EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part XXXIII. Texas State Board of Examiners of Perfusionists Chapter 761. Perfusionists 22 TAC sec.761.10 The Texas State Board of Examiners of Perfusionists adopts on an emergency basis an amendment to existing sec.761.10, concerning the licensure of perfusionists. Specifically, the section covers application procedures for the grandfather period. This amendment is also proposed for permanent adoption the September 15, 1995, issue of the Texas Register (20 TexReg 7258). The adoption is necessary to implement the provisions in Acts 1995, 74th Legislature, Regular Session, Chapter 761 (Senate Bill 1291), which requires persons applying under the grandfather provision of the statute to have filed completed applications prior to December 31, 1995. Therefore it is necessary to have amendment governing the grandfather provision in place no later than September 1, 1995. The amendment is adopted on an emergency basis under Texas Civil Statutes, Article 4529e, sec.7, which provide the Texas State Board of Examiners of Perfusionists with the authority to adopt rules concerning the regulation and licensure of perfusionists. sec.761.10. Grandfather Period. (a) The grandfather period begins on January 1, 1995, and expires December 31, 1995
    [September 1, 1995]. (b)-(d) (No change.) (e) All application materials and fees required under this section must be received by the board or bear a postmark on correspondence to the board prior to January 1, 1996
      [September 1, 1995]. (f) (No change.) Issued in Austin, Texas, on September 13, 1995. TRD-9511750 Shannon E. Ballard Chairman Texas State Board of Examiners of Perfusionists Effective date: September 13, 1995 Expiration date: January 11, 1996 For further information, please call: (512) 834-6751 26> TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter E. Contracts Management 25 TAC sec.sec.401.371-401.393 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis the repeal of sec. s409.371-401.393 of Chapter 401, Subchapter E, concerning contracts management. The emergency repeal is contemporaneously proposed for public comment in this issue of the Texas Register. The emergency adoption of new sec.sec.409.371-401.399 of Chapter 401, Subchapter E, concerning the same, is contemporaneously published in this issue of the Texas Register. The subchapter is repealed on an emergency basis to allow for the emergency adoption of sections which enable the department to act expeditiously and effectively in remedying contractual problems that may affect the life, health, welfare, or safety of people receiving mental health and mental retardation services funded by TDMHMR. The repeals are adopted on an emergency basis 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; under the provisions of Texas Civil Statutes, Article 4413(502), sec.15, which provides the Health and Human Services Commission with authority over TDMHMR rules; and under the Texas Government Code, sec.2001.034, which authorizes emergency rulemaking. sec.401.371. Purpose. sec.401.372. Application. sec.401.373. Definitions. sec.401.374. Principles of Contracting at TDMHMR. sec.401.375. General Requirements for the Department and MHMRAs. sec.401.376. General Requirements for Contractors. sec.401.377. Criteria for Determination of Method of Procurement. sec.401.378. Requirements for Competitive Procurement: Competitive Sealed Bid and Competitive Negotiation (Request for Proposal). sec.401.379. Additional Requirements Specific to Competitive Procurement (Sealed Bid). sec.401.380. Additional Requirements Specific to Competitive Procurement: Competitive Negotiation (Request for Proposal). sec.401.381. Requirements for Noncompetitive Procurement: Noncompetitive Negotiation (Sole Source Contracting). sec.401.382. Requirements Specific to Type of Contract: Support Services Contracts. sec.401.383. Requirements Specific to Type of Contract: Program Contracts. sec.401.384. Requirements Specific to Type of Contract: Direct Services Contracts. sec.401.385. Requirements Specific to Type of Contract: Contracts for Services (Performance Contracts). sec.401.386. Fiscal Policy. sec.401.387. Adverse Action. sec.401.388. Administrative Hearing to Contest Adverse Action. sec.401.389. Contract Terminations. sec.401.390. Abeyance and Removal of Current or Potential Contractual Rights. sec.401.391. Exhibits. sec.401.392. References. sec.401.393. Distribution. Issued in Austin, Texas, on September 15, 1995. TRD-9511877 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: September 15, 1995 Expiration date: January 13, 1996 For further information, please call: (512) 206-4516 26> 25 TAC sec.sec.409.371-401.399 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis new sec.sec.409.371-401.399 of Chapter 401, Subchapter E, concerning contracts management. The new subchapter is contemporaneously proposed with additional provisions for public comment in this issue of the Texas Register. The existing Chapter 401, Subchapter E, also concerning contracts management, is repealed on an emergency basis and proposed for public comment in this issue of the Texas Register. The subchapter is adopted on an emergency basis to enable the department to act expeditiously and effectively in remedying contractual problems that may affect the life, health, welfare, or safety of people receiving mental health and mental retardation services funded by TDMHMR. The new sections are adopted on an emergency basis 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; under the provisions of Texas Civil Statutes, Article 4413(502), sec.15, which provides the Health and Human Services Commission with authority over TDMHMR rules; and under the Texas Government Code, sec.2001.034, which authorizes emergency rulemaking. sec.401.371. Purpose. The purpose of this subchapter is to provide rules governing the administration of contracts which are funded in whole or part by the Texas Department of Mental Health and Mental Retardation (TDMHMR), as follows: (1) authority contracts, including: (A) performance contracts between the state authority and local authorities; (B) designated provider contracts between the state authority and designated providers; (C) performance subcontracts between a local authority and subcontractors providing specific community-based services; and (D) designated provider subcontracts between the designated provider and subcontractors providing specific community-based services; and (2) provider contracts, including contracts between the department and a contractor in the following categories: (A) support services contracts; (B) consultant contracts; (C) professional services contracts; (D) employee education and training contracts; (E) contracts for community-based residential and nonresidential mental health and mental retardation services; and (F) other standard contracts contained in the TDMHMR Contracts Manual. sec.401.372. Application. (a) This subchapter applies to the Texas Department of Mental Health and Mental Retardation (TDMHMR) as the state authority for mental health and mental retardation services; to local authorities; to designated providers; to facilities and the Central Office of TDMHMR; and to their respective contractors and subcontractors. (b) This subchapter applies to Medicaid contracts and subcontracts except to the extent that it conflicts with Medicaid rules, in which case the Medicaid rules prevail. (c) This subchapter does not apply to grants awarded pursuant to the Texas Health and Safety Code, Chapter 535. sec.401.373. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Acceptable bid or acceptable offer-A bid or offer which has been prepared and submitted according to the timeframes, procedures, and format specified in the procurement package; which indicates the offeror can meet the minimum requirements specified in the procurement package; and which is made by an offeror who is legally eligible to receive state and/or federal funds. Amendment-An attachment to a contract legally executed by authorized parties prior to the expiration of the contract term that alters, deletes, or adds provisions. Board-The Texas Board of Mental Health and Mental Retardation. Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation or designee. Community-based services -Mental health and/or mental retardation services provided in the community that are designated in the performance contract, performance memorandum, performance subcontract, designated provider contract, or contracts for community-based residential or nonresidential mental health and mental retardation services. Community center -A community mental health and/or mental retardation center established pursuant to the Texas Health and Safety Code, Chapter 534, Subchapter A. Consultant contract -A contract to retain the services of an individual or organization to study an existing or proposed operation or project, or to provide advice with regard to the operation or project consistent with Texas Government Code, Subchapter B, sec.sec.2254.021 et seq, to exclude engaging registered professional engineers or registered architects for the design or construction of state facilities; private legal counsel; investment counselors; actuaries; or physicians, dentists, or their medical or dental services providers. Contract-Any written document (or series of documents) that obligates a party to pay money to a person or organization in exchange for goods or services from that person or organization or that obligates a party to provide goods or services in exchange for money. Contracting entity -The entity which provides the funds for services pursuant to a contract. Contractor-An entity that provides services for funds pursuant to a contract. Department-A facility or the Central Office of the Texas Department of Mental Health and Mental Retardation. Designated provider -Pursuant to the Texas Health and Safety Code, sec.534.054, a service provider with whom the department contracts for the delivery of a specific community-based mental health or mental retardation service in a specified local service area of the state. The term does not include a local authority. Emergency-A state of imminent peril to the health, safety, or welfare of employees, persons served, or the general public. Employee education and training contract-A contract to acquire professional expertise for in-facility or other in-house training of employees. The term does not refer to training sponsored by another organization at conferences, seminars, or training sessions. Facility-Any state hospital, state school, state center, or other entity which is now or is hereafter made a part of the Texas Department of Mental Health and Mental Retardation. Financial or other interest-The condition that exists when an employee or officer of TDMHMR or a local authority who initiates or approves contracts has or intends employment with a contractor; paid consultation with a contractor; membership on a contractor's board of directors; or ownership of stock, partnership, or other substantial interest in a contractor, as defined in Local Government Code, sec.171.002. The term also applies to the condition that exists when a person related within the second degree of consanguinity or affinity (as described in sec.401.397 of this title (relating to Exhibits) as Exhibit A) to such an employee or officer participates in such activities. Foster or family home placement-A residential placement where the caregiver or caregivers have no more than three unrelated persons with disabilities in their home at any given time and the caregiver or caregivers are providing this service in their primary residence. Historically underutilized business (HUB)-A for-profit corporation, sole proprietorship, partnership, or joint venture in which at least 51% of all classes of the shares of stock or other equitable securities are owned by one or more persons who have been historically underutilized (socially disadvantaged) because of their identification as members of the following groups: Black American, Hispanic American, Asian Pacific American, Native American, and Women. These persons must have a proportionate interest and demonstrate active participation in the control, operation, and management of the business. 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 pursuant to a performance contract. Local service area-A geographic area composed of one or more Texas counties delimiting the population which may receive services from a local authority. Offeror-An entity that submits to a contracting entity a proposal to be considered for a contract. Performance contract -The contract between the state authority and a local authority in which the state authority agrees to pay the local authority a specified sum for ensuring the provision of specified mental health and mental retardation services in a local service area. The term includes a performance memorandum. Persons with a mental disability-Persons with mental illness, mental retardation, or a related condition, or a pervasive developmental disorder, and persons younger than four years of age who are eligible for Early Childhood Intervention services. Plan of service -The systematic, organized compilation of information relevant to the services provided to an individual admitted for services provided using funds received from or through TDMHMR. Priority population -Groups of persons with a mental disability identified in the performance contract or subcontract for whom the department purchases mental health or mental retardation services. Procurement package -The invitation for bids or request for proposals and any other associated documentation that serves to describe the requirements of the contract. Professional services -Those services within the scope of the practice of accounting, architecture, optometry, medicine, or professional engineering as defined by state law, or services performed by any licensed architect, optometrist, physician, surgeon, certified public accountant, or professional engineer in connection with his professional employment or practice, as specified in the Texas Government Code, Chapter 2254, Subchapter A, sec.sec.2254.001 et seq. Proposal-Documents prepared by an offeror which are submitted to a contracting entity in response to a procurement package provided by the contracting entity. Prospective payment funds-Money which the state authority prospectively provides to a local authority to provide community-based services to certain persons with a mental disability. Such funds are provided through programs including, but not limited to, the Prospective Payment Program (PPP) and the Companion Program. Small business -A corporation, partnership, sole proprietorship, or other legal entity formed for the purpose of making a profit, which is independently owned and operated and has either fewer than 100 employees or less than $1 million in annual gross receipts. Start-up costs -Costs associated with the development of one or more community-based services. State authority -The Texas Department of Mental Health and Mental Retardation (TDMHMR). Subcontract-A contract between the party contracting with the department and the subcontractor which is paid for with funds from the contract with the department. Support services contract-A contract between the department and a contractor to provide specified ancillary and support services for a designated sum in areas including, but not limited to, laundry, housekeeping, grounds maintenance, plant maintenance, food service, vehicle maintenance, and technical services in radiology, laboratory services, and pharmacy. Term-The period of time during which a contract is in effect and which is identified by starting and ending dates. sec.401.374. Principles of Contracting. (a) To provide a foundation for administering contracts funded in whole or part by or through TDMHMR, the department must: (1) consider the best interests of persons served, the public, and TDMHMR at all times; (2) promote competition to the extent appropriate and allowable by state and federal laws and policies to secure a best price and quality and to provide opportunity for all qualified organizations or persons to apply to do business with the department; and (3) use funds to meet only documented needs for authorized goods and services. (b) Employees and officers of the department and its contractors and subcontractors must not participate in the selection, award, or administration of a contract paid with funds received from or through TDMHMR if a conflict of interest, real or apparent, is involved. A conflict of interest arises anytime such an employee or officer has a financial interest or other interest, e.g., dual employment, in the entity selected for an award, and the existence of such conflict of interest will result in a voided contract. (1) No officer or employee of a contractor may be employed by the department. (2) No officer or employee of the department may directly or indirectly receive any pecuniary interest from a contract entered by the department or the entity. For department employees and officers, the provisions of Texas Government Code, Chapter 572, Subchapter C pertain. (c) The contracting entity may implement additional requirements if those requirements are in writing and do not conflict, deviate from, or alter the provisions of this subchapter or the contract/subcontract. (d) The contracting entity must ensure that funds provided by or through the department, which are used to support its activities, are distributed across all providers and suppliers, including historically underutilized businesses. (e) The contracting entity shall ensure quality care during the transition from one provider to another. (f) Employees and officers of the contracting entity shall comply with the standards of