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 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 43. Tuberculosis Subchapter C. Eradication of Tuberculosis in Cervidae 4 TAC sec.sec.43.20-43.23 The Texas Animal Health Commission adopts amendments to Chapter 43, Tuberculosis, by adding a new subsection dealing with Cervidae, entitled C. Eradication of Tuberculosis in Cervidae, which includes sec.43.20, Definitions, sec.43.21, General Requirements, sec.43.22, Herd Status Plans for Cervidae, and sec.43.23, Requirements for Entry into Texas, with changes to the proposed text as published in the May 5, 1995, issue of the Texas Register (20 TexReg 3289). Those changes include: adding two new definitions in sec.43.20 (Elisa Test, and Surveyed Herd); rewording sec.43.21(a)-(b); adding sec.43.21(c)(5) (Elisa Test); and adding sec.43.22(d) (Surveyed Herd). The new sections are necessary to provide a Texas program for TB eradication in Cervidae. Included are: sec.43.20 provides new definitions; sec.43.21 offers general requirements in testing and classification procedures and provides guidelines for dealing with animals responding to tests including the issuance and release of quarantines; sec.43.22 outlines plans to establish cervidae herds as accredited, monitored, qualified, and surveyed; and sec.43.23 lists requirements for cervidae to meet when entering Texas. Comments were received from: Gladys Porter Zoo, Tyler Exotic Dome, Rancho Pegaso, Dos Pesos Ranch, Horlock Land and Cattle, Texas Senate Natural Resources Committee, Committee on Agriculture and Livestock, Lone Star Branch of North American Deer Farmers Association, Dallas Zoo, The Tiemann Companies, and Exotic Wildlife Association. All were in opposition to adopting the interstate change of ownership testing listed under sec.43.21(a), General Requirements. In response to these comments, the Commission made modifications to the proposal that would: (1) eliminate the need for intrastate change of ownership testing if sufficient blood samples are submitted prior to September 1, 1996, to allow an epidemiological evaluation of the presence of tuberculosis to be made; and (2) exempt surveyed herds from intrastate change of ownership testing, if implemented. The new sections are adopted under the Texas Agriculture Code, Texas Civil Statutes, Chapter 161, which provide the Commission with the authority to adopt rules and sets forth the duty of this commission to control disease. The new sections implement the Texas Agriculture Code, sec.161.041, which authorizes the Commission to act to eradicate or control any disease or agent of transmission for any disease that affects livestock, exotic livestock, or domestic animals. sec.43.20. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Accredited Herd -A herd that has passed at least three consecutive official tuberculosis tests of all eligible animals conducted at 10-l4 month intervals, has no evidence of bovine tuberculosis, and meets the requirements of the UM&R. Affected Herd-A herd that contains or has recently contained one or more animals infected with Mycobacterium bovis and has not passed the required tests for release from quarantine. Approved Laboratory -A State/Federal Veterinary Diagnostic laboratory. The primary laboratory for tuberculosis histopathology and bacteriology culture shall be the National Veterinary Services Laboratory, Ames, Iowa. Food Safety Inspection Service, Field Service Laboratories, may be utilized for histopathology. Blood Tuberculosis Test (BTB)-The BTB test is a supplemental test for bovine tuberculosis in Cervidae. The BTB test may be used, at no expense to the Commission, as a supplemental test to establish the disease status of a herd or to retest suspects. Samples for this test shall only be collected by State, Federal, or accredited veterinarians. Cervidae-All species of deer, elk, and moose raised under agricultural conditions for the production of meat, the production of other agricultural products, sport, or exhibition. Commission-The Texas Animal Health Commission Comparative Cervical Tuberculin (CCT) Test-The intradermal injection of biologically balanced bovine PPD tuberculin and avian PPD tuberculin at separate sites in the mid-cervical area to determine the probable presence of bovine tuberculosis (Mycobacterium bovis) by comparing the response of the two tuberculins 72 hours (plus or minus six hours) following injection. This test may be used for retesting suspects and shall be administered only by an approved State or Federal veterinarian. Designated Accredited Veterinarian-An accredited veterinarian trained and approved to conduct the Single Cervical Test for tuberculosis on Cervids. Direct shipment to slaughter-The shipment of tuberculosis reactors and suspects and tuberculosis-exposed cervids from the premises of origin, by permit, directly to a slaughtering establishment operating under state or federal inspection, without of any type. Elisa Test-The enzyme linked immunosorbant assay component of the BTB Test is recognized as a presumptive test for Bovine Tuberculosis in Cervidae. The Elisa test may be used to meet intrastate change of ownership test requirements, and for serological surveys of hunter/harvests in surveyed herds. Herd-A group of cervids and other hoof stock maintained on common ground or two or more groups of cervids and other hoof stock under common ownership or supervision that are geographically separated but can have an interchange or movement without regard to health status. (A group is construed to mean one or more animals). Monitored Herd -A herd raised under range conditions on which identification records are maintained on animals over one year of age slaughtered and inspected for tuberculosis at an approved State/Federal slaughter facility or an approved laboratory. A monitored herd must identify these animals at slaughter, evenly distributed over a three-year period, at a rate to detect infection at a 2.0% prevalence level with 95% confidence. This rate would require a maximum number of 148 animals. Negative animals -Cervids that show no response to a tuberculosis test and have been classified negative by the testing veterinarian based upon history, supplemental tests, examination of carcasses or laboratory results. No Gross Lesion (NGL) Animals-Cervids that do not reveal a lesion(s) of bovine tuberculosis upon necropsy. Official Eartag -An identification eartag that provides unique identification for each individual animal by conforming to the alpha-numeric National Uniform Eartagging System. Official Tuberculosis Test-A test for bovine tuberculosis applied and reported by approved personnel. The official tests for cervidae are the single cervical test, the comparative cervical test, and the blood tuberculosis test. Permit-An official document issued by a representative of the Commission, USDA APHIS-VS, or an accredited veterinarian that is required to accompany reactor, suspect or exposed cervids to slaughter. The permit will list the reactor tag number or official eartag number in the case of suspect and exposed cervids; the owner's name and address; origin and destination; number of cervids included; and the purpose of the movement. If a change in destination becomes necessary, a new permit must be issued by authorized personnel. No diversion from the destination of the permit is allowed. Qualified herd -A cervid herd that has undergone at least one complete official negative test of all eligible animals within the past 12 months and is not classified as an accredited herd, has no evidence of bovine tuberculosis, and meets the standards of the UM&R's. Reactor-Any cervid that shows a response to an official tuberculosis test and is classified a reactor by the testing veterinarian. Single Cervical Tuberculin Test (SCT)-The intradermal injection of 0.1 mL (5,000 tuberculin units) of USDA PPD Bovis tuberculin in the mid-cervical region with reading by visual observation and palpation in 72 hours (plus or minus six hours) following injection. This test shall be administered only by a State, Federal, or designated accredited veterinarian. Surveyed Herd-A cervid herd in which harvest records are maintained on all animals over one year of age that are surveyed for evidence of bovine tuberculosis by routine post mortem inspection at an approved state/federal slaughter facility, or approved diagnostic laboratory, or by serologic surveys conducted on non-native cervidae in hunter/harvest operations. Suspect-Any cervid that shows a response to the single cervical tuberculin test and is not classified a reactor, or is classified suspect by a supplemental tuberculosis test. Tuberculin-A product that is approved by and produced under USDA license for the intradermal injection of cervids for the purpose of detecting bovine tuberculosis. Tuberculosis-A disease in Cervidae caused by Mycobacterium bovis (M. bovis). sec.43.21. General Requirements. (a) Change of ownership requirements effective September 1, 1996, unless prior to that date sufficient information is obtained pursuant to sec.43. 22(d)(1) to allow an epidemiological evaluation as to the necessity for change of ownership testing. (1) Animal identification. All animals shall be individually identified by an official eartag or other approved identification device. (2) Testing. All cervidae sold through auction markets shall be tested negative to a tuberculosis test within 90 days prior to sale, except: (A) Animals originating from an accredited, qualified, monitored or surveyed herd. (B) Animals consigned to an approved state/federal inspected slaughter facility. (3) Record keeping requirements. Records documenting the sale of animals shall be maintained by the seller for a minimum period of five years. (b) Reporting of Tests. All cervidae tested shall be individually identified by an official eartag at the time of an official test. A report of all tuberculosis tests-including the identification of each animal by eartag number, age, sex, and breed-and a record of the size of the response, where indicated, and test interpretation shall be submitted in accordance with the requirements of the cooperating State and Federal officials. (c) Classification of Cervidae Tested. (1) Single cervical tuberculin test. (A) Herds of unknown status. All responses shall be recorded and the animals classified as suspects and quarantined for retest with the CCT or BTB, unless in the judgment of the testing veterinarian the reactor classification is indicated. (B) Known infected herds. All responses shall be recorded and the animals classified as reactors. (2) Comparative cervical test-All responses are to be measured to the nearest 0.5mm. (A) Animals having a response to bovine PPD of less than 1mm should be classified negative. (B) Animals having a response to bovine PPD from 1mm through 2mm, that is equal to or greater than the avian PPD response shall be classified as suspects. (C) Animals having a response to bovine PPD greater than 2.0mm but equal to the avian response shall be classified as suspects, except when in the judgment of the testing veterinarian the reactor classification is indicated. (D) Animals meeting the criteria for suspect classification on two successive CCT's shall be classified as reactors. (E) Animals having a response to bovine PPD which is greater than 2.0mm and is 0.5mm greater than the avian PPD response shall be classified as reactors. (3) Suspect cervids may be retested by either the CCT or the BTB. The CCT may be applied within ten days following the SCT injection or after 90 days. If the CCT is applied within ten days of the SCT, the opposite side of the neck shall be used. The sample for the BTB shall be taken 13-30 days after the SCT injection. Animals positive to the CCT or the BTB shall be classified as reactors. (4) Suspects may be necropsied in lieu of retesting, and, if found without evidence of M. bovis infection by histo-pathology and culture (including selected NGL specimens submitted from animals having no gross lesions indicative of tuberculosis), shall be considered negative for tuberculosis. (5) Elisa Test-Animals positive to the Elisa test shall be classified as suspects and quarantined for retest with an official TB test. (d) Disposition of Tuberculin-Responding Cervidae. (1) Reactors shall remain on the premises where they were disclosed until a State or Federal permit for movement has been obtained. Movement for immediate slaughter will be within 15 days of classification directly to a slaughter establishment where approved State or Federal inspection is maintained. Alternatively, the animals may be destroyed and necropsy conducted by or under the supervision of a State or Federal regulatory veterinarian that has been trained in tuberculosis necropsy procedures. (2) Herds containing suspects to the SCT shall be quarantined until the suspect animals are: (A) Retested by the CCT within ten days of the SCT injection; or (B) Retested by the CCT after 90 days; or (C) Retested by the BTB test between 13 and 30 days after the SCT injection; or (D) Shipped under permit directly to a slaughter facility under State or Federal inspection, or necropsied. If such animals are found without evidence of M. bovis infection by histopathology and culture (including selected NGL specimens submitted from animals having no gross lesions indicative of tuberculosis), they shall be considered negative for tuberculosis. (3) Suspects to the comparative cervical test or equivocal to the BTB shall remain under quarantine until: (A) Comparative cervical suspects are retested by the CCT after 90 days; or (B) BTB equivocal are retested by the BTB test after 30 and before 60 days following the SCT injection; or (C) Such animals are shipped under permit directly to a slaughter facility under State or Federal inspection, or necropsied. If such animals are found without evidence of M. bovis infection by histopathology and culture (including selected NGL specimens submitted from animals having no gross lesions indicative of tuberculosis), they shall be considered negative for tuberculosis. (4) An animal meeting the suspect criteria on two successive CCT or BTB will be classified as a reactor and be identified as such. The testing veterinarian must justify exceptions in writing and have the concurrence of State or Federal animal health personnel. (e) Identification of Reactors. Reactor cervids shall be identified by branding with the letter "T" on the left jaw, not less than two inches nor more than three inches high, and by tagging with an official eartag bearing a serial number and inscription "U.S. Reactor" attached to the left ear of each reactor animal. (f) Quarantine procedures. (1) All herds in which reactor animals are disclosed shall be quarantined. Exposed animals must remain on the premises where disclosed unless a State or Federal permit for movement to slaughter has been obtained. Movement for immediate slaughter must be directly