The owner of the facility at the time the trustee was appointed is responsible for the reimbursement and must pay interest from the date the funds were disbursed on the amount outstanding at a rate equal to the rate of interest determined under Texas Civil Statutes, Article 5069-1.05, to be applicable to judgments rendered during the month in which the money was disbursed to the facility. DHS will deposit the reimbursement and the interest received under this subsection to the credit of the Nursing and Convalescent Home Trust Fund. (f) Any amount remaining due at the end of one year becomes delinquent and will be referred to the attorney general. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 1, 1995. TRD-9502602 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Subchapter J. Respite Care 40 TAC sec.sec.90.281-90.286 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413 (502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.242.001-242.186, and the Human Resources Code, sec.sec.22.001-22.024. sec.90.281. Generally. A facility licensed under this chapter may provide respite care for an elderly person or a person with a disability, according to a plan of care as provided under the Health and Safety Code, sec. sec.242.181- 242.186. sec.90.282. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Handicapped person -In this subchapter, the term "person with disabilities" is used in place of the term "handicapped person" as that term is used in Chapter 242 of the Health and Safety Code. Plan of care -A written description of the medical care or the supervision and nonmedical care needed for an individual during respite care. Person with disabilities-A person whose physical or mental functioning is impaired to the extent that the person needs medical attention, counseling, physical therapy, therapeutic or corrective equipment, or another person's attendance and supervision. Respite care-The provision by a facility to an individual, for not more than two weeks for each stay in the facility, of room, board, and care at the level ordinarily provided for permanent residents. sec.90.285. Inspections. The Texas Department of Human Services (DHS), at the time of a licensing inspection or at other times DHS determines necessary, inspects a facility's records of respite care services, physical accommodations available for respite care, and the plan of care records to ensure that the respite care services comply with the licensing standards of this chapter. sec.90.286. Suspension. (a) The Texas Department of Human Services (DHS) may require a facility to cease providing respite care if DHS determines that the respite care does not meet the standards required by this chapter and that the facility cannot comply with those standards in the respite care it provides. (b) DHS may suspend the license of a facility that continues to provide respite care after receiving a written order from DHS to cease, as set out in sec.90.232 of this title (relating to License Suspension). 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 March 1, 1995. TRD-9502603 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765