conduct provisions set forth in the Texas Government Code, sec.572.051, and with the Texas Health and Safety Code, sec.sec.532.008, 534.007, and 551.002. (g) Pursuant to the Uniform Grant and Contract Management Act of 1981 (Texas Government Code, Chapter 783), TDMHMR is required to comply with the Uniform Grant and Contract Management Standards for State Agencies of the Governor's Office of Budget and Planning when administering contracts with cities, counties, and other political subdivisions of the state, excluding school districts and special purpose districts. sec.401.375. Accountability. (a) Procurement by government agencies must be conducted so as to obtain the most effective use of public monies. Contracting is the preferred alternative to direct provision of government services when contracting obtains the same or higher quality of services at a lower cost than possible through governmental provision. The department conducts and regulates all procurements using TDMHMR funds to promote maximum free and open competition whenever feasible. (b) The state authority may terminate a contract immediately or remove consumers when the life, health, welfare, or safety of persons served is endangered or could be endangered either directly or through the contractor's willful or negligent discharge of duties under the contract, including failure to deliver services in accordance with the terms and conditions of the contract, or if the department has reason to believe that the contractor has engaged in the misuse of state or federal funds, fraud, or illegal acts. (c) In a cost reimbursement contract, the contractor/subcontractor must substantiate all claims. (d) The department recovers improper payments when it is verified that contractors/subcontractors have been overpaid because of improper billing or accounting practices or failure to comply with the contract terms, e.g., the department will not pay for contracted services not received, and repayment will be claimed, at the proportional rate of payment, for such services. The determination of impropriety is based on federal, state, and local laws and rules; department procedures; contract provisions; or statistical data on program use compiled from paid claims and other sources of data. (e) At the end of each contract period, the contractor must return to the department any state or federal funds received from or through TDMHMR which have not been encumbered. (f) The department may make advance payments to a contractor provided that the contractor is a community center or governmental entity. The purpose of the advance payment must meet a public purpose and sufficient controls must be in place to ensure accomplishment of the public purpose. (g) Equipment and furniture are defined as nonconsumable property having a value of at least $1,000 and a useful life of more than one year. Equipment and furniture specifically purchased under a contract budget by a governmental entity, a private non-profit entity, or private for-profit entity are subject to an equitable claim by state and federal government as follows: Disposition of property. (1) Control of equipment and furniture. A control system must be maintained by the contractor to ensure adequate safeguards to prevent loss, damage, or theft of the property. Any loss, damage, or theft must be investigated. The control system must indicate the source of funds (state, federal, other) used in the purchase of the equipment and furniture. (2) Equipment and furniture purchased with state funds by a designated provider and/or other governmental entities become the property of the designated provider and/or other governmental entity. Disposition of equipment and furniture purchased with federal funds by a designated provider, and/or other governmental entity must be made according to the provision of federal OMB A-102, A-87, and any other applicable federal regulations. Any real or personal property purchased by a private entity which are purchased with funds provided by or through TDMHMR belong to the department and cannot be disposed without approval from the department. (3) Disposition of property purchased by private for-profit entities. The purchase of equipment and furniture by private for-profit entities under a specific contract budget should not be approved but such entity should include the depreciation of furniture and equipment as costs of providing the services under the contract. sec.401.376. Methods of Procurement. (a) Criteria for sealed bids. In competitive sealed bids, the contracting entity publicly solicits sealed bids from interested bidders through an invitation for bids (IFB). This method of procurement is used for contracts including, but not limited to, support services contracts. The contracting entity awards a firm fixed-price contract (lump sum or unit price) to the lowest and best bidder whose bid conforms with all terms and conditions of the invitation for bids. Sealed bids are used when the following conditions exist: (1) the exact specification for the service or product to be purchased is available; (2) following advertising, two or more responsible bidders are willing and able to compete for the contract; (3) the procurement lends itself to a firm fixed-price contract (unit rate or cost reimbursement with a maximum not to exceed the reimbursable amount); (4) the contract can appropriately be awarded to a responsible bidder on the basis of the lowest and best price; and (5) sufficient time is available for the contracting entity to prepare specifications on which it can purchase the service and for bidders to prepare and submit bids. (b) Criteria for request for proposal. The contracting entity requests proposals from a number of sources by soliciting responses to a request for proposal (RFP) for contracts including, but not limited to, consultant contracts, service contracts, and employee education and training contracts if: (1) the service cannot be quantified and specified in terms of price alone; or (2) negotiation is authorized by applicable law or rule, e.g., the Texas Mental Health and Mental Retardation Act, Texas Health and Safety Code, sec.533. 034. (c) Criteria for sole source contracting. The contracting entity solicits an offer from only one source only when the award of a contract is not feasible under sealed bids or RFP procedures. This method of procurement is always used for professional services contracts and contracts for foster or family home placements, and may be used for other types of contracts that meet one or more of the following criteria: (1) noncompetitive negotiation is authorized or required by law or rule, e.g., Texas Government Code, Chapter 2254, Subchapter A prohibits contracting for professional services on a competitive bid basis; (2) the contract is between governmental entities, e.g., a community center and a state facility; (3) in an emergency, it is necessary to proceed without formal advertising because of the delay it causes; (4) the material or service to be procured is available from only one source; (5) no acceptable bids or offers, as defined in sec.401.373 of this title (relating to Definitions) are received; or (6) the purchases are for highly perishable material or medical supplies; or for services for which the prices are established by law; or for experimental, developmental, or research work. sec.401.377. Sealed Bid and Request for Proposal. (a) The provisions of this section apply to both sealed bids and RFPs. (1) Additional requirements relative to sealed bids are contained in sec.401. 378 of this title (relating to Additional Requirements for Sealed Bid). (2) Additional requirements relative to RFPs are contained in sec.401. 379 of this title (relating to Additional Requirements for Request for Proposal). (b) The contracting entity must formally advertise procurements by publishing a notice of the intent to contract when the contract is to be awarded by sealed bid or RFP. (1) Staff must ensure that all solicitations (notice of intent to contract) contain the following minimum information: (A) the service to be purchased; (B) the geographic area to be served; (C) funding limitations; (D) method of payment; (E) the beginning through the ending date of the contract; (F) any limitations on who may submit an offer and any limitations in the services or products to be provided; and (G) the place and method of obtaining a procurement package and the deadlines for obtaining and submitting it. (2) Staff must attempt to reach as many potential contractors as possible. (A) The contracting entity must publicize a solicitation in one or more of the following ways: (i) advertisement in local newspapers; (ii) publication in the Texas Register