to a slaughter establishment where approved State or Federal inspection is administered. Animals must be identified by official eartag. Use of "S" brand is required, or animals must be shipped in a official sealed vehicle. The "S" brand shall be applied to either the left jaw or the tailhead. (2) Cervidae herds in which M. bovis is confirmed shall remain under quarantine if not depopulated, and must pass three consecutive official tuberculosis tests of all animals. The first test must be conducted 90 days or more after the last test yielding a positive animal, with two additional tests at 180-day minimum intervals. Five annual complete herd tests of all animals shall be given following the release from quarantine. (3) Cervidae herds that have had a test of all eligible animals with NGL reactors only and no evidence of tuberculosis infection is found by histopathology and culture of M. bovis (including selected NGL specimens submitted from animals having no gross lesions indicative of tuberculosis), may be released without further restrictions. (4) Cervidae herds in which compatible or suggestive lesions are found by histopathology without the isolation of M. bovis, may be released from quarantine following a negative 90-day petest of the entire herd, provided there is no known association with M. bovis. (5) Cervidae herds that exhibit NGL reactors in which no evidence of tuberculosis infection is found by histopathology and culture of M. bovis and are unable to conduct a test of all eligible animals, shall be evaluated by the State and/or regional tuberculosis epidemiologist for possible release of quarantine. (g) Procedures in Affected Herds. Disclosure of tuberculosis in any herd shall be followed by a complete epidemiological investigation. All cervids in herds from which tuberculosis animals originate, and all cervids that are known to have associated with affected cervids or other affected animals, shall be tested promptly. These procedures shall apply to adjacent and contact herds as well as to the evaluation and testing of possible source herds for the affected herd. Herds that have received exposed animals shall be tested following the slaughter or testing of the exposed animals. Every effort shall be made to ensure the immediate elimination of the disease from all species of animals on the premises. The herd shall be handled as outlined under subsection (e), Quarantine Procedures. (h) Retest Schedules for High-Risk Herds. (1) In herds with a history of lesions compatible or suggestive for tuberculosis by histopathology, two complete annual herd tests shall be given after release from quarantine. Herds with a bacteriologic isolation of a Mycrobacteria species other than M. bovis should be considered negative for bovine tuberculosis with no further testing requirements. (2) In a newly assembled herd on premises where a tuberculosis herd has been depopulated, two annual herd tests shall be applied to all animals. The first test must be approximately six months after assembly of the new herd. If the premises are vacated for over one year, these requirements may be waived. (3) Exposed animals previously sold from known infected herds shall be depopulated if possible, or tested with the SCT by State or Federal veterinarians. The BTB test may be used simultaneously with the SCT as an additional diagnostic test. All animals positive to either test shall be classified as reactors. (A) If bovine tuberculosis is confirmed in the exposed animal(s), the remainder of the receiving herd shall be tested with the SCT by State or Federal veterinarians. The BTB test may be used, provided it is used simultaneously with a whole herd SCT. All animals positive to either test shall be classified as reactors. (B) If negative to the test, the exposed animal(s) will subsequently be handled as if a part of the infected herd of origin for purposes of testing, quarantine release, and the five annual high-risk tests. Also, the remainder of the herd shall be retested in one year with the SCT. Supplemental diagnostic tests may be used if needed. (4) Herds indicated as the source(s) of animals in slaughter traceback investigations shall be placed under quarantine within 30 days of notification to the area office, and a herd test scheduled. Testing of source herds of slaughter animals having lesions of tuberculosis shall be done by State or Federal regulatory veterinarians using the SCT. (A) If the herd of origin is positively identified and M. bovis has been confirmed by bacterial isolation from the slaughter animal, all animals responding to the SCT shall be classified as reactors. In all other cases, supplemental diagnostic tests may be used. (B) In herds identified as the source of culture negative lesioned animals, responding animals may be classified as reactors or suspects. If classified as suspects, they may be retested by supplemental diagnostic tests. (i) Cleaning and Disinfection of Premises, Conveyances, and Materials. All premises-including all structures, holding facilities, conveyances, and materials-that are determined by program officials to constitute a health hazard to humans or animals because of tuberculosis, shall be properly cleaned and disinfected. This shall be done within 15 days after the removal of tuberculosis-affected or exposed cervids in accordance with approved procedures. However, these officials may extend the time limit for disinfection to 30 days when a request for such extension is received prior to the expiration date of the original 15-day period allowed. sec.43.22. Herd Status Plans for Cervidae. (a) Accredited Herd Plan. (1) Animals to be tested. Testing of herds for accreditation or reaccreditation shall include all Cervidae and all other hoof stock over six months of age and animals under six months of age that are not natural additions. (2) Qualifying Standards. To meet the requirements for accredited herd status, the herd must pass at least three consecutive official tests for tuberculosis conducted at 10-14 month intervals with no evidence of bovine tuberculosis disclosed. Herds meeting these standards shall be issued a certificate by the Commission. (3) Additions. Herd additions must originate directly from one of the following and have no exposure to cervids from herds of lower status: (A) An Accredited Herd. (B) A Qualified or Monitored Herd. Provided, the individual animals for addition were negative to an official tuberculosis test conducted within 90 days prior to entry and isolated from members of the accredited herd until negative to an official tuberculosis test conducted at least 90 days following entry. (C) A herd not meeting the requirements of subparagraph (A) or (B) in this section. Individual animals for addition must be isolated from all other members of the herd of origin, and pass two negative official tests for tuberculosis conducted at least 90 days apart, with the second test conducted within 90 days prior to movement to the premises of the accredited herd. The additions must be kept in isolation from members of the accredited herd until negative to an official tuberculosis test conducted at least 90 days following the date of entry. (D) Animals added under this subparagraph and subparagraph (B) of this paragraph shall not receive accredited herd status for sale or movement purposes until they are negative on a retest 90 days after entry. (4) Reaccreditation. To qualify for reaccreditation, the herd must pass a test within a period of 22-26 months of the anniversary date. The accreditation period will be 24 months (730 days) from the anniversary date (not 24 months from the date of the reaccreditation test). (b) Monitored Herd Plan. (1) Requirements. Identification records must be maintained on animals over one year of age slaughtered, inspected, and found negative for tuberculosis at an approved slaughter facility or at an approved diagnostic laboratory. A monitored herd must identify animals at slaughter at a rate to detect infection at a 2.0% prevalence level with 95% confidence evenly distributed over a three- year period. This rate would require a maximum of 148 animals. (2) Maintenance of Monitored Herd Status. For monitored herd status to be renewed, an annual report shall be submitted by the person, firm, or corporation responsible for the management of the herd to the Commission prior to the anniversary date. This report shall give the number of animals currently in the herd and the number of animals over one year of age, identified and slaughtered at a State/Federal approved slaughter facility during the preceding year. The number of slaughter inspections reported in any given year must be at least 25% of the number required to initially qualify a herd of this size for monitored herd status, provided, however, that during each consecutive three-year period, 100% of the initial qualifying total shall be achieved. (3) Additions. Herd additions must originate directly from one of the following: (A) An Accredited Herd. (B) A Qualified or Monitored Herd. Provided, the individual animals for addition were negative to a tuberculosis test conducted within 90 days prior to entry. (C) A Herd not meeting the requirements of subparagraph (A) or (B) of this paragraph. Individual animals for addition must be isolated from other members of the herd of origin, and pass two negative official tests for tuberculosis, conducted at least 90 days apart, provided that the second test was conducted within 90 days prior to movement to the premises of the monitored herd. The additions must be kept in isolation from all members of the monitored herd until negative to an official tuberculosis test conducted at least 90 days following the date of entry. Animals added under this paragraph shall not receive monitored herd status for sale purposes until they are negative to a retest 90 days after entry. (c) Qualified Herd Plan for Cervidae. (1) Animals to be tested. Testing of herds for qualification shall include all cervidae over six months of age and any animals under six months of age that are not natural additions. All natural additions shall be individually identified by official eartag, and recorded on the test charts as members of the herd at the time of the herd test. (2) Qualifying Standards. To meet the requirements for qualified herd status, the herd must pass one official test for tuberculosis with no evidence of bovine tuberculosis disclosed. The qualified herd status remains in effect for 12 months following the qualifying test. (3) Additions. Herd additions must meet the criteria outlined in subsection (b)(3) of this section. (4) Animals added under subsection (b)(3)(C) of this section shall not receive qualified herd status for sale or movement purposes until they are negative to a retest 90 days after entry. (d) Surveyed Herd. (1) Requirements-Harvest records must be maintained on all animals over one year of age harvested and inspected or serologically surveyed without evidence of bovine tuberculosis: (A) At an approved slaughter facility with state/federal meat inspection, and/or (B) At an approved veterinary diagnostic laboratory and/or (C) At an approved hunter/harvest operation with routine collection of blood samples on all animals harvested and submitted to an approved laboratory for screening with the Elisa component of the BTB test. (2) A surveyed herd must identify animals at a rate to detect infection at a 2.0% prevalence level with 95% confidence. This rate would require an annual survey of a minimum of 1/3 of the total number of animals prescribed in appendix 1 for each specified herd size. (3) Qualification and maintenance of surveyed herd status. An annual report shall be submitted by the person, firm, or corporation responsible for management of the herd to the Commission at the time of qualifying and prior to each anniversary date. The report shall include the estimated number of breeding age animals currently in the herd and the number of animals over one year of age surveyed during the preceding year. sec.43.23. Requirements for Entry into Texas. (a) Cervids that originate from Accredited-free herds may enter without further tuberculosis testing provided they are accompanied by a certificate stating such cervids originated from an Accredited-Free herd. (b) Cervids not known to be affected with or exposed to tuberculosis that originate from Qualified herds may enter if they are accompanied by a certificate stating that such cervids originate from a qualified herd and have been classified negative to an official tuberculosis test, which was conducted within 90 days prior to the date of movement. If the qualifying herd test was administered within 90 days of movement, the animal(s) do not require an additional test. (c) Cervids not known to be affected with or exposed to tuberculosis that originate from Monitored herds may enter if they are accompanied by a certificate stating that such cervids originate from a monitored herd and have been classified negative to an official tuberculosis test, which was conducted within 90 days prior to the date of movement. (d) Cervids not known to be affected with or exposed to tuberculosis that originate from all other herds may enter if they are accompanied by a certificate stating that such cervids have been classified negative to two official tuberculosis tests, which were conducted no less than 90 days apart; that the second test was conducted within 90 days prior to the date of movement; and that the animals were isolated from all other members of the herd during the testing period. (e) No animal with a response to any tuberculosis test is eligible for entry unless that animal is subsequently classified "negative for tuberculosis" based upon an official tuberculosis test, or is consigned directly to slaughter. (f) Institutional members of the American Association of Zoological Parks and Aquariums (AAZPA) must comply with these requirements when movement is between or from member facilities. 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 July 27, 1995. TRD-9509392 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: August 31, 1995 Proposal publication date: May 5, 1995 For further information, please call: (512) 719-0714 TITLE 22. EXAMINING BOARDS Part XII. Board of Vocational Nurse Examiners Chapter 231. Administration Definitions 22 TAC sec.231.1 The Board of Vocational Nurse Examiners adopts an amendment to sec.231.1, relating to definitions of language, with changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4672). The rule is amended to remove the reference to deadline under Hardship, to delete the definition of Sponsorship as it is no longer required and to identify and define the national examination. The change is in the definition National Council Licensure Examination for Practical Nurses (NCLEX-PN). There were two typographical errors. The first letter of "Nursing" should have been capitalized and the first letter of "used" should not have been capitalized. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.231.1. Definitions. The following words and terms, when used throughout this manual, shall have the following meanings, unless the context clearly indicates otherwise. Hardship-A circumstance which results in failure to meet board requirements for examination due to natural disaster, personal illness, injury, or medical emergency of self or immediate family, death in immediate family or other extraordinary circumstances. Sponsorship-Delete National Council Licensure Examination for Practical Nurses. (NCLEX-PN)-The practical/vocational nurse licensure examination developed by the National Council of State Boards of Nursing, Inc., and used for licensure by those jurisdictions whose boards of nursing are National Council members. 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 July 31, 1995. TRD-9509477 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Chapter 233. Education Definitions 22 TAC sec.233.1 The Board of Vocational Nurse Examiners adopts an amendment to sec.233.1, relating to Definitions of language, with changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4673). This rule is being adopted to address and clarify essential competencies. The change is in the definition for Essential Competencies. The word "the" should be inserted prior to the publication title and the title of the publication addressed in this definition should be underlined. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.233.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Entry-level Competencies -Describe the desirable behaviors exhibited by graduates of vocational nursing programs and are in accord with statutes governing nursing care and are based on the Essential Competencies. Essential Competencies -The expected educational outcomes to be demonstrated by nursing students at the time of graduation, as published in the Nursing Education Advisory Committee, Report Volume I: Essential Competencies of Texas Graduates of Education Programs in Nursing, March 1993, as amended. 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 July 31, 1995. TRD-9509478 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Operation of a Vocational Nursing Program 22 TAC sec.233.12, sec.233.21 The Board of Vocational Nurse Examiners adopts amendments to sec.233.12, relating to Controlling Agency and sec.233.21, relating to Director, with changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4673). The amendment of sec.233.12 is proposed for consistency and to specify the two state education agencies that are involved with credentialing director/faculty. The amendment of sec.233.21 reflects the January 1995 change in agency procedure requiring program directors to issue temporary permits to eligible graduates of Texas VN programs. The changes occur in sec.233.12(3): The word "nurse" should appear after registered and before director and the word "will" should appear between who and meet, and sec.233.21(6)(C) and (9). Section 233.21(6)(c) should have the word "educational" inserted between equivalent and credentials and the word "Text" should be changed to "Test", and in paragraph (9) the word "agency" should read "agent". No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.233.12. Controlling Agency. The controlling agency shall: (1)-(2) (No change.) (3) Select and appoint a qualified registered nurse director for the program who will meet the requirements of the board and appropriate state education accrediting agencies (Texas Education Agency or Texas Higher Education Coordinating Board). (4)-(7) (No change.) sec.233.21. Director. (a)-(b) (No change.) (c) Responsibilities-The director shall: (1)-(4) (No change.) (5) distribute the Application for Licensure and Application for Examination forms to students. (6) have sole responsibility for certifying on a Director Affidavit, provided by the Board, that each graduate who is an applicant for licensure by examination has: (A)-(B) (No change.) (C) holds a high school diploma issued by an accredited secondary school or equivalent educational credentials as established by the General Education Development Equivalency Test (GED). (D) (No change.) (7)-(8) (No change.) (9) as agent for the board, issues temporary permits to eligible graduates upon program completion. 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 July 31, 1995. TRD-9509479 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Approval of Programs 22 TAC sec.233.42 The Board of Vocational Nurse Examiners adopts an amendment to sec.233.42, relating to Factors Jeopardizing School Approval, without changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4673). The rule is adopted as the term "writers" is obsolete since the paper and pencil examination was discontinued in April 1994 and the NCLEX-PN computer adaptive examination is now given. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examines with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 31, 1995. TRD-9509480 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Vocational Nursing Education Standards 22 TAC sec.233.58 The Board of Vocational Nurse Examiners adopts an amendment to sec.233.58, relating to Curriculum Requirements, with changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4674). The amendment is made to encompass the essential competencies. The changes in the text are contained in subsection (b) and are typographical errors. The word educational should be education and objective should be objectives. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.233.58. Curriculum Requirements. (a) (No change.) (b) Framework. The philosophy shall be the basis for curriculum development and shall reflect the purpose of the organization, faculty beliefs, and educational concepts. Terminal learning objectives derived from the philosophy shall be representative of the Essential Competencies for preparation of a vocational nurse graduate. Level and course objectives shall be stated in behavioral terms and shall serve as the mechanism for student progression. The conceptual framework shall define the internal and external influences impacting vocational nursing education and shall identify the education method and focus. (c) Design and Implementation. The curriculum shall be designed and implemented to prepare students to demonstrate the Essential Competencies. The curriculum design shall allow for flexibility to incorporate current nursing education theories and the implications of current developments in health care and health care delivery to assist graduates in meeting professional, legal, and societal expectations. Educational mobility shall also be a consideration in curriculum design. (d)-(i) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 31, 1995. TRD-9509481 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Chapter 235. Licensing Application for Licensure 22 TAC sec.sec.235.3, 235.6, 235.8, 235.9, 235.14, 235.15, 235.17, 235.18 The Board of Vocational Nurse Examiners adopts the amendments to sec.sec.235. 3, 235.6, 235.8, 235.9, 235.14, 235.15, 235.17, and 235.18, relating to application for licensure. Section 235.8 and sec.235.17 are adopted with changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4675). Sections 235.3, 235.6, 235.9, 235.14, 235.15, and 235.18 are adopted without changes and will not be republished. Section 235.3 is adopted to reflect the 1995 change in statutory requirement for high school diploma or GED to apply for the examination. Section 235.6 is amended for consistency with sec.235.17(d)(1)(D). Section 235. 8 is amended to clarity the name of the U.S. Army program. Section 235.9 is amended because with implementation of the computer adaptive examination, applications and fees are not required to be submitted for any specified length of time prior to examination date. Section 235.14 is amended so that the one year rule applies to all applicants. Section 235.15 is amended to accurately reflect curriculum components needed to apply for licensure by examination in Texas. Section 235.17 is amended to resequence and to reflect 1995 legislative change in statute. Section 235.18 is amended to remove the requirement of submitting application at least 30 days prior to examination. The title of sec.235.8 should read Military Programs Acceptable for Licensure by Examination. Section 235.17 should reflect a change in subsection (c)(1)(D) to read active and current instead of active/current. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.235.8. Military Programs Acceptable for Licensure by Examination. The U.S. Army Practical Nurse Course (formerly the 91C Clinical Specialist Course is the only military program acceptable for licensure by examination. sec.235.17. Temporary Permits. (a) Graduates of approved vocational nursing programs in this state, another state, or the District of Columbia. (1) A permit will be issued for the first scheduled examination only. (2) A permit will not be issued to an applicant who has previously failed an examination administered by the Board or by another state. (3) The temporary permit will expire on the applicant's receipt of a license or on receipt of notification of examination failure. (4) (No change.) (b) Professional Nursing Education Applicants. (1) (No change.) (2) Temporary permits will expire on the applicant's receipt of a license or on receipt of notification of examination failure. (c) Endorsement applicants. (1) Temporary permits shall be issued to endorsement applicants who: (A)-(C) (No change.) (D) hold active and current licenses to practice vocational/practical nursing in another state; and (E) (No change.) (2) (No change.) (d) Restrictions on Temporary Permits. (1) Holders of temporary permits must practice under the direct supervision of a registered nurse, licensed vocational nurse, or a licensed physician. (2) Temporary permits will not be issued to any examination or endorsement applicant under investigation. 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 July 31, 1995. TRD-9509482 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Examination 22 TAC sec.235.31, sec.235.32 The Board of Vocational Nurse Examiners adopts an amendment to sec.235.31, relating to the examination and new sec.235.32, relating to notification of exam results, without changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4676). The amendment of sec.235.31 reflects changes in the examination process since the advent of computerized adaptive testing. New sec.235.32 is proposed to reflect 1995 legislative change in statutory requirement. No comments were received regarding adoption of the amendment and new rule. The amendment and new rule are adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 31, 1995. TRD-9509483 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Issuance of Licenses 22 TAC sec.235.41, sec.235.51 The Board of Vocational Nurse Examiners adopts an amendment to sec.235.41, relative to issuance of certificate of licensure and new sec.235.51, relative to traveling nurses, without changes to the proposed text as published in the June 30, 1995, issue of the Texas Register (20 TexReg 4676.) The amendment of sec.235.41 is due to the licensure examination results are now reported as pass/fail only and no longer reported in numerical scores. New sec.235.51 is proposed to reflect 1995 legislative changes in the statute. No comments were received regarding adoption of the amendment and new rule. The amendment and new rule are adopted under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 31, 1995. TRD-9509484 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Effective date: September 1, 1995 Proposal publication date: June 30, 1995 For further information, please call: (512) 835-2071 Part XXVIII. Executive Council of Physical Therapy and Occupational Therapy Examiners Chapter 651. Fees 22 TAC sec.651.1 The Executive Council of Physical Therapy and Occupational Therapy Examiners adopts the repeal of sec.651.1, concerning Occupational Therapy Board Fees, without changes to the proposed text as published in the May 26, 1995, issue of the Texas Register (20 TexReg 3885). The section will be replaced by one which clarifies fees for services provided by the Texas Board of Occupational Therapy Examiners. The repeal is being adopted to allow the council to clarify fees for services provided by the Texas Board of Occupational Therapy Examiners. The repeal allows the council to establish the exact schedule for fees to be paid by applicants and licensees. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512e-1, which provide the Executive Council of Physical Therapy and Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1995. TRD-9509460 John P. Maline Executive Director Executive Council of Physical Therapy and Occupational Therapy Examiners Effective date: August 18, 1995 Proposal publication date: May 26, 1995 For further information, please call: (512) 443-8202 The Executive Council of Physical Therapy and Occupational Therapy Examiners adopts new sec.651.1, concerning Occupational Therapy Board Fees, with changes to the proposed text as published in the May 26, 1995, issue of the Texas Register (20 TexReg 3885). The change clarifies the length of time the license renewal fees cover. The new section is being adopted to clarify fees for services provided by the Texas Board of Occupational Therapy Examiners. The new section establishes the exact fee schedule for applicants and licensees to follow. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512e-1, which provide the Executive Council of Physical Therapy and Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.651.1. Occupational Therapy Board Fees. (a) Application Fees: (1) Provisional: (A) OTR-$15; (B) COTA-$15. (2) Temporary or Regular: (A) OT or OTR-$10; (B) OTA or COTA-$10. (b) License Fees: (1) Temporary or Regular, Pro-rated Cost Per Month: (A) OT or OTR-$9.00; (B) OTA or COTA-$7.00. (2) Provisional: (A) OTR-$27; (B) COTA-$21. (3) Active to Inactive/Retiree Status: (A) OTR-$25; (B) COTA-$25. (4) Inactive/Retiree to Active Status: (A) OTR-$50; (B) COTA-$25; (c) License Renewal Fees Per Year (on-time): (1) Regular License: (A) OTR-$100; (B) COTA-$75. (2) Inactive/Retiree: (A) OTR-$0; (B) COTA-$0. (d) License Renewal Fees (late): (1) Regular License: (A) Late 90 days or less-Regular fee plus late fee which is equal to one-half of the certification examination fee; (B) Late more than 90 days but less than one year-Regular fee plus late fee which is equal to the certification examination fee. (2) Inactive/Retiree Renewal Fees, OTR or COTA (late): (A) Late 90 days or less-$12; (B) Late more than 90 days but less than one year-$25. (e) Registration Fees-Facilities: (1) Registration of First Facility-$300; (2) Registration of Each Additional Facility-$100. (f) Renewal Fees-Facilities (on-time): (1) Renewal of Registration of First Facility-$300; (2) Renewal of Registration of Each Additional Site -$100. (g) Restoration Fees-First Facility: (1) Late 90 days or less-$150; (2) Late more than 90 days but less than one year-$300; (3) Late one year or more-$600. (h) Restoration Fees-Each Additional Site: (1) Late 90 days or less-$50; (2) Late more than 90 days but less than one year-$100; (3) Late one year or more-$200. (i) Administrative Fees: (1) Verification of Licensure-$40; (2) Duplicate/Replacement License-$25; (3) Duplicate Renewal Certificate/Wallet Card-$25; (4) Duplicate of Facility Registration Certificate -$25. 