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 1. ADMINISTRATION Part XII. Advisory Commission on State Emergency Communications Chapter 251. Regional Plans-Standards 1 TAC sec.251.4 The Advisory Commission on State Emergency Communications adopts the repeal of sec.251.4, concerning Guidelines for the Provisioning of Ancillary Equipment as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6965). This section is being repealed to allow for the adoption of a new section that will clarify guidelines for the provisioning of equipment necessary for 9-1-1 call delivery. The guidelines are to be used in evaluating individual council of governments requests for equipment/services considered to be essential to system functions. No comments were received regarding adoption of the repeal. The repeal is adopted under the Health and Safety Code, Chapter 771, sec.sec.771.055, 771.056, 771.057, and 771.072, which authorizes ACSEC with the authority to develop and amend a regional plan as necessary within commission standards and procedures to improve 9-1-1 call delivery. It also authorizes 9-1- 1 equalization surcharge funding to be used to implement 9-1-1 regional plans that meet commission standards. 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 14, 1995. TRD-9503138 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: February 20, 1995 Proposal publication date: September 6, 1994 For further information, please call: (512) 305-6911 Part XIII. Texas Incentive and Productivity Commission Chapter 273. State Employee Incentive Program 1 TAC sec.273.9 The Texas Incentive and Productivity Commission adopts an amendment to sec.273.9, concerning employee eligibility in the State Employee Incentive Program, without changes to the proposed text as published in the February 3, 1995, issue of the Texas Register (20 TexReg 612). Section 273.9(b) amends employee eligibility requirements to clarify that employees who are temporarily members of a process improvement team are not ineligible solely on that basis to participate in the suggestion program. Subsections (c)-(e) are re-ordered accordingly. Section 273.9 may enhance participation in the cost saving program by clarifying the eligibility of those who may receive an award. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 2108, sec.2108.004, which provides the Texas Incentive and Productivity Commission with the authority to promulgate rules for the State Employee Incentive Program. 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 13, 1995. TRD-9503145 M. Elaine Powell Executive Director Texas Incentive and Productivity Commission Effective date: April 4, 1995 Proposal publication date: February 3, 1995 For further information, please call: (512) 475-2393 TITLE 22. EXAMINING BOARDS Part XII. Board of Vocational Nurse Examiners Chapter 239. Contested Case Procedure Reinstatement Process 22 TAC sec.239.54 The Board of Vocational Nurse Examiners adopts an amendment to sec.239.54, concerning reinstatement process, without changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 935). The amendment is adopted to bring this rule into consistency with other rules. Also, it clarifies additional sanctions that can be imposed following disciplinary action. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 March 13, 1995. TRD-9503120 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: April 3, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 835-2071 Part XXXII. State Board of Examiners for Speech-Language Pathology and Audiology Chapter 741. Speech-Language Pathologists and Audiologists Subchapter C. Testing Procedures and Equipment 22 TAC sec.741.32, sec.741.33 The State Board of Examiners for Speech-Language Pathology and Audiology (board) adopts amendments to sec.sec.741.32, 741.41, 741.65, 741.85, 741.162- 741. 164, and 741.193 and new sec.741.33 concerning speech-language pathologist and audiologists. Sections 741.32, 741.41, 741.65 and 741.85 and new sec.741.33 are adopted with changes to the proposed text as published in the December 13, 1994, issue of the Texas Register (19 TexReg 9828). Sections 741. 162-741.164 and 741.193 are adopted without changes and will not be republished. The sections set out testing procedures and equipment; calibration of audiometric equipment; requirements for assistant licenses and use of communication helpers; categories under which complaints may be filed; and several minor editorial changes. These sections delineate acceptable standard for calibration of audiometric equipment; clarify where an applicant for an assistant license may obtain clinical observation and practicum hours; delete all references to communication helper since this person is not licensed and, therefore, not under the purview of this board; add a new category of complaints and make several minor editorial changes. The new section establishes the requirements for a stationary acoustical enclosure and is necessary to implement legislation passed by the 73rd Legislature, 1993. The following comments were received concerning the proposed sections. COMMENT: Numerous comments were received concerning hearing screening at 20 dB as defined in sec.741.32. Commenters stated that screening had been conducted at 25 dB for over 20 years with no adverse effect. The change to 20 dB would require a quieter area in which to conduct the screening and in most cases that was not possible. Furthermore, screening at 20 dB had resulted in over-referrals which created unnecessary expense and inconvenience for parents. RESPONSE: New legislation, effective September 1, 1993, requires the board to define hearing screening for the Texas Department of Health's hearing screening training program and for registered nurses. This language was originally published as proposed rules in the November 12, 1993, issue of the Texas Register with an implementation date of August 1, 1994. The board adopted the rule that screening be conducted at 20 decibels because that is the screening level recommended by a number of studies and by the American Speech-Language- Hearing Association. No comments were received regarding the change to 20 dB at that time. The rule was adopted in the April 8, 1994, issue of the Texas Register (19 TexReg 2489). It was not until after the Texas Department of Health informed the schools of the new procedures that concern was expressed. The board met with staff from the Children's Health Division, Texas Department of Health, and representatives of the Texas Nurses Association and the Texas School Nurses Association. The commenters were concerned with the existing language in sec.741.32 that was effective as of April 13, 1994. The board agreed to withdraw the proposed amendment to sec.741. 32 and propose a new section using the language that was agreed upon by all parties. This new section will be proposed in a separate publication of the Texas Register. Upon closer review of this section, the board found that the date used to reference the American National Standards Institute was incorrect and made that correction. COMMENT: Concerning sec.741.41, staff stated that the references to the American National Standards Institute sections were published in error. The references should have used the letter "S" instead of the subsection symbol. RESPONSE: The board agreed that the reference should be "S3.6, 1969, Specification for Audiometers, or S3.6, 1989, Specification for Audiometers" and made the correction. COMMENT: Concerning sec.741.65 and sec.741.85, several commenters requested that the board provide an alternative method of obtaining the clinical observation and practicum hours required for licensure if the university or college the applicant attended did not offer this experience to undergraduate students. RESPONSE: The board agreed and added language to these sections to correct the omission. An editorial change to sec.741.33(a)(3) was made to correct the spelling of title American National Standards Institute as published in the proposed rules. Groups or associations that commented on sec.741.32 were the Texas Department of Health, Texas Association of School Nurses, Texas Nurses Association, Board of Nurse Examiners, Region 12 Education Service Center, University of Texas Medical Branch at Galveston, North East Independent School District, Abilene Independent School District, Whitney Middle School, Klein Independent School District, Gatesville Independent School District, Meridian Independent School District, Connally Independent School District, Harris County Department of Education, Temple Independent School District, Austin Independent School District, Laredo Independent School District, and Ysleta Independent School District. Groups or associations that commented on sec.741.65 and sec.741.85 were the Texas Education Agency, Texas Council of Administrators in Special Education and Alamo Heights Independent School District. The commenters were neither for or against the sections in their entirety; however, they had questions and offered suggestions regarding changes. The amendments and new section are adopted under Texas Civil Statutes, Article 4512j, sec.sec.5 and 9A, which provide the State Board of Examiners for Speech- Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j, and to regulate licensees who fit and dispense hearing instruments. sec.741.32. Hearing Screening. (a) (No change.) (b) Pure-tone