        for contracting entity consultant contracts as required in sec.401.390 (relating to Consultant Contracts); (iii) announcements in professional association newsletters. (B) The contracting entity may additionally solicit offers through announcements by direct mail to all known potential contractors. (C) The contracting entity shall document all transactions concerning contracts. (c) Persons who have questions about a procurement package must request the information according to the instructions in the package. Oral answers to questions about a procurement package are nonbinding. They are not official until released in writing. (d) Unless information is exempted by the Texas Open Records Act, i.e., information which, if released, would give advantage to competitors or bidders, all information in an offer is confidential only until: (1) bid opening; or (2) the contracting entity sends both written notification to the successful offeror(s) and written notification of nonselection to the unsuccessful offeror(s) concerning requests for proposal. (e) The contracting entity has the right to reject all bids/offers submitted in response to a solicitation. The contracting entity may cancel a solicitation for any of the following reasons: (1) funds to purchase goods or services are not available; (2) the supplies or services are no longer required; (3) the bids/offers received indicated that the services requested can be purchased by a different, less expensive method; (4) all otherwise acceptable bids/offers received are for unreasonable prices; (5) staff have reason to believe during the course of the procurement that the bids/offers were collusive or were submitted in bad faith; (6) none of the bids/offers is acceptable; (7) the specifications and costs given in the IFB/RFP were inadequate, ambiguous, or otherwise deficient; or (8) the responsible contracting entity determines cancellation is in the best interest of the department and the individuals to be served. (f) The contracting entity has the right to issue addenda prior to the closing date for bids/offers provided all bidders/offerors are provided fair opportunity to respond. All such addenda become, upon issuance, an inseparable part of the specifications which must be met for the bid/offer to be considered. (g) A solicitation suspended because of uncertainty in federal or state regulations, departmental policy or similar requirements may nevertheless be processed if the procurement is still in the best interest of the department and the individuals to be served, and uncertainties about purchasability are amenably resolved. (h) The contracting entity develops procurement packages based on a clear and accurate description of the services to be purchased. The contracting entity must include in the package all requirements the offeror must fulfill for the proposals to be evaluated. The contracting entity may not include in the service descriptions any requirement which unduly restricts competition by eliminating or limiting potential contractors' participation in the procurement process. (i) When responding to a solicitation, offerors must respond to all items, including those about financial ability to perform. (j) Upon written request, an unsuccessful offeror is entitled to receive information from the contracting entity concerning why its offer was not accepted. (k) Corrections, deletions, or additions to offers may be made prior to the closing date for solicitations or the date for opening of bids. No oral, telephone, telegraphic, fax, E-mail, or other electronically transmitted corrections, deletions, or additions will be accepted. The offeror must submit either a comprehensive form for this purpose, if provided, or substitute pages in the appropriate number of copies with a letter documenting the changes and the specific pages for substitution. The signatures on the form or the letter must be original and must be of equal authority as the signatures on the offer. (l) Corrections, deletions, or additions which affect the competitiveness of other offers will not be accepted. (m) For withdrawals, the offeror must submit a letter prior to the closing date. The signature on the letter must be original and must be of equal authority as the signature on the offer. (n) The contracting entity must establish mechanisms beforehand for evaluating the offers including ways of determining responsible offerors, providing information for debriefings, and selecting successful offeror(s) for contract award(s). (o) If a procurement package is to be considered by the contracting entity, the offeror must meet the contracting entity requirements, demonstrate the ability to perform successfully and responsibly under the terms of the prospective contract, and submit the completed offer according to the timeframes, procedures, and format stipulated by the contracting entity in the solicitation. (p) The contracting entity may validate any information in a bid or offer by using outside sources or materials. (1) If the contracting entity validates the information in one offer or application for a specific program site or project, it must apply the process without providing unfair advantage to any offer or range of offers for that site or project. (2) If validation discloses that information provided by an offeror is deliberately false, the offer will be ineligible for consideration. (q) When the purpose of the procurement is to obtain community-based residential or nonresidential services for persons with mental illness or mental retardation (direct services contracts), the determination of the lowest and best bid or offer must address the offerors' response to the procurement package, including: (1) price; (2) the ability of the offeror to perform the contract and to provide the required services; (3) whether the offeror can perform the contract or provide the services within the period required, without delay or interference; (4) the offeror's history of compliance with the laws relating to the offeror's business operations and the affected services and whether the offeror is currently in compliance; (5) whether the offeror's financial resources are sufficient to perform the contract and to provide the services; (6) whether necessary or desirable support and ancillary services are available to the offeror; (7) the character, responsibility, integrity, reputation, and experience of the offeror; (8) the quality of the facilities and equipment available to or proposed by the offeror; (9) the ability of the offeror to provide continuity of services; and (10) the ability of the offeror to meet all applicable written departmental policies, principles, and regulations. (r) Each offeror whose offer meets the screening requirements but is not selected for a contract is entitled to timely notification in writing that the offer is no longer being considered. sec.401.378. Additional Requirements for Sealed Bid. (a) Procurement using sealed bids. At its discretion, the contracting entity may require a bid bond, a certified check or cashier's check drawn on a solvent bank in the State of Texas and made payable to the contracting entity in an amount to be specified in the procurement package. The bid security shall be a guarantee, legally assigned without limitation, that the bidder will, if awarded the contract, within a reasonable time of such award, furnish the performance/payment bond (if required) and execute a contract in full accordance with the proposal. No other form of security will be accepted. (1) If the offer is not accepted within 60 days after the closing date for acceptance of bids, or upon the successful execution and delivery of contracted services, the bid bond, certified check, or cashier's check will be returned to the bidder. (2) If the offer is accepted but the contractor through failure, neglect, or refusal does not execute and deliver according to the terms of the contract, the security will be retained by the contracting entity to the measure of the liquidated damages. (b) Awarding the contract. (1) All bids received are opened at the same time in the presence of all interested persons. Bids are read aloud and recorded. (2) After the public opening of the sealed bids, anyone present may examine the bids in the presence of the contracting entity's representative. Individuals may not inspect the original bids if copies of the bids are available for public inspection. If copies are unavailable, the original bids may be examined only under the supervision of an official of the contracting entity and under conditions which preclude the possibility of a substitution, addition, deletion, or alteration of the bids. (3) Bids are evaluated only on the basis that they meet the specific requirements of the invitation for bids. All bids meeting the exact service specifications are rated in terms of cost or cost and other factors as designated in the specifications. (4) The contracting entity awards the contract to a bidder who is both responsive and responsible and who has the lowest and best bid consistent with terms and conditions of the invitation for bids. The contract is not necessarily