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 July 28, 1995. TRD-9509459 John P. Maline Executive Director Executive Council of Physical Therapy and Occupational Therapy Examiners Effective date: August 18, 1995 Proposal publication date: May 26, 1995 For further information, please call: (512) 443-8202 TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 403. Other Agencies and the Public Subchapter C. Determination of Rates for Support, Maintenance, and Treatment 25 TAC sec.sec.403.71-403.77 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.sec.403.71-403.77, concerning determination of rates for support, maintenance, and treatment, without changes to the proposed text as published in the February 28, 1995, issue of the Texas Register (20 TexReg 1390). The adoption of new sec.sec.403.71-403.79, concerning charges for support, maintenance, and treatment, is published contemporaneously in this issue of the Texas Register. The repeal allows for the adoption of new sections which clarify the department's rate determination policies and procedures. No comments was received regarding adoption of the repeals. The new sections are repealed under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. The proposal would affect the Texas Health and Safety Code, Chapters 533, 552, and 593. 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 July 28, 1995. TRD-9509445 Ann K. Utley Chairman Texas Mental Health and Mental Retardation Board Effective date: August 18, 1995 Proposal publication date: February 28, 1995 For further information, please call: (512) 206-4516 25 TAC sec.sec.403.71-403.79 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.403.71-403.79, concerning charges for support, maintenance, and treatment, with changes to the proposed text as published in the February 28, 1995, issue of the Texas Register (20 TexReg 1390). The repeal of existing sec.sec.403.71-403.77, concerning determination of rates for support, maintenance, and treatment, is published contemporaneously in this issue of the Texas Register. The title of the subchapter is changed to be consistent with other subchapters that address similar issues. The name of sec.403.72 is changed from Applicability to Application. The new sections contain clarifying language, current terminology, and additional statutory references. Language is modified to differentiate between a facility's current maximum rate (i.e., the actual cost of support, maintenance, and treatment (SMT)) and the fee charged to a client, a client's spouse or parent, or a responsible entity for the client's SMT. A definition for "current maximum rate" is added with the term being used throughout the subchapter in place of "maximum rate." Information for obtaining a list of the current maximum rates is also added. Language is added explaining that a guardian's personal finances/assets are not considered in determining a fee for a client's SMT. The title of sec.403.74 is modified to reflect new terminology. Language is added describing the information provided to clients and/or family members upon admission and the action taken by the department when a calculation of charges is incorrect. Public comment was received from the Texas Alliance for the Mentally Ill (TEXAMI), Austin; Texas Mental Health Consumers, Austin; and three private citizens. One commenter requested explicit language be included stating that a guardian's personal finances/assets are not considered in determining a fee for a client's SMT. The department responds by adding the language requested. The commenter also questioned the absence of an income chart for spouses and responsible entities of clients in mental retardation facilities and asked what factors would be considered in determining a fee. The department explains that family income is not a factor used in determining a fee for clients in a mental retardation facility (as it is for clients in mental health facilities). The factors that pertain to a spouse or responsible entity are included in sec.403.74(b)(3). The same commenter disagreed with the department's practice of collecting a portion of the work earnings of a client in a mental retardation facility to pay for that client's SMT, even though it could be considered "normalization." The department responds that the practice of charging clients in mental retardation facilities for a very small portion of their SMT based upon their work earnings satisfies many initiatives, one of which is normalization. One commenter felt that the fee for parents of minor children seemed fair, but expressed concern about additional expenses a family might incur due to the minor child's illness such as costs for therapy, travel, and additional child care. The department responds that the expenses related to an illness and child care costs are deductible items. The fee chart for parents is based on net taxable income and these additional costs have been deducted before the chart is used. Two commenters expressed concern that the income chart used for adult clients was used only as guide and that there was no certainty that the fees charged would be similar to the fees on the chart or that the facilities were even required to use the charts. The department responds that the fees on the chart are used as a guide to assess a fee based solely on income, but that income is only one factor in determining a fee. After a figure on the fee side of the chart is identified, then that figure may be altered when consideration is given to the other factors listed in sec.403.74(b)(3)(A)-(E), which are "the ownership of real and personal property; expected duration of the client's stay in the facility; insurance coverage; benefits from governmental and nongovernmental agencies and institutions; and exceptional financial hardship. " The person's fee is determined by all of these factors and a weighing of debts and assets along with the needs of the family. Regarding the issue of whether facilities are required to use the chart, sec.403.72 states that the provisions of the subchapter apply to all department facilities. A commenter questioned the meaning of "consideration" when the rules refer to the consideration of assets. The department responds that "considered" means balancing debt against assets. The commenter also questioned the absence of a description of assets that are exempt from consideration and requested such a list be developed that would parallel the lists used by Medicaid and SSI. The department responds that federal Medicaid and SSI regulations provide lists of assets that are exempt from consideration in determining a person's income eligibility into those programs. (Income is not a factor for eligibility for services provided by a department facility.) There is no state statute that includes such a list for the department's use; therefore, all assets of a person or family are considered when determining a fee for SMT. The same commenter questioned the use of the phrase "maximum rate which is currently applicable to the particular facility and to the type of care provided" without a definition, warning, or posting of what that maximum rate may be. The department responds that upon admission, or shortly afterward, staff provide the client and/or family member with information regarding the facility's current maximum rate, information on the department's policy for determining a fee based upon an ability to pay, and property/financial/expenses statement forms. Language regarding this procedure is added the subchapter. Two commenters requested clarification of the terms "sufficient property" and "able to pay" as it appeared in sec.403.74(b)(1): "Clients and their spouses or other responsible entity who possess sufficient property to reimburse the state for the cost of the client's SMT and who are able to pay the cost shall be charged the maximum rate..." One of the commenters asked if that meant someone with $10,000 accumulated over ten years of rigorous saving would be considered to have sufficient assets and would be able to pay $10,000 for the first month of care, if $10,000 is the maximum rate? The department responds that "sufficient property" is that which can be used to pay for a portion or all of the client's SMT; "able to pay" means the client or family has the financial resources. In response to the commenter's example, what a person is charged depends on the person's income and other factors. A person who is able to pay the facility's current maximum rate will be charge the facility's current maximum rate. A commenter expressed concern that there was no maximum percentage by which a person's estate could be depleted and suggested that the department not take more than 10% of a person's assets for six months of treatment. The department responds that an established maximum percentage by which a person's estate can be depleted is not provided for in state statute. State statute requires persons to reimburse the State of Texas for the cost of their care if they are able. The same commenter questioned the absence of a deadline for the facility to determine a fee for SMT. The department responds that upon admission, or shortly afterward, staff provide the client and/or family member with information regarding the facility's current maximum rate, information on the department's policy for determining a fee based upon an ability to pay, and property/financial/expenses statement forms. Reimbursement managers determine fees and notify the client or family as soon as possible after receipt of the completed property/financial/expenses statement forms. Any delays in determining a fee would almost always be due to difficulty in obtaining the necessary financial information. The commenter felt the appeal process was almost non-existent, believing a hearing officer could arbitrarily deplete a family's finances without the remedy of a client being able to appeal to a higher panel. The commenter also thought it was difficult to understand that, on appeal, the hearing officer could raise the fee. The commenter believed that this was intended to ensure that appeals are rarely sought. The department responds that an appeal allows for an independent party to hear the case, review the evidence, and make a decision. The hearing officer decides the case on its merits and nothing else. The decision to reduce, sustain, or increase the fee will depend upon the facts presented. The same commenter expressed concern over the absence of a statute of limitations, believing the department had the authority to file a lien if the client or family inherits property two or even 20 years following receipt of services. The department responds that the general limitations statutes in the Texas Civil Practice and Remedies Code does not include the State of Texas. A 1957 court case (State v. Morris 303 S.W.2d 802), however, limits the state's authority to reimbursement to the person's financial status at the time services are provided. The commenter thought there should be a grace period of minimal charges until the client or family is notified of fees. The commenter also thought the department should provide guidance to families regarding allocation of resources for the long-term care that will likely be required. The department responds that upon admission, or shortly afterward, staff provide the client and/or family member with information regarding the facility's current maximum rate, information on the department's policy for determining a fee based upon an ability to pay, and property/financial/expenses statement forms. Reimbursement managers determine fees and notify the client or family as soon as possible after receipt of the completed property/financial/expenses statement forms. If reimbursement managers are informed of financial difficulties in paying for SMT, they will coordinate with the client or family to establish a workable payment plan. Regarding allocation of resources for long term care, future care is generally speculative. The commenter indicated "several serious problems with the $50,000 trust exemptions" and provided examples. The first and second examples were of trusts with very specific purposes: education and supplemental (non-support) care. The third example cited trust provisions under the Omnibus Reconciliation Act of 1993 (found in 42 United States Code, 1396p d(4)(A)) that were adopted in the context of Medicaid assistance. The fourth example described clients who may be treated unfairly because they would have all of their assets subject to reimbursement simply because they had never heard of the $50,000 trust exemption. The department responds that the first and second examples are of trusts designated for specific purposes and that the department is bound by trust law and could only charge against trusts when authorized to do so. The third example refers to a "Miller Trust," which is recognized by the department. (Federal statute provided for this type of trust as a way to temporarily defer a person's income so that it would not cause the person to become ineligible for Medicaid when he/she moved into the community.) Regarding the fourth example, the $50,000 trust exemption originated in the late 1970s through the efforts of parents of clients in mental retardation facilities so that money would be available for the needs of the child after the death of the parents. The provision later became applicable to clients in mental health facilities as well. Self-funded trusts, such as the fourth example, are strictly construed and generally disallowed when created for the purpose of qualifying for a benefit or evading a creditor. One commenter was concerned that the hearing officer, who ruled on appeals, was employed by the department, believing this to be not only a conflict of interest, but self-serving. The commenter suggested having an administrative law judge decide the case instead. Another commenter supported this comment and was of the opinion that a hearing officer in the employ of the department was ineffective. The department responds that the hearing officer is an administrative law judge who rules on a variety of appeals. The hearing officer's only job is that of judge, weighing the oral testimony or the written appeal and making a ruling. Administrative law judges rule solely on the evidence and support their decisions with findings of fact and conclusions of law. The commenter expressed concern that the