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 16. ECONOMIC REGULATION Part II. Public Utility Commission Chapter 23. Substantive Rules Customer Service and Protection 16 TAC sec.23.56 The Public Utility Commission of Texas adopts an amendment to sec.23.56, concerning the statewide dual-party relay service, with one minor change to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1847). The section establishes a statewide telecommunications dual- party relay service for the hearing-impaired and speech-impaired using special communications equipment such as telecommunications devices for the deaf (TDD). The commission is advised by the Relay Texas Advisory Committee, which monitors the statewide dual-party relay service or "Relay Texas." This amendment is required for compliance with Senate Bill 383 passed by the 73rd Legislature, which relates to the existence, composition, and expenses of state agency advisory committees. The amendment clarifies the manner in which the committee shall report to the commission; requires an annual evaluation of the committee's work, usefulness, and costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities; and sets a date certain for the committee to be automatically abolished unless the commission votes affirmatively to continue its existence. No comments were received during the 30-day comment period, however a minor change to the text is adopted to conform the statutory reference to the proper citation form pursuant to the recodification of the Public Utility Regulatory Act of 1995, Senate Bill 319, 74th Legislature, Regular Session 1995. The amendment is adopted under Public Utility Regulatory Act of 1995, Senate Bill 319, sec.1.101, 74th Legislature, Regular Session 1995, which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and by Public Utility Regulatory Act of 1995, Senate Bill 319, sec.3.354, 74th Legislature, Regular Session 1995, which requires that the commission appoint an advisory committee to assist the commission in administering the section. The amendment specifically is proposed under Texas Civil Statutes, Article 6252-33, which requires agencies that are advised by an advisory committee to promulgate rules meeting certain statutory requirements. Cross Index to Statutes: Texas Civil Statutes, Article 6252-33. sec.23.56. Statewide Dual-Party Relay Service. (a)-(b) (No change.) (c) Advisory committee. The commission shall appoint an Advisory Committee to assist the commission in administering the provisions of Public Utility Regulatory Act of 1995, Senate Bill 319, sec.3. 354. The term of office of each member of the Advisory Committee shall be two years. A member whose term has expired shall continue to serve until a qualified replacement is appointed. In the event a member cannot complete his or her term, the commission shall appoint a qualified replacement to serve the remainder of the term. The Relay Texas Administrator shall serve as a liaison between the committee and the commission. The liaison shall be responsible for advising the commission as required by paragraph (2) of this subsection. The members of the Advisory Committee shall serve without compensation but shall be entitled to reimbursement at rates established for state employees for travel and per diem incurred in the performance of their official duties. The commission shall reimburse members of the Advisory Committee in accordance with the applicable regulations and shall provide clerical and staff support to the Advisory Committee, including a secretary to record the Committee meetings. (1) (No change.) (2) Role of the advisory committee. The Advisory Committee shall monitor the establishment, administration, and promotion of the dual-party relay service, and assist in ensuring that the terms of the contract between the relay service carrier and the commission are fulfilled. The committee shall advise the commission on issues related to the contract, including any subsequent amendments to such contract, and on ways the relay service may be enhanced to better meet the communication needs of the hearing-impaired and speech-impaired as described in subparagraphs (A) and (B) of this paragraph. (A) Contract amendments. All recommendations for amendments to the contract shall be filed with the Executive Director of the commission on June 1st of each year. The Executive Director is authorized to approve or deny all amendments to the contract between the relay service carrier and the commission. (B) Committee activities report. After each formal meeting of the committee, the commission liaison or the presiding officer of the committee shall report to the commission as described in clauses (i)-(iii) of this subparagraph. (i) The commission liaison, or presiding officer of the committee, shall file in Central Records under Project Number 13928: (I) the minutes of the meeting; (II) a memo regarding the meeting highlights; and (III) a list of recommended items for the committee to discuss with the relay service carrier regarding issues related to the provisioning of the service that do not require amendments to the contract. (ii) At the same time that the committee activities report is filed pursuant to clause (i) of this subparagraph, the commission liaison, or the presiding officer of the committee, shall provide copies of the memo and list described in clause (i)(II) and (III) of this subparagraph to each commissioner's office. (iii) Within 20 days from the date that the memo and list described in clause (i)(II) and (III) of this subparagraph are provided to the commissioners' offices, any commissioner may request that the list required by clause (i)(III) of this subparagraph be placed on an agenda to be discussed during an open meeting of the commission. If no commissioner requests that the list be placed on an agenda for an open meeting, the list deemed approved by the commission. (3) Evaluation of advisory committee costs and effectiveness. The commission shall evaluate the advisory committee annually. The evaluation shall be conducted by an evaluation team appointed by the Executive Director of the commission. The commission liaison, members of the advisory committee, and any other commission employee that works either directly or indirectly with the advisory committee or the dual-party relay service program shall not be eligible to serve on the evaluation team. The evaluation team will report to the commission in open meeting each August of its findings regarding: (A) the committee's work; (B) the committee's usefulness; and (C) the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (4) Duration of the advisory committee. The Advisory Committee shall be abolished automatically on August 31, 1999 unless the Commission votes affirmatively to continue its existence for another four year period. Thereafter, each time the Commission votes to continue the existence of the