hearing screening is an automated or manually administered individual pure-tone air conduction screening with pass/fail results for the purpose of rapidly identifying those persons with possible hearing impairment which has the potential of interfering with communication. Hearing screening will be conducted as follows: 20 dB HL (re ANSI-1989) at the frequencies of 500, 1000, 2000 and 4000 Hz. This definition will become operational August 1, 1994. sec.741.33. Stationary Acoustical Enclosure. (a) A stationary acoustical enclosure includes, but is not limited to, an audiometric test room. (1) An audiometric test room is any enclosed space in which a listener is located for the purpose of testing hearing. An audiometric test room may also be known as: (A) an audiometric test area; (B) a hearing test space; or (C) a hearing test room. (2) An example of an audiometric test room would be a prefabricated room known as: (A) an audiometric test booth; (B) a suite; or (C) a sound-treated room. (3) The primary and necessary requirement of an audiometric test room is to insure the maximum permissible ambient noise levels established by the American National Standards Institute do not exceed the levels for audiometric test room for ears covered 250 to 8000 Hz. The levels are as follows: Octave band Ears covered intervals 250 to 8000 Hz 125 36.5 250 22.5 500 19.5 1000 26.5 2000 28.0 4000 34.5 8000 43.5 (A) Hearing testing that occurs in an area that does not meet the standard of a stationary acoustical enclosure for the purpose of determining the need for amplification is not considered a diagnostic or threshold measurement. (B) In the event amplification is deemed necessary and cannot be completed in a stationary acoustical enclosure, instrumentation which is minimally affected by ambient noise, such as real ear measures, shall be used to assure the appropriate fit of the amplification. (b) Effective July 1, 1996, an audiologist or intern in audiology registered to fit and dispense hearing instruments under this Act must meet the "ears covered" octave band criteria for permissible ambient noise levels during audiometric testing set out in the chart in subsection (a) (3) of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1995. TRD-9503218 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: April 5, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 Subchapter D. The Standards of Professional and Ethical Conduct 22 TAC sec.741.41 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5 and sec.9A, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j, and to regulate licensees who fit and dispense hearing instruments. These sections implement Texas Civil Statutes, Article 4512j, relating to speech-language pathologists and audiologists. sec.741.41. Code of Ethics. (a) (No change.) (b) In addition, an audiologist or intern in audiology registered to fit and dispense hearing instruments under this Act must: (1)-(3) (No change.) (4) insure that all equipment used by the licensee within his or her scope of practice shall be calibrated to insure compliance with the American National Standards Institute, S3.6, 1969, Specification for Audiometers, or S3. 6, 1989, Specification for Audiometers, which the board adopts by reference in this paragraph. Licensees must use the specification section referenced depending upon the date the equipment was manufactured. The standards are available through the American National Standards Institute, 11 West 42nd Street, 13th Floor, New York, New York, 10036, or from the board office; and (5) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1995. TRD-9503219 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: April 5, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 Subchapter E. Requirements for Licensure and Registration of Speech-Language Pathologists 22 TAC sec.741.65 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5 and sec.9A, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j, and to regulate licensees who fit and dispense hearing instruments. These sections implement Texas Civil Statutes, Article 4512j, relating to speech-language pathologists and audiologists. sec.741.65. Requirements for an Assistant in Speech-Language Pathology License. (a) An assistant is an individual who provides services and support of clinical programs of speech-language pathology and is supervised by a licensed speech-language pathologist. (1) (No change.) (2) An applicant who applies for an assistant in speech-language pathology license on or after September 1, 1994, must meet the following requirements: (A)-(B) (No change.) (C) no fewer that 25 hours of clinical observation and 25 hours of clinical practicum obtained within an educational institution or in one of its cooperating programs and completed under supervision of an individual licensed by this board. If an applicant has not obtained the hours within an educational institution or in one of its cooperating programs, the applicant may file a written request describing how the applicant wishes to obtain the hours and how the applicant's plan would insure appropriate training and experience for the applicant. The board may ask for further information or revisions before approving or disapproving the plan. If approved, an assistant's license shall be issued and the individual shall complete the hours in accordance with the board approved plan within 60 days. If the board office does not receive proof of successful completion of the hours by the end of the 60 days, the individual shall be considered to have voluntarily surrendered the assistant license; (D)-(E) (No change.) (b)-(i) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1995. TRD-9503220 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: April 5, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 Subchapter F. Requirements for Licensure and Registration of Audiologists 22 TAC sec.741.85 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5 and sec.9A, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j, and to regulate licensees who fit and dispense hearing instruments. These sections implement Texas Civil Statutes, Article 4512j, relating to speech-language pathologists and audiologists. sec.741.85. Requirements for an Assistant in Audiology License. (a) An assistant is an individual who provides services and support of clinical programs of audiology and is supervised by a licensed audiologist. (1) (No change.) (2) An applicant who applies for an assistant in audiology license on or after September 1, 1994, must meet the following requirements: (A)-(B) (No change.) (C) no fewer than 25 hours of clinical observation and 25 hours of clinical practicum obtained within an educational institution or in one of its cooperating programs and completed under supervision of an individual licensed by this board. If an applicant has not obtained the hours within an educational institution or in one of its cooperating programs, the applicant may file a written request describing how the applicant wishes to obtain the hours and how the applicant's plan would insure appropriate training and experience for the applicant. The board may ask for further information or revisions before approving or disapproving the plan. If approved, an assistant's license shall be issued and the individual shall complete the hours in accordance with he board approved plan within 60 days. If the board office does not receive proof of successful completion of the hours by the end of the 60 days, the individual shall be considered to have voluntarily surrendered the assistant license; (D)-(E) (No change.) (b)-(i) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 14, 1995. TRD-9503221 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: April 5, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 Subchapter K. License and Registration Renewal 22 TAC sec.sec.741.162-741.164 The amendments are adopted under Texas Civil Statutes, Article 4512j, sec.5 and sec.9A, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j, and to regulate licensees who fit and dispense hearing instruments. These sections implement Texas Civil Statutes, Article 4512j, relating to speech-language pathologists and audiologists. 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 14, 1995. TRD-9503222 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: April 5, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 Subchapter M. Denial, Probation, Suspension, or Revocation of Licensure or Registration 22 TAC sec.741.193 The amendment is adopted under Texas Civil Statutes, Article 4512j, sec.5 and sec.9A, which provide the State Board of Examiners for Speech-Language Pathology and Audiology with the authority to adopt rules necessary to administer and enforce Article 4512j, and to regulate licensees who fit and dispense hearing instruments. These sections implement Texas Civil Statutes, Article 4512j, relating to speech-language pathologists and audiologists. 