phrase "the maximum rate which is currently applicable to the particular facility" created confusion as to what that rate might be or where those rates would be published. The commenter felt the rules indicated that each facility had the blanket autonomy to develop its own maximum rate arbitrarily. The department responds that "the maximum rate which is currently applicable to the particular facility" is determined pursuant to state statute (Texas Health and Safety Code, Chapter 593, Subchapter D and Chapter 552, Subchapter B), which states that the department may use the projected cost of providing inpatient/residential services to establish the maximum rate or use one or a combination of the following: a statewide per capita; an individual facility per capita; or the type of service provided. The department may not establish a rate that exceeds the actual cost of providing inpatient/residential services. Upon admission, or shortly afterward, staff provide the client and/or family member with information regarding the facility's current maximum rate, information on the department's policy for determining a fee based upon an ability to pay, and property/financial/expenses statement forms. Language regarding this procedure is added to the subchapter in response to the commenter's concern. The same commenter was surprised that a new fee may be determined each time the reimbursement manager receives information indicating a change in property ownership or income. The department responds that fees should reflect the client or family's current financial situation. The commenter questioned if there were two meanings for the term "rate," one for the real cost of providing services and another for the fee charged to the client or family. The commenter also suggested adopting an established fee schedule such as the one used in the department's Charges for Community Services Operating Instruction . The department responds that there are two meanings to the term "rate:" one is the "current maximum rate," which is the cost as established by law to reflect the actual cost of the service, and the other is the fee charged to a client or family. Language is modified to differentiate between the two meanings. With regard to an established fee schedule such as the one used in the department's Charges for Community Services Operating Instruction , the figures used in that fee schedule are based solely on income. The fees for clients in department facilities are based on income, property ownership, and all of the other factors listed in the rule. The commenter expressed concern that a person who is involuntarily committed to a state facility is required to pay for SMT and compared the situation to that of a criminal being "involuntarily committed" to a prison and not being required to reimburse the state. The department responds that state hospitals provide medical treatment to persons determined by doctors and a court of law to be a danger to themselves or others. State statute authorizes charging for that treatment. The same commenter felt the proposed rules indicated "Big Brother" at work taking care of you by providing SMT, then going after all of your assets to exact payment from some responsible entity. The department responds that it is required to provide SMT to indigent persons within the priority population without charge and to seek reimbursement from non-indigent persons whenever they are able to pay, even if it is only a fraction of the actual cost. The department is cognizant of the population it serves, looking at the client's entire financial picture, and determining a fee based on all of the factors. Reimbursement is first sought from third party payors. A majority of the clients served are indigent; however, some are able to pay a portion of their SMT and a few are able to pay for their entire cost of care. The department must seek that reimbursement to comply with state laws. Another commenter appreciated the clarification that a guardian's personal assets are not considered in the determination of a fee for SMT. The commenter mentioned that removing the $170 cap from the chart used by parents of minor clients was an inadequate revision and, since the chart had not been revised for over 20 years, suggested revising it to begin at $10,000 rather than $4, 000, to reflect current earnings and inflation. The department responds that removing the cap from the chart was a recommendation of the Senate Finance Committee. The department agrees that the fees have been in effect for over 20 years without an increase even though the cost of care has risen substantially, but notes that the fees are based on "net taxable income" so families are given full advantage of deductions for expenses before the fee is determined. The same commenter felt the fee chart for adult clients at mental health facilities seemed high for today's income relative to the cost of living. The commenter also stated that applying the chart to a family with a stay-at-home mother results in a greater charge than if the mother worked outside the home and asked if that was fair and reasonable. The department responds that the $400 deduction for income-producing members of a family reflects the fact that there are costs associated with working (i.e. clothes, transportation). A family with a stay-at-home mother would not have outside child care costs. Also, a $100 deduction is allowed for nonincome-producing members. The department supports this formula as fair and reasonable. The commenter questioned whether charging parents of minor clients in mental retardation facilities is in conflict with Public Law 94-142 (Education for All Handicapped Children's Act). The department responds that the charge is for minor clients' support, maintenance and treatment, not their education. A commenter also suggested having a representative group, including advocates, develop rates and a standard process for reviewing rates. The commenter indicated that this would ensure community involvement and that rates for facilities and the care they provide would be uniform and published. The commenter suggested that the Texas Board for MHMR would approve the rates and would ultimately be responsible for changes. The department responds that the methods for establishing the maximum rates are defined by law and because the figures used in their calculations are budgeted, so the outcome would be the same regardless of who calculated them. Persons interested in knowing what a facility's current maximum rate is may contact the department's Reimbursement and Revenue Enhancement office for that information at: TXMHMR, RRE, P.O. Box 12668, Austin, Texas 78701-2668 or by calling (512) 323-3171. Regarding a standard process for reviewing rate, the standard process for reviewing or appealing a fee is contained in this subchapter. Publication of the proposal of this subchapter in the Texas Register and soliciting public comment ensures community involvement. The same commenter agreed that a person's ability to pay should govern how much the person is charged, but the commenter believed a person's property should not be considered, only his/her liquid assets. The commenter also felt that a fee should be determined based strictly on the person's current ability to pay. The commenter suggested that financial status be reviewed annually for persons who require long-term hospitalization. The department responds that state statute (Texas Health and Safety Code, sec.552.013) mandates that a nonindigent person's property be considered as a source for reimbursement for the costs of the person's SMT. The department assures the commenter that fees are determined based upon the person's current ability to pay, with "current" meaning "while the person is receiving services." Regarding annual review of financial status for persons who require long-term hospitalization, adjusting the fee as soon as possible when there is a financial change, rather than annually, is more responsive. The commenter requested that the proposed rules be withdrawn and a workgroup formed to consider facility rates. The department responds that withdrawing the proposed rule is unnecessary because the responsibility for establishing current maximum rates for facilities lies with the department and is based upon methods set forth in state statute. The new sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. sec.403.71. Purpose. The purpose of this subchapter is to provide basic rules and procedures to be followed by the Reimbursement and Revenue Enhancement personnel of the department in determining fees charged to a client, a client's spouse or parent, or a responsible entity for the client's inpatient or residential support, maintenance, and treatment (SMT) in a department facility. Fees are based upon an ability to pay and are determined in accordance with the Texas Health and Safety Code, Chapter 552, Subchapter B and Chapter 593, Subchapter D and in a manner that is fair and equitable to the client and to the state. sec.403.72. Application. The provisions of this subchapter apply to all facilities of the Texas Department of Mental Health and Mental Retardation that provide campus-based inpatient or residential services. sec.403.73. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. Appellant-The person appealing a determined fee. Client-Any person who is admitted to a facility of the department and who is provided support, maintenance, and treatment as an inpatient or resident (i.e., a person to whom a bed is assigned) by the facility including any person who is admitted to a facility of the department for the purpose of receiving a determination of mental retardation pursuant to the Texas Health and Safety Code, sec.593.005. Current maximum rate-The cost, as established by law, to reflect the actual cost of support, maintenance, and treatment per client for each facility. (For a list of the current maximum rates contact the department's Reimbursement and Revenue Enhancement Office at: TDMHMR, RRE, P.O. Box 12668, Austin, Texas 78701- 2668 or by calling (512) 323-3171. Department-The Texas Department of Mental Health and Mental Retardation. Facility-Any state hospital, state school, state center, or other entity which is now or hereafter made a part of the department. Hearing officer -The attorney assigned by the department's Hearings Office to conduct the hearing for an appeal of a determined fee. Person responsible for payment-The client, the client's spouse/parent, or other person legally responsible for paying the costs of support, maintenance, and treatment for the client, either individually, in a representative capacity, or other legal capacity. Reimbursement manager -The person in charge of the Reimbursement Office at a facility. Responsible entity -A client's guardianship (not the guardian), estate, or trust. SMT-Support, maintenance, and treatment. sec.403.74. Determination and Notification of Fees. (a) Assessment of fees for services charged to parents of minor clients. (1) The following fee computation chart is used as a guideline in determining fees charged to parents of minor clients for SMT provided by department mental retardation and mental health facilities, as authorized by the Texas Health and Safety Code, sec.552.017 and sec.593.075: Figure 1: TAC 403.74(a)(1). (2) A judgment in a divorce proceeding that provides for child support payments does not limit the fee that may be set, nor does the judgment exempt either parent from liability for SMT charges of the client. (3) Failure of a parent to provide current income information may result in a determined fee equal to the facility's current maximum rate. (4) A guardian's personal finances/assets are not considered in determining a fee for a minor client. (b) Assessment of fees for services charged to adult clients and spouses of clients or other responsible entities. (1) Clients and their spouses or other responsible entity who possess sufficient property to reimburse the state for the cost of the client's SMT and who are able to pay the cost shall be charged the facility's current maximum rate. Clients and their spouses or other responsible entities whose property is not sufficient to reimburse the state for the cost of the client's SMT and who are not able to pay the cost shall be charged less than the facility's current maximum rate, based upon their ability to pay as determined in accordance with this section. (2) The following provisions apply to the determination of a fee for the SMT of a client who is a beneficiary of a trust or trusts. (A) In accordance with the Texas Health and Safety Code, sec.552.018 and sec.593.081, no portion of the corpus or income of a trust or trusts, with an aggregate principal amount not to exceed $50,000, of which a client is the beneficiary, is considered to be the property of the client or the client's estate, and no portion of the corpus or income of the trust(s) is liable for the SMT of the client, regardless of the client's age. (B) A trust or trusts established prior to January 1, 1978, for a person with mental retardation and which otherwise meet the requirements of the law and this section is deemed entitled to the benefit of this section in the same manner as if the trust(s) had been established on or after January 1, 1978. A trust or trusts established for a person with mental illness and which otherwise meets the requirements of the law and this section is deemed entitled to the benefit of this section for charges for services provided on and after September 1, 1989. (C) The ascertainment of income and principal with respect to any trust(s) subject to this section and the apportionment of the receipts and expenses of the trust(s) is, unless otherwise legally directed, governed by the Texas Trust Act, Texas Property Code, sec.111.001, et seq. (D) If a client is a beneficiary of a trust or trusts with an aggregate principal amount which exceeds $50,000, then only that portion of the corpus of the trust(s) which exceeds $50,000, and the income attributable to such excess corpus, is liable for the SMT of the client. (i) If a client is a beneficiary of two or more trusts with an aggregate principal amount which exceeds $50,000, then that portion of the corpus of the trust or trusts established first in time which equals $50,000, and the income attributable to such corpus, is exempt from liability for the SMT of the client. (ii) If a client is a beneficiary of a trust or trusts with an aggregate amount which increases from an amount which is equal to or less than $50,000, to an amount which exceeds $50,000, then that portion of the corpus of the trust(s) which exceeds $50,000, and the income attributable to that excess portion of the corpus, is liable for the SMT of the client from the date on which the aggregate principal amount of the trust(s) exceeds $50,000 and continues to be liable for the SMT provided until the aggregate principal amount of the trust(s) does not exceed $50,000. (E) In order to qualify for the exemption granted by the Texas Health and Safety Code, sec.552. 