Committee, it shall continue for a period of 4 years, but will be abolished on August 31st of the fourth year unless the Commission again votes affirmatively to continue its existence. (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 May 18, 1995 TRD-9506094 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: June 8, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 458-0309 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 221. Advanced Nurse Practitioners 22 TAC sec.sec.221.1-221.10 The Board of Nurse Examiners adopts the repeal of sec. sec.221.1-221.10, concerning Advanced Nurse Practitioners, without changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2590). The repeals are being adopted as extensive rewrite of the sections was felt necessary to allow the adoption of new sec. sec.221.1-221.14, concerning Advanced Practice Nurse. No comments were received regarding adoption of the repeals. The repeals are adopted under the Nursing Practice Act (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 May 17, 1995. TRD-9506007 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: June 7, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 835-8675 Chapter 221. Advanced Practice Nurse 22 TAC sec.sec.221.1-221.14 The Board of Nurse Examiners adopts new sec.221.1-221.14, concerning Advanced Practice Nurse, without changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2590). The Board's Advanced Nurse Practitioner (ANP) Advisory Committee has been meeting since last summer to discuss recommendations for changes. The committee members have shared the information with their respective constituents, thus, the input to these proposed rules has been broad-based. The committee then submitted a draft for the Board's consideration. These new sections are being adopted to include mechanisms for initial and continued competency which are necessary in light of changes in the health care delivery system and current advanced practice nursing and replace the former Advanced Nurse Practitioner rules. There were no comments received regarding adoption of the new sections. The new sections are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 May 17, 1995. TRD-9506008 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Effective date: June 7, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 835-8675 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 402. Client Assignment and Continuity of Services Subchapter E. Preadmission Screening and Annual Resident Review (PASARR) 25 TAC sec.sec.402.151-402.161 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.sec.402.151-402.161, concerning preadmission screening and annual resident review (PASARR), without changes to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1869). New sec.sec.402.151-409.158 of the same subchapter concerning the same matters are adopted contemporaneously in this issue of the Texas Register. The purpose of the repeal is to permit the adoption of new sections which comply with recently implemented federal regulations concerning the PASARR process and to reflect changes in agency responsibilities for the PASARR process. A public hearing was held at 1:30 p.m. on Tuesday, April 11, 1995, in the TDMHMR Central Office auditorium at 909 West 45th Street in Austin to accept oral and written testimony concerning the proposed repeal. No testimony was provided. The repeals are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Texas Health and Human Services Commission with the authority to review all rules of health and human service agencies. The repeals implement Texas Human Resources Code, sec.22.002 and sec.32. 001- 32.040; and Texas Civil Statutes, Article 4413(502), sec.16. 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 May 19, 1995. TRD-9506172 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: June 12, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 206-4516 25 TAC sec.sec.402.151-402.158 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.402.151-402.158, concerning preadmission screening and annual resident review (PASARR). New sec.sec.402.153-402.155, 402.157, and 402.158 are adopted with changes to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1869). Sections 402.151, 402.152, and 402.156 are adopted without changes and will not be republished. Existing sec.sec.402.151-409.161 of the same subchapter concerning the same matters are repealed contemporaneously in this issue of the Texas Register. The purpose of the new sections is to comply with recently implemented federal regulations concerning the PASARR process and to reflect changes in agency responsibilities for the PASARR process. Technical changes reflecting updated citations are reflected in sec.sec.402.153, 402.154, and 402.157. Changes to the proposed text of sec.sec.402.153, 402.155, and 402.158 have been made in response to comments. In sec.402.153, the definition of legally adequate consent has been deleted. The definition of PASARR has been modified to reflect that TDMHMR is informed of the PASARR process. In the same section, the surrogate decision maker was added to the definition of legal representative reflecting Health and Safety Code, Chapter 313, Consent to Medical Treatment. Similarly, the description of the process for resolving consent issues prior to alternate placement has been deleted from sec.402.155(f) which delineates the need to obtain documented agreement with the specific placement chosen by the resident or the resident's legal representative. The process of providing assistance to families in accessing guardianship if needed are to be described within policy and procedure manuals of the PASARR program. Section 402.155 has been amended to include advocacy groups to the distribution list. A public hearing was held at 1:30 p.m. on Tuesday, April 11, 1995, in the TDMHMR Central Office auditorium at 909 West 45th Street in Austin to accept oral and written testimony concerning the new sections. Oral testimony was received from Advocacy Inc. Written comment were received from the parent of person with mental retardation and from Advocacy, Inc. A commenter suggested that the definition of Preadmission Screening and Annual Resident Review state that the results of the determination are to be communicated with TDMHMR. The department agrees and the definition has been expanded to include this process. A commenter questioned whether the discussion of voluntariness contained in the definition of "legally adequate consent" reflected a recent Health Care Finance Administration (HCFA) interpretation stating that persons with mental retardation living in an ICF/MR facility are entitled to freedom of choice of where they live and therefore may not be forced to leave the facility. The department responds that the definition of voluntariness, as contained in this rule, addresses circumstances in which a nursing facility resident is