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 14, 1995. TRD-9503223 Gene R. Powers, Ph.D. Chairperson State Board of Examiners for Speech-Language Pathology and Audiology Effective date: April 5, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 116. Control of Air Pollution by Permits for New Construction or Modification The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to sec.116.160, concerning Prevention of Significant Deterioration (PSD) Review, and sec.116.211, concerning the Standard Exemption List. These amendments are adopted with changes to the proposed text as published in the December 27, 1994, issue of the Texas Register (19 TexReg 10308). The Standard Exemption List (SEL) is published in its entirety in this adopted version of sec.116.211 and is now a part of the section. In the past, changes to the SEL were adopted by reference and the text of the changes were not published. The Texas Register will publish future revisions to the SEL. The adoption of sec.116.160 updates a reference date to reflect a change in the federal PSD rules published in the June 3, 1993, issue of the Federal Register , in which the United States Environmental Protection Agency (EPA) requires the states to modify the PSD increments. The increments were originally stated in terms of total suspended particulate and have been changed to particulate less than ten microns (PM [sub]10). The adopted amendment to sec.116.211(a) changes the date of the SEL to identify the date of revisions to the list and modifies the sentence to indicate that the Texas Register is no longer treating the SEL as a document adopted by reference, but, as a part of the section. The wording in subsection (a)(2) has also been revised to clarify that the emission limits contained therein apply only to each nonattainment pollutant. The changes to the SEL clarify and update several exemptions. The following exemptions were revised: Standard Exemption (SE) 7, SE 25, SE 105, SE 108, and SE 110. The adopted changes to SE 7, regarding boilers, heaters, and furnaces, revise the fuel oil firing allowance, delete the requirement for staged combustion, and add recordkeeping requirements. The adopted changes to SE 25, regarding batch mixers, clarify the intent of the exemption to allow only small mixers to qualify. The adopted changes to SE 105, regarding woodworking facilities, clarify the type of woodworking shop that must meet each condition of the exemption. The adopted changes to SE 108, regarding portable pipe reactors, include some minor clarifications and specify a maximum operating schedule. The adopted changes to SE 110, regarding municipal solid waste land fills, add municipal solid waste transfer stations to the exemption. A public hearing on this proposal was held on January 19, 1995, in Austin to consider the proposed rule changes. Testimony was received from three commenters. The following commenters generally supported the proposed revisions to Chapter 116 with some suggested changes: Texas Disposal Systems, EPA, and one individual. The EPA commented that the Federal Register reference date of June 3, 1994, in sec.116.160 is incorrect and should be stated as June 3, 1993. The TNRCC received a letter from EPA dated August 2, 1994, which directed the agency to revise the PSD increments from total suspended particulate to PM [sub]10. Since the TNRCC rules adopt the federal PSD requirements by reference, it was only necessary to revise the referenced Federal Register in sec.116.160. The EPA's letter stated that the revised increments were promulgated on June 3, 1993, but would be effective on June 3, 1994. The staff had used the effective date in the text for the proposed change to sec.116.160. The reference date in sec.116.160 has been changed to June 3, 1993. An individual suggested the following changes to the proposed revisions to the SEL: SE 7 should require five-year recordkeeping in condition (d); SE 105 should eliminate condition (c), which excludes woodworking shops used for instructional purposes from the dust collection requirements, provided that no nuisance condition is created; and, neither municipal solid waste landfills, nor, waste transfer stations should be exempted under SE 110. The staff believes that the SEL is consistent in establishing a two-year recordkeeping period for those exemptions which contain a recordkeeping provision. The staff believes that two years of operating records is sufficient to verify or determine a compliance problem, and the staff does not support increasing this requirement to five years. Regarding the comment on SE 105, the staff believes that the specific emission control requirements should be limited to commercial operations. Woodworking shops located in schools for instructional purposes are normally very small in scale, and the equipment is used on a very limited and intermittent basis. The nuisance rule will provide the agency with sufficient enforcement authority in the unlikely event that a dust complaint is received against a school woodworking shop. In response to the final comment, SE 110 already authorizes municipal solid waste landfills. The revision to the exemption is to clarify that waste transfer stations are to be included in the exemption. The staff has determined that municipal solid waste transfer stations are insignificant sources of emissions, and, therefore, should be included in the standard exemption. This determination is based on EPA research that indicates that anaerobic conditions cannot be established in less than 200 days. Anaerobic conditions are necessary for the formation of the type of gases associated with the decomposition of solid waste. Typically, waste is stored at these transfer stations for periods of less than two weeks. The facility must also comply with design and operational requirements under the Solid Waste Disposal Act to protect the public health and welfare. The staff has modified SE 108 by adding a condition requiring registration with a Form PI-7 prior to the start of construction. This requirement is consistent with the existing condition that requires written site approval from the Executive Director. Such approval cannot be practically granted unless the facility preregisters with the agency. Subchapter B. New Source Review Permits Prevention of Significant Deterioration Review 30 TAC sec.116.160 The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.160. Prevention of Significant Deterioration Requirements. (a) Each proposed new major source or major modification in an attainment or unclassifiable area shall comply with the Prevention of Significant Deterioration (PSD) of Air Quality regulations promulgated by the United States Environmental Protection Agency (EPA) in Title 40 Code of Federal Regulations (CFR) at 40 CFR 52.21 as amended June 3, 1993 (effective June 3, 1994) and the Definitions for Protection of Visibility promulgated at 40 CFR 51.301, hereby incorporated by reference. (b)-(d) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 15, 1995. TRD-9503212 Kevin McCalla Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: April 5, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 239-1966 Subchapter C. Permit Exemptions 30 TAC sec.116.211 The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.116.211. Standard Exemption List. (a) Pursuant to the Texas Clean Air Act (TCAA), sec.382.057, the facilities or types of facilities listed in the Standard Exemption List, dated March 1, 1995, are exempt from the permit requirements of the TCAA, sec.382.0518, because such facilities will not make a significant contribution of air contaminants to the atmosphere. A facility shall meet the following conditions to be exempt from permit requirements: (1) (No change.) (2) Total actual emissions authorized under standard exemption from the proposed facility which is located in a non-attainment area shall not exceed the following limits for each nonattainment pollutant: (A)-(D) (No change.) (3)-(6) (No change.) (b)-(f) (No change.) Figure: 30 TAC sec.116.211(f) 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 15, 1995. TRD-9503213 Kevin McCalla Acting Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: April 5, 1995 Proposal publication date: December 27, 1994 For further information, please call: (512) 239-1966 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter L. Motor Fuels Tax 34 TAC sec.3.173 The Comptroller of Public Accounts adopts an amendment to sec.3.173, concerning refunds on gasoline and diesel fuel tax, without changes to the proposed text as published in the January 10, 1995, issue of the Texas Register (20 TexReg 148). The 73rd Legislature, 1993, amended the Tax Code, sec.153, to add a new permit classification called a jobber. A jobber may not deal in tax-free motor fuels and may not accept signed statements on sales of diesel fuels. Commercial transportation companies providing transportation services to public school districts may purchase motor fuels tax free. The maximum single delivery of tax- free diesel fuel made by a supplier accepting a signed statement was changed. No comments were received regarding adoption of the amendment. The amendment 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. 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 14, 1995. TRD-9503155 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: April 4, 1995 Proposal publication date: January 10, 1995 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 19. Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.19. 201-19.217, 19.219, 19.220, 19.1301-19.1304, 19.1306-19.1310, 19.1501-19.1521, 19.2101-19.2104, 19.2106, and 19.2107; and adopts new sec.sec.19.201, 19.202, 9. 