018 and sec.593.081, a trust must be created by a written instrument and a copy of the trust instrument must be provided to the department. A trustee of the trust must, upon request, provide the department with a current financial statement which reflects the value of the trust estate. (F) The following are not entitled to the exemption granted by statutes: (i) a guardianship established pursuant to the Texas Probate Code; (ii) a trust established pursuant to Chapter 142, Texas Property Code; (iii) the facility custodial account established pursuant to the Texas Health and Safety Code, Chapter 551; (iv) the provisions of a divorce decree or other court order relating to child support obligations; (v) an administration of a decedent's estate; or (vi) an arrangement whereby funds are held in the registry or by the clerk of a court. (G) The collection of charges assessed against any portion of the corpus or income of a trust or trusts liable for the SMT of a client may be deferred in the discretion of the department when the deferral of the collection is deemed to be in the best interest of the State of Texas. (3) In addition to income as described in paragraph (4) of this subsection, other factors considered in determining a fee are: (A) the ownership of real and personal property; (B) expected duration of the client's stay in the facility; (C) insurance coverage; (D) benefits from governmental and nongovernmental agencies and institutions; and (E) exceptional financial hardship. (4) Income is considered in the determination of fees. (A) The following fee computation chart is used as a guide in determining fees for the SMT provided to clients in department mental health facilities: Figure 2: TAC 403.74(b)(4)(A). (B) The following fee computation chart is used as a guide in determining fees for the SMT provided to clients in department mental retardation facilities who receive work earnings: Figure 3: TAC 403.74(b)(4)(B). (5) A guardian's personal finances/assets are not considered in determining a fee for an adult client. (c) Absences from facility. The day of admission, death, or return from an absence is considered a full day at the facility. The day of discharge, transfer, or departure for an absence is considered a full day away from the facility. Except when payment is prohibited by law or contract, charges continue: (1) for the entire period of an absence when the client remains under the care, custody, and control of facility personnel; (2) for the entire period when the client is absent from the facility for admission to an inpatient medical facility and charges for the medical services are not paid by a third-party payor; and (3) for the first three days of any other absence from the facility from which a return is planned. (d) Revision of fees. A new fee may be determined each time the reimbursement manager receives information indicating a change in property ownership or income. (e) Information upon admission. Upon admission, or shortly afterward, the reimbursement manager or designee provides the client, family member, and/or person responsible for payment with: (1) information regarding the facility's current maximum rate; (2) information on the department's policy for determining a fee based upon an ability to pay; and (3) the appropriate property/financial/expenses forms, referred to in sec.403.77 of this title (relating to Exhibits) as Exhibit A. (f) Notification of fee. After a fee has been determined, the person responsible for payment is notified in writing. The notice includes: (1) the name of the client receiving SMT from the facility; (2) the fee determined to be charged per month; (3) the source of funds upon which the determined fee was based; (4) the effective date of the fee; (5) a statement of the recipient's right to appeal if the recipient disagrees with the fee and information on how to initiate an appeal; (6) instructions to notify the facility's reimbursement manager if property ownership or income changes; and (7) information on possible payments from a third party payor. sec.403.75. Appeal Process. (a) If the person responsible for payment disagrees with the fee determined, then the person may appeal the fee. (b) A person intending to appeal the determined fee notifies the reimbursement manager at the facility which is providing SMT to the client of his/her intent to appeal. The reimbursement manager immediately supplies the person with: (1) a copy of this subchapter with the areas relevant to the appeal process indicated; (2) property/financial/expenses statement forms, referred to in sec.403.77 of this title (relating to Exhibits) as Exhibit A; and (3) a Notice of Appeal form, referred to in sec.403. 77 of this title (relating to Exhibits) as Exhibit B. (c) A person initiates the appeal by completing, signing, and sending the forms (referred to in subsection (b) of this section) to: Hearings Office, TDMHMR, Box 12668, Austin, Texas 78711-2668. (d) The hearing officer will set a hearing date no less than ten calendar days nor more than 30 calendar days following receipt of the completed forms by the Hearings Office and notifies the person appealing (the appellant) by certified mail of the hearing date. (e) Appellants may appear on their own behalf, be represented by an attorney authorized to practice law in the State of Texas, or waive their right to appear in person or be represented. Staff from the department's Reimbursement and Revenue Enhancement Division represent the department in an appeal. (f) The appellant may choose to have the hearing officer: (1) conduct the hearing in Austin, Texas, with the appellant (and/or representative) and the department representative(s) present; (2) conduct the hearing by telephone conference with the appellant (and/or representative) and the department representative(s); or (3) make a decision based solely upon evidence provided by the appellant and the department representative(s), without the presence of anyone involved. (g) The hearing officer shall: (1) make findings of fact and conclusions of law, separately stated, in writing; (2) sustain, reduce, or increase the fee under appeal; and (3) notify in writing the appellant and the department representative(s) of this decision and the facts upon which the decision was made within 30 calendar days of the hearing. (h) The decision of the hearing officer is final and is the last step in the appeal process. sec.403.76. Filing Notice of Lien. (a) Whenever a staff member of the department's Reimbursement and Revenue Enhancement Division proposes to file a notice of lien pursuant to the Texas Health and Safety Code, sec.533.004, the staff member will, 30 calendar days prior to filing the written notice of the lien with the county clerk, notify by certified mail the person responsible for payment of the intention to file a lien. The notice contains: (1) a copy of the unpaid charges along with the statutory procedures regarding the filing of liens; (2) a copy of this subchapter with the areas relevant to the appeal process indicated; (3) property/financial/expenses statement forms, referred to in sec.403.77 of this title (relating to Exhibits) as Exhibit A; (4) a Notice of Appeal form, referred to in sec.403.77 of this title (relating to Exhibits) as Exhibit B; and (5) a statement that the recipient has exhausted his/her appeal process, if appropriate (i.e., the recipient had previously been granted a hearing to appeal the determined fee for which he/she has unpaid charges). (b) If the person whom a lien is to be filed against had previously been granted a hearing to appeal the fee for which he/she has unpaid charges, then the person has exhausted his/her appeal process and the department may proceed to file the notice of lien after 30 calendar days of initial notice of intent to file a lien as described in subsection (a) of this section. (c) If the person whom a lien is to be filed against has not requested a hearing to appeal the fee for which there are unpaid charges, then the person may follow the procedures outlined in sec.403.75 of this title (relating to Appeal Process) to appeal the determined fee. (1) An appeal must be initiated within 20 calendar days of receipt of the notice of lien to stay the filing of the lien. (2) If the decision of the hearing officer in the appeal sustains the determined fee, then the department may proceed to file the notice of lien anytime following 30 calendar days after initial notice of intent to file a lien as described in subsection (a) of this section. (d) If the person whom a lien is to be filed against believes the department has calculated the unpaid charges in error, then the person notifies the department staff member whose name appears on the notice of intent to file a lien. The person must provide documentation supporting his/her claim of error to the department's Reimbursement and Revenue Enhancement Division. (1) If personnel of the department's Reimbursement and Revenue Enhancement Division demonstrate that the calculations are correct, then the department may proceed to file the notice of lien after 30 calendar days of initial notice of intent to file a lien as described in subsection (a) of this section. (2) If personnel of the department's Reimbursement and Revenue Enhancement Division find that the calculations are incorrect, then the department will correct the calculations and send to the person responsible for payment: (A) a copy of the correct calculations; and (B) a statement that the department has withdrawn its intent to file a lien based upon the incorrect calculations. sec.403.77. Exhibits. The following exhibits are referenced in this subchapter: (1) Exhibit A-property/financial/expenses statement forms; and (2) Exhibit B-Notice of Appeal form. sec.403.78. References. Reference is made to the following statutes: (1) Texas Health and Safety Code, Chapter 552, Subchapter B and Chapter 593, Subchapter D; (2) Texas Health and Safety Code, sec.593.005; (3) Texas Health and Safety Code, sec.552.017 and sec.593. 075; (4) Texas Health and Safety Code, sec.552.018 and sec.593.081; (5) Texas Trust Act, Texas Property Code, sec.111.001, et seq; (6) Texas Probate Code; (7) Texas Property Code, Chapter 142; (8) Texas Health and Safety Code, Chapter 551; and (9) Texas Health and Safety Code, sec.533.004. sec.403.79. Distribution. This subchapter shall be distributed to: (1) all members of the Texas Board of Mental Health and Mental Retardation; (2) management and program staff of Central Office; (3) superintendents and directors of all state facilities; and (4) advocacy organizations; (5) upon request, to any client, a client's parent/spouse, person responsible for payment, or any interested party. 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 July 28, 1995. TRD-9509446 Ann K. Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: August 18, 1995 Proposal publication date: February 28, 1995 For further information, please call: (512) 206-4516 Chapter 404. Protection of Clients and Staff Subchapter B. Abuse, Neglect, and Exploitation of People Served by Providers of Local Authorities 25 TAC sec.sec.404.41-404.55 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.404.41, 404.42, 404.44, 404.46, 404.47, 404.51, 404.53, and 404. 54, without changes to the proposed text as published in the June 9, 1995, issue of the Texas Register (20 TexReg 4198). Sections 404.43, 404.45, 404.48-404.50, 404.52, and 404.55 are adopted with changes. The new sections outline the responsibilities of local mental health and mental retardation authorities relating to allegations of abuse, neglect, and exploitation involving persons served by employees and agents of direct and contract providers. Section 404.43 is revised on adoption to include a definition of "guardian. " Section 404.45(a)(3) is revised to require the chief executive officer to promptly notify the treatment team or interdisciplinary team of the person receiving services when the person has been involved in an allegation of abuse, neglect, or exploitation. Section 404.48(a) is revised on adoption to delete unnecessary language, add minor clarifying language, and redesignate subsections. Section 404.49(c) is revised on adoption to clarify that local authorities are not responsible for ensuring criminal prosecution of employees who fail to report abuse, neglect, or exploitation or who falsify information related to allegations, but are responsible for seeking prosecution in certain cases. Section 405.50(a)(2) is revised to clarify that only providers who lack online access to the client abuse database should send copies of Form AN-1-A to the Office of Consumer Services and Rights Protection. Section 404.52(b) is revised on adoption to reflect the fact that the department's Office of Consumer Services and Rights Protection gathers, develops, and interprets statistical data and trends in cooperation with other state investigatory agencies. Section 405.55 is revised to add advocacy organizations to the distribution list. A public hearing was held on June 26, 1995, at the TDMHMR Central Office, Austin. No testimony was given. Written comments were received from Advocacy, Inc., Austin; Burke Center, Lufkin; New Avenues of Hope, Inc., El Paso; Tropical Texas Center for Mental Health and Mental Retardation, Edinburg; the Texas Council of Community Mental Health and Mental Retardation Centers, Inc., Austin; and Evelyn Cherry, Garland. A commenter noted that although the subchapter itself includes guardians in relevant sections, language in the preamble to the proposal failed to mention guardians. The department responds that the failure to include guardians was an oversight. A commenter questioned the need for TDMHMR to promulgate rules governing these matters, stating that investigating bodies have rules. The commenter suggested that the only action necessary by the department would be to promulgate a standard or rule requiring community centers to comply with investigating agencies' rules. The commenter reiterated this same concern with reference to the statement of public benefit in the preamble to the proposal. The department responds that the Texas Department of Protective and Regulatory Services (TDPRS), which is the principal investigating agency for community-based programs under the purview of local authorities, is an investigatory agency, not a regulatory agency; it is authorized to address the responsibilities of its own employees but cannot regulate action by other entities. The TDPRS guidelines, which are being promulgated as rules later this year, generally govern the processes involved in investigations. As stated in the preamble to the proposal of this subchapter, TDMHMR has additional important concerns when an allegation of abuse, neglect, or exploitation of a person receiving services is made. These concerns include such