no longer eligible for Medicaid benefits for nursing facility services. An individual's eligibility for such services is separate and distinct from an individual's freedom to choose among the available services for which he or she is eligible. The definition of voluntariness was an element of the definition of legally adequate consent. This definition has been removed from the new rule for reasons provided below. One commenter requested that in sec.402.154, the PASARR determination be defined as a recommendation about placement rather than a decision and that the criteria and date of the reviews be supplied to the family prior to the review. The department responds that the PASARR determination is a decision made to establish a person's eligibility or need for nursing facility services and a person's need for specialized services. The determination should not be construed as a recommendation that an individual should enter or remain in a nursing facility, only that he or she is eligible to do so. The assessments resulting in PASARR determinations are conducted according to regulations outside the context of this rule. We believe the rule accurately reflects the meaning of the PASARR determination and the suggested amendment will not be made. One commenter requested that sec.402.152 be amended to include persons who choose to pursue the alternate placement options related to their PASARR determination. The department responds that under this rule all nursing facility residents identified as needing specialized services may choose to receive alternate placement services. One commenter requested that the definition of "alternate placement services" in sec.402.153 be expanded to include specific reference to the provision of funds to facilitate placement. The department responds that funds necessary to assist residents in the transition to alternate placements are now available contingent upon continued appropriations. MHMR Authorities may access these funds by following current procedures delineated in the TDMHMR OBRA-PASARR Policy and Procedure Manual. Two commenters suggested expansion of those parties identified in sec.409. 153 who will receive copies of the results and decisions agreed upon in the service plan. The department agrees with the comments. The results and decisions of all service plan meeting will now be documented by the case manager and copies will be provided to the resident, legal representative, family, and nursing facility. This section has been modified accordingly. One commenter suggested that sec.402.155 specifically state that family will be invited to attend interdisciplinary team meetings upon the consent of a competent adult. The department responds that the section now states that the resident or resident's legal representative may identify who may be invited and may indicate who may not attend. It is felt that this statement is adequate to communicate the commenter's intent that a competent adult be allowed to exclude family members from the team if he or she so chooses. One commenter requested that sec.402.155(b)(2) be amended to explicitly require the interdisciplinary team to abide by the wishes of the resident regarding who may attend the service planning meeting. The department responds that the current language conveys the intent of the commenter. The resident or the resident's legal representative may now indicate that certain members of the IDT may not attend service planning meetings. A commenter requested the word "should" in sec.402.155(b)(1) be replaced with "shall." The department responds that the current language serves to convey the intent that the MHMR Authority should make every effort to elicit the participation and honor the preferences of the resident or the resident's legal representative. One commenter requested that those persons who could agree to an alternate placement be expanded to include surrogate decision makers (SDMs). The department agrees. Within the scope of this rule, the department accepts this recommendation and has expanded the definition of legal representative for a nursing facility resident to include persons identified as surrogate decision makers. Section 402.155(f) has been modified to state that when the resident or the resident's legal representative selects an alternate placement, the MHMRA case manager will obtain written agreement for the specific alternate placement from the resident or the resident's legal representative. The potential need to assist the family of a resident to access the guardianship process will be addressed through the OBRA-PASARR Policy and Procedure Manual. One commenter suggested that advocacy groups be added to the distribution list in sec.402.158. The department agrees and the distribution list has been modified as requested. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Texas Health and Human Services Commission with the authority to review all proposed rules of health and human service agencies. The new sections implement Texas Human Resources Code, sec.sec.22.002 and 32. 001-32.040; and Texas Civil Statutes, Article 4413(502), sec.16. sec.402.153. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Alternate placement services-Assistance provided by an MHMRA case manager at the request of a nursing facility resident or the resident's legal representative/surrogate decision maker to locate and secure services which meet the resident's basic needs and preferences in a setting other than a nursing facility. The services include the identification of specific alternate service resources for which the resident may be eligible, treatment services available through the resources, and the possible consequences of selecting a specific resource. Basic needs-The provision or acquisition of adequate food, clothing, safe and sanitary shelter, support services, and medical services to sustain life. Case manager-Staff member designated by the MHMRA to ensure that a person receives needed resources and services. Consensus-A negotiated agreement that all interdisciplinary team (IDT) members can and will support in implementation. The negotiation process involves the open discussion of ideas with all parties encouraged to express opinions. Dementia-A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM). Legal representative -The parent of a minor child or the legal guardian or the surrogate decision maker of the applicant to or the resident of a nursing facility. Mental health and mental retardation authority (MHMRA)-A local services provider selected by the Texas Department of Mental Health and Mental Retardation to plan, facilitate, coordinate, or provide services in a local services area to persons with mental illness, and/or mental retardation, or a related condition; this includes designated providers and departmental facility community services programs. Mental illness -A current primary or secondary