204, 19.206, 19.208, 19.210, 19.212, 19.214-19.216, 19.218, 19.1501-19.1504, 19.1506-19.1510, 19.2102-19.2104, 19.2106, 19.2108, 19.2110, 19.2112, 19.2116, 19.2118-19.2122, 19.2124, 19.2126, 19.2128, 19.2130-19.2132, 19.2134, 19.2136, 19.2138, and 19.2142, concerning the nursing facility licensure application process, pharmacy services, and enforcement, in its Nursing Facility Requirements for Licensure and Medicaid Certification (formerly Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification). New sec.sec.19.202, 19.204, 19.208, 19.210, 19.214, 19.1501, 19.1504, 19.1510, 19.2108, 19.2112, 19.2118, 19.2119, and 19.2130 are adopted with changes to the proposed text as published in the September 30, 1994, issue of the Texas Register (19 TexReg 7765). The repeal of sec.sec.19.201-19.217, 19.219, 19.220, 19.1301-19.1304, 19.1306-19.1310, 19.1501-19.1521, 19.2101-19.2104, 19.2106, and 19.2107; and new sec.sec.19.201, 19.206, 19.212, 19.215, 19.216, 19.218, 19. 1502, 19.1503, 19.1506-19.1509, 19.2102-19.2104, 19.2106, 19.2110, 19.2116, 19. 2120-19.2122, 19.2124, 19.2126, 19.2128, 19.2131, 19.2132, 19.2134, 19.2136, 19.2138, and 19.2142 are adopted without changes and will not be republished. The justification for the repeals and new sections is to combine nursing facility licensure standards and certification requirements into one chapter in compliance with 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). In new Subchapter C, Nursing Facility Licensure Application Process, DHS is revising the list of reasons for which a license may be denied and adding rules regarding informal reconsiderations for denial, revocation, or suspension of a license. In new Subchapter P, Pharmacy Services, DHS is revising the rules to delete minimum hours for consultant pharmacists because the minimums were sometimes used to justify offering only the minimum services. In new Subchapter V, Enforcement, DHS is consolidating all enforcement actions, for both licensure and Medicaid certification. The repeals and new sections will function by providing one set of rules that cover licensure and certification requirements. During the public comment period, DHS received written comments and received oral comments at a public hearing November 30, 1994. Comments were received from the Texas Health Care Association, the Texas Association of Homes for the Aging, the HEA Management Group, an owner and administrator of a nursing facility, Advocates for Nursing Home Reform, and the State Ombudsman-Texas Department on Aging. A summary of the comments and DHS's responses follow. Comment: The criteria that will be used in denying a license should be clearly and separately delineated in the standards. Response: The criteria for denying a license is contained in sec.19.214, Criteria for Denying a License or Renewal of a License. Comment: For repeated noncompliance, follow 42 Code of Federal Regulations sec.488.414 regarding denial of a license. Section 19.214 of the proposed rules should be eliminated and the adopted rules should follow the federal requirements. Response: The federal rules have no provisions regarding denial of a license. Comment: Section 19.202(b)(2), (3), and (4) specify deadlines for local health authorities. By including this sentence in these rules, the department is attempting to regulate the local health authority through the nursing facility (NF) requirements. It also attempts to make the NFs responsible for local health authorities' actions and NFs could be penalized if the local health authority did not meet the time frame. Response: DHS has deleted from sec.19.202 deadlines for the local health authorities and made resulting changes in the organization of the rule. Comment: Section 19.204 is written for the exception and not the rule. The standards should not be written for exceptions. Also, disclosure information should only apply to the owner and anyone with a controlling interest in the operation. Response: Section 19.204 concerns disclosure requirements for all applicants for a NF license. DHS is also interested in all parties with a 5.0% or greater interest in a NF. Comment: Section 19.210 addresses change of ownership. The federal provisions allow the previous history to follow the facility unless a new owner can demonstrate that it should be otherwise. The new owner is given an opportunity to wipe the slate clean. In order to encourage new owners to take over troubled facilities, change this section to allow a new owner to demonstrate an exception to the rule. Response: Section 19.210 addresses only the licensure application procedure for a change of ownership and does not reference history at all. A substantive change cannot be made at this time. Comment: In sec.19.214, a provision is needed to appeal denial of a license application. Response: Section 19.214(f) contains the procedure for an administrative hearing regarding the denial of a license or renewal of a license. Comment: Section 19.2102 needs to clarify that there is no intent to assess multiple money penalties. Change the last sentence to read: "However, when the imposition of more than one type of monetary penalty..." Response: DHS believes that the rule is clear as written. Comment: In sec.19.2102, the request for appeal should be consolidated. Add an item (b) that states: "A facility's request for an appeal of any adverse actions resulting from a survey serves as a request for appeal for all adverse actions from that survey." Response: This section does not pertain to appeals. Comment: Some notices to the department require a 15-day notification and some require a 20-day notification. The time frame for appeals should be consistent. We recommend a 20-day time frame be used. Also, the time frame should begin on the day the nursing facility receives the letter from TDHS. This is consistent with other notice provisions and procedures in the legal system. Response: Generally, all DHS appeals have a 15-day time frame. The exceptions are time frames governed by law. Comment: The administrative penalties as set forth in Schedule A exceed the scope of the authorizing statute. Response: DHS disagrees. However, DHS is adopting sec.19.2112 with changes which delete references to Schedule A; delete subsection (c); renumber the remaining subsections; and, in the penalties portion (now subsection (h)), revise the language to more accurately reflect the language in the rules, which are adopted under Chapter 242 of the Health and Safety Code, and add cross references to the rules. Comment: Regarding sec.19.2116, NFs should be given an opportunity to use a voluntary agreed trustee. Add an item (g) that reads: "Effective only after a facility has been given an opportunity by TDHS to enter into a voluntary agreed trusteeship." Response: While DHS has a provision in its rules for voluntary trusteeship, this option cannot be available at all times because of the gravity of some situations which require immediate action by the state. Comment: In sec.19.202, the department delegates its authority to approve facilities' fire safety systems to the fire authority in the locale of each facility. The law at sec.242.007 does not authorize such a delegation; it authorizes only consultation with municipal authorities. Response: While the comment correctly observes that sec.242.007 of the Health and Safety Code authorizes DHS to consult with state and local authorities, that section does not prevent DHS from adopting minimum licensing standards under sec.242.037, including standards to ensure the safety of residents from fire hazards. It is not outside DHS's discretion to require evidence of compliance with other applicable safety standards as a condition of licensure. Comment: In sec.19.204(d)(2), delete or define the term "federal or state Medicaid or Medicare sanctions or penalties." Response: DHS is adopting the section with changes that will clarify the rule language to match the corresponding term in sec.19.214(a)(6)(B), as follows: "federal or state nursing facility sanctions or penalties, including but not limited to, 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, but excluding compliance letters." Comment: In sec.19.204(d)(4), the term "final judgments" is too broad and vague. Delete this item. Response: A judgment is considered final when appeal rights have been exhausted. If an applicant for a license has not satisfied a final judgment (met the requirements stipulated by the verdict), that behavior is of interest to DHS in determining whether to grant a license. Comment: In sec.19.204(d)(9), "adverse actions" should be defined. Also, the request that nursing facilities provide the department with information on adverse actions in other states is an undue burden. The facilities have no authority over an agency in another state to provide this information. The facility can furnish information on the states they operate in to the department and TDHS could contact the other states for the information. Response: Section 19.204(d)(9) states "adverse actions referenced in this subsection" which DHS feels is clear and requires no definition. DHS is only requiring information concerning adverse actions from other states in which the applicant owns, operates, or manages other facilities. The applicant should already be aware of any adverse actions taken against its facilities in other states, and the requirement is only that the applicant furnish information regarding those actions directly to DHS. Comment: In sec.sec.19.208(c), 19.210(c), and 