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 7. BANKING AND SECURITIES Part VII. State Securities Board Chapter 101. General Administration 7 TAC sec.101.5 The State Securities Board adopts an amendment to sec.101.5, concerning charges for certified copies, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10163). The amendment specifies the charges imposed for certified copies. Persons requesting certified copies will be apprised of the charges associated with obtaining such copies. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1995. TRD-9503956 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 305-8300 Chapter 109. Transactions Exempt From Registration 7 TAC sec.109.15 The State Securities Board adopts new sec.109.15, concerning designated matching services, with changes to the proposed text as published in the January 10, 1995, issue of the Texas Register (20 TexReg 139). Changes were made to clarify subsection (b)(3) to eliminate the well-informed investor criterion and make explicit reference to The Securities Act, sec.5.H. Changes were made to subsection (c)(4) and (6) to clarify: the nature of the required relationship between certain designated matching services and governmental entities, quasi- governmental entities, or institutions of higher education; and the nature of the proscribed relationship between the designated matching service or its employees and issuer or investor members. Subsection (c)(8) was changed to relax restrictions on advertising. Proposed subsection (c)(9), concerning recordkeeping and inspection requirements, was eliminated, and proposed subsection (c)(10) was redesignated as subsection (c)(9). Other changes were made to clarify terms and grammar. The rule will facilitate the establishment and maintenance of designated matching services to assist capital raising efforts of small business. Under the rule, persons who operate computer systems or conduct seminars or meetings limited to providing investor members with the summary business plans and identities of issuer members may apply to become designated matching services. Under the rule, the use of a designated matching service facility by an issuer member will not constitute public solicitation or advertisement for purposes of certain provisions of The Securities Act and rules and regulations thereunder. In addition, a designated matching service will not be deemed a dealer subject to registration under The Securities Act and rules and regulations thereunder. One comment was received on the rule proposal. Texas Capital Network urged the Board to: reconsider limits on summary business plans; refine terminology describing the required relationship between private, nonprofit matching services and governmental entities, quasi-governmental entities, or institutions of higher education; and reconsider limits on advertising of matching service facilities and requirements regarding recordkeeping and inspection. In response to this comment letter, the Board changed the rule to accommodate all but one of the commenter's concerns. The Board disagrees with the comment that the definition of summary business plan should be expanded. Consistent with the intent underlying the rule-that the function of the matching service should be limited in scope-the information provided by the service should be limited in scope. The new rule is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. sec.109.15. Designated Matching Services. (a) In general. The use of a designated matching service facility by an issuer member shall not constitute public solicitation or advertisement within the meaning of The Securities Act, sec.5.I and sec.5.Q, sec.109.13 of this title (relating to Limited Offering Exemptions), sec.109.14 of this title (relating to Oil, Gas and Other Mineral Interests), or sec.139.16 of this title (relating to Sales to Individual Accredited Investors), and a designated matching service shall not be deemed a dealer subject to registration within the meaning of The Securities Act or the rules and regulations thereunder. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Designated matching service-A matching service designated by the Securities Commissioner under this section. (2) Designated matching service facility-A computer system operated, or a seminar or meeting conducted, by a designated matching service. (3) Investor member-An investor who has been properly qualified by and uses a designated matching service. Any of the following investors, among others, may be properly qualified: any institutional investor as described in The Securities Act, sec.5.H or sec.109.3(c) of this title (relating to Sales to Financial Institutions and Certain Institutional Investors under The Securities Act, sec.5.H); any individual accredited investor as defined in sec.139.16 of this title (relating to Sales to Individual Accredited Investors); any sophisticated investor as defined in sec.109.13(a)(2) of this title (relating to Limited Offering Exemptions); or any person who is engaged in the same business, or in the practice of a profession or discipline directly related to that business, as is the issuer member whose identity and summary business plan is provided to that person. (4) Issuer member-An issuer who uses a designated matching service facility. (5) Summary business plan-A brief statement specifically describing the issuer, its management, its products or services, and the market for those products or services. Other information, including, specifically, financial projections, must not be included in a summary business plan. (c) Application. A person may apply to the Securities Commissioner to be a designated matching service by filing Form 133.35, Application for Designation as Matching Service Under sec.109.15. No designation will be made unless the applicant demonstrates that it: (1) owns, operates, sponsors, or conducts a matching service facility limited to providing investor members with the summary business plans and identities of issuer members; (2) will not be involved in any manner in the sale, offer for sale, solicitation of a sale or offer to buy, a security other than as set forth in paragraph (1) of this subsection; (3) believes, after making a reasonable factual inquiry, that any person who uses the matching service facility in the capacity of an investor is a properly qualified investor member; (4) is a governmental entity, quasi-governmental entity, an institution of higher education or a domestic (Texas) nonprofit corporation that is associated with a governmental or quasi-governmental entity or an institution of higher education; (5) does not employ any person required to be registered under the Act as a dealer, investment adviser, salesman, or agent; (6) does not have, and does not employ any person who has, a business relationship with any investor member or issuer member other than to provide such member access to the matching service facility; (7) charges fees only in an amount necessary to cover its reasonable operating costs and that are unrelated to the amount of money being raised by any issuer member or the amount of securities sold by any issuer member; (8) agrees not to use any advertisement of its matching service facility that advertises any particular issuer or any particular securities or the quality of any securities or that is false or misleading or otherwise likely to deceive a reader thereof, and, upon objection by the Securities Commissioner, agrees to cease any advertisement; and (9) meets such other conditions as the Securities Commissioner considers appropriate for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of The Securities Act and the rules and regulations thereunder. (d) Designation consistent with Act. Designation under this section is not available to any matching service formed in a manner that constitutes part of a scheme to violate or evade the provisions of The Securities Act or Board rules. (e) Withdrawal of designation. The Securities Commissioner, upon ten days notice and hearing before the Securities Commissioner or a hearings officer as now or hereafter required by law, may withdraw a person's designation as a matching service if the person does not meet the standards for designation provided in 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 31, 1995. TRD-9503957 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: January 10, 1995 For further information, please call: (512) 305-8300 Chapter 133. Forms 7 TAC sec.133.5 The State Securities Board adopts the repeal of sec.133.5, concerning a secondary trading exemption notice, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10165). The repeal allows for the simultaneous adoption of a new secondary exemption trading notice. The repeal eliminates an incomplete form. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1995. TRD-9503961 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 305-8300 The State Securities Board adopts new sec.133.5, concerning a secondary trading exemption notice, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10165). The form will enable securities analysts to more efficiently review and process secondary trading exemption notices. The form will replace the existing form, which is being concurrently repealed, and will facilitate communication between filers and the Agency. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1995. TRD-9503962 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 305-8300 7 TAC sec.133.6 The State Securities Board adopts the repeal of sec.133.6, concerning a secondary trading exemption renewal notice, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10165). The repeal allows for the simultaneous adoption of a new secondary exemption trading notice. The repeal eliminates an incomplete form. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1995. TRD-9503963 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 305-8300 The State Securities Board adopts new sec.133.6, concerning a secondary trading exemption renewal notice, without changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10165). The form will enable securities analysts to more efficiently review and process secondary trading exemption renewal notices. The form will replace the existing form, which is being concurrently repealed, and will facilitate communications between filers and the Agency. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1995. TRD-9503964 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 805-8300 7 TAC sec.133.33 The State Securities Board adopts an amendment to sec.133.33, concerning uniform forms accepted, required or recommended by the Agency, with changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10166). A change was made to add the phrase "if any" at the end of subsection (a) because at least one uniform form does not have a Texas counterpart. The amendment updates the list of uniform forms accepted, required or recommended by the Agency. The amendment reflects changes in the names of certain uniform forms and thus renders the terminology in the rule more precise. One comment letter was received. That letter, from the Investment Company Institute, expressed general support for the amendment as proposed in that it promotes uniform requirements. The Board agrees. The amendment is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. sec.133.33. Uniform Forms Accepted, Required, or Recommended. (a) Assuming the appropriate exhibits and supplements are filed, the State Securities Board will accept for filing the following "Uniform Forms" in lieu of the requisite Texas form, if any: (1) U-1. Uniform Application to Register Securities. (2) U-2. Uniform Consent to Service of Process. (3) U-2A. Uniform Corporate Resolution. (4) U-4. Uniform Application for Securities Industry Registration or Transfer. (5) U-5. Uniform Termination Notice for Securities Industry Registration. (6) ADV. Uniform Application for Investment Adviser Registration. (7) BD. Uniform Application for Broker-Dealer Registration. (8) USR-1. Investment Company Report of Sales. (9) U-7. Small Corporate Offerings Registration Form may be used as a disclosure guide when making a small corporate offering of securities pursuant to an exemption under the Act or when making small public offerings pursuant to the Act, sec.7.A. (b) The following "Uniform Forms" may be filed with this Agency as appropriate: (1) ADV-W. Notice of Withdrawal from Registration as Investment Adviser. (2) BDW. Uniform Request for Withdrawal from Registration as a Broker-Dealer. (c) Section 109.13(k)(5) of this title (relating to Limited Offering Exemptions) requires the filing of a Form D, "Notice of Sale of Securities Pursuant to Regulation D, sec.4(6), and/or Uniform Limited Offering Exemption." No Texas form may be filed in lieu of Form D. 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 31, 1995. TRD-9503965 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 805-8300 7 TAC sec.133.35 The State Securities Board adopts new sec.133.35, concerning an application for designation as matching service under sec.109.15, with changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10166). Changes were made to mirror changes made in connection with the adoption of companion rule sec.109.15, Designated Matching Services. The new rule will facilitate the establishment and maintenance of designated matching services to assist capital raising efforts of small business. The new rule provides a form on which an applicant can seek from the Securities Commissioner a determination of designated matching service status. The form will facilitate the review and processing of such applications. It is being adopted in conjunction with new rule sec.109.15. One comment was received regarding adoption of the new section. Texas Capital Network requested that changes be made to the form to mirror changes to the companion rule and that disclosures regarding certain past securities-related activities of certain persons related to the applicant be limited in terms of time. In response to these comments, the Board adopted the form with changes to items 1, 3 and 6, and the oath to reflect changes made to sec.109.15, and to limit the applicant's disclosure of certain securities-related activities to those occurring within the past five years. The new rule is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. sec.133.35. Application for Designation as Matching Service Under sec.109.15. The State Securities Board, in March 1995, adopts by reference the application for designation as matching service under sec.109.15 form. This form is available from the State Securities Board, P.O. Box 13167, Austin, Texas 78711- 3167. 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 31, 1995. TRD-9503966 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 305-8300 Chapter 139. Exemptions by Rule or Order 7 TAC sec.139.16 The State Securities Board adopts new sec.139.16, concerning an exemption from securities registration for sales to individual accredited investors, with changes to the proposed text as published in the December 23, 1994, issue of the Texas Register (19 TexReg 10167). A change was made to subsection (b)(2) to clarify the term "issuer" for purposes of the rule and to subsection (c)(2)(C) to set out in full text the Securities and Exchange Commission's definition of "promoter." Other changes were made to render provisions gender neutral and to add needed punctuation. The rule will facilitate capital raising. The rule provides an exemption from the securities registration requirements of The Securities Act for offers and sales, without advertising, of any security by the issuer or a registered dealer to individual accredited investors. The term "advertising" is defined to exclude, among other things, the use of a limited use advertisement described in subsection (e) of the section. At present, the rule does not permit public solicitation. Accordingly, the mode of limited use advertising must be selected carefully to avoid indiscriminate offers to persons who are not accredited investors. The Board may revisit this issue as experience with this new rule warrants. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. The new rule is also adopted under Texas Civil Statutes, Article 581, sec.5.T. Section 5.T provides that the Board may prescribe new exemptions by rule. sec.139.16. Sales to Individual Accredited Investors. (a) In general. The State Securities Board, pursuant to the Securities Act, sec.5.T, exempts from the securities registration requirements of the Securities Act, sec.7, the offer and sale by the issuer or a registered dealer without advertising of any security to an individual accredited investor, or to any purchaser who the issuer has reasonable grounds to believe and after making reasonable inquiry shall believe to be an individual accredited investor, provided that such security is not part of the same distribution or offering as securities of the same issuer which have been registered or are proposed to be registered by pending application under the Securities Act, sec.7. "Advertising," as used in this subsection, does not include the use of limited use advertisements under subsection (e) of this section or the use of the type of printed material as permitted by sec.109.13(b) of this title (relating to Limited Offering Exemptions) in connection with an offering under the Act, sec.5.I. (b) Who may purchase; who constitutes the issuer for purposes of selling securities. (1) Individual accredited investors. For purposes of this section, the term "individual accredited investor" shall mean any natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his or her purchase exceeds $1 million or any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year. The term "individual accredited investor" shall also include any self-directed employee benefit plan with investment decisions made solely by persons that are "individual accredited investors" as defined in this paragraph and the individual retirement account of any such individual accredited investor. (2) Issuer. For the purposes of subsection (a), the term "issuer" includes any director, officer, or employee of the issuer provided all the following conditions are satisfied: (A) the director, officer, or employee was not hired for the purpose of offering or selling such securities; (B) the director's, officer's, or employee's activity involving the offer and sale of such securities is strictly incidental to his or her bona fide primary non-securities related work duties; and (C) the director's, officer's, or employee's compensation is based solely on the performance of other such duties, i.e., the director, officer, or employee does not receive any compensation for offering for sale, selling, or otherwise aiding in the sale of securities. (c) Disqualifications. (1) No exemption under this section shall be available for the securities of any issuer if the issuer or registered dealer: (A) within the last five years, has filed a registration statement which is the subject of a currently effective registration stop order entered by the United States Securities and Exchange Commission or any state securities administrator; (B) within the last five years, has been convicted of any felony in connection with the offer, purchase, or sale of any security or any felony involving fraud or deceit; (C) is currently subject to any state or federal administrative enforcement order, entered within the last five years, finding fraud or deceit in connection with the purchase and sale of any security; or (D) is currently subject to any order, judgment or decree of any court of competent jurisdiction, entered within the last five years, permanently restraining or enjoining such party from engaging in or continuing to engage in any conduct or practice involving fraud or deceit in connection with the purchase and sale of any security. (2) For purposes of this subsection and subsection (d) of this section only, the term "issuer" includes: (A) any of the issuer's predecessors or any affiliated issuer; (B) any of the issuer's directors, officers, general partners, or beneficial owners of 10% or more of any class of its equity securities (beneficial ownership meaning the power to vote or direct the vote and/or the power to dispose or direct the disposition of such securities); (C) any of the issuer's promoters presently connected with the issuer in any capacity, including: (i) any person who, acting alone or in conjunction with one or more other persons, directly or indirectly takes initiative in founding and organizing the business or enterprise of an issuer; or (ii) any person who, in connection with the founding and organizing of the