diagnosis of a major mental disorder (as defined in the Diagnostic and Statistical Manual of Mental Disorders, third edition, revised in 1987 (DSM-III-R). This mental disorder is a schizophrenic, mood, paranoid, panic, or other severe anxiety disorder; personality disorder; other psychotic disorder; or another mental disorder that may lead to a chronic disability and is not accompanied by a primary diagnosis of dementia (including Alzheimer's disease or a related disorder). The disorder results in functional limitations in major life activities within the past three to six months that would be appropriate to the individual's developmental stage. The individual typically has at least one of the following characteristics on a continuing or intermittent basis: serious difficulties in the areas of interpersonal functioning; and/or concentration, persistence, and/or pace; and/or adaption. Within the past two years, the disorder has required psychiatric treatment more intensive than outpatient care and/or the individual has experienced an episode of significant disruption to the normal living situation for which supportive services were required to maintain functioning at home or in a residential treatment environment or which resulted in intervention by housing or law enforcement officials. Mental retardation -A diagnosis of mental retardation (mild, moderate, severe, or profound) as described in Classification in Mental Retardation, American Association on Mental Deficiency, 1983 Revision, i.e., mental retardation is significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. Nursing facility -A Texas Medicaid-certified institution providing nursing services. It does not include a non-Medicaid certified facility, or non-Medicaid certified distinct part of a facility, or a facility certified as an intermediate care facility for the mentally retarded or for people with related conditions. Preadmission Screening and Annual Resident Review (PASARR) -The process of evaluating, reviewing, and establishing a person's need for nursing facility services and for specialized services for mental illness and/or for mental retardation or a related condition. This process is conducted by the Texas Department of Human Services (TDHS) in accordance with 40 TAC sec.19.2500 and communicated to TDMHMR. Related condition -A severe, chronic disability as defined in 42 CFR 43.1009, that: (A) is attributable to: (i) cerebral palsy or epilepsy; or (ii) any other condition including autism, but excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for these persons. (B) is manifested before the person reaches age 22; (C) is likely to continue indefinitely; and (D) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; or (vi) capacity for independent living. Responsible party -A person as defined in rules of TDHS in 40 TAC sec.19.101 (relating to Definitions for Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification). Specialized services - (A) For individuals with mental illness, the implementation of an individualized plan of care developed under and supervised by a physician or other qualified mental health professionals that prescribes specific therapies and activities for a person who is experiencing an acute episode of severe mental illness which necessitates supervision by trained mental health personnel. (B) For individuals with mental retardation and/or a related condition, the implementation of an aggressive, continuous, and individualized program of specialized and generic training, treatment, health services, and related services that is directed toward the behaviors necessary for the person to function with as much self-determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status. It does not include services to maintain generally independent people who are able to function with little supervision or in the absence of a continuous program of specialized services. Support services -Services which may include social, psychological, habilitative, rehabilitative, or other assistance appropriate to the person's needs as determined by the IDT. Surrogate decision maker (SDM)-A person designated in accordance with the Health and Safety Code, Chapter 313, Consent to Medical Treatment, who may consent to treatment on behalf of an individual who is comatose, incapacitated, or otherwise mentally or physically incapable of communication. sec.402.154. PASARR Determination Process. The PASARR determination is a professional decision based upon written criteria and objective information made in accordance with the rules of the Texas Department of Human Services at 40 TAC sec.19.2500. The MHMRAs will provide specialized services to those residents determined through this process to need specialized services for mental illness, and/or mental retardation or a related condition. sec.402.155. Provision of Specialized Services and Alternate Placement Services. (a) The MHMRA will provide specialized services and alternate placement services as delineated in the OBRA PASARR Policy and Procedure Manual for Specialized Services and Alternate Placement Services and in 40 TAC sec.19.2500(e)-(f), relating to specialized services and alternate placement. (b) The MHMRA case manager will invite the resident, the resident's legal representative/surrogate decision maker/responsible party, family members, nursing facility representative(s) and attending physician to participate in an interdisciplinary team (IDT) meeting to develop a specialized service plan for the resident. If the resident or the resident's legal representative/SDM requests alternate placement services, the service plan will outline team member responsibilities for securing an alternate placement. (1) Communication techniques and devices should be utilized as appropriate to facilitate the resident's participation in all aspects of service planning. (2) The resident or the resident's legal representative/SDM may identify individuals to be invited to the meeting and indicate that certain members may not attend. However, written information will be received and reviewed from all IDT members. (c) The MHMRA case manager will document the results and decisions of all service planning meetings and provide a copy to the resident, the resident's legal representative and the resident's nursing facility, as specified in 40 TAC sec.19.2500(e)(9). (d) The MHMRA case manager will provide a monthly report to the nursing facility and attending physician regarding the delivery of specialized services and alternate placement services as specified in 40 TAC sec.19.2500(e)(6). (e) Upon receipt of a written request from the resident or legal representative/SDM, the case manager shall provide a copy of the monthly written report to the resident or the resident's legal representative/SDM. The copies shall be provided monthly until the request is withdrawn in writing. (f) When the resident or the resident's legal representative selects an alternate placement located by the MHMRA case manager, the MHMRA case manager shall obtain written agreement for the specific alternate placement from the resident or the resident's legal representative. (g) Staff of the MHMRA must comply with: (1) TDMHMR OBRA PASARR Policy and Procedure Manual; (2) TDMHMR Operating Instruction (OI) 401-2 concerning Case Management; and (3) Chapter 409, Subchapter I of this title (relating to Rehabilitative Services for Persons with Mental Illness). sec.402.157. References. Reference is made in this subchapter to the following laws and standards. (1) Omnibus Budget Reconciliation Act of 1987, Public Law 100-203, Title IV, Subtitle C, Nursing Home Reform, Part C, Medicaid. (2) Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, Title IV, Part E, Section 4801b. (3) 42 CFR 43. 