19.212(c), the facility should not be held responsible for the amount of time it takes the U.S. Post Office to deliver mail to the department or the amount of time it takes the department to get the mail delivered to the appropriate person. This should be deleted in all of the above-referenced items. Response: This rule language reflects the same system used by the Texas Rules of Civil Procedure. Comment: In sec.19.214(a)(2), the proposed amendment is overly broad and it is doubtful that it could be enforced with any degree of consistency and uniformity. It contains no objectivity. What is meant by "should have had knowledge?" This is open ended, open to interpretation, and should be omitted. Response: This criterion was developed to require management to be accountable for employees' actions. The phrase "should have had knowledge" is necessary to emphasize management's responsibility for all activities within a facility. The rule language is broad in order to cover the multitude of situations which can occur in long-term care. Comment: The proposed amendment to sec.19.214(a)(6)(B) is both overly broad and restrictive. A proposal to decertify is a proposal with no final administrative appeal. "A proposal to decertify" and "downgrading the status of a facility" should be deleted as a reason for denying a license. Response: A proposal to decertify is appealable; the rules regarding the appeal are found at sec.19.2209. DHS is adopting the language as proposed. Comment: In sec.19.214(a)(6)(D), what is an "unsatisfied final judgment?" This is too broad and vague and should be deleted. Response: "Unsatisfied final judgments" are judgments rendered by a civil court that an entity has not fulfilled. Specifically, a judgment is considered final when appeal rights have been exhausted. As with other events in this list, they are evaluated by DHS, along with other relevant factors, to determine the applicant's overall ability to meet licensing requirements. Comment: Define the term "final actions." Response: "Final actions" is already defined in the rule, which states: "An action is final when routine administrative and judicial remedies are exhausted." Comment: Section 19.214(e)reads: "If an applicant owns multiple facilities, the overall record of compliance in all of the facilities will be examined. An overall record poor enough to deny issuance of a new license will not preclude the renewal of licenses of individual facilities with satisfactory records." This should be reworded. Also, there are no objective standards described, such as, what constitutes "an overall record poor enough to deny issuance of a new license." This language will allow a license to be denied and/or granted differently based upon DHS personnel reviewing the application. Response: Section 19.214(e) is being adopted to read as follows: "If an applicant for a new license owns multiple facilities, the overall record of compliance in all of the facilities will be examined. Denial of an application for a new license will not preclude the renewal of licenses of other of the applicant's facilities with satisfactory records." Comment: Delete sec.19.1501(3) requiring the Quality Assessment and Assurance Committee (QAA) to monitor pharmacy services since QAA monitors all services. Response: DHS has deleted this requirement from the adopted rule. Comment: The requirement at sec.19.1502(b) should be an option. Change "must" to "may." Response: The requirements that the resident's pharmacy services be met on a 24-hour basis for emergency drugs and that medications be delivered in a timely manner are not optional. However, the requirement about labeling, packaging, and a drug-distribution system should be optional, and DHS is adopting the rule to read: "(b) A Medicaid-certified facility must have written agreements with their provider pharmacies that define required services. These agreements will not be considered to abridge the resident's freedom of choice of pharmacy services when they require labeling, packaging, and a drug-distribution system according to facility policy. The drug-distribution system must be accessible to all pharmacies willing to meet the distribution system requirements. The agreements must require the following: (1) that the resident's pharmacy services be provided by a pharmacy on a 24- hour basis for emergency medications; and (2) that the resident's medications be delivered to the facility on a timely and reasonable basis." Comment: Section 19.1504(b) requires that a medication cart be stored in a locked medication room or storage room. There are many ways to secure the locked medication cart without having a locked medication room. Response: DHS agrees and is adopting the section to read as follows: "When not in use, a medication cart must be secured in a designated area." Comment: Section 19.1504(i), which requires using the existing supply of medication when the directions for administration have changed, is of questionable value in comparison to the possible reduction in the degree of control and accuracy that might result. Response: Drug waste is a costly problem in NFs, and this procedure is one well-known and acceptable to long-term care consultant pharmacists. Comment: In sec.19.1510, pertaining to emergency drug kits, delete (3), which provides additional guidance regarding the procedure for accessing and administering the drugs from the emergency kit. Items (1) and (2) already adequately cover the control of the emergency drug kit. The Medical Director does not want or need to own the emergency drug kit. Response: DHS agrees and is deleting sec.19.1510(3) in response to the comment. This change results in renumbering paragraph (4). In addition, DHS is adopting paragraph (4)(C) (now paragraph (3)(C)) with changes which restore language required by the Texas Health and Safety Code, Chapter 242.161. Comment: The proposed language at sec.19.2110, Referral to the Attorney General, does not set forth any reasonable criteria or guidelines for when an action may be referred to the Attorney General. The current rule language which states that a referral may occur when the department "fails to achieve compliance with these rules or when violations are uncorrected." Response: Under sec.242.065 of the Health and Safety Code, DHS is given the authority to seek civil penalties for violations of that chapter or rules adopted under that chapter if the violations threaten the health and safety of a resident. DHS believes that it should retain all of the authority given to it by statute in this area and so has amended the rule to follow the statute. Comment: Time limited agreements are prohibited by the Health Care Financing Administration. The probationary contract in sec.19.2130(c) is time-limited and, as such, should be deleted. Response: DHS agrees and is adopting the section with changes to delete language about probationary contracts. Comment: The premise of these rules should be that the survey agency will use HCFA-prescribed survey methods, procedures, and forms for all surveys and complaint investigations. Response: DHS agrees. The current definition of "survey" states, "Survey performance is inadequate if the state survey agency fails to use federal standards and protocols and the forms, methods, and procedures specified by HCFA in its State Operations Manual." Comment: The monetary penalties are too high and punitive in nature. Response: The monetary penalties were developed by the Sanctions and Penalties Advisory Committee (SPAC), which had equal representation from providers and advocates. No changes have been proposed to the monetary penalties since they became effective in February 1993. Comment: Under the definition of "scope," percentages should not be used. Response: The definition of "scope" was developed by the SPAC and has not changed since February 1993. Subchapter C. Resident Rights 40 TAC sec.sec.19.201-19.217, 19.219, 19.220 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. 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 15, 1995. TRD-9503226 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Subchapter N. Pharmacy Services 40 TAC sec.sec.19.1301-19.1304, 19.1306-19.1310 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. 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 15, 1995. TRD-9503229 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Subchapter P. Physical Plant and Environment 40 TAC sec.sec.19.1501-19.1521 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. 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 15, 1995. TRD-9503230 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Subchapter V. Federal Requirements 40 TAC sec.sec.19.2101-19.2104, 19.2106, 19.2107 The repeals are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. 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 15, 1995. TRD-9503232 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Chapter 19. Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter C. Nursing Facility Licensure Application Process 40 TAC sec.sec.19.201, 19.202, 19.204, 19.206, 19.208, 19.210, 19. 