business or enterprise of an issuer, directly or indirectly receives in consideration of services or property, or both services and property, 10% or more of any class of securities of the issuer or 10% or more of the proceeds from the sale of any class of such securities; however, a person who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not be deemed a promoter within the meaning of this clause if such person does not otherwise take part in founding and organizing the enterprise; or (D) any underwriter of the issuer. (3) For purposes of this subsection and subsection (d) of this section only, the term "registered dealer" includes any of the registered dealer's partners, directors, executive directors, or beneficial owners of 10% or more of any class of its equity securities (beneficial ownership meaning the power to vote or direct the vote and/or the power to dispose or direct the disposition of such securities). (d) Exceptions from disqualifications. The prohibitions of subsection (c) of this section shall not apply if: (1) the party subject to the disqualification is duly licensed or registered to conduct securities related business in the state in which the order, judgment, or decree creating the disqualification was entered against such party; or (2) before the first offer under this section, the Securities Commissioner, or the court or regulatory authority that entered the order, judgment, or decree, waives the disqualification upon a showing of good cause. (e) Limited use advertisements. Any limited use advertisement used in connection with an offering under this section must be filed with the Securities Commissioner ten days prior to use in this state. A limited use advertisement shall contain only the statements required or permitted to be included therein by this subsection. (1) A limited use advertisement shall contain the following items of information: (A) a brief description of the securities to be offered (e.g. description of class, size of offering, price, percentage of commission); (B) the name, address, and telephone number of the person to contact for additional information concerning the offering; (C) the address where offering material may be obtained; and (D) the following statement: "The securities have not been registered and are being offered and sold pursuant to the exemption provided by sec.139.16 of this title (relating to Rules and Regulations of the State Securities Board) and natural persons who are not individual accredited investors may not purchase the securities." (2) A limited use advertisement may include any one or more of the following items of information: (A) the name and address of the issuer of the securities; (B) a brief description of the business of the issuer; and (C) the name and address of the registered dealer(s) acting on the issuer's behalf in connection with the offering. (f) Any issuer relying on this exemption shall, upon written request, furnish to the Securities Commissioner the information furnished by the issuer or registered dealer to offerees. (g) Transactions exempt under this section may be combined with offers and sales exempt under The Securities Act, sec.5.H, and sec.109.3(c) of this title (relating to Sales to Financial Institutions and Certain Institutional Investors under The Securities Act, sec.5.H). (h) Should the offer and sale of securities fail, for any reason, to comply with all the terms and conditions for use of this section, the issuer may claim the availability of any other applicable exemption. 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 31, 1995. TRD-9503967 Denise Voigt Crawford Securities Commissioner State Securities Board Effective date: April 21, 1995 Proposal publication date: December 23, 1994 For further information, please call: (512) 305-8300 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 9. Liquefied Petroleum Gas Division The Railroad Commission of Texas adopts amendments to sec.9.239, relating to Appliance Connectors, and sec.9.958, relating to Piping Support, without changes to the proposed text as published in the February 3, 1995, issue of the Texas Register (20 TexReg 613). Section 9.239 defines requirements for appliance connectors and piping for liquefied petroleum gas appliances. Section 9.958 describes requirements for support of aboveground piping. The adopted amendments exempt certain agricultural and industrial structures from particular requirements relating to length of appliance connectors and minimum spacing of piping support in agricultural structures only. Other adopted nonsubstantive amendments include some changes in wording or punctuation to provide clearer language. The Texas Poultry Federation submitted a comment in favor of the amendments. No other associations or individuals submitted comments. Subchapter D. LP-Gas Applications and Appurtenant Equipment 16 TAC sec.9.239 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. 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 29, 1995. TRD-9503795 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: April 19, 1995 Proposal publication date: February 3, 1995 For further information, please call: (512) 463-6949 Subchapter L. LP-Gas Piping and Piping Systems 16 TAC sec.9.958 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. 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 29, 1995. TRD-9503796 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: April 19, 1995 Proposal publication date: February 3, 1995 For further information, please call: (512) 463-6949 Part IX. Texas Lottery Commission Chapter 402. Bingo Regulation and Tax 16 TAC sec.402.545 The Texas Lottery Commission adopts an amendment to sec.402.545, relating to licenses for the conduct of bingo games, with changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 933). The change is to delete language in subsection (a)(3)(C) of the rule which appears to be in conflict with statutory language in the Bingo Enabling Act, Texas Civil Statutes, Article 179d, sec.18. The amendment clarifies that a temporary license may be issued to any organization not holding an annual license to conduct bingo, as well as to any organization holding an annual license. Additionally, the amendment clarifies that an organization holding an annual license will not be required to cancel one of its sessions for which it has authority to conduct bingo under the annual license in order to obtain a temporary license. The amendment will allow an organization not holding an annual license to conduct bingo to do so under a temporary license in accordance with the provisions of this rule and will allow an organization holding an annual license to obtain a temporary license to conduct bingo for times, dates, and/or locations other than those times, dates and/or locations which the organization already has approval to conduct bingo in accordance with its annual license. No comments were received regarding adoption of the amendment. However, an oral comment was received at the Commission meeting when the rule was considered for adoption. The commenter stated that the requirement in the rule that an organization holding an annual license to conduct bingo must cancel one of its sessions during the week in which it conducts bingo under a temporary license is in conflict with language in the Bingo Enabling Act, sec.18. The agency agrees with this comment and will delete language in subsection (a)(3)(C) of the rule to eliminate the conflict. The amendment is adopted under the provisions of Texas Civil Statutes, Article 179d, sec.16, which authorize the Texas Lottery Commission to adopt rules for the enforcement and administration of the Bingo Enabling Act; and the provisions of Texas Government Code, sec.467.102, which authorize the Texas Lottery Commission to adopt rules for the enforcement and administration of Texas Government Code, Chapter 467 and the laws under the Commission's jurisdiction. sec.402.545. Licenses, Fees, and Bonds for Conduct of Bingo and Commercial Lessor. (a) Annual license to conduct bingo games. (1) Application. An organization which desires to conduct bingo on a regular basis must apply to the Texas Lottery Commission (commission) for an annual license to conduct bingo. The application must be made on a form prepared by the commission and must contain all the information required by that form. (2) (No change.) (3) License. (A)-(B) (No change.) (C) An organization holding an annual license to conduct bingo may receive a temporary license under subsection (c) of this section. (D) (No change.) (4)-(5) (No change.) (b) (No change.) (c) Temporary license to conduct bingo games. (1) Any organization not holding an annual license to conduct bingo which desires to conduct bingo on a limited basis must apply to the commission for a temporary license. The application must contain the same information and be made on the same form used by applicants for an annual license. The complete application with required attachments should be filed with the commission at least 30 days in advance of the first bingo game that will be played under the temporary license. An organization holding an annual license to conduct bingo shall apply no less than seven working days in advance of the proposed game, provided that the only proposed change is the date, time and/or location. (2)-(3) (No change.) (d)-(m) (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 31, 1995. TRD-9503916 Michelle B. Guerrero Administrative Assistant Texas Lottery Commission Effective date: April 21, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 323-3791 16 TAC sec.402.554 The Texas Lottery Commission adopts an amendment to sec.402.554, concerning instant bingo, with changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 933). In response to comments received by the agency, subsection (h) of the rule has been revised and new subsection (i) has been added. The amendment will establish improved accounting and auditing controls available to the Texas Lottery Commission in order for it to exercise adequate control and supervision of bingo games attended by the public in Texas thereby providing the requisite integrity and security in the instant bingo cards. The rule, as amended, prohibits licensed manufacturers of instant bingo cards from selling or otherwise furnishing instant bingo cards not bearing the seal of the Texas Lottery