awarded at the time of bid opening. (5) When two or more low bids are equal in all respects, lots will be drawn, duly recorded, and witnessed. (6) No negotiation is used in the competitive bid method. sec.401.379. Additional Requirements for Request for Proposal. (a) Before the contracting entity negotiates a contract, the prospective contractor must complete a procurement package and submit it to the contracting entity. (b) Negotiations are conducted with one or more of the sources submitting offers. (c) Negotiation may be conducted either to complete the procurement process or to complete an evaluation of acceptable offers. When only one offer has a reasonable chance of being selected for the contract award, contract staff and the potential contractor negotiate the contract requirements as necessary to complete the procurement process. When more than one acceptable offer is received, negotiation is used to further evaluate competitive offers and to select one or more for contract award. In this situation, no potential contractor is given information that will give the contractor a competitive advantage over the other potential contractors. (d) During negotiation, the offeror must clearly identify all changes in and/or revisions to the offer. (e) The contracting entity shall award the contract to the offeror with the lowest and best offer. (f) The contracting entity awards either a flat rate, unit rate, or a cost- reimbursement contract, as appropriate. sec.401.380. Sole Source Contracting. (a) The contracting entity may validate any information in an offer by using outside sources or materials. If validation discloses that information provided by an offeror is deliberately false, the offer will be ineligible for consideration. (b) The contracting entity must justify and document awarding a sole source contract funded by or through TDMHMR to a contractor. Documentation must accurately and concisely substantiate the necessity for a sole source contract on the basis of one or more of the reasons listed in subsection (c) of sec.401. 376 of this title (relating to Methods of Procurement). sec.401.381. Fiscal Requirements. (a) Every effort should be made to contract with contractors who will not require the department to provide start-up funds. As a last resort, contractors who are expanding into a new service area or are just beginning to provide services may, if allowed by program-specific policy and with appropriate TDMHMR approvals, budget and bill for start-up funds. Start-up funds shall be used for operating costs, such as hiring and orienting staff, purchasing supplies, utilities, maintenance and repairs, and recruiting eligible persons with mental illness or mental retardation. (1) A contractor who requires start-up funds must receive required licensure, accreditation and/or certification to provide contracted services within the timeframe designated in the contract. (2) The contractor shall not provide start-up funding using TDMHMR funds to subcontractors. (3) The contractor will provide documentation to support the amount of start- up funds requested. Justification should be adequately documented to include a projected cash flow analysis. (4) The repayment of the start-up funds must be completed within five years from the date of the payment of the start-up funds. The amount to be repaid is the principal amount with interest equal to the United States Treasury commercial paper rate on the date that the start-up funds payment is approved by the Texas Board of Mental Health and Mental Retardation. Payments will be withheld from the contractor's quarterly allocation and transferred to the department for a period of five years. (b) In accordance with Texas Health and Safety Code, sec.534.035, periodic program reviews and management audits will be conducted in sufficient quantity and type to provide reasonable assurance that adequate and appropriate fiscal controls exist in community centers. These program reviews and management audits at community centers shall be conducted in accordance with the most recent edition of "Guidelines for Annual Fiscal Audits of Community MHMR Centers." (c) When the local authority provides or subcontracts programs for which there is a matching funds requirement, the local authority is accountable for certifying to the state authority on a quarterly basis that it has sufficient local revenues to meet the requirements for matching funds that exceed state- certified matching funds necessary to meet performance targets specified in the performance contract. sec.401.382. Procurement of Performance Contracts. (a) The state authority shall identify an entity to serve as the local authority for each service area and, if the entity is not operated by a facility, enter into a performance contract with it. In identifying a local authority for a service area, the state authority shall give preference to a community center located in that service area and will attempt to execute a performance contract with that community center. (b) If a performance contract cannot be executed with a community center, the state authority shall designate the community services division of a facility as the local authority for that service area or will execute a performance contract with another agency, entity, or organization to be the local authority for that service area. sec.401.383. Procurement of Performance Subcontracts. The local authority shall consider public input, ultimate cost-benefit, and client care issues to ensure consumer choice and the best use of public money in: (1) assembling a network of service providers; and (2) determining whether to become a provider of a service or to contract that service to another organization. sec.401.384. Provisions for Performance Subcontracts and Designated Provider Contracts. (a) Performance subcontracts and designated provider contracts must be consistent with the terms and provisions of the performance contract. Performance subcontracts and designated provider contracts must contain, but are not limited to, provisions stating: (1) the beginning and ending date of the contract; (2) the method of payment and maximum amount payable under the contract; (3) that no person will be excluded from participation in, denied the benefits of, or discriminated against, in any program or activity funded by the contract on the grounds of race, color, national origin, religion, sex, age, disability, or political affiliation; (4) that all records pertinent to the contract, including appropriate plans of service, will be retained by the provider for a period of five years; (5) that all client-identifying information will be maintained by the provider as confidential, in accordance with applicable law and department rules; (6) that the provider is not held in abeyance or barred from the award of a federal or state contract at the time of executing the contract; (7) that any allegation of abuse, neglect, or exploitation of persons served under the contract will be reported in accordance with applicable law, including department rules, rules of the Texas Department of Protective and Regulatory Services, and rules of the Texas Department of Health; (8) that AIDS/HIV workplace guidelines, similar to those adopted by the department, and AIDS/HIV confidentiality guidelines, consistent with state and federal law, will be adopted and implemented by the provider; (9) that if, as a result of a change to a department rule, state or federal law, or community standard, the contractual obligations of the provider are materially changed or a significant financial burden is placed on the provider, the parties may renegotiate in good faith to amend the contract; (10) that the provider will comply with relevant department rules and community standards, certifications, accreditations, and licenses, as specified in the contract; (11) that services will be provided in accordance with the plans of service of persons served; (12) that pursuant to Texas Health and Safety Code, s534.060, the state authority and/or local authority and their representatives, including independent financial auditors, shall have unrestricted access to all facilities, records, data, and other information under the control of the local authority or its subcontractors as necessary to enable the state authority and/or local authority to audit, monitor, and review all financial and programmatic activities and services associated with the contract as part of their responsibilities as contract managers; (13) that the provider shall provide sufficient information to the contracting entity to enable the contracting entity to receive criminal history record information on the provider's applicants or employees, pursuant to the Texas Health and Safety Code, sec.533.007 and the Texas Government Code, sec.411.115; (14) that if an applicant or employee of the provider has a criminal history relevant to his or her employment as described in sec.404.304 of this title (relating to Pre-employment Criminal History Clearance), then the provider will take appropriate action with respect to the applicant or employee, including removing the employee from direct contact with persons with a mental disability served by the provider; and (15) that if a performance subcontract or designated provider contract is for the provision of residential services in a family home, the home will be used only to house disabled persons and may not be used as a restitution center, a home for substance abusers, or a halfway house. For purposes of this paragraph, "family home" and "disabled persons" are defined as in the Community Homes for Disabled Persons Location Act, Texas Human Resources Code, Chapter 123; and (b) Contracts which require the provider to assume responsibility for the funds of persons with a mental disability must contain provisions which require the provider to have and abide by a written policy for protecting and accounting for such funds in accordance with generally accepted accounting principles and is subject to approval by the contracting entity. sec.401.385. Renewal of Performance Contracts, Subcontracts, and Designated Provider Contracts.