212, 19.214-19.216, 19.218 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. sec.19.202. Building Approval. All applications for license must include written approval of the local fire authority that the facility and its operation meet local fire ordinances. (1) New facility. The sponsor of a new facility under construction or a previously unlicensed facility will provide to the Texas Department of Human Services (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 local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. The sponsor must also provide a copy of a dated, written notice of the approval for occupancy by the local building code authority, if applicable. (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. The local health authority may provide recommendations to DHS regarding the status of compliance with local codes, ordinances, or regulations. (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. Any existing building being considered for licensure must either submit a plan for review and approval or request a feasibility inspection to be performed by a representative of DHS to determine construction or renovation requirements. The fees for inspection and/or plan reviews must be in accordance with sec.19.301 of this title (relating to Fees for Plan Reviews, Construction Inspection Services, and Feasibility Inspection Services). sec.19.204. 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, and it must be signed and notarized. (c) General information required. An applicant must file with DHS an application which contains: (1) the name of the applicant and, if an individual, whether the applicant has attained the age of 18 years; (2) the type of facility; (3) the location of the facility; (4) the name of the administrator; (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) a certificate of good standing issued by the Comptroller of Public Accounts; and (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 nursing facility sanctions or penalties, including, but not limited to, 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, but excluding compliance letters; (3) state or federal criminal convictions for any offense that provides a penalty of incarceration; (4) unsatisfied final judgements; (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; and (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 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) each limited partner and general partner if the applicant is a partnership; (B) each director and officer if the applicant is a corporation; and (C) each person having a beneficial ownership interest of 5.0% or more in the applicant corporation, partnership, or other business entity. (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 the relationship to DHS, 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 administrator 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.19.208. Renewal Procedures and Qualifications. (a) Each license issued under this chapter must be renewed every two years. Each license expires two years from the date issued. A license issued under this chapter is not automatically renewed. (b) Each license holder must, at least 45 days prior to the expiration of the current license, file an application for renewal with the Texas Department of Human Services (DHS). DHS considers that an individual has filed a timely and sufficient application for the renewal of a license if the license holder submits: (1) a complete application to DHS, and DHS receives the complete application at least 45 days before the current license expires; (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 45 days before the current license expires; or (3) a complete application to DHS, DHS receives the application during the 45- day period ending on the date the current license expires, and the individual pays a fine under the administrative penalties described under Offense P in sec.19.2112(h) of this title (relating to Administrative Penalties) . (c) If the application is postmarked by the filing deadline, the application will be considered to be timely 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. (d) The application for renewal must contain the same information required for an original application as well as payment of the licensing fees. (e) The renewal of a license may be denied for the same reasons an original application for a license may be denied. See sec.19.214 of this title (relating to Criteria for Denying a License or Renewal of a License). sec.19.210. Change of Ownership. (a) During the license term, a license holder may not transfer the license as a part of the sale or other transfer of ownership of the facility. Prior to the sale or other transfer of ownership of the facility, the license holder must notify the Texas Department of Human Services (DHS) that a change of ownership is about to take place. (b) To avoid a gap in the license because of a change in ownership of the facility, the prospective new owner must submit to DHS a complete application for a license under sec.19.201 of this title (relating to Criteria for Licensing) at least 30 days before the anticipated date of sale or other transfer of 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 under Offense P in sec.19.2112 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. (c) 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.19.214. 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 of this chapter, including, but not limited to: (A) noncompliance that poses a serious threat to health and safety; or (B) a failure to maintain compliance on a continuous basis; (2) aids, abets, or permits a substantial violation described in paragraph (1) of this subsection about which the applicant, manager, or affiliate had or should have had knowledge; (3) fails to provide the required information and facts and/or references; (4) provides the following false or fraudulent information: (A) knowingly submits to DHS false or intentionally misleading statements; (B) uses subterfuge or other evasive means of filing; (C) engages in subterfuge or other evasive means of filing on behalf of another who is unqualified for licensure; (D) knowingly conceals a material fact; or (E) is responsible for fraud; (5) fails to pay the following fees, taxes, and assessments when due: (A) licensing fees as described in sec.19.216 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.19.2116(e) and (f) 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.19.2112 of this title (relating to Administrative Penalties); or (D) franchise taxes; (6) discloses any of the following actions within the two-year period preceding the application: (A) operation of a facility that has been decertified and/or had its contract canceled under the Medicare or Medicaid program in any state; (B) federal or state nursing facility sanctions or penalties, including, but not limited to, 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) state or federal criminal convictions for any offense that provides a penalty of incarceration; (D) unsatisfied final judgments; (E) eviction involving any property or space used as a facility in any state; or (F) suspension of a license to operate a health care facility, long-term care facility, personal care facility, or a similar facility in any state. (b) Concerning subsection (a)(6) of this section, DHS may consider exculpatory information provided by the applicant, manager, or affiliate and grant a license under subsection (a)(6) of this section if DHS finds the applicant, license holder, manager, or affiliate able to comply with the rules in this chapter. (c) DHS will not issue a license to an applicant to operate a new facility if the applicant discloses any of the following actions during the two-year period preceding the application: (1) revocation of a license to operate a health care facility, long-term care facility, personal care facility, or similar facility in any state; (2) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or (3) a court injunction prohibiting the applicant or manager from operating a facility. (d) Only final actions are considered for purposes of subsections (a) (6) and (c) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed. (e) If an applicant for a new license owns multiple facilities, the overall record of compliance in all of the facilities will be examined. Denial of an application for a new license will not preclude the renewal of licenses of other of the applicant's facilities with satisfactory records. (f) 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 are held under the provisions of the Administrative Procedures Act (APA), Title 10 of the Texas Government Code, sec.sec.2001.051 et seq, and DHS's formal hearing rules in sec.sec.79.1601-79. 1614 of this title (relating to Formal Hearings). 