Commission. Additionally, the rule, as amended, allows any bingo licensee to continue to use, purchase, sell, or otherwise distribute instant bingo cards which bear the seal of the Texas Alcoholic Beverage Commission unless and until the Texas Lottery Commission, after inspection of the card, disapproves the card because the card does not meet the requisite security, audit, and integrity standards as provided by the provisions of the rule. The disapproval of and prohibition to use, purchase, sell or otherwise distribute such card is effective immediately upon notice to the licensee. The agency received written comments regarding the proposed amendment to the rule. Generally, the commenters oppose the implementation schedules implementing the phase-out of the use of the seal of the Texas Alcoholic Beverage Commission and the phase-in of the use of the seal of the Texas Lottery Commission as the schedules apply to distributors and licensed organizations. The commenters agree that the agency should have the ability to audit the cards but disagree that the implementation schedule is the way to achieve audit control. The commenters believe the imposition of an implementation schedule will cause financial loss to their businesses. Additionally, some commenters believe the rule should allow the use of either the seal of the Texas Lottery Commission or the State of Texas, thereby preventing the potential future losses to bingo licensees should a change in the regulating agency occur again. No comments were in favor of the amendment. Comments received against the amendment were K&B Sales, Inc. doing business as Goodtime Bingo; Texas Bingo Supply, Inc.; Thompson Allstate Bingo Supply, Inc.; and Commercial Bingo Supplies, Inc. The agency agrees with the comments regarding the implementation schedule insofar as the schedule relates to bingo distributors and licensed organizations. However, the agency continues to believe that audit controls must exist to provide the necessary audit and security standards to ensure security and integrity in the instant bingo cards. During the course of negotiating the language of the amendments with the bingo distributors, it was agreed by agency staff and such licensees that the issue of allowing the use of the seal of the State of Texas would be addressed at a later date. Therefore, the agency deletes the imposition of an implementation schedule as to bingo distributors and licensed organizations. In response to the comments received, the agency adds the flexibility for such licensees to continue to use instant bingo cards bearing the seal of the Texas Alcoholic Beverage Commission unless and until the Texas Lottery Commission disapproves the cards because they do not meet the requisite security, audit, and integrity standards as provided by the provisions of the rule. The amendment is adopted under the provisions of Texas Civil Statutes, Article 179d, sec.16, which authorize the Texas Lottery Commission to adopt rules for the enforcement and administration of the Bingo Enabling Act; and the provisions of Texas Government Code, sec.467.102, which authorize the Texas Lottery Commission to adopt rules for the enforcement and administration of Texas Government Code Chapter 467 and the laws under the Commission's jurisdiction. sec.402.554. Instant Bingo. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) (No change.) (2) Instant bingo card-A device used to play a specific game of chance consisting of an individual card, the face of which is initially hidden from view to conceal numbers. Each individual card must: (A) bear an impression of the commission's seal with the words "Texas Lottery Commission" engraved around the margin and a five-pointed star in the center; (B) (No change.) (C) be imprinted in no less than nine-point type with the words "Authorized by the Texas Lottery Commission"; (D)-(G) (No change.) (3) (No change.) (b) Approval of cards. (1) (No change.) (2) Prototypes or examples of all cards must be presented to the Texas Lottery Commission in Austin for review. If granted, approval extends only to the specific card or series approved. If the card is modified in any way, except only in series number, it must be resubmitted to the commission for approval. (3) (No change.) (c) Manufacturing requirements. (1) Manufacturers of instant bingo cards must manufacture, assemble, and package each deal in such a manner that none of the winning cards, nor the location or approximate location of any of the winning cards, can be determined in advance of opening by any means or device including any pattern in manufacture, printing, color variations, assembly, packaging markings, or by the use of a light. All winning and losing numbers conforming with designated numbers on the instant bingo card must be randomly selected. Each manufacturer must supply proof of random selection to the Texas Lottery Commission by detailed description of the manufacturing process, and is subject to inspection by the commission or its designee. (2)-(6) (No change.) (d)-(g) (No change.) (h) Implementation schedule. The requirement that instant bingo cards have printed on them the seal of the Texas Lottery Commission and the words "Texas Lottery Commission" shall be implemented according to the following schedule. A manufacturer shall not sell or otherwise furnish instant bingo cards not bearing the seal of the Texas Lottery Commission and the manufacturer's name, trade name, or trademark to distributors for use in Texas. (i) Any bingo licensee may continue to use, purchase, sell or otherwise distribute instant bingo cards which bear the seal of the Texas Alcoholic Beverage Commission unless and until the Texas Lottery Commission, after inspection of the card, disapproves the card because the card does not meet the requisite security, audit, and integrity standards as provided by the provisions of this rule. Disapproval of and prohibition to use, purchase, sell or otherwise distribute such card is effective immediately upon notice to the licensee. 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 31, 1995. TRD-9503917 Michelle B. Guerrero Administrative Assistant Texas Lottery Commission Effective date: April 21, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 323-3791 16 TAC sec.402.558 The Texas Lottery Commission adopts an amendment to sec.402.558, concerning the seal required on disposable bingo cards, with changes to the proposed text as published in the February 10, 1995, issue of the Texas Register (20 TexReg 934). In response to comments received by the agency, subsection (f) of the rule has been revised and new subsection (g) has been added. The amendment will establish improved accounting and auditing controls available to the Texas Lottery Commission in order for it to exercise adequate control and supervision of bingo games attended by the public in Texas thereby providing the requisite integrity and security in the instant bingo cards. The rule, as amended, prohibits licensed manufacturers of disposable bingo cards from selling or otherwise furnishing disposable bingo cards not bearing the seal of the Texas Lottery Commission. Additionally, the rule, as amended, allows any bingo licensee to continue to use, purchase, sell, or otherwise distribute disposable bingo cards which bear the seal of the Texas Alcoholic Beverage Commission unless and until the Texas Lottery Commission, after inspection of the paper, disapproves the paper because the paper does not meet the requisite security, audit, and integrity standards as provided by the provisions of the rule. The disapproval of and prohibition to use, purchase, sell or otherwise distribute such paper is effective immediately upon notice to the licensee. The agency received written comments regarding the proposed amendment to the rule. Generally, the commenters oppose the implementation schedules implementing the phase-out of the use of the seal of the Texas Alcoholic Beverage Commission and the phase-in of the use of the seal of the Texas Lottery Commission as the schedules apply to distributors and licensed organizations. The commenters agree that the agency should have the ability to audit the paper but disagree that the implementation schedule is the way to achieve audit control. The commenters believe the imposition of an implementation schedule will cause financial loss to their businesses. Additionally, some commenters believe the rule should allow the use of either the seal of the Texas Lottery Commission or the State of Texas, thereby preventing the potential future losses to bingo licensees should a change in the regulating agency occur again. No comments were received in favor of the amendment. Comments received against the amendment were K&B Sales, Inc. doing business as Goodtime Bingo; Texas Bingo Supply, Inc.; Thompson Allstate Bingo Supply, Inc.; and Commercial Bingo Supplies, Inc. The agency agrees with the comments regarding the implementation schedule insofar as the schedule relates to bingo distributors and licensed organizations. However, the agency continues to believe that audit controls must exist to provide the necessary audit and security standards to ensure security and integrity in the disposable bingo cards. During the course of negotiating the language of the amendments with the bingo distributors, it was agreed by agency staff and such licensees that the issue of allowing the use of the seal of the State of Texas would be addressed at a later date. Therefore, the agency deletes the imposition of an implementation schedule as to bingo distributors and licensed organizations. In response to the comments received, the agency adds the flexibility for such licensees to continue to use disposable bingo cards bearing the seal of the Texas Alcoholic Beverage Commission unless and until the Texas Lottery Commission disapproves the paper because it does not meet the requisite security, audit, and integrity standards as provided by the provisions of the rule. The amendment is adopted under the provisions of Texas Civil Statutes, Article 179d, sec.16, which authorize the Texas Lottery Commission to adopt rules for the enforcement and administration of the Bingo Enabling Act; and the provisions of Texas Government Code, sec.467.102, which authorize the Texas Lottery Commission to adopt rules for the enforcement and administration of Texas Government Code Chapter 