          Performance contracts and subcontracts and designated provider contracts are renewed in accordance with the Texas Health and Safety Code, sec.534.065 and sec.534.055. sec.401.386. Remedying Contractual Problems With a Performance Subcontract. A local authority may take the same breach and remedies actions as are available to the state authority. sec.401.387. General Requirements for the Department. (a) Unless otherwise noted, all provider contracts funded by or through TDMHMR are governed by this subchapter and the TDMHMR Contracts Manual. (b) There must be some basis in state or federal law or regulation for the department to provide a mental health or mental retardation service which is to be contracted in whole or part using TDMHMR or federal funds. The statutory authority must be referenced in the provider contract. (c) The department must use the standard contract forms as provided in the TDMHMR Contracts Manual. The standard contract forms and required contract provisions may be modified to accommodate unique circumstances only as follows: (1) modifications may take the form of additional contract requirements, but may not delete or materially change the provisions of standard contract forms or required contract provisions; and (2) any contract or contract amendment of any amount that modifies the provisions of a standard contract form or a required contract provision requires approval by the Office of Contract Support. (d) If a contractor is required to comply with an additional requirement and compliance results in a material change in the contractor's rights or obligations under the contract or places a significant financial burden on the contractor, the contractor may request to renegotiate the contract. (e) The department must ensure that all contracts specify a date of termination, a maximum allowable total payment for the contract term, and the method of payment. Contracts that do not have termination dates, maximums, and method of payment will not be approved for payment. sec.401.388. General Requirements for Provider Contractors. (a) A contractor must comply with all applicable federal and state laws, rules, and regulations, and standards. Unless explicitly stated otherwise in this subchapter, a contractor will not be subject to the general personnel rules and policies which affect the activities of employees of the department with which it contracts. (b) A contractor must allow the department unrestricted access to all facilities, service providers, individuals served, records, data, and other information under the control of the contractor as necessary to enable the department to audit, monitor, and review all financial and programmatic activities and services associated with the contract. (c) A contractor must keep financial and supporting documents, statistical records, and any other records pertinent to the services for which a claim or cost report was submitted to the department, including plans of service, for a period of five years unless otherwise specified by the department in the provider contract. (d) For the purpose of confidentiality of records identifying persons served, contractors are subject to the requirements of Chapter 403, Subchapter K of this title (relating to client-identifying Information). (e) A contractor must disclose to the department if it is currently held in abeyance from or barred from the award of a federal or state contract. A contractor currently held in abeyance from or barred from the award of a federal or state contract may not contract or subcontract with the department. (f) The department may refuse to enter into a provider contract or may terminate a provider contract if it determines that the contractor did not fully and accurately disclose information concerning persons convicted of crimes. If an applicant or employee of the provider has a criminal history relevant to his or her employment as described in sec.404.304 of this title (relating to Pre- employment Criminal History Clearance), then the contractor will take appropriate action with respect to the applicant or employee, including but not limited to removing the employee from direct contact with persons with a mental disability served by the contractor; (g) The contractor operating a Medicaid-contracted facility shall comply with federal regulations relative to supplementation for recipient-residents, as contained in the Social Security Act, sec.1320a-1 through a-9; Title 42 CFR 447.15; Public Law 95-142 (Medicare-Medicaid Antifraud and Abuse Amendments); and TDHS-TDMHMR-TDH joint agency policy interpretations. (h) Before a corporation's offer or provider contract renewal can be considered, the corporation must give the department franchise tax certification. For-profit corporations subject to Texas' franchise tax must provide certification that their payments are current. All other corporations must certify that they are not subject to the franchise tax. (1) If the contractor is or becomes delinquent in the payment of its Texas franchise tax, payment to the contractor may be withheld until such delinquency is remedied. (2) Making a false certification is a material breach of provider contract and grounds for provider contract termination. (i) A contractor must report allegations of abuse, neglect, and exploitation in compliance with federal and state law and departmental rules, as applicable, including but not limited to, Chapter 404, Subchapter A (relating to Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities). (j) A contractor must report to the department any allegation that a professional licensed or certified by the State of Texas and employed by the contractor has committed an action that constitutes a grounds for the denial or revocation of the certification or licensure, e.g., physicians, nurses, psychologists, etc., and the department must immediately submit a copy of the report to the appropriate state board. (k) A provider contract, bid, or application for a provider contract must include an affidavit of eligibility to receive payments from state funds as required by the Texas Family Code, sec.231.006. sec.401.389. Support Services Contracts. Pursuant to Texas Civil Statutes, Article 601b, department support services contracts and purchases governed by the rules, regulations and procedures manual of the General Services Commission and the TDMHMR Purchasing and Supply Operating Instruction are exempted from the requirements of this subchapter. All other department purchases and contracts are governed by this subchapter. sec.401.390. Consultant Contracts. (a) The term of a consultant contract shall not exceed two years. Department contracts that exceed two years require approval through the Office of Contracts Support. (b) Facilities must submit the following contracts and contract amendments to the Office of Contracts Support to be approved by the appropriate Central Office authorities prior to execution: (1) contracts or contract amendments through which the department will pay the consultant more than $10,000 in a fiscal year; (2) contracts or contract amendments in which the consultant will be paid more than $65/hour; or (3) contracts or contract amendments in which the consultant will be paid more than $400 in a 24-hour period. (c) Central Office staff must submit all consultant contracts and amendments to the Office of Contracts Support to be approved by appropriate Central Office authorities prior to execution. (d) The Office of Contracts Support must coordinate the Texas Register