1009. (4) International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM). (5) Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM- III-R). (6) Classification in Mental Retardation, American Association on Mental Deficiency, 1983 Revision. (7) 40 Texas Administrative Code (TAC), sec.sec.19.101, 19.218-19.420, and 19.2500 (rules of the Texas Department of Human Services). (8) TDMHMR Operating Instruction (OI) 401-2 concerning Case Management. (9) TDMHMR OBRA PASARR Determination Program Policy and Procedure Manual for Specialized Services and Alternate Placement. (10) Chapter 409, Subchapter I, of this title (relating to Rehabilitative Services for Persons with Mental Illness). (11) 42 CFR 483.100-483.138, Subpart C, and 42 CFR 483.200-483.206, Subpart E, relating to Preadmission Screening and Annual Review of Mentally Ill and Mentally Retarded Individuals. (12) Texas Health and Safety Code, Chapter 313, Consent to Medical Treatment Act. sec.402.158. Distribution. This subchapter shall be distributed to: (1) members, Texas Board of Mental Health and Mental Retardation; (2) commissioner, medical director, deputy commissioners, associate deputy commissioners, assistant deputy commissioners, and directors of Central Office; (3) superintendents/directors, state facilities; (4) executive directors, community mental health and mental retardation centers; (5) Texas Department of Human Services; (6) Texas Department of Health; (7) Health and Human Services Commission; and (8) advocacy organizations. 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 May 19, 1995. TRD-9506173 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: June 12, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 206-4516 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part X. Texas Water Development Board Chapter 363. Financial Assistance Programs Subchapter A. General Provisions The Texas Water Development Board (board) adopts amendments to sec.363.15, concerning required water conservation plan and sec.363.71, concerning general responsibilities, without changes to the proposed text as published in the April 11, 1995, issue of the Texas Register (20 TexReg 2694). The board also adopts the repeal of sec.363.224, concerning hardship applications, without changes to the proposed text as published in the January 13, 1995, issue of the Texas Register (20 TexReg 213). The proposed rules will define water conservation plan requirements which are currently in guidelines used by Board staff in agency rules. The proposed rules will also reduce the reporting requirements and eliminate confusion and duplication. The amendments will eliminate those requirements which do not provide a significant benefit to water conservation and will ensure that all essential requirements for efficient water conservation are met. Amended sec.363.15(c) will describe the requirements of a water conservation plan to include evaluation of the water and wastewater system and establishment of goals for water conservation measures. The water conservation plan shall consist of a long-term water conservation plan and an emergency water demand management plan. The section will specify the three essential elements of long-term water conservation plans to be measures to determine and control unaccounted for water, non-promotional rate structures which do not promote the excessive use of water, and a program of consumer education. New sec.363. 15(e) provides a method for wholesale suppliers to meet the requirements of a water conservation plan in conformity with Water Code, sec.sec.15.106, 15.607, 16. 136, 17.125, 17.277, and 17.857. New sec.363.15(f) provides additional elements that may be included in a long term water conservation plan. New sec.363.15(g) describes the requirements of an emergency demand management plan. New sec.363. 15(h) provides that a conservation plan determined by the Texas Natural Resource Conservation Commission to satisfy the requirements of 31 TAC Chapter 288 will be accepted by the Board. Amended sec.363.71(a)(2) will require that the political subdivision maintain an approved water conservation program until the financial obligations have been discharged and will change the length of time required to submit reports on the water conservation programs from the life of the financial assistance to three years from the date of loan closing. If the executive administrator determines that the water conservation program is not in compliance with the water conservation plan, additional annual reports may be required. Section 363.224 is no longer used as a method of financial assistance. Comments were received from the Texas Natural Resources Conservation Commission in support of the amendments. General Application Procedures 31 TAC sec.363.15 The amendment is adopted under the Texas Water Code, sec.6.101, which requires the board to adopt rules to carry out the powers and duties of the board, under the Texas Water Code, and other laws of this state. 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 May 18, 1995. TRD-9506076 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: June 8, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 463-7981 Post-Construction Responsibilities 31 TAC sec.363.71 The amendment is adopted under the Texas Water Code, sec.6.101, which requires the board to adopt rules to carry out the powers and duties of the board, under the Texas Water Code, and other laws of this state. 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 May 18, 1995. TRD-9506078 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: June 8, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 463-7981 Subchapter B. State Water Pollution Control Revolving Fund Applications for Assistance 31 TAC sec.363.224 The repeal is adopted under the Texas Water Code, sec.6.101, which requires the board to adopt rules to carry out the powers and duties of the board, under the Texas Water Code, and other laws of this state. 