467 and the laws under the Commission's jurisdiction. sec.402.558. Seal Required on Disposable Bingo Cards. (a) For the purposes of this section, a disposable bingo card is a card made of paper or other suitable material which is designed or intended for use of a single bingo occasion; provided that this section shall not apply to cards furnished for use in promotional bingo games conducted in accordance with the Bingo Enabling Act, sec.39, which cards may not contain a seal. (b) The face of every disposable bingo card used, sold, or otherwise furnished in this state shall bear an impression of the State of Texas and a star of five points encircled by olive and live oak branches and the words "Texas Lottery Commission," in accordance with detailed specifications, available on request from the Texas Lottery Commission (commission). The face of each card shall also have printed on it the name of the manufacturer or a trade name or trademark which has been filed with the commission. (c)-(e) (No change.) (f) The requirements that all cards have printed on the face of the card the seal of the Texas Lottery Commission and the name of the manufacturer, a trade name, or a trademark shall be implemented according to the following schedule. (1) A manufacturer shall not sell or otherwise furnish disposable cards not bearing the seal of the Texas Lottery Commission and the manufacturer's name, trade name, or trademark to distributors for use in this state. This requirement also applies to any manufacturer who assembles and collates disposable cards for sale in Texas, but only the name, trade name, or trademark of the original manufacturer who printed the card face shall be printed on the card face. (2)-(3) (No change.) (g) Any bingo licensee may continue to use, purchase, sell or otherwise distribute disposable bingo cards which bear the seal of the Texas Alcoholic Beverage Commission unless and until the Texas Lottery Commission, after inspection of the paper, disapproves the paper because the paper does not meet the requisite security, audit, and integrity standards as provided by the provisions of this rule. Disapproval of and prohibition to use, purchase, sell or otherwise distribute such paper is effective immediately upon notice to the licensee. 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 31, 1995. TRD-9503915 Michelle B. Guerrero Administrative Assistant Texas Lottery Commission Effective date: April 21, 1995 Proposal publication date: February 10, 1995 For further information, please call: (512) 323-3791 TITLE 22. EXAMINING BOARDS Part XVIII. Texas State Board of Podiatry Examiners Chapter 371. Examinations 22 TAC sec.371.12 The Texas State Board of Podiatry Examiners adopts an amendment to sec.371. 12, concerning Assistance with Examinations, without changes to the proposed text as published in the January 31, 1995, issue of the Texas Register (20 TexReg 542). The rule is being amended to set the requirements for proctors who assist with examinations. The rule defines the qualifications for the proctors who will assist in the examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. 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 29, 1995. TRD-9503863 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 20, 1995 Proposal publication date: January 31, 1995 For further information, please call: (512) 794-0145 Chapter 373. Identification of Practice 22 TAC sec.373.5 The Texas State Board of Podiatry Examiners adopts an amendment to sec.373. 5, concerning Professional Corporations, without changes to the proposed text as published in the January 31, 1995, issue of the Texas Register (20 TexReg 542). The rule is being amended to update the designations a professional corporation can use to include Professional Association as indicated in House Bill 548. The rule defines the designations professional corporations can use. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the laws regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. 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 29, 1995. TRD-9503864 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 20, 1995 Proposal publication date: January 31, 1995 For further information, please call: (512) 794-0145 Chapter 378. Continuing Education 22 TAC sec.378.3 The Texas State Board of Podiatry Examiners adopts an amendment to sec.378. 3, concerning Method of Approval of Hours for Continuing Education, without changes to the proposed text as published in the January 31, 1995, issue of the Texas Register (20 TexReg 542). The rule is being amended to help clarify how the board will accept CME hours. The rule defines the programs that the Board may accept. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. 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 29, 1995. TRD-9503865 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 20, 1995 Proposal publication date: January 31, 1995 For further information, please call: (512) 794-0145 Chapter 381. Analgesia 22 TAC sec.381.1 The Texas State Board of Podiatry Examiners adopts the repeal of sec.381.1, concerning relative analgesia, without changes to the proposed text as published in the January 31, 1995, issue of the Texas Register (20 TexReg 543). The rule is being repealed because the rules are very vague and are being updated by the Board. The rule defines qualifications that must be met in order to use anesthesia. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. 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 29, 1995. TRD-9503866 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 20, 1995 Proposal publication date: January 31, 1995 For further information, please call: (512) 794-0145 22 TAC sec.sec.381.1-381.5, 381.7, 381.8 The Texas State Board of Podiatry Examiners adopts new sec.sec.381.1-381.5, 381.7, and 381.8, concerning relative analgesia, without changes to the proposed text as published in the January 31, 1995, issue of the Texas Register (20 TexReg 543). The rules are being written to establish requirements for obtaining a permit to administer anesthesia. The rules define the requirements and guidelines for using anesthesia. No comments were received regarding adoption of the new rules. The new rules are adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. 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 29, 1995. TRD-9503867 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 20, 1995 Proposal publication date: January 31, 1995 For further information, please call: (512) 794-0145 22 TAC sec.381.6 The Texas State Board of Podiatry Examiners adopts new sec.381.6, concerning relative analgesia, without changes to the proposed text as published in the February 21, 1995, issue of the Texas Register (20 TexReg 1258). The rule is being written to establish permit requirements for administering anesthesia. The rule defines the permit requirements for using anesthesia. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatry Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatry, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatry, and the enforcement of the law regulating the practice of podiatry. 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 29, 1995. TRD-9503868 Janie Alonzo Staff Services Officer I Texas State Board of Podiatry Examiners Effective date: April 20, 1995 Proposal publication date: February 21, 1995 For further information, please call: (512) 794-0145 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 101. General Rules 30 TAC sec.101.12 The Texas Natural Resource Conservation Commission (TNRCC) adopts the repeal of sec.101.12, concerning Texas Air Control Board Seal, without changes to the proposed text as published in the December 13, 1994, issue of the Texas Register (19 TexReg 9833). The repeal will not be republished. This section no longer applies to the agency since the September 1, 1993, consolidation of the Texas Air Control Board and the Texas Water Commission. Therefore, the section is being deleted. A public hearing was held January 12, 1995, in Austin. No comments were received regarding the repeal of the section. The repeal is adopted under the Texas Health and Safety Code, 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. 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 29, 1995. TRD-9503952 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Texas Natural Resource Conservation Commission Effective date: April 21, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 239-1966 Chapter 111. Control of Air Pollution From Visible Emissions and Particulate Matter Outdoor Burning 30 TAC sec.111.103 The Texas Natural Resource Conservation Commission (TNRCC or Commission) adopts an amendment to sec.111.103, concerning Exceptions to Prohibitions of Outdoor Burning, without changes to the proposed text as published in the December 13, 1994, issue of the Texas Register (19 TexReg 9834). Subsection (b)(8) is deleted because the municipal sold waste provisions contained in subsection (b) have been superseded by the federal Resource Conservation and Recovery Act. A public hearing was held on January 12, 1995, in Austin. Two commenters submitted testimony supporting the revision to sec.111.103. An individual supported the removal of the exception that previously allowed the burning of municipal solid waste. In addition, the individual supported the elimination of the exception for burning brush and demolition or construction wood waste at landfill sites. Browning-Ferris Industries (BFI) supported the deletion of sec.111.103(b)(8), but also encouraged the Commission to revise 30 TAC sec.330. 5(d), concerning Pre-Application Review, to prohibit the burning of solid waste at landfills. BFI recommended that existing sec.330.5(d) be revised to provide that "the open burning of solid waste is prohibited at any municipal solid waste landfill. The operation of any type of air-curtain destructor (trench burner) is prohibited." The TNRCC Office of Policy and Regulatory Development, Air Policy and Regulations Division, acknowledges BFI's recommendation. However, the TNRCC was not proposing a change to sec.330.5(d), and thus the section was not open to change or comment. Copies of the BFI letter have been forwarded to the Office of Policy and Regulatory Development, Waste Policy and Regulations Division and also to the Office of Waste Management, Municipal Solid Waste Division, for consideration in future rulemaking projects. The amendment is adopted under the Texas Health and Safety Code, 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. 