ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 7. BANKING AND SECURITIES Part IV. Texas Savings and Loan Department Chapter 53. Additional Offices 7 TAC sec.53.15, sec.53.16 The Finance Commission of Texas adopts amendments to sec.53.15, regarding the procedures after an application to operate a remote service unit is received by the Department, and sec.53.16, regarding the findings necessary to approve an application to operate a remote service unit, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5460). The amendments will streamline the application process for remote service units. Section 53.15 will be amended to clarify and streamline the application process for remote service units and require a hearing only if the application is protested. The findings needed for approval in sec.53.16 will be expanded to include there being no basis for supervisory objection and no undue harm caused to any other savings and loan association or savings bank operating in the community where the proposed remote service unit would be located or relocated. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513889 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 61. Hearings 7 TAC sec.sec.61.1-61.6 The Finance Commission of Texas adopts the repeal of sec. sec.61.1-61.6, regarding the hearing procedures for the Savings and Loan Department, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5461). This chapter is being repealed and replaced concurrently with sec.sec.61.1-61.3 to incorporate the Texas Banking Act, sec.1.011(b), House Bill 1543, Acts, 74th Legislature, Regular Session, which authorizes the Finance Commission to employ a hearing officer, who for purposes of the Government Code, Vernon's Texas Codes Annotated, sec.2003.21, is an employee of the Savings and Loan Department, Department of Banking and the Office of the Consumer Credit Commissioner (together, the "FC agencies"). Previously, all hearings conducted by the Department in conjunction with the Texas Savings and Loan Act were required to be handled by the State Office of Administrative Hearings. The new sec.61.1 designates the Finance Commission's hearings officer as hearings officer for the Department. The new sec.61.2 incorporates by reference standard rules for the Finance Commission hearing officer to apply in conducting contested hearings for the Finance Commission agencies. The new sec.61.3 gives the commissioner the flexibility to amend a notice of hearing for publication to facilitate joint publication of the notice with other regulatory agencies having jurisdiction in the matter, expedite the hearing process, or provide other information relevant to the hearing or arrangement and scheduling therefor. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513890 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 7 TAC sec.sec.61.1-61.3 The Finance Commission of Texas adopts new sec.sec.61.1-61.3, regarding the hearing procedures for the Savings and Loan Department, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5461). This chapter is being repealed and replaced with sec. sec.61.1-61.3 to incorporate the Texas Banking Act, sec.1.011(b), House Bill 1543, Acts, 74th Legislature, Regular Session, which authorizes the Finance Commission to employ a hearing officer, who for purposes of the Government Code, Vernon's Texas Codes Annotated, sec.2003.21, is an employee of the Savings and Loan Department, Department of Banking and the Office of the Consumer Credit Commissioner (together, the "FC agencies"). Previously, all hearings conducted by the Department in conjunction with the Texas Savings and Loan Act were required to be handled by the State Office of Administrative Hearings. New sec.61.1 designates the Finance Commission's hearings officer as hearings officer for the Department. New sec.61.2 incorporates by reference standard rules for the Finance Commission hearing officer to apply in conducting contested hearings for the Finance Commission agencies. The new sec.61.3 gives the commissioner the flexibility to amend a notice of hearing for publication to facilitate joint publication of the notice with other regulatory agencies having jurisdiction in the matter, expedite the hearing process, or provide other information relevant to the hearing or arrangement and scheduling therefor. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513891 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 63. Fees and Charges 7 TAC sec.sec.63.9, 63.11, 63.12 The Finance Commission of Texas adopts amendments to sec.63.9, regarding fees for reorganization, merger, and consolidation; sec.63.11, regarding fees for change of control; and sec.63.12, regarding fees for the formation of subsidiaries, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5462). The amendments are being adopted to clarify and simplify the fee structure, more closely match fees with the amount of staff processing and investigating time required for these applications. The amended fees will be charged on the respective applications. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513892 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 64. Books, Records, Accounting Practices, Financial Statements, and Reserves 7 TAC sec.sec.64.4, 64.7-64.9 The Finance Commission of Texas adopts amendments to sec.64.4, relating to the requirement for annual publication and submission of a statement of financial condition as of December 31 by each savings and loan association; sec.64.7, regarding the net worth requirements; sec.64.8, giving the commissioner the ability to increase or decrease the minimum requirements for net worth; and new sec.64.9 providing the commissioner with the flexibility to extend the examination frequency cycle, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5462). These changes will update certain requirements in accordance with other state and federal financial institutions. The requirement for annual or more frequent publication of a statement of condition in sec.64.4 has been removed for other state and federal financial institutions, this adopted amendment will eliminate such publication requirement for savings and loan associations. Section 64.7 and sec.64.8 will update the language for capital or net worth requirements, and the commissioner's ability to increase or decrease the minimum requirements based on data available to him. Additionally, sec.64.9 is a new rule adopted to provide the commissioner with the flexibility to extend the examination frequency cycle by up to six months consistent with the savings and loan association's historical performance as measured by its last examination and off-site financial monitoring by the Department. This change is responsive to efforts at both the state and federal level to relieve regulatory burden on those saving and loan associations that are well managed and well capitalized. As adopted, the rule will also provide needed flexibility to coordinate scheduling of joint, concurrent and alternating examinations with federal regulators who already have such authority. No comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under Texas Banking Act, sec.1. 