            publication of the solicitation, the finding of fact requirements, and the award of the contract for all department contracts and contract amendments in which the consultant will be paid more than $10,000 in a fiscal year. Existing contracts for more than $10,000 may be extended or otherwise amended without advertising if both the department and the contractor agree and the department does not incur additional costs from the contractor. (e) Verification that contracted services were provided as required must be documented in the contract file. For services provided on an hourly or other unit basis, each consultant and a responsible staff member who can certify to the presence and the duties performed by the consultant will record the information required on the "Contract Log for Consultant Services, Professional Services, Direct Care Services," which is referenced in sec.401. 397 of this title (relating to Exhibits) as Exhibit B. The consultant and responsible staff member must sign the form, which becomes a part of the contract file. sec.401.391. Professional Services Contracts. (a) The term of a professional services contract shall not exceed two years. Department contracts that exceed two years require approval through the Office of Contracts Support. (b) Verification that contracted services were provided as required must be documented in the contract file. For services to persons with mental illness or mental retardation provided on an hourly or other unit basis, each contractor and a responsible staff member who can certify to the presence and the duties performed by the contractor will record the information required on a "Contract Log for Consultant Services, Professional Services, Direct Care Services," which is referenced in sec.401. 397 of this title (relating to Exhibits) as Exhibit B. (1) The contractor and responsible staff member must sign the form, which becomes a part of the contract file. (2) For contractors who perform services involving large numbers of persons with mental illness or mental retardation, the file and file location of individual case numbers of persons seen may be referenced rather than listed in full. If case numbers are referenced to another file, that file must be readily accessible. (c) In cases of emergency medical treatment or required nonemergency surgical procedures performed off campus or on campus, the mandatory prior approval required in subsection (b)(1) of this section is waived. In such cases, the fees paid shall not exceed those normally charged for the service in the area in which the services are provided. (d) Contracts for professional services may not be procured through the use of bids. sec.401.392. Employee Education and Training Contracts. (a) The term of an employee education and training contract shall not exceed two years. Department contracts that exceed two years require approval through the Office of Contracts Support. (b) Employee education and training contracts may be procured using a method other than sealed bid. sec.401.393. Community-based Residential and Nonresidential Services Contracts. (a) The method of procurement of all service contracts must be in compliance with sec.401.376 of this title (relating to Methods of Procurement). (1) The term of a residential service contract shall not exceed five years. Department contracts that exceed five years require approval through the Office of Contracts Support. (2) The term of a nonresidential service contract shall not exceed two years. Department contracts that exceed two years require approval through the Office of Contracts Support. (b) The department must require the contractor to: (1) comply with the person's treatment plan, including ensuring consultants are knowledgeable of the plan at the time of placement and that staff providing direct care have received training necessary to implement the plan in accordance with the terms of the contract; and (2) comply with specified rules and standards governing services to persons with mental illness or mental retardation. (c) Contractors for residential services must sign an acknowledgement of awareness of applicable federal and state rules, regulations, laws, and executive orders that govern the provision of services to persons with mental illness or mental retardation using the form referenced in sec.401.397 of this title (relating to Exhibits) as Exhibit C. (d) Contractors must provide insurance, including liability coverage, for the residence or other structure and its contents and any vehicles used to transport persons with mental illness or mental retardation. (e) Contractors providing residential services will assume fiduciary responsibility for trust funds of persons served, unless otherwise specified in the contract requirement. Prior to executing a residential contract, the contractor must submit for Central Office approval a written policy and procedure to protect and account for trust funds according to generally accepted accounting principles and applicable laws, rules, and standards, including, as applicable, sec.405.625 of this title (relating to Rights of Clients Receiving Residential Mental Retardation Services) and sec.407.2 of this title (relating to Trust Funds and Personal Effects). Any amendments to the trust fund policy and procedure must be submitted to Central Office for approval prior to implementation. (f) Quality care must be maintained for all persons served during the transition from one provider to another. sec.401.394. Other Provider Contracts. All other provider contracts are governed by the TDMHMR Contracts Manual. sec.401.395. Provider Contract Terminations. (a) Terminations of contracts occur when the term of the contract expires, both parties mutually agree to end the contract, and/or when either party terminates a contract because of the other party's breach of contract terms. (b) The department may immediately terminate a contract for cause. (1) Termination for cause is the contractual right to terminate, in whole or in part, the contractor's right to proceed with contract by reason of the contractor's failure to perform obligations under the contract. Included are failure to: (A) deliver supplies or perform services within the time specified in the contract; (B) perform any other provision of the contract; or (C) progress, thus endangering the performance of the contract. (2) Under a termination for cause, the department is not liable for the contractor's costs on undelivered work. (3) Upon termination for cause the department is entitled to the repayment of any advance payments or other payments for such work. (4) The department may elect to require the contractor to transfer title and deliver to the department completed supplies and materials in the manner and to the extent directed by the commissioner or his designee. (c) Either party, unless stated differently in the contract, may terminate the contract at will if the other party is given a written notice. (d) The department may terminate a contract if the contractor submits falsified documents or fraudulent billings or makes false statements. (e) When a contract is terminated, a fiscal audit is conducted as necessary to determine any over-or underpayment. Disposition of equipment purchased under contract with the department will be subject to disposition according to departmental determinations. (f) The contractor is responsible for establishing proof of the amount claimed to be due for settlement of a terminated contract to the department's satisfaction by submitting sufficient proof. (g) Upon termination of a contract between the department and a contractor, the contractor is responsible for the prompt settlement of the termination claims, including claims from employees and vendors. sec.401.396. Abeyance and Removal of Current or Potential Contractual Rights. (a) Abeyance is a pending status. It may be imposed immediately, as appropriate, by the department upon a contractor's right to conduct a contract or a potential contractor's right to make an offer or bid for a department contract until an investigation, hearing or trial result is concluded and the department can make a determination about the contractor's or potential contractor's right to contract or subcontract. (1) The department may withhold payments to a contractor during the abeyance. (2) If the final determination is favorable to the contractor, the department must, if applicable, (A) pay the withheld payments for any services that were provided during the abeyance, and (B) resume contract payments. (b) Removal of contractual rights by the department is the abrogation of rights to conduct a contract or to make an offer or bid for a department contract. The removal is for a reasonable and specified time and commensurate with the seriousness of the cause for removing contractual rights. Removal of rights may, but does not have to, be limited to those components of the contractor or potential contractor involved in the conduct leading to removal of rights. (c) The department is authorized to remove contractual rights from an organization or individual