things as to ensure that to the extent possible, abuse, neglect, and exploitation are prevented; when abuse, neglect, or exploitation occurs, the client is given immediate and appropriate medical/psychological care and protection; staff can identify abuse, neglect, and exploitation and know how to report it when it occurs; the family of the alleged victim, with his or her consent or the consent of the guardian, are notified and involved as appropriate; staff cooperate with investigatory agencies; appropriate disciplinary action is taken; retaliatory action is not tolerated; mechanisms are developed and implemented to handle related allegations; and data is collected that enables an assessment of individual authority and system performance. A commenter questioned how authorities can "ensure" that a specific course of action, such as reporting, be followed by agents if an event is concealed. The commenter questioned how authorities can be made to "ensure" that certain actions are taken by non-agents, e.g., ensuring that prosecution takes place. The commenter noted that the rule exposes authorities to potential civil and criminal action based on the acts (or failure to act) of agents. The department responds that the use of the term "ensure" is consistent with enabling legislation that provides for local authorities to be delegated certain roles and responsibilities previously assigned to the state only. The use of the term "ensure" means that the department requires a good faith effort on the part of local authorities to develop and maintain appropriate oversight mechanisms to promote compliance with this subchapter. A commenter questioned if some of the requirements exceed the authority of local authorities and gave two examples: ensuring that the district attorney prosecute, and providing training to all employees of the sheriff's department. The department responds that the rule addresses criminal prosecution in two places that may be relevant to the commenter's concerns. In sec.404.43, it does not require the local authority to ensure prosecution; the rule requires that local authorities ensure that allegations of sexual exploitation by mental health services providers are reported to the district attorney consistent with law. In sec.404.49, language has been added to clearly state that the local authority is responsible for ensuring appropriate action is taken, including seeking criminal prosecution, not ensuring that criminal prosecution occurs. Providing training to staff of the sheriff's department who are regularly involved in dealing with people who receive mental health and mental retardation services facilitates the delivery of quality services and does not require the development of special curricula. A commenter noted that the rule would require both TDPRS and the Texas Department of Human Services (TDHS) to do the same work for every allegation involving a resident of an Intermediate Care Facility for the Mentally Retarded (ICF-MR), and suggested that not only is this a duplication of effort, but that it causes providers to lose valuable time providing services. The department responds that the current memorandum of understanding (MOU) for investigating allegations of abuse, neglect, and exploitation in ICFs-MR, which was executed between TDMHMR and the Texas Department of Health several years ago, is currently being revised. The revised MOU, which is between TDMHMR, TDPRS, and TDHS outlines procedures that are intended to minimize duplicative investigations to the extent possible under federal and state laws. It is of note that the objectives of the investigations by TDPRS and TDHS are not duplicative: TDPRS is charged with investigating allegations with specific reference to individuals who have allegedly been victimized; TDHS is responsible for investigating allegations as they relate to systemic issues affecting quality of care. A commenter requested that a definition of "guardian" be added to the new subchapter in sec.404.43 (relating to Definitions). The department responds that a definition has been added. Regarding the definition of "peer review" found in the same section and related provisions in sec.404.48 (relating to Peer Review), a commenter expressed concern that peer review does not allow for the full utilization of the professional review process and recommended that the department further discuss the issue prior to proceeding with the adoption of the subchapter. The department responds that its rules governing peer review for licensed physicians, registered nurses, and licensed vocational nurses are consistent with state laws and do not interfere with or otherwise affect the use of professional review processes. TDPRS and other investigatory agencies are required by law to investigate allegations of abuse, neglect, and exploitation, without regard to the professional identity of the alleged perpetrator. The only situation in which an allegation would not be investigated by TDPRS or another investigating agency would be when an allegation did not involve abuse, neglect, or exploitation. Professional review and peer review would occur when an allegation involves clinical practice issues, with or without components of alleged abuse, neglect, or exploitation. In this context, peer review could fall within the scope of professional review or it could function independently. The policy expressed in the rule ensures that allegations which may involve medical and nursing procedures, which in some cases can be invasive, are properly evaluated for conformance to community standards of care and in keeping with the practice acts of the involved professions. Distinctions between abuse, neglect, and exploitation and clinical practice can be more difficult in the fields of medicine and nursing. Currently TDPRS draft rules require that if the TDPRS investigator determines that an allegation against a licensed health professional does not constitute potential abuse, neglect, or exploitation, the investigator will refer the allegation to the authority's chief executive officer for professional review or, if a professional review committee does not exist, will report the allegation to the appropriate licensing board. Concerning the definition of "provider" found in sec.404.43 (relating to Definitions), a commenter noted that the language in subparagraph (A) could be interpreted to include all private sector ICF/MR programs which contract with the local authority to refer clients. The commenter expressed the belief that this provision is not consistent with law since providers are required to report allegations to TDHS. The department responds that reporting to TDHS is required by federal statute; state law does not exempt ICF-MR programs from reporting to TDPRS. The agencies are working together to eliminate duplicative work and processes for authorities, providers, and investigatory agency staff. A commenter stated that if the investigator's finding is a recommendation and is not binding, then the TDMHMR rule should provide a mechanism by which the decision of the chief executive officer can be appealed, similar to the process provided in the Chapter 404, Subchapter A of Title 25, concerning abuse, neglect, and exploitation of persons receiving services at TDMHMR facilities. The department responds that the investigator's finding is final except when it is appealed to TDPRS, in which case the TDPRS determination on appeal is final. Unlike TDMHMR facilities, authorities are not mandated to tie specific types of disciplinary action to specific classes of confirmed abuse, neglect, or exploitation. A number of means exist for obtaining an administrative review or investigation of situations that allegedly compromise client rights, health, welfare, or safety, e.g., requesting review by the governing body, the TDMHMR contract manager, the public responsibility committee, the TDMHMR Office of Consumer Services and Rights Protection, and the licensing boards of professionals. A commenter noted that there is no provision for the case manager and other treatment team members to be made aware of situations in which clients are the alleged victims of abuse, neglect, or exploitation so that appropriate counseling or care can be provided. The department responds that language in sec.404.45, the chief executive officer is required to provide immediate and ongoing medical and psychological attention to the victim and, as needed, the alleged perpetrator if a client. Language in sec.404.45(a)(3) has been revised on adoption to clarify the department's intent that the treatment team and case manager be involved. A commenter noted that the rules governing TDMHMR facilities may more appropriately address the needs of individuals in community residential settings. The department responds the addition of language in sec.405.43(a)(3) is intended to provide the same level of protection as facility rules with regard to client health, welfare, and safety. A commenter strongly supported sec.404.50 which provides for the classification of allegations. The commenter stated that the classification system should remain the same to the extent possible to provide consistency throughout the system over time. The commenter noted that although the new subchapter does not mandate it, disciplinary action should continue in practice to be tied to the classification system. The department concurs. A commenter questioned how abuse, neglect, and exploitation processes will function in the authority-provider structure and questioned how the local authority will ensure compliance with the provisions of the subchapter. The commenter suggested that a certain level of prescriptiveness in rules and contracts is necessary to ensure that the expectations of the TDMHMR Central Office are clearly articulated to both the provider and the local authority. The commenter noted that ultimate accountability will and should remain in the TDMHMR Central Office, and questioned the level of oversight that would be provided, including the level and frequency of scrutiny surrounding compliance issues, the nature of measures of compliance, and how these issues will be reflected in the contract. The commenter noted that TDMHMR cannot abdicate its authority or responsibility to provide services or ensure the care and treatment of customers. The department responds that in the reorganization of the department to a system of managed care, the means by which important client care issues are evaluated is paramount. Existing processes will continue unless and until replaced by other models; these processes involve such entities as the Office of Consumer Services and Rights Protection, the Office of Standards and Quality Assurance, the Quality System Oversight team, contract managers, and public responsibility committees in complaint investigation and administrative and program review roles. The commenter and other interested parties are invited to share their perspectives on how department policy can best ensure quality of care in the managed care environment by writing to Linda Logan, director, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711-2668. Concerning sec.404.52, a commenter requested that the language be revised to indicate that the effort to identify trends and patterns will occur through frequent and ongoing communications and analysis with TDPRS. The department responds that language has been added. A commenter requested that advocacy organizations be added to the list found in sec.404.455 (relating to Distribution). The department responds that a reference to advocacy organizations has been added. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015, which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers, and sec.534.052, which gives the board rulemaking authority for community-based mental health and mental retardation services provided by community centers and other contract providers. sec.404.43. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse-For purposes of reporting allegations, the term is defined by the appropriate agency with investigatory responsibility. For purposes of classifying incidents as part of the TDMHMR Client Abuse and Neglect Reporting System (CANRS), the definition is contained in Exhibit A of this subchapter, which is referred to in sec.404.53 of this title (relating to Exhibits). Agent-An individual who is not an employee of a local authority or provider but who is working under the auspices of the local authority or provider, such as a consultant, volunteer, student, etc. Allegation-A report by a person believing or having knowledge that a person receiving services has been or is in a state of abuse, exploitation, or neglect as defined by investigatory agencies or in Exhibit A, which is referred to in sec.404.53 of this title (relating to Exhibits). Chief executive officer or CEO-The head of a local authority or provider or a staff member temporarily or permanently designated responsibilities of the chief executive officer. Clinical practice -Relates to issues of potentially or allegedly unsafe nursing or medical practice or violations of the Nursing Practice Act, Licensed Vocational Nurse Title Act, or Medical Practice Act. These include acts or omissions of the physician or nurse which result from a lack of competence in the profession, impaired status, or failure to provide adequate medical or nursing care to an individual served. Confirmed-Term used to describe a finding that an allegation of abuse, neglect, or exploitation is supported by the preponderance of the evidence. Department-The Texas Department of Mental Health and Mental Retardation. Employee-Any person hired for a specific job position or to be part of a "pool" for specific job positions, expected to work on a continuous basis, seasonally, or to perform work of a transitory nature or foreseeable end and meets certain minimum performance and time-on-job expectations, paid from a budgeted position in the salary schedule and through a payroll process. A person receiving payment as a "vocational trainee" in a properly authorized vocational training program is not considered to be an employee. Exploitation-For purposes of reporting allegations, the term is defined by the appropriate agency with investigatory responsibility. For purposes of classifying incidents as part of the TDMHMR Client Abuse and Neglect Reporting System (CANRS), the definition is contained in Exhibit A of this subchapter, which is referred to in sec.404.53 of this title (relating to Exhibits). Guardian-An individual a guardian of the person under Chapter 13 of the Probate Code. Incitement-To spur to action or instigate into activity; implies responsibility for initiating another's actions. Investigatory agency -An agency with statutory authority to investigate the abuse, neglect, or exploitation of a person served by a provider of a local mental health authority or a local mental retardation authority. Local authority -An entity