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 29, 1995. TRD-9503953 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Texas Natural Resource Conservation Commission Effective date: April 21, 1995 Proposal publication date: December 13, 1994 For further information, please call: (512) 239-1966 Chapter 345. Advisory Committee Rules 30 TAC sec.sec.345.1-345.14 The Texas Natural Resource Conservation Commission (TNRCC or Commission) adopts new sec.sec.345.1-345.14, concerning Advisory Committee Rules. Sections 345. 3, 345.5, 345.10, and 345.11 are adopted with changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 279). Sections 345.1, 345.2, 345.4, 345.6-345.9, 345.12, 345.13 and 345. 14 are adopted without changes and will not be republished. The new sec.sec.345.1-345.14 implement the requirements of Texas Civil Statutes, Article 6252-33 relating to the existence, composition, and expenses of state agency advisory committees. These sections include provisions relating to the creation, duration, purposes, and duties of advisory committees. These rules also cover purposes; definitions; composition; and membership terms; membership; attendance; reimbursement; presiding officers; manner of reporting; subcommittees; meetings; and records. The new sec.345.1, concerning Purpose, establishes the purpose of the following sections which provide procedures for advisory committees created to advise the Texas Natural Resource Conservation Commission. The new sec.345.2, concerning Definitions, defines the meaning of an advisory committee. The new sec.345.3, concerning Creation and Duration of Advisory Committees, requires that advisory committees be created through resolution of the Commission and the associated date of abolishment be the fourth anniversary of the creation date unless it has specific duration prescribed by statute or Commission resolution. The Commission has the ability to extend the existence of an advisory committee through an affirmative vote. The new sec.345.4, concerning Purposes and Duties of Advisory Committees, describes the purpose of advisory committees which is to advise the Commission with matters within its jurisdiction; establishes that the specific purposes of an advisory committee shall be identified by resolution of the Commission; precludes the advisory committees from any executive or administrative powers with respect to Commission operations; and establishes the duty of the advisory committees which is to advise the Commission. The new sec.345.5, concerning Composition of Advisory Committees, incorporates the requirements of Texas Civil Statutes, Article 6252-33. The new sec.345.6, concerning Membership Terms, provides membership terms of two or four years as resolved by the Commission; and establishes a system of staggering initial terms if it is resolved that advisory committee members shall serve four years. The new sec.345.7, concerning Membership, provides that all members of advisory committees, unless otherwise provided by law, are appointed by the Commission; and provides a replacement mechanism if an advisory committee member resigns, dies, becomes incapacitated, is removed, or otherwise vacates his or her position. The new sec.345.8, concerning Attendance, requires that should advisory committee members miss more than three consecutively scheduled meetings or more than half of all regularly scheduled meetings in one-year period they will automatically vacate his or her position. The new sec.345.9, concerning Reimbursement, denies reimbursement to advisory committee members unless resolved by the Commission authorizing reimbursement. The new sec.345.10, concerning Presiding Officer, requires the advisory committee to elect from its membership a presiding officer(s) unless this position(s) has been appointed by the Commission or is established by statute. The new sec.345.11, concerning Manner of Reporting, requires the advisory committees to report to the Commission annually and establishes reporting criteria that allow the Commission to evaluate the committee. The new sec.345.12, concerning Subcommittees, allows the advisory committees to organize into subcommittees which include non-advisory committee members and requires the inclusion of at least one advisory committee member on each subcommittee. The new sec.345.13, concerning Meetings, requires the advisory committees to meet at the call of the presiding officer or the Commission and that all advisory committee meetings and subcommittee meetings be open to the public. The new sec.345.14, concerning Records, requires Commission staff to record and maintain minutes of each advisory committee and subcommittee meetings. A public hearing was held on February 16, 1995 in Austin. The comment period closed on February 17, 1995. Two commenters submitted written testimony on the proposal. The law firm of Henry, Lowerre, Johnson, Hess, & Frederick generally disapproved of the use of advisory committees and suggested changes to elements of the proposed rule. The Texas Chemical Council (TCC) suggested specific changes to the proposed rule. A commenter does not support the use of advisory committees because the committees create unnecessary work for the TNRCC staff and often take on a life of their own. The commenter suggested that TNRCC staff be given strong guidance in seeking information from interested parties. Attached to comments was a copy of the EPA Policy Statement of Public Participation (published at 46 FR 5740, Jan. 19, 1981). The commenter did express support for the promulgation of rules under Senate Bill 383, the legislation requiring state agencies to adopt rules relating to the purposes and tasks of state agency advisory committees. The TNRCC adopts the Advisory Committee rules in order to be in compliance with state law. A commenter requested subcommittees be included in the term advisory committees since subcommittees authorized by sec.345.12 qualify as advisory committees under the law. The TNRCC disagrees and identifies in sec.345.2(C) that the primary function of advisory committees is to advise the Commission which is not the primary function of subcommittees. Subcommittees are established to provide written reports to the advisory committees on specific issues and/or subject areas and thus do not advise the Commission per se. A commenter stated that the proposed language in sec.345.5 conflicts with the law by allowing advisory committees created by statute that are unbalanced to continue to operate unbalanced. The TNRCC did not intend to conflict with the law. Accordingly, the TNRCC has clarified sec.345.5 to incorporate the requirements of Texas Civil Statutes, Article 6252-33. A commenter requested the proposed rule be modified to allow for co-chairs of an advisory committee and its subcommittees. The TNRCC staff finds the suggestion reasonable and has modified the language in this section. The modification allows the establishment of co-chairs if it is desired. A commenter requested the proposed rule be modified to allow for the Commission, when defining the purposes and tasks of each advisory committee, to specify the reporting frequency. The TNRCC staff finds the suggestion reasonable and has modified the language in this section. The modification requires reporting to be annual at a minimum. However, the reporting frequency can be modified by resolution of the Commission. A commenter requested the proposed rule be modified to require public notification of all advisory committee meetings. The TNRCC disagrees with the comment that the proposed rule should include language requiring public notification of meetings. The TNRCC believes that the proposed rule complies with the Open Meetings Act. The TNRCC is investigating possibilities for providing notice for all of the advisory committees through the electronic bulletin board. No comments were received on sec.sec.345.1, 345.3, 345.4, 345.6-345.9, and 345. 14. Although there were no comments on sec.345.3, the TNRCC staff modified the language to make the section more clear. These changes do not alter the intent of the proposed section. The new sections are adopted under the Texas Water Code, sec.5.103 and sec.5. 105, which authorizes the Commission to adopt any rules necessary to carry out its powers and duties under the Code and other laws of this state and to establish and approve all general policy of the Commission. sec.345.3. Creation and Duration of Advisory Committees. Except as otherwise provided by law, advisory committees shall be created by resolution of the Texas Natural Resource Conservation Commission (Commission). An advisory committee shall be abolished on the fourth anniversary of the date of its creation unless the Commission has established a different date by Commission resolution or the Commission affirmatively votes to continue the advisory committee or the advisory committee has a specific duration prescribed by statute. sec.345.5. Composition of Advisory Committees. The composition of the advisory committees shall be in accordance with the requirements of Texas Civil Statutes, Article 6252-33. sec.345.10. Presiding Officer. Except as otherwise provided by law, or by resolution of the Texas Natural Resource Conservation Commission (Commission), each committee shall elect from its members a presiding officer, chairperson, or co-chairpersons, who shall report the committee's advice and attendance in writing to the Commission. The Commission may, at its chairpersons, or co- chairpersons, of advisory committees. Committees may elect other officers at their pleasure. sec.345.11. Manner of Reporting. Advisory committees shall report in writing to the Texas Natural Resource Conservation Commission (Commission) a minimum of once per year, unless otherwise established by the Commission. The report provided by an advisory committee shall be sufficient to allow the Commission to properly evaluate the committee's work, usefulness, and the costs related to the committee's existence. 