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 15, 1995. TRD-9503227 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Subchapter P. Pharmacy Services 40 TAC sec.sec.19.1501-19.1504, 19.1506-19.1510 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. sec.19.1501. Pharmacy Services. A licensed-only facility must assist the resident in obtaining routine drugs and biologicals and make emergency drugs readily available, or obtain them under an agreement described in sec.19.1906 of this title (relating to Use of Outside Resources). A Medicaid-certified facility must provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described in sec.19.1906 of this title (relating to Use of Outside Resources). See also sec.19.901(12) and (13) of this title (relating to Quality of Care) for information concerning drug therapy and medication errors. (1) Methods and procedures. The facility may permit unlicensed personnel to administer drugs, but only under the general supervision of a licensed nurse. The unlicensed individual must be a nursing student, a medication aide student, or a medication aide with a current permit issued by the Texas Department of Human Services. (2) Accuracy in service delivery. A facility must provide pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident. (3) Service Consultation. The facility must employ or obtain the services of a pharmacist, currently licensed by the Texas State Board of Pharmacy and in good standing, who: (A) provides consultation on all aspects of the provision of pharmacy services in the facility; (B) establishes a system of records of receipt and disposition of all controlled drugs in sufficient detail to enable an accurate reconciliation; (C) determines that drug records are in order and that an account of all controlled drugs is maintained and periodically reconciled; and (D) adheres to requirements in sec.19. 1503 of this title (relating to Additional Supervision and Consultation Requirements). (4) Drug regimen review. (A) The drug regimen of each resident must be reviewed at least once a month by a licensed pharmacist. (B) The pharmacist must report any irregularities to the attending physician and the director of nursing, and these reports must be acted upon. (5) Labeling of drugs and biologicals. Drugs and biologicals used in the facility must be labeled in accordance with currently accepted professional principals and in compliance with the Texas State Board of Pharmacy Laws and Regulations, sec.291, including the appropriate accessory and cautionary instructions and the expiration date when applicable. (6) Storage of drugs and biologicals. (A) In accordance with state and federal laws, the facility must store all drugs and biologicals in locked compartments under proper temperature controls and permit only authorized personnel to have access to the keys. (B) The facility must provide separately locked, permanently affixed compartments for storage of controlled drugs, listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1976, and of other drugs subject to abuse, except when the facility uses single-unit-package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected (see sec.19.1509 of this title (relating to Controlled Substances)). sec.19.1504. Drug Security. (a) The facility must establish procedures for storing and disposing of drugs and biologicals in accordance with federal, state, and local laws. (b) When not in use, a medication cart must be secured in a designated area. (c) Small multiple-dose drug containers which are placed into another container must be labeled in a manner so that, if the two containers become separated, the small drug container still has a strip label attached containing the name of the resident and the prescription number. (d) Self-administered medications may be kept in a locked cabinet in the resident's room. When medications are self-administered, the facility remains responsible for medication security, accurate information, and medication compliance. (e) The facility must store each resident's drugs in their original containers. (f) The facility must store drugs requiring refrigeration in a refrigerator in the medication room or in a separate locked medication storage box in a refrigerator near the nursing station. Only food and beverage items for resident use may be kept in the medication refrigerator, but they must be kept separate from the residents' drugs. (g) The facility must store drugs used externally separately from internal drugs. The facility must store poisons separately from all drugs. (h) Medications of deceased residents, medications which have passed the expiration date, and medications which have been discontinued must be securely stored and reconciled. These medications must be disposed of according to federal and state laws or rules on a quarterly basis. Discontinued drugs may be reinstated if reordered prior to destruction. These medications cannot be given to a family member or representative. (i) When the directions for administration of a resident's medication have changed, but the existing supply of medication can still be administered accurately, the medication must not be destroyed. The facility must affix a change-of-direction ancillary sticker or similar system and use the remaining medication. The medication label must be updated at the time of next dispensing. sec.19.1510. Emergency Drugs. Stocks of inventoried emergency dangerous drugs may be kept in facilities. (1) The contents of the emergency dangerous drug kit will be determined by the consultant pharmacist, medical director, and the director of nurses. (2) Ownership of the emergency drugs is limited to a physician with the exception of controlled substances which are the property of a pharmacy. (3) The facility must develop policies and procedures for the emergency dangerous drug kit that include the following: (A) a requirement that the facility is responsible for proper control and accountability for emergency kits within the facility. A prescription number and balance verifiable by inventory of controlled substances at every shift change, as required by sec.19.1509 of this title (relating to Controlled Substances), is not applicable; (B) a signed agreement for obtaining controlled drugs from a pharmacy; and (C) a limitation on the type and quantity of controlled substances, as follows: (i) the controlled drugs must be limited to injectable unit of use in dosage strengths generally recommended for single dose therapy; (ii) analgesic controlled drugs must be limited to no more than three different drugs with a maximum total of six drugs; (iii) anticonvulsant controlled drugs must be limited to no more than two different drugs with a maximum total of six doses; and (iv) the controlled drugs selected by the facility must not exceed a total of ten doses for the overall quantity maintained by the facility. 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 15, 1995. TRD-9503231 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Subchapter V. Enforcement Enforcement Generally 40 TAC sec.19.2102 The new section is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The new section implements the Health and Safety Code, sec.sec.242.001- 242.186, and the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.32.001-32.042. 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 15, 1995. TRD-9503233 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Licensing Remedies 40 TAC sec.sec.19.2103, 19.2104, 19.2106, 19.2108, 19.2110, 19. 2112, 19.2116, 19.2118, 19.2119 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. sec.19.2108. Emergency Suspension and Closing Order. (a) The Texas Department of Human Services (DHS) will suspend a facility's license or order an immediate closing of part of the facility if: (1) DHS finds that the facility is operating in violation of the licensure rules; and (2) the violation creates an immediate threat to the health and safety of a resident. (b) The order suspending a license or closing a part of a facility under this section is immediately effective on the date on which the license holder receives written notice or a later date specified in the order. Written notice includes notice by facsimile transmission. (c) The order suspending a license or ordering an immediate closing of a part of the facility is valid for 10 days after the effective date of the order. (d) When an emergency suspension has been ordered and the conditions in the facility indicate that residents should be relocated, the following rules apply unless superseded by DHS's Medicaid discharge rules in sec.19.502 of this title (relating to Transfer and Discharge in Medicaid-Certified Facilities): (1) A resident's rights or freedom of choice in selecting treatment facilities must be respected. (2) If a facility or part of a facility is closed: (A) DHS will notify the local health department director, city or county health authority, and representatives of the appropriate state agencies of the closure; (B) the facility staff must notify each resident's guardian or responsible party and attending physician, advising them of the action in process; (C) the resident or the resident's guardian or responsible person must be given opportunity to designate a preference for a specific facility or for other arrangements; (D) DHS must arrange for relocation to other facilities in the area in accordance with the resident's preference. A facility chosen for relocation must be in good standing with DHS and, if certified under Titles XVIII and XIX of the Social Security Act, must be in good standing under its contract. The facility chosen must be able to meet the needs of the resident; (E) if absolutely necessary, to prevent transport over substantial distances, DHS will grant a waiver to a receiving facility to temporarily exceed its licensed capacity, provided the health and safety of residents is not compromised and the facility can meet the increased demands for direct care personnel and dietary services. A facility may exceed its licensed capacity under these circumstances, monitored by DHS staff, until residents can be transferred to a permanent location; (F) with each resident transferred, the following reports, records, and