013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513893 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 69. Reorganization, Merger, Consolidation, Acquisition and Conversion 7 TAC sec.69.1 The Finance Commission of Texas adopts an amendment to sec.69.1, regarding the procedures for state savings and loan associations seeking approval for a purchase and assumption transaction, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5464). The revised rule clarifies what is included in a purchase and assumption transaction. Section 69.1 is revised to clarify that a purchase and assumption transaction includes a purchase or sale of assets, deposit accounts or other liabilities in bulk which are not made in the ordinary course of business. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513894 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 73. Subsidiary Corporation 7 TAC sec.73.1, sec.73.6 The Finance Commission of Texas adopts amendments to sec.73.1, regarding subsidiary corporations and sec.73.6, regarding operating subsidiaries, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5464). The changes in subsidiary corporation rules are adopted to clarify previous language of the sections. Changes in subsidiary corporation rules will clarify in sec.73.1 that the commissioner's approval must be obtained for a subsidiary to engage in an additional or substitute activity, and the amendment to sec.73.6 will require that operating subsidiaries must meet all other requirements of this chapter that apply to non-operating subsidiaries. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513895 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 75. Applications Additional Offices 7 TAC sec.75.35, sec.75.37 The Finance Commission of Texas adopts amendments to sec.75.35 and sec.75. 37, regarding the requirements for the establishment of mobile facilities and remote service units by savings banks, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5465). The changes adopted will make a technical correction and will streamline the application process for remote service units. The adopted change in sec.75.35 regarding mobile facilities is a technical correction which will remove an inadvertent reference to a loan office. The remote service unit application process in sec.75.37 will streamline the application process for remote service units and require a hearing only if the application is protested. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513896 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Reorganization, Merger, Consolidation, Conversion, Purchase and Assumption and Acquisition 7 TAC sec.75.81, sec.75.89 The Finance Commission of Texas adopts amendments to sec.75.81, regarding the procedures for state savings banks seeking approval for a purchase and assumption transaction and sec.75.89, regarding the procedures for state savings banks converting to another financial institution charter, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5465). The revisions clarify what is included in a purchase and assumption transaction and a technical correction to the original adopted language. The revised sec.75.81 will clarify that a purchase and assumption transaction includes a purchase or sale of assets, deposit accounts or other liabilities in bulk which are not made in the ordinary course of business. The change to sec.75.89 is a technical correction which will remove an inadvertent reference to the new charter as only a federal savings bank after conversion. State savings banks are authorized to convert to any other financial institution charter, including state savings and loan association, federal savings bank or savings and loan association, or a state or national bank. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513897 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Change of Control 7 TAC sec.75.123 The Finance Commission of Texas adopts an amendment to sec.75.123, regarding hearings in change of control applications of a state savings bank, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5466). The change will conform the section with the statutory changes of House Bill 1020 enacted by the 74th Legislature. The adopted change will clarify the commissioner's authority to require a hearing on an application for acquisition of control of a savings bank if he deems it desirable to accumulate a complete record of information in support of approval or denial of the application. Such a hearing is solely within the discretion of the commissioner and change of control applications may be approved without a hearing. In the event that a change of control application is denied, the applicant would be entitled to a hearing. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513898 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Chapter 77. Loans, Investments, Savings and Deposits Authorized Loans and Investments 7 TAC sec.sec.77.4, 77.5, 77.7, 77.10, 77.72, 77.73, 77.91, 77.96 The Finance Commission of Texas adopts amendments to sec. sec.77.4, 77.5, 77.7, 77.10, 77.72, 77.73, 77.91, and 77.96, relating to authorized loans and investments for state savings banks. Section 77.73 is adopted with changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5576). Sections 77.4, 77.5, 77.7, 77.10, 77.72, 77.91, and 77.96 are adopted without changes and will not be republished. The text of sec.77.73 is being republished due to submission and publication errors in the Texas Register. The amendment to sec.77.4 and sec.77.5 will make technical corrections removing the requirement that a list of approved appraisers be maintained by the board of directors for these types of loans and to update the identity of the real estate. The requirement that the board of directors of a savings bank maintain an approved list of appraisers was deleted from companion rules for other types of loans effective July 11, 1994, to conform with revisions made in federal regulations. The amendment to sec.77.7 clarifies that real estate loans under this provision may also include as security all structures and improvements added to the property, while limiting the term of such loans to five years and requiring at least semi-annual interest payments. These changes will make savings banks rules consistent with state S&L rules for similar loans. The amendment to sec.77.10 will conform the non-real estate commercial loan lending authority in this rule to the statutory changes made in House Bill 1020, Acts, 74th Legislature, Regular Session. The amendment to sec.77.72 will revise the base for the savings bank liquidity calculation on average daily deposits as revised by House Bill 1020, instead of assets as is currently required and provide more definitive guidance on the type of investments eligible for inclusion as liquid assets. The amendment to sec.77.73 will limit the holding period for real estate held for future expansion and real estate acquired in satisfaction of debt to no more than five years, unless an extension of the period is approved by the commissioner. This change will conform the rule to standards applied to state and federal S&Ls. The other change in sec.77.73 will provide the savings banks with the full statutory authority to invest no more than 100% of the savings bank's capital in its premises and equipment. The amendment to sec.77.91 will clarify that the commissioner's approval must be obtained for a subsidiary to engage in an additional or substitute activity. The amendment to sec.77.96 will require that operating subsidiaries meet all other requirements of this chapter that apply to non-operating subsidiaries. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. sec.77.73. Investment in Banking Premises and Other Real Estate Owned. (a) No savings bank, without prior written consent of the commissioner, shall invest an amount in excess of its capital in fixed assets, including land, improvements, furniture and fixtures, and other depreciable assets, and capital leases. (b) No savings bank shall acquire real estate, other than its domicile, except in satisfaction or partial satisfaction of indebtedness, or in the ordinary course of the collection of loans and other obligations owing the savings bank, or for the use of the bank in future expansion of its banking facilities. (c) If real estate acquired for the future expansion of the savings bank's facilities is not improved and occupied as banking facilities within three years from the date of its acquisition, the savings bank shall sell or otherwise dispose of such property; provided that the commissioner may for good cause shown grant an extension of time for a period of one year or more. (d) Real estate acquired in satisfaction or partial satisfaction of indebtedness, or in the ordinary course of the collection of loans and other obligations owing the savings bank shall be held by a savings bank for no more than five years, unless the commissioner extends in writing the holding period for such property. 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 October 27, 1995. TRD-9513899 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 475-1350 Chapter 79. Miscellaneous Books, Records, Accounting Practices, Financial Statements, and Reserves 7 TAC sec.79.4, sec.79.7 The Finance Commission of Texas adopts an amendment to sec.79.4, relating to the requirement for annual publication and submission of a statement of financial condition as of December 31 by each savings bank, and to the requirement for an annual independent audit of each savings bank; and new sec.79.7 giving the commissioner the flexibility to extend the examination frequency cycle by up to six months, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5466). These changes will update certain requirements in accordance with other state and federal financial institutions. The requirement for annual or more frequent publication of a statement of condition has been removed for other state and federal financial institutions, this amendment will eliminate such publication requirement for savings banks. House Bill 1020, Acts, 74th Legislature, Regular Session, eliminated the requirement for an annual independent audit of savings banks with assets under $500 million that are rated in the two highest categories on the Uniform Financial Institutions' Rating System (CAMEL). Existing sec.79.4 will incorporate this statutory change in the rule, and to provide clarification and consistent definition to the annual financial report required to be submitted to the commissioner by those savings banks not required to have an independent audit. Additionally, sec.79.7 is a new rule to provide the commissioner with the flexibility to extend the examination frequency cycle by up to six months consistent with the savings bank's historical performance as measured by its last examination and off-site financial monitoring by the Department. This change is responsive to efforts at both the state and federal level to relieve regulatory burden on those savings banks that are well managed and well capitalized. The rule will also provide needed flexibility to coordinate scheduling of joint, concurrent and alternating examinations with federal regulators who already have such authority. No comments were received regarding adoption of the amendment and new section. The amendment and new section are adopted under the Texas Banking Act, sec.1. 