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 May 18, 1995. TRD-9506077 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: June 8, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 463-7981 Chapter 375. State Revolving Loan Fund The Texas Water Development Board (board) adopts amendments to sec.375.37, concerning required water conservation plan and sec.375.101, concerning responsibilities of applicant, without changes to the proposed text as published in the April 11, 1995, issue of the Texas Register (20 TexReg 2695). The proposed rules will define water conservation plan requirements that are currently in guidelines used by Board staff into agency rules. The proposed rules will also reduce the reporting requirements and eliminate confusion and duplication. The amendments will eliminate those requirements which do not provide a significant benefit to water conservation and will ensure that all essential requirements for efficient water conservation are met. Amended sec.375.37(c) will describe the requirements of a water conservation plan to include evaluation of the water and wastewater system and establishment of goals for water conservation measures. The water conservation plan shall consist of a long-term water conservation plan and an emergency water demand management plan. The section will specify the three essential elements of long-term water conservation plans to be measures to determine and control unaccounted for water, non-promotional rate structures which do not promote the excessive use of water, and a program of consumer education. New sec.375.37(e) provides a method for wholesale suppliers to meet the requirements of a water conservation plan in conformity with Water Code, sec.sec.15.106, 15.607, 16.136, and 17.277. New sec.375.37(f) provides additional elements that may be included in a long term water conservation plan. New sec.375.37(g) describes the requirements of an emergency demand management plan. New sec.375.37(h) provides that a conservation plan determined by the Texas Natural Resource Conservation Commission to satisfy the requirements of 31 TAC Chapter 288 will be accepted by the Board. Amended sec.375.101(4) will require that the political subdivision maintain an approved water conservation program until the financial obligations have been discharged and will change the length of time required to submit reports on the water conservation programs from the life of the financial assistance to three years from the date of loan closing. If the executive administrator determines that the water conservation program is not in compliance with the water conservation plan, additional annual reports may be required. Comments were received from the Texas Natural Resources Conservation Commission in support of the amendments. Application for Assistance 31 TAC sec.375.37 The amendment is adopted under the authority of Texas Water Code, sec.6. 101 and sec.15.605, which requires the board to adopt rules necessary to carry out the powers and duties of the board provided by Texas Water Code, and adopt rules for the State Water Pollution Control Revolving Fund. 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 May 18, 1995. TRD-9506080 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: June 8, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 463-7981 Post Building Phase 31 TAC sec.375.101 The amendment is adopted under the authority of Texas Water Code, sec.6. 101 and sec.15.605, which requires the board to adopt rules necessary to carry out the powers and duties of the board provided by Texas Water Code, and adopt rules for the State Water Pollution Control Revolving Fund. 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 May 18, 1995. TRD-9506079 Craig D. Pedersen Executive Administrator Texas Water Development Board Effective date: June 8, 1995 Proposal publication date: April 11, 1995 For further information, please call: (512) 463-7981 Part XV. Texas Low-Level Radioactive Waste Disposal Authority Chapter 451. Disposal Site Management and Operation Subchapter B. Waste Acceptance 31 TAC sec.sec.451.21-451.29 The Board of Directors of the Texas Low-Level Radioactive Waste Disposal Authority adopts new sec.sec.451.21-451.29, relating to the acceptance of low- level radioactive waste at the Authority's proposed disposal facility. Section 451.23 and sec.451.26 are adopted with changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2607). Sections 451.21, 451.22, 451.24, 451.25, 451.27-451.29 are adopted without changes and will not be republished. The new sections are adopted to protect the public and employees of the disposal facility by specifying the procedures and conditions for accepting low- level radioactive waste for disposal and excluding certain types of waste from disposal. These sections also allow the Authority to penalize persons who violate the conditions. Comments were received from the Texas Department of Health, the Texas Natural Resource Conservation Commission, and Vermont Yankee Power Company. One commenter proposed changes in sec.451.22 relating to the definition of "mixed waste" and "resident inspector." The board disagrees with the suggested changes because they would add some vagueness to the definitions. It was also suggested that a definition of "Authority" be added to sec.451.22. The board notes that "Authority" is referenced and defined in earlier sections of the board's rules and thus should not be defined in sec.451.22. Another comment was that the definition of "Transporter" should be changed to include a person who is duly registered with the Nuclear Regulatory Commission (NRC) or the Environmental Protection Agency (EPA). The board notes that there is no requirement of registration of transporters with the NRC or the EPA. No change is made as a result of the comment. In sec.451.23 discussing waste manifests, one commenter questioned the requirement in sec.451.23(c)(3) that a transporter's EPA hazardous waste number be listed on the manifest. The board notes that this number is used in Department of Transportation (DOT) regulations as a means of identification and is commonly required on waste manifests. Another commenter suggested that the waste manifest contain a listing of the empty weight of the waste container. The board responds that the commenter did not provide justification for the suggestion, and the board does not believe that the listing adds any significant information to the manifest. In addition, standard container weights are listed elsewhere in the regulatory literature. The same commenter suggested an editing change to sec.451.23(c)(9) prohibiting delisting of radionuclides exceeding a half-life greater than 35 years. The board finds that the definition is understandable without the editing change. Another commenter stated that the term "delisting" could be misleading since there are no listings of radionuclides that can be included on a manifest. The board responds that the section