supplies must be transmitted to the receiving institution: (i) a copy of the current physician's orders for medication, treatment, diet, and special services required; (ii) personal information such as name and address of next of kin, guardian, or party responsible for the resident; attending physician; Medicare and Medicaid identification number; social security number; and other identification information as deemed necessary and available; (iii) all medication dispensed in the name of the resident for which a physician's orders are current. The medications must be inventoried and transferred with the resident. Medications past an expiration date or discontinued by physician order must be inventoried for disposition in accordance with state law; (iv) the residents' personal belongings, clothing, and toilet articles. An inventory of personal property and valuables must be made by the closing facility; and (v) resident trust fund accounts maintained by the closing facility. All items must be properly inventoried and receipts obtained for audit purposes by the appropriate state agency; (G) if the closed facility is allowed to reopen within 90 days, the relocated residents have the first right to return to the facility. Relocated residents may choose to return, may stay in the receiving facility (if the facility is not exceeding its licensed capacity) , or choose any other accommodations; (H) any return to the facility must be treated as a new admission in regard to exchange of medical information, medications, and completion of required forms; and (I) a licensee whose facility is closed under this section is entitled to request an administrative hearing in accordance with sec.sec.79.1601-79.1614 of this title (relating to Formal Appeals), but requesting a hearing does not suspend the effectiveness of the order. sec.19.2112. Administrative Penalties. (a) The Texas Department of Human Services (DHS) may recommend assessment of administrative penalties against a person who violates the Health and Safety Code, Chapter 242, as provided in this section. (b) When a violation cited by DHS is determined to be within the scope and description of the penalty as stated in subsection (h) of this section, the violation is cause for assessment of a penalty as described in this section and as listed in subsection (h) of this section. In determining whether a violation limits the facility's ability to comply with the law, a violation must be: (1) of a number of existing simultaneous occurrences such that a pattern or trend is established; or (2) recurrent in nature and type; or (3) one which presents danger to the health and safety of at least one resident; or (4) of a magnitude or nature that constitutes a health and safety hazard having a direct or imminent adverse effect on resident health, safety, or security, or which presents even more serious danger or harm; or (5) of a type established elsewhere in DHS's rules concerning licensing standards for long term care facilities. (c) No facility will be penalized because of a physician's or consultant's nonperformance beyond the facility's control or if documentation clearly indicates the violation is beyond the facility's control. (d) An offense is defined as the sum of all deficiencies cited during a particular survey. The first offense carries the penalty shown in the "first offense" column under subsection (h) of this section. The second offense carries the penalty shown in the "second offense" column. The third offense carries the penalty shown in the "third offense" column. For purposes of determining a "first offense," this provision does not apply to Offense Q under subsection (h) of this section. (e) The progression of offenses described in subsection (e) of this section applies to facilities regardless of license renewals; however, when a facility has not had an offense for a period of two years, the facility's next offense will be in the "first offense" column. A suspension of a license and subsequent reinstatement does not interrupt the progression. (f) Within 20 days after the date on which written notice of recommended assessment of a penalty is sent to a facility, the facility must give DHS written consent to the penalty or make a written request for a hearing. If the facility does not make a response within the 20-day period, DHS will assess the penalty. (g) The procedures for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance will be in accordance with Health and Safety Code, sec.sec.242.067-242.069. Hearings will be held in accordance with DHS's formal hearing procedures in Chapter 79 of this title (relating to Legal Services). (h) Conditions and assessments for violations warranting administrative penalties for licensed facilities are as follows: Figure 1: 40 TAC sec.19.2112(h) 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 appointment of the trustee to take charge of the facility. (c) Any agreement entered into under this section must: (1) specify all terms and conditions of the trustee's appointment and authority; and (2) preserve all rights of the residents as granted by law. (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.19.2116 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 monetary, civil, or administrative penalties. sec.19.2119. 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 that DHS has reasonable cause to believe is valid from an ombudsman, advocate, resident, or relative of a resident relating to a serious or potentially serious problem in the facility. (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 before 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 which are 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 15, 1995. TRD-9503234 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Medicaid Remedies 40 TAC sec.sec.19.2120-19.2122, 19.2124, 19.2126, 19.2128, 19. 2130-19.2132, 19.2134, 19.2136, 19.2138, 19.2142 The new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate long-term care nursing facilities; the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 and sec.sec.32.001-32.042. sec.19.2130. Contract Cancellation for Medicaid Resident-Related Contract Violations. (a) The Texas Department of Human Services (DHS) notifies the facility in writing of its intention to cancel the facility's contract when either of the following situations occurs: (1) DHS terminates the facility's certification. DHS makes no payment for services provided by the facility after the effective date of the termination of a facility's certification; or (2) the facility has received three notifications within an accountability period of resident-related contract violations, excluding violations that do not limit the facility's ability to render adequate care, as specified in sec.19.2121(b)(1)(C) of this title (relating to Medicaid Remedies for Resident- Related Contract Violations), and the imposition of remedies, excluding facility-developed plans of correction or compliance letters. If the contract cancellation is: (A) not appealed, the contract is canceled on the 20th day after the facility receives notice of DHS's decision to cancel the contract; or (B) appealed, the contract will be canceled on the date the administrative law judge's decision upholding the cancellation becomes final. (b) DHS may continue payments for no more than 30 days from the date DHS cancels a facility's contract if DHS determines that: (1) reasonable efforts are being made to transfer the residents to another facility, to community care, or to other alternate care; and (2) additional time is needed to effect an orderly transfer of the residents. (c) When a facility's contract is canceled by DHS under the provisions of subsection (a) of this section, there is a 30-day period of no vendor payment to the facility. If the facility reapplies for a contract, DHS conducts an on-site visit to determine if the facility is complying with Medicaid requirements. If the facility is complying with Medicaid requirements and a contract with the facility is not prohibited by DHS debarment rules, DHS enters into a contract with the facility. 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 15, 1995. TRD-9503235 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: September 30, 1994 For further information, please call: (512) 450-3765 Part VI. Texas Commission for the Deaf And Hearing Impaired Chapter 183. Board for Evaluation of Interpreters and Interpreter Certification Subchapter A. Definitions and Board Operations 40 TAC sec.183.29 The Texas Commission for the Deaf and Hearing Impaired adopts an amendment to sec.183.29, concerning Contracted Evaluators, without changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 281). This amendment will provide clarification of the requirements which must be met by individuals seeking contracts as evaluators for the Board for Evaluation of Interpreters. No comments were received regarding adoption of this amendment. The amendment is adopted under the Human Resources Code, sec.81.006(b)(3), which provides the Texas Commission for the Deaf and Hearing Impaired the authority to adopt rules for administration and programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 10, 1995. TRD-9503104 David W. Myers Executive Director Texas Commission for the Deaf and Hearing Impaired Effective date: April 3, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 451-8494