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 29, 1995. TRD-9503951 Lydia Gonzalez-Gromatzky Acting Director, Legal Services Texas Natural Resource Conservation Commission Effective date: April 21, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 239-1966 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 92. Personal Care Facilities The Texas Department of Human Services (DHS) adopts new sec.sec.92.10-92.13, 92.17, 92.81, 92.123, 92.126, 92.152, and 92.155-92.158; adopts the repeal of sec.sec.92.11-92.13, 92.17, 92.81, 92.104, 92.107, 92.121-92.123, 92.126, 92.128, 92.152, and 92.154-92.156; and adopts amendments to sec. sec.92.18, 92.21, 92.82, 92.102, 92.105, 92.151, and 92.153, concerning application procedures; inspections, surveys, and visits; abuse, neglect, and exploitations; complaint and incident reports and investigations; and enforcement, in its Personal Care Facilities licensure rules. New sec.92.10 and amendments to sec.92.82 and sec.92. 102 are adopted with changes to the proposed text as published in the December 16, 1994, issue of the Texas Register (19 TexReg 9968). New sec.sec.92. 11-92.13, 92.17, 92.81, 92.123, 92.126, 92.152, and 92.155-92.158; the repeal of sec.sec.92.11-92.13, 92.17, 92.81, 92.104, 92.107, 92.121-92.123, 92.126, 92. 128, 92.152, and 92.154-92.156; and amendments to sec.sec.92.18, 92.21, 92.105, 92. 151, and 92.153 are adopted without changes and will not be republished. The justification for the new, repealed, and amended sections is to make technical changes to the personal care licensure application and enforcement rules which reflect similar changes DHS is making in its nursing facility rules. The new, repealed, and amended sections will function by providing clearer rules and ensuring consistency in rules among programs licensed by DHS. During the public comment period, DHS received comments from the Texas Association of Retirement Communities. The following is a summary of the comments and DHS's responses to the comments. Comment: In Criteria for Licensing, sec.92.10(c)(2), the rule states that the facility must meet the standards of the Life Safety Code. The Life Safety Code applies to many types of buildings. The department, in rule making, should be specific. Revise the language to read as follows: "The facility meets the standards of the Life Safety Code as applicable to Personal Care facilities. The specific Code references are the following: (List specific references)." Response: In response to this comment, DHS is adopting sec.92.10(c)(2) with changes to read: "The facility meets the standards of the Life Safety Code as applicable to Personal Care facilities." DHS believes that to list the specific references would present a problem because the rules would need frequent amendments just to stay current with changes to the Life Safety Code. It is the facility's responsibility to remain familiar with applicable portions of the code. Comment: In sec.92.12, Application Disclosure Requirements, the requirement in subsection (d)(4) to disclose unsatisfied final judgements is inappropriate. There are numbers of examples that we could cite but one that is common and understandable is with respect to disputes over taxes and related matters with the Internal Revenue Service. We do not believe that these types of items are necessary in the criteria, given the other considerations in this section. Delete unsatisfied final judgements and renumber the numerical sequence. Response: The disclosure requirements were modeled after the disclosure requirements for nursing facilities (NFs), and this item is also required of NFs. DHS reviews all the information that has been disclosed before making a decision about issuing a license. Disclosing information does not mean a license will be denied, but DHS must have all the information to be able to make an informed decision; therefore, DHS has retained this requirement. Comment: In both sec.92.12, Application Disclosure Requirement, and sec.92.17, Criteria for Denying a License or Renewal of a License, the rules require disclosure of ownership of 5.0% or more. We believe this is an unnecessary "overkill." What we consider appropriate is "controlling interests" because control is the factor that influences the operation of the facility. Delete the words "beneficial" and "5.0%" wherever they appear in the above references. Substitute the words "controlling interest" wherever they would logically apply. Response: The information required by these rules is needed so DHS can make an informed decision. DHS wants to know all parties involved in a personal care facility, not only those with a controlling interest; therefore DHS has retained this requirement. Comment: In sec.92.81, Inspections and Surveys, and sec.92.82, Determinations and Actions Pursuant to Inspections, rules allow for deficiencies to be cited after a team has left a facility. This denies an element of due process and prevents the manager from taking immediate action on the problem. The discussion of deficiencies at the exit conference can be instructive for all parties. In some cases management and the inspector may need to revisit a part of the building, review a resident's records, or consult a particular area in the standards. This activity may be for the purpose of making sure that the manager understands the problem or it may be to dispute the proposed deficiency. In any case, it is a necessary and appropriate part of the process. When a deficiency is not discussed at the exit conference, but is communicated to the facility in writing at a later date, it allows the inspector to be inefficient in the field work or implies that the inspector was trying to avoid a possible confrontation with management. Deficiencies can be costly from a financial standpoint, can create stress within the staff and can damage the reputation of the facility and its management. Management must have an opportunity to answer any and all objections on the spot. In sec.92.81, add a new subparagraph (g), which states: "All deficiencies and areas of concern shall be discussed with management at the time of the exit conference." In sec.92.82, in subparagraph (c) insert the word "All" at the beginning of the first sentence, so that it reads: "All violations found during complaint investigations are discussed with the facility management at the exit conference." In subparagraph (d), add the word "all" in the first sentence as follows: "At the conclusion of an inspection or survey, all the violations will be discussed..." Delete the following language: "Any additional violation that may be determined during review of field notes or preparation of the official final list (when the official final list was not issued at the exit conference) will be communicated to the facility in writing within ten workdays (working days) of the exit conference." Adjust the remainder of new paragraph (d) to read as follows: "and the facility will have ten workdays to reply before violations are made a part of the permanent record. Copies of any narratives or similar papers written to further describe the conditions will be furnished to the facility." Response: DHS disagrees with the comments and has retained the proposed language. Surveyors make every effort to discuss all violations at the time of the exit conference. However, DHS retains the right to cite additional violations which come to light in a review of the survey. Comment: In sec.92.82, Determinations and Actions Pursuant to Inspections, subparagraph (b) deals with the form on which violations will be listed. The surveyor must always list the specific reference in the standards of the rule that has been violated. This is not always done. Add the following sentence at the end of the paragraph: "The inspector shall list the specific reference in the standards of the rule that has been violated." Response: DHS believes this is a procedural matter which does not need to be addressed in the rules. Comment: In reference to sec.92.82, Determinations and Actions Pursuant to Inspections, the provider should be granted a hearing at a higher level if a dispute regarding deficiencies cannot be resolved between management and the surveyor/inspector. DHS once allowed review at the regional level but has discontinued it. Add a new subparagraph (f): "If the provider and the inspector cannot resolve a dispute regarding a violation of regulations, then the provider shall be granted a hearing at the regional level with the regional administrator or his/her designee, who must have supervisory authority over the inspector in question or anyone else on the survey team." Response: DHS agrees and is adopting the section with new subsection (f) which reads: "If the provider and the inspector cannot resolve a dispute regarding a violation of regulations, the provider may seek an informal dispute resolution at the regional level." Comment: In sec.92.102, Abuse, Neglect or Exploitations, subparagraph (a) requires that incidents of abuse and neglect be reported to TDHS. What is compelling in this rule is that the facility is ignored. One could only conclude that if a resident was being abused, TDHS wouldn't mind that it continued until the department could send out a surveyor to check the validity of the claim. Wouldn't it make sense that the incident should be immediately reported to the manager or administrator so that if a resident was being abused that we could stop it and render assistance to the individual? At the end of subparagraph (a), add the following: "Facility staff shall also report any act or suspicion of misconduct to the management immediately." Response: While DHS agrees that facility staff should report abuse and neglect to management, that is a matter of internal policy for the facility and does not need to be addressed in DHS rules. Comment: Retain the former sec.92.102(b) which requires each employee of a facility to sign a statement that they understand that they could be criminally liable for failure to report abuses. Emphasizing the seriousness of the situation and the responsibility of facility staff is considered to be very important by personal care facility management. Response: The statutory basis for this requirement is in Chapter 242 of the Health and Safety Code. There is no corresponding requirement in Chapter 247 for personal care facilities; therefore, it is being deleted. Comment: In sec.92.102(b), this rule gives facility staff specific instructions on contacting TDHS by telephone and about supplying a written report "of the investigation." The rules imply