specifies which radionuclides cannot be delisted, and in the context of the section it is sufficiently apparent as to what the term "delisting" means. No change is made in response to the comment. A commenter objected to sec.451.23(c)(16) requiring that the manifest list applicable DOT labels or markings. The commenter notes that the section should read "labels and markings" since labels describe contents of the waste container and markings describe the container. This suggestion is accepted and the change is made. Another suggestion was that sec.451.23(c)(17) be changed to note the presence "and quantity by weight" of chelating agents where applicable. The board notes that the requirement in sec.451.25(d) that concentrations of chelating agents not exceed 8.0% by weight speaks to the commenter's suggestion, and no change is proposed. An editing change was suggested by a commenter to clarify sec.451.23(c)(18) requiring that the waste shipment and manifest be verified by a Bureau of Radiation Control (BRC) inspector or its designated agent. This suggestion is accepted by the board and the change has been incorporated. Another commenter objected to the BRC verification requirement on the grounds that such verifications are unnecessary and expensive. The board responds that this requirement is stated in the authority's statute and thus cannot be eliminated. In sec.451.24, relating to approval and receipt of shipments, a commenter noted that when the disposal facility operator acknowledges receipt of a shipper's notification of intent to ship waste, the acknowledgment should contain a statement that the acknowledgment does not constitute "an acceptance of the shipment for disposal." The board finds that the existing language in sec.451.24(b)(2) that the acknowledgment does not constitute "an approval to ship" has the same meaning in the context of the whole section and thus should be retained with no change. The same commenter recommended that a waste shipper convey to the disposal facility operator under sec.451.24(d)(1) a statement of the "expected date and time of arrival of the shipment" at the disposal facility. The existing language requires only that the expected arrival date be stated. Because of the long distances that waste must be transported, it is difficult to predict accurately the hour of arrival. The board finds that it is sufficient notice if only the arrival date is listed. A comment to sec.451.24(d)(2) noted that under the existing subsection, an updated manifest must be sent to the disposal facility if changes to the proposed waste shipment have occurred, and suggested that these changes must be "duly approved by the BRC inspector." The board responds that the BRC does not propose to approve or re-approve all changes to the waste shipment; thus, the issue of when to approve changes should be left to the BRC. No change is made as a result of his comment. Another commenter suggested an editing change to sec.451.24(f) to determine compliance with "applicable rules" instead of compliance with "this subchapter" as proposed in the section. The board does not consider that this comment clarifies or improves the existing language, and no change is made in response to this comment. A commenter proposed adding a new sec.451 24(g) stating that "Shipments or containers rejected for disposal by the disposal facility operator shall be managed by the shipper in conformance with all applicable rules." The board responds that this comment does not add any additional requirements relating to approval and receipt of shipments. The shipper is presumed to be aware of how he should manage containers that are rejected for disposal. No change is made as a result of this comment. With regard to sec.451.25, one commenter suggested that sec.451.25(c) be modified to require Type A containers to be pre-approved by the Authority, and Type B containers to be pre-approved by the NRC by issuance of a Certificate of Compliance. The board responds that this language is unnecessary because the designation of Type A and B containers is made by the NRC; thus, additional approvals are not required. Another commenter suggested that the reference in sec.451.25(c) to specific container types be deleted because some Type A containers are constructed of cardboard which is prohibited in sec.451. 25(h). The board responds that since sec.451.25(h) already prohibits cardboard boxes, listing of Type A containers as acceptable in general is not contradictory. A commenter states that the language in proposed sec.451.25(f)(1) concerning radium containment should be re-worded to require immobilization of a 2R container "in the center of a second container by placing concrete around it." The board notes that the existing language requires that the 2R container must be immobilized "with concrete in the center of a second container." This language seems clear without the commenter's suggested language and thus no change is made. Two commenters requested a change in the language of sec.451.26(b) dealing with liquid waste to delete references to solid waste. The board responds that the existing language closely tracks the language of Part 21 of the Texas Regulations for Control of Radiation (TRCR) relating to liquid waste and should be followed for consistency. One commenter suggested for clarity that the following language be substituted in sec.451.26(c): "Liquid waste shall be solidified or absorbed using a sufficient quantity of absorbent material to contain twice the volume of the liquid waste." The board accepts the change since the suggested language closely tracks the language of TRCR Part 21. One commenter noted a typographical error in sec.451.26(e)(2) that references subparagraph (4). It should reference subparagraph (5). That change is accepted. Another comment was that the term "pyrophoric materials" in sec.451. 26(d) should be deleted in favor of "materials capable of self-ignition." The board responds that the existing language tracks the language in TRCR Part 21 and should be retained for consistency. No change is made as a result of this comment. A final comment on this section suggests that sec.451.26(f) and sec.451. 