to which the Texas Board of Mental Health and Mental Retardation delegates its authority and responsibility within a specified region for the planning, policy development, coordination, resource development and allocation, and for supervising and ensuring the provision of mental health services to persons with mental illness and/or mental retardation services to people with mental retardation in one or more local service areas. Mental health services provider-An individual, licensed or unlicensed, who performs or purports to perform mental health services, including a: (A) licensed social worker as defined by the Human Resources Code, sec.50.001; (B) chemical dependency counselor as defined by sec.1, Chapter 635, Acts of the 72nd Legislature, Regular Session, 1991 (Texas Civil Statutes, Article 4512o,); (C) licensed professional counselor as defined by the Licensed Professional Counselor Act, sec.2, (Texas Civil Statutes, Article 4512g); (D) licensed marriage and family therapist as defined by the Licensed Marriage and Family Therapist Act, sec.2, (Texas Civil Statutes, Article 4512c-1); (E) member of the clergy; (F) physician who is "practicing medicine" as defined by Medical Practice Act, sec.1.03, (Texas Civil Statutes, Article 4495b); (G) psychologist offering "psychological services" as defined by the Psychologists' Certification and Licensing Act, sec.2, (Texas Civil Statutes, Article 4512c); and (H) registered nurse as defined by law. Neglect-For purposes of reporting allegations, the term is defined by the appropriate agency with investigatory responsibility. For purposes of classifying incidents as part of the TDMHMR Client Abuse and Neglect Reporting System (CANRS), the definition is contained in Exhibit A of this subchapter, which is referred to in sec.404.53 of this title (relating to Exhibits). Office of Consumer Services and Rights Protection -The office located at the Texas Department of Mental Health and Mental Retardation. Peer review-A review of clinical and/or medical practice(s) by peer physicians or a review of clinical nursing practices by nurses. Perpetrator-The person alleged to have committed an act of abuse, neglect, or exploitation. Person served-Any person receiving services from a provider. Prevention and Management of Aggressive Behavior (PMAB-The Texas Department of Mental Health and Mental Retardation's proprietary risk management program which uses the least intrusive, most effective options to reduce the risk of injury for persons receiving services and for staff from acts or potential acts of aggression. Provider-Any organization or entity, associated by a contract in a working alliance with a local authority or the department to provide community-based services, including employees or agents; or that part of a local authority directly providing programs and services to persons with mental illness or mental retardation, including employees or agents of the programs or services. Retaliatory action -Any action intended to inflict emotional or physical harm or inconvenience on an employee, agent, or person served that is taken because he or she has reported abuse, neglect, or exploitation. This includes, but is not limited to, harassment, disciplinary measures, discrimination, reprimand, threat, and criticism. Sexual abuse-Any sexual activity, including as defined in this subchapter or sexual assault as defined in sec.22.011 of the Texas Penal Code, involving a provider and a person served. Sexual activity includes, but is not limited to, kissing with sexual intent, hugging with sexual intent, stroking with sexual intent, or fondling with sexual intent; oral sex or sexual intercourse; request or suggestion or encouragement by staff for performance of sex with the employee him/herself or with another person served. Sexual exploitation -A coercive, manipulative, or otherwise exploitative pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a patient's sexual history within standard accepted clinical practice. sec.404.45. Reporting Abuse and Safeguarding Persons and Evidence. (a) The local authority shall ensure that: (1) provider and authority employees and agents who suspect or have knowledge of abuse, neglect, or exploitation of a person served: (A) make an immediate verbal report to the appropriate investigatory agency in compliance with existing state laws and rules and this subchapter; (B) safeguard the person served and secure the evidence; and (C) as needed, assist another person in making the report when the person alleging abuse, neglect, or exploitation is not an employee or agent, e.g., a person receiving services, a guest, etc.; (2) the provider CEO reports allegations of sexual exploitation by a mental health services provider consistent with the provisions of the Chapter 81, Civil Practice and Remedies Code; (3) the provider CEO takes necessary action to provide immediate and ongoing medical and psychological attention to the victim and, as needed, to the alleged perpetrator if a person receiving services, including referring the allegation to the treatment team or interdisciplinary team (including the case manager) of the involved persons no later than the next working day; (4) the provider CEO secures the safety of the person(s) served, e.g., restrict access by alleged perpetrator to the victim pending investigation; and (5) actions to be taken by the provider if it is determined that a person served is responsible for abuse of another person served are made known employees and agents of the authority and provider. (b) Failure to make reports of abuse, neglect, or exploitation immediately without sufficient justification or falsification of fact during an investigation shall be considered a violation of this section and make the employee or agent subject to disciplinary or other appropriate action and possible criminal prosecution. (c) Any employee, agent, or person served who in good faith reports abuse, neglect, or exploitation shall not be subjected to retaliatory action by any employee or agent of the provider or authority or by any person affiliated with such employee or agent. (1) The local authority shall provide written notification to providers that any person who believes he or she is being subjected to retaliatory action upon making a report of abuse, neglect, or exploitation, or who believes a report has been ignored without cause, shall immediately contact the local authority CEO and may also contact: (A) the Office of Consumer Services and Rights Protection, Central Office, at the toll free number 1-800-252-8154; and (B) the Office of the Attorney General at (512) 463-2120 which, under the Whistleblower Act, Texas Civil Statutes, Article 6252-16a, may prosecute a supervisor who suspends or terminates a public employee for reporting a violation of law to law enforcement authorities. (2) The local authority shall ensure that retaliatory action against a person served which might be considered abuse, neglect, or exploitation is reported to the investigatory agency. (3) The local authority shall require and ensure that any employee or agent found guilty of retaliatory action will be subject to disciplinary or other appropriate action. sec.404.48. Peer Review. (a) If an allegation of abuse, neglect, or exploitation involves the actions of a physician, registered nurse, or licensed vocational nurse, the provider's CEO, in coordination with the agency investigator, and the provider's medical or nursing director, as appropriate to the discipline involved, will determine whether the allegation involves the clinical practice of a physician, registered nurse, or licensed vocational nurse. (1) If the allegation does not involve clinical practice, the investigator will pursue an investigation. The agency responsible for the investigation reports allegations of abuse or neglect as required by law to the licensing authority for the discipline under review, e. g., to the Board of Medical Examiners for physicians, the Board of Nurse Examiners for registered nurses, and the Board of Vocational Nurse Examiners for licensed vocational nurses. (2) If a determination is made that the allegation involves the clinical practice of a physician, registered nurse, or licensed vocational nurse, and the provider has a peer review process, the investigator shall turn the allegation over to the provider CEO, who shall immediately refer the allegation to the medical director or nursing director, as appropriate to the discipline involved, for peer review, if required by the practice act of the profession involved, or other action. (3) If a determination is made that the allegation involves the clinical practice of a physician, registered nurse, or licensed vocational nurse, and the provider does not have a peer review process, the investigator shall report the allegation involving the clinical practice of physician, registered nurses, and licensed vocational nurses to the appropriate licensing board, if required by the practice act of the profession involved, or shall take other appropriate action. (b) The local authority shall ensure that if a peer review process is used, it is consistent with state law and the rules and practice and title acts of the licensing agencies for the professions involved. The peer review process may be based on the following guidelines: (1) for allegations involving physicians, Operating Instruction 408-2, governing Investigative Medical Peer Review; and (2) for allegations involving registered nurses and licensed vocational nurses, Operating Instruction 408-1, governing Professional Nursing Quality Assurance. (c) The authority will ensure an impartial mechanism for peer review is used in cases in which the allegation is against the medical director or nursing director of the provider. sec.404.49. Disciplinary and Other Action. (a) The local authority shall ensure that the provider takes appropriate disciplinary or other action in confirmed cases of abuse, neglect, and exploitation. If investigatory agency procedures include a process by which the provider CEO can request a review of the finding, the outcome of the review is final and forms the basis for disciplinary action. (b) Nothing in this subchapter shall preclude the provider CEO from taking disciplinary or other appropriate action pending investigation or peer review, including termination of employment, consistent with local authority policies and procedures. The provider CEO will notify the investigator that disciplinary action has been taken and the investigation will proceed. (c) The local authority shall ensure that disciplinary or other appropriate action, including seeking criminal prosecution as appropriate, is taken when an employee or agent fails to make reports immediately without sufficient justification or an employee or agent is found to have made a false statement of fact during an investigation. sec.404.50. Reporting Responsibilities. (a) When the alleged perpetrator is an employee or agent of the provider or the perpetrator is unknown, the local authority is responsible for ensuring that the Client Abuse and Neglect Reporting Form AN-1-A is completed within 30 days of the receipt of the investigative report or final decision of an investigating agency using the definitions found in Exhibit A of this subchapter, which is referred to in sec.404.53 of this title (relating to Exhibits), and the classification system found in Exhibit B of this subchapter, which is referred to in sec.404.53 of this title (relating to Exhibits). The local authority is responsible for the classification and shall ensure that: (1) the information is entered into the Client Abuse and Neglect Reporting System (CANRS); or (2) for providers who do not have online access, a copy of the completed Form AN-1-A is forwarded to the Office of Consumer Services and Rights Protection for data entry. (b) Abuse, neglect, or exploitation does not include: (1) the proper use of restraints or seclusion, including PMAB, and the approved application of behavior management techniques, or other actions taken in accordance with written policies and procedures developed or approved by the local authority; (2) other actions taken in accordance with the rules of the department; or (3) such actions as an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, persons served, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances. Such actions do not include acts of unnecessary force or the inappropriate use of restraints or\seclusion, including PMAB; or (4) complaints related to rights violations, theft of property, or daily administrative operations of a provider (e.g., staffing ratios). Such complaints shall be referred to the authority CEO for administrative action by the chief executive officer of the provider, the rights protection officer of the local authority, or other appropriate parties. (c) Complaints concerning failure to carry out an appropriate individual program plan or treatment plan or involving the failure to maintain adequate numbers of appropriately trained staff which do not relate to a specific allegation of abuse or neglect will be investigated administratively by the authority. Complaints of this type are not reported on the Abuse and Neglect Reporting Form AN-1-A but may be required to be reported by the local authority to the department as part of the contract renewal process. sec.404.52. Departmental Oversight Responsibilities. (a) The department shall ensure the compliance of local authorities with the provisions of this subchapter. (b) The Office of Consumer Services and Rights Protection, in cooperation with investigating agencies, shall monitor and provide consultation concerning CANRS and be responsible for the maintenance of systems that provide statistical trends in abuse, neglect, and exploitation. sec.404.55. Distribution. (a) This subchapter shall be distributed to members of the Texas Board of Mental Health and Mental Retardation; members of the boards of agencies with investigatory responsibilities for community center programs; executive, management, and program staff of Central Office; chairpersons of boards and CEOs of local authorities; interested advocacy organizations; the Texas Board of Medical Examiners; the Texas Board of Nurse Examiners; and the Texas Board of Licensed Vocational Nurse Examiners. (b) The CEO of the local authority shall be responsible for disseminating copies of this subchapter to: (1) appropriate staff; (2) providers; (3) agents; (4) advocacy organizations; and (5) any person served, employee, or other person desiring a copy. (c) The CEO of the local authority shall be responsible for ensuring that copies of this subchapter are prominently displayed in providers' programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on July 28, 1995. TRD-9509437 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: September 1, 1995 Proposal publication date: June 9, 1995 For further information, please call: (512) 206-4516