that the individual who observed the abuse and neglect is supposed to conduct the investigation. Management should be conducting the investigation. Add the following language at the end of the paragraph: "Management of the facility is responsible for seeing that the original copy of the report is filed with the department. The reporter must sign their name at the conclusion of their statement of the incident referred to as new proposed (c)(4) basis of the reporter's knowledge. " Response: DHS agrees and is adopting the last sentence in sec.92.102(b) with changes to read: "The facility must send a written report of the investigation no later than the fifth calendar day after the oral report." Comment: In sec.92.155, Emergency License Suspension and Closing Order, subparagraph (b) allows the department to notify facilities of an emergency suspension of a license or a closing of a facility by mail or facsimile (FAX) transmission. When the situation at a facility is judged to be one that would require suspension of a license or the closing of all or part of a facility, then the situation is too serious to be handled through the mail or by FAX. This type of order should be delivered in person by a representative of the department working out of the regional office. Delete the old requirement, and add the following new language: "The order suspending the license or closing part of a facility under this section shall be hand-delivered to the employee in charge of the facility by an employee of TDHS who will obtain a receipt for the delivery of the closing order." Response: DHS disagrees. Although in most such cases the notice would be hand- delivered, DHS reserves the right to use the mail or a FAX. Comment: In sec.92.157, Involuntary Appointment of a Trustee, subparagraph (b) deals with the fee paid to a trustee appointed to temporarily manage a personal care facility. The rule says that the fee will be determined by the court. We believe that fees paid to trustees along with other basic information about these individuals should be public knowledge. Add the following sentence at the end of subparagraph (b): "The department shall send a brief report, on a form developed by the department, to the majority owner of the facility, which will reflect at least the following information: (1) Name and address of the trustee; (2) Education of the trustee; (3) Experience in the health care field or in the field of aging; (4) Professional licenses held and license numbers; (5) Fee of the trustee as determined by the court. Response: DHS disagrees. The criteria for the appointment of a trustee is directed by departmental procedures and does not need to be addressed in DHS rules. Subchapter B. Application Procedures 40 TAC sec.sec.92.10-92.13, 92.17, 92.18, 92.21 The new sections and amendments are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The new sections and amendments implement the Health and Safety Code, sec.sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. sec.92.10. Criteria for Licensing. (a) A person must be licensed to establish or operate a personal care facility in Texas. (b) An applicant for a license must submit a complete application form and license fee to the Texas Department of Human Services (DHS). (c) An applicant for a license must affirmatively show that: (1) the applicant, person with a disclosable interest, affiliate, and manager have not been convicted of a felony or crime involving moral turpitude in Texas or any other state; (2) the facility meets the standards of the Life Safety Code as applicable to personal care facilities; (3) the facility meets the construction standards in Subchapter D of this chapter (relating to Facility Construction); and (4) the facility meets the standards for operation based upon an on-site survey. (d) The applicant must provide all information requested on the application form and submit the appropriate fees as a prerequisite for DHS to conduct a feasibility inspection or plan review, as requested or required. (e) A license will be issued to a facility meeting all requirements of this chapter and will be valid for one year. Each license specifies the maximum allowable number of residents to be cared for at any one time. This number may not be exceeded. 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 30, 1995. TRD-9503899 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 40 TAC sec.sec.92.11-92.13, 92.17 The repeals are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1995. TRD-9503900 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 Subchapter E. Inspections, Surveys, and Visits 40 TAC sec.92.81 The repeal is adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeal implements the Health and Safety Code, sec. sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1995. TRD-9503901 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 40 TAC sec.92.81, sec.92.82 The new section and amendment are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The new section and amendment implement the Health and Safety Code, sec.sec.247. 001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. sec.92.82. Determinations and Actions Pursuant to Inspections. (a) The Texas Department of Human Services (DHS) will determine if a facility meets the licensing rules, including both physical plant and facility operation requirements. (b) Violations of regulations will be listed on forms designed for the purpose of the inspection. (c) Violations found during complaint investigations are discussed with the facility management at the exit conference. If violations are cited, a list of the licensing violations will be sent to the facility within ten days. The source of the complaint will not be revealed. (d) At the conclusion of an inspection or survey, the violations will be discussed in an exit conference with the facility's management. A written list of the violations will be left with the facility at the time of the exit conference; any additional violation that may be determined during review of field notes or preparation of the official final list (when the official final list was not issued at the exit conference) will be communicated to the facility in writing within ten workdays of the exit conference, and the facility will have ten workdays to reply before the additional violation is made a part of the permanent record. Copies of any narratives or similar papers written to further describe the conditions will be furnished to the facility. (e) A clear and concise summary in nontechnical language of each licensure inspection, inspection of care, and/or complaint investigation will be provided by DHS. That summary will be in a form outlining significant violations noted at the time of the visit, but will not include names of residents, staff, or any other statement that would identify individual residents or other prohibited information under general rules of public disclosure. The summary will be provided to the facility at the time the report of contact or similar document is provided. (f) If the provider and the inspector cannot resolve a dispute regarding a violation of regulations, the provider may seek an informal dispute resolution at the regional level. 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 30, 1995. TRD-9503902 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 Subchapter F. Abuse, Neglect, and Exploitations; Complaints and Incident Reports and Investigations 40 TAC sec.92.102, sec.92.105 The amendments are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. sec.92.102. Abuse, Neglect, or Exploitation Reportable to the Texas Department of Human Services by Facilities. (a) Any facility staff who has reasonable cause to believe that a resident is in a state of abuse, neglect, or exploitation must report the abuse, neglect, or exploitation. (b) Reports of abuse, neglect, or exploitation are to be made to DHS's state office at (512) 834-6778. The person reporting must make an oral report immediately on learning of the alleged abuse or neglect. The facility must send a written report of the investigation no later than the fifth calendar day after the oral report. (c) Each report must contain the: (1) name, age, and address of the resident; (2) name and address of the person responsible for the care of the resident, if available; (3) nature and extent of the elderly or disabled person's condition; and (4) basis of the reporter's knowledge. 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 30, 1995. TRD-9503903 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 40 TAC sec.92.104, sec.92.107 The repeals are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1995. TRD-9503904 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 Subchapter G. Miscellaneous Provisions 40 TAC sec.sec.92.121-92.123, 92.126, 92.128 The repeals are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1995. TRD-9503905 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 40 TAC sec.92.123, sec.92.126 The new sections are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The new sections implement the Health and Safety Code, sec.sec.247.001- 247.066, and the Human Resources Code, sec. sec.22.001-22.024. Issued in Austin, Texas, on March 30, 1995. TRD-9503906 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 Subchapter H. Enforcement 40 TAC sec.sec.92.151-92.153, 92.155-92.158 The new sections and amendments are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The new sections and amendments implement the Health and Safety Code, sec.sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1995. TRD-9503907 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765 40 TAC sec.sec.92.152, 92.154-92.156 The repeals are adopted under the Health and Safety Code, Chapter 247, which provides the department with the authority to license personal care facilities; under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs; and under Texas Civil Statutes, Article 4413(502), which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The repeals implement the Health and Safety Code, sec. sec.247.001-247.066, and the Human Resources Code, sec.sec.22.001-22.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 30, 1995. TRD-9503908 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: May 1, 1995 Proposal publication date: December 16, 1994 For further information, please call: (512) 450-3765