25(e) may be inconsistent. The board finds that they are consistent because sec.451.26(f) refers to treating of biological waste inside the inner container and sec.451.25(e) refers to the material that must be used in the void between the outer and inner container. No change is made in response to this comment. In sec.451.27, a commenter has requested that waste containers delivered to the site should be sized "such that a 2-inch minimum clearance in all directions exists when the containers are placed in cylindrical concrete canisters." The section as proposed by the board does not contain a minimum clearance. The board responds that a 2-inch clearance is not essential for disposal operations. In addition, such requirements will exclude certain types of approved containers from being disposed of in the canisters. The new sections are adopted under the Health and Safety Code, sec.402.054, which states that the board may adopt rules necessary to protect the public health and environment; and under the Health and Safety Code, sec.402.216, which authorizes the board to adopt rules governing the acceptance of low-level waste; and under the Health and Safety Code, sec.402.219, which directs the board to exclude by rule certain types of low-level waste that are incompatible with disposal operations. sec.451.23. Waste Manifests. (a) Every shipment of waste to the disposal facility must be accompanied by a manifest completed, signed, and dated by the shipper or an authorized representative of the shipper. (b) The manifest shall be on a standard form approved by the Authority. (c) At a minimum, the manifest shall include the following information: (1) shipper's name, address, and telephone number. If the shipper is a broker or processor, the manifest must include the name, address, and telephone number of the generators contributing waste to the shipment; (2) shipper's certification that the transported materials are properly classified, described, packaged, marked and labeled in accordance with all applicable regulations, and are in proper condition for transportation; (3) transporter's name, address, and telephone number or the name and EPA hazardous waste identification number of the transporter; (4) a physical description of the waste; (5) the type of waste container used; (6) the total volume of waste in each container; (7) the outer dimensions and volume of each container; (8) the total weight of each container, including its contents; (9) identity and activity of radionuclides contained in each container. Delisting of radionuclides is permitted, except that the following radionuclides may not be delisted: I-129, H-3, C-14, CI-36, Ni-63, Sr-90, Cs-137, Ra-226, and Tc-99, and any other radionuclides exceeding a half-life greater than 35 years; (10) the total radioactivity content of each container, in curies (becquerels); (11) the principal chemical form of the waste; (12) if waste is of biological form, the type of specimens and packing medium used; (13) solidification media used, if applicable, and the stabilization method used for Class B and C waste; (14) the highest radiation level for each waste container measured at the surface of the container, and, if shipped by common carrier, the transportation index. If measurement of the highest radiation level on a container presents a concern for excessive personnel radiation exposure, or if the highest radiation level is impossible to measure, the waste manifest may contain a calculation of the highest radiation level. The manifest shall note that a calculation was used. (15) classification of the contained waste as Class A, B, or C as described in Appendix 21-E, Texas Regulations for the Control of Radiation, Part 21, as adopted in 30 Texas Administrative Code, sec.336.1; (16) applicable DOT labels and markings; (17) the presence of chelating agents; and (18) a BRC (or its designated agent) inspector's verification of the waste shipment and the manifest, as required by sec.402.221, Health and Safety Code. If a shipment is delayed, the BRC may re-inspect and re-verify the waste shipment and manifest. sec.451.26. Waste Form Requirements. (a) Class B and C waste must be delivered to the disposal site in a stable form. To be considered stabilized, the waste shall have been: (1) placed in a HIC or other container pre-approved by the Authority; or (2) processed with an approved stabilization process. (b) Solid waste containing free-standing and non-corrosive liquid shall not exceed 1.0% of the waste volume when the waste is in a container designed to ensure stability, or 0.5% of the waste volume for waste processed to a stable form. (c) Liquid waste shall be solidified or absorbed using a sufficient quantity of absorbent material to contain twice the volume of the liquid waste. (d) Pyrophoric materials contained in waste shall be treated, prepared, and packaged to render it nonflammable. (e) Waste: (1) shall not be readily capable of detonation or explosive decomposition or chemical reaction at normal pressures and temperatures, or of explosive reaction with water; (2) shall not contain, or be capable of generating, quantities of gases, vapors, or fumes harmful to persons transporting, handling, or disposing of the waste, except that radioactive gaseous waste properly packaged in accordance with paragraph (5) of this subsection is not subject to this prohibition; (3) containing biological, pathogenic, or infectious material shall be treated to neutralize the potential hazard posed by the non-radiological materials; (4) containing incinerator ash or other dispersible powders classified as Class A waste shall be treated or packaged in such a manner as to render it non- dispersible in air; and (5) in a gaseous form shall: (A) be containerized in a DOT approved cylinder at an absolute pressure that does not exceed 1.5 atmospheres at 20% C; and (B) not contain in excess of 100 curies (3.7 terabecquerels) per cylinder. (f) Biological waste shall be layered with vermiculite, diatomaceous earth, or other approved absorbent and lime at a ratio of 30 parts biological material to at least one part slaked lime and ten parts absorbent to reduce gas generation. (g) Incidental or trace amounts of absorbed oil shall not exceed 1.0% of the waste volume. (h) Mixed waste shall not be accepted for disposal. 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 May 17, 1995. TRD-9506003 Lee H. Mathews Deputy General Manager and General Counsel Texas Low-Level Radioactive Waste Disposal Authority Effective date: June 7, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 451-5292 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.25 The Texas Youth Commission (TYC) adopts an amendment to sec.85.25, concerning minimum length of stay, without changes to the proposed text as published in the April 18, 1995, issue of the Texas Register (20 TexReg 2816). The rule is amended to enable TYC to use minimum length of stay assignments more efficiently. The amendment clarifies creditable time for a classification minimum length of stay and makes rules on consecutive minimum length of stay apply to recommitted youth as well as to reclassified youth. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.07, which provides the Texas Youth Commission with the authority to examine and make a study of each child committed to it according to rules established by the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 19, 1995. TRD-9506143 Steve Robinson Executive Director Texas Youth Commission Effective date: June 9, 1995 Proposal publication date: April 18, 1995 For further information, please call: (512) 483-5244