for causes including, but not limited to, the following: (1) pleading guilty or nolo contendere, receiving a deferred adjudication, or being found guilty in a court judgment for a violation relating to: (A) obtaining, attempting to obtain, or performing a public or private contract or subcontract; (B) the Organized Crime Control Act of 1970, embezzlement, theft, forgery, bribery, falsification or destruction of records, other forms of fraud, receipt of stolen property, moral turpitude, or any other offense indicating a lack of business integrity or honesty that seriously and directly affects the question of responsibility as a contractor with the department; (C) dangerous drugs, controlled substances, or other drug-related offense; (D) federal antitrust statutes arising from the submission of bids or proposals. (2) violating contract provisions including: (A) failing to perform according to the terms, conditions, and specifications or within the time limit(s) specified in the contract, including but not limited to the following: (i) failing to abide by applicable federal and state statutes, such as those regarding handicapped persons and civil rights; (ii) failing to meet standards that are required by state or federal law, department rule, or department policy concerning contractors; (iii) failing to execute amendments, if required in the contract; (iv) billing for services or merchandise not provided to persons served; (v) submitting cost reports containing costs not associated with and/or not covered by the contract; (vi) submitting a false statement or misrepresentation which, if used, may increase individual or statewide rates or fees; (vii) charging fees to persons served contrary to TDMHMR rules or policy; (viii) failing to notify and reimburse the department for services the department paid for when the contractor received reimbursement from a liable third party; (ix) failing to disclose or make available, upon demand, to the department or representatives (including appropriate federal and state agencies and their representatives, including independent financial auditors) any records the contractor is required to maintain; (x) failing to provide and maintain services within standards required by statute, regulation, or contract; (xi) violating the Texas Mental Health and Mental Retardation Act (Texas Health and Safety Code, sec. s531.001, et seq) provisions applicable to the contract or any rule or regulation issued under the act; (B) having a record of failure to perform or of unsatisfactory performance according to the terms of one or more contracts or subcontracts if that failure or unsatisfactory performance has occurred within five years or two contracting periods (preceding the determination to remove contractual rights) for long-term contracts, with failure to perform or unsatisfactory performance in evidence at time of determination to remove contractual rights. Failure to perform and unsatisfactory performance includes, but is not limited to, the following: (i) failing to correct contract performance deficiencies after receiving written notice about them from the department; and (ii) failing to repay or make and follow through with arrangements satisfactory to the department to repay identified overpayment or other erroneous payments; (C) rebating or accepting a fee or part of a fee in violation of contractual provisions. (3) submitting an offer or bid that contains a false statement or misrepresentation or omits pertinent facts or documents material to the procurement; (4) any other cause affecting the contractor's or potential contractor's responsibility of such a serious nature that the commissioner or his designee determines it to warrant removal of contractual rights. Grounds include, but are not limited to, engaging in any abusive or neglectful practice that results in or could result in death or injury to persons served by the contractor; (5) removal of contractual rights by some other state or federal agency. (d) The department may place a contractor's or potential contractor's contractual rights in abeyance whenever the department finds that there is a reasonable basis to believe that grounds for removal of contractual rights exist. In addition, abeyance may be imposed on a potential contractor if he has an outstanding indictment for an offense that is grounds for removal of contractual rights. The following conditions for removal of contractual rights apply: (1) Violations of contract provisions do not necessarily cause abeyance and/or removal of contractual rights. Depending upon circumstances, the department's options range from a notice to the contractor explaining the violation or cause and requiring corrective actions to the removal of contractual rights. Causes in subsection (c)(1) of this section are established by proof of pleading guilty or nolo contendere, receiving a deferred adjudication of guilt, or being a defendant in a court judgment of guilt for violations relating to charges enumerated in subsection (c)(1) of this section. If an appeal results in a reversal, contractual rights must be restored upon written request, unless another cause for their removal exists. (2) Removal of contractual rights because another state or federal agency has removed contractual rights is based entirely upon the initial agency's official notice that the rights have been removed. (e) In addition to the information required in the notice of adverse action, the required content for notices of abeyance and removal of contractual rights includes: (1) the grounds for the actions. If an indictment filed by the department is underway, the nature of the irregularities is described in general terms without disclosing evidences; (2) the length of the abeyance or removal of contractual rights; (3) a statement that responses to RFPs, IFBs, and other proposals will not be accepted or approved; and (4) a statement of whether the abeyance or removal of contractual rights is in effect throughout the department and for all local authorities. (f) The department may impose additional program-specific requirements if the requirements do not conflict with the abeyance and removal of contractual rights requirements in this section. sec.401.397. Exhibits. The following exhibits, referenced in this subchapter, are available from the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668: (1) Exhibit A-Persons Related within the Second Degree of Consanguinity or Affinity; (2) Exhibit B-Contract Log for Consultant Services, Professional Services, Direct Care Services; and (3) Exhibit C-Acknowledgement. sec.401.398. References. The following laws and rules are referenced in this subchapter: (1) Appropriations Act of 1989, Article V, sec.118; (2) Chapter 403, Subchapter K of this title, relating to client-identifying Information; (3) Chapter 404, Subchapter A of this title, relating to Abuse, Neglect, and Exploitation of Persons Receiving Services in TDMHMR Facilities; (4) Chapter 404, Subchapter B of this title, relating to Abuse, Neglect, and Exploitation of People Served by Providers of Local Authorities; (5) Chapter 404, Subchapter H of this title, relating to Criminal History Clearances of Applicants for Employment; (6) Chapter 405, Subchapter Y of this title, relating to Client Rights-Mental Retardation Services; (7) Chapter 407 of this title, relating to Financial Services; (8) "Guidelines for Annual Fiscal Audits of Community MHMR Centers," most recent edition, Texas Department of Mental Health and Mental Retardation; (9) Local Government Code, sec.171.002; (10) Organized Crime Control Act of 1970; (11) Public Law 95-142; (12) Social Security Act, sec.sec.1320a-1 through a-9; (13) Title 42 CFR 447.15; (14) Texas Civil Statutes, Article 601b; (15) Texas Family Code, sec.231.006; (16) Texas Government Code, Chapter 783; (17) Texas Government Code, Subchapter A, sec.sec.2254.001 et seq; Subchapter B, sec.sec.2254.021 et seq; sec.411.115; and Chapter 572, Subchapter C; (18) Texas Health and Safety Code, Title 7, Chapters 531, 532, 533, 534, 535, and 551; (19) Texas Human Resources Code, Chapter 123; (20) Texas Open Records Act; (21) TDMHMR Contracts Manual; (22) TDMHMR Purchasing and Supply Operating Instruction; and (23) Uniform Grant and Contract Management Standards for State Agencies, Governor's Office of Budget and Planning. sec.401.399. Distribution. This subchapter shall be distributed to members, Texas Board of Mental Health and Mental Retardation; the assistant commissioner and directors of Central Office; superintendents/directors, all TDMHMR facilities; chairpersons, board of trustees or governing body, and chief executive officers, all local authorities and designated providers. Issued in Austin, Texas, on September 15, 1995. TRD-9511878 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: September 15, 1995 Expiration date: January 13, 1996 For further information, please call: (512) 206-4516