013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513900 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Foreign Savings Banks 7 TAC sec.79.61 The Finance Commission of Texas adopts an amendment to sec.79.61, regarding the applicability of the rules and regulations to foreign savings banks, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5467). A foreign savings bank is a savings bank whose principal office is located outside this state and that has been organized under the laws of a state or territory of the United States other than this state or under the laws of the United States. The amendment removes the reference to sec.75.40 relating to Agencies. Rules requiring application and prior approval for Agency arrangements were repealed effective November 21, 1994. The amendment will remove the reference to sec.75.40 relating to Agencies. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513901 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Hearings 7 TAC sec.sec.79.71-79.76 The Finance Commission of Texas adopts the repeal of sec. sec.79.71-79.76, regarding the hearing procedures for the Savings and Loan Department, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5468). These changes will incorporate the Texas Banking Act, sec.1.011(b), House Bill 1543, Acts, 74th Legislature, Regular Session, which authorizes the Finance Commission to employ a hearing officer, who for purposes of the Government Code, sec.2003.21, Vernon's Texas Codes Annotated, is an employee of the Savings and Loan Department, Department of Banking and the Office of the Consumer Credit Commissioner (together, the "FC agencies"). Previously, all hearings conducted by the Department in conjunction with the Texas Savings Bank Act were required to be handled by the State Office of Administrative Hearings. New sec.79.71 designates the Finance Commission's hearings officer as hearings officer for the Department. New sec.79.72 incorporates by reference standard rules for the Finance Commission hearing officer to apply in conducting contested hearings for the Finance Commission agencies. The new sec.79.73 gives the commissioner the flexibility to amend a notice of hearing for publication to facilitate joint publication of the notice with other regulatory agencies having jurisdiction in the matter, expedite the hearing process, or provide other information relevant to the hearing or arrangement and scheduling therefor. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513902 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 7 TAC sec.sec.79.71-79.73 The Finance Commission of Texas adopts new sec.sec.79.71-79.73, regarding the hearing procedures for the Savings and Loan Department, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5468). These changes will incorporate the Texas Banking Act, sec.1.011(b), House Bill 1543, Acts, 74th Legislature, Regular Session, which authorizes the Finance Commission to employ a hearing officer, who for purposes of the Government Code, sec.2003.21, Vernon's Texas Codes Annotated, is an employee of the Savings and Loan Department, Department of Banking and the Office of the Consumer Credit Commissioner (together, the "FC agencies"). Previously, all hearings conducted by the Department in conjunction with the Texas Savings Bank Act were required to be handled by the State Office of Administrative Hearings. New sec.79.71 designates the Finance Commission's hearings officer as hearings officer for the Department. New sec.79.72 incorporates by reference standard rules for the Finance Commission hearing officer to apply in conducting contested hearings for the Finance Commission agencies. The new sec.79.73 gives the commissioner the flexibility to amend a notice of hearing for publication to facilitate joint publication of the notice with other regulatory agencies having jurisdiction in the matter, expedite the hearing process, or provide other information relevant to the hearing or arrangement and scheduling therefor. No comments were received regarding adoption of the new sections. The new sections are adopted the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513903 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 Fees and Charges 7 TAC sec.sec.79.99, 79.101, 79.102 The Finance Commission of Texas adopts amendments to sec.79.99, regarding fees for reorganization, merger, and consolidation, sec.79.101, regarding fees for change of control, and sec.79.102, regarding fees for the formation of subsidiaries, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5468). These amendments will clarify and simplify the fee structure, more closely match fees with the amount of staff processing and investigating time required for these applications. The amended fees will be charged for the respective applications. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Banking Act, sec.1.013, House Bill 1543, Acts, 74th Legislature, Regular Session, which provides the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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 October 27, 1995. TRD-9513904 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 17, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 475-1350 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 1. Texas Board of Health The Texas Department of Health (department) adopts the repeal of sec.1.201 and new sec.sec.1.201-1.207, concerning investigations of reports of abuse, neglect, or exploitation of children or elderly or disabled persons. Sections 1.201-1.207 are adopted with changes to the proposed text as published in the June 9, 1995, issue of the Texas Register (20 TexReg 4193). Proposed sec.1.208 is withdrawn. The repeal is adopted as proposed and therefore the repeal will not be republished. Specifically, the sections cover purpose; application; definitions; what constitutes abuse, neglect, and exploitation; reports and investigations; completion of investigations; confidentiality of investigative process and report; and facilities operated by the department. The new sections are adopted pursuant to the Family Code, Chapter 261 (formerly Chapter 34) relating to abuse or neglect of a child and the Human Resources Code, Chapter 48, relating to the abuse, neglect, or exploitation of elderly or disabled persons. The previous Family Code, Chapter 34 was codified into new Chapter 261 pursuant to Acts 1995, 74th Legislature, Chapter 20 (House Bill 655) as amended by Acts 1995, 74th Legislature, Chapter 751, sec.sec.86-100 (House Bill 433). The Human Resources Code, Chapter 48 was amended by Acts 1995, 74th Legislature, Chapter 303 (House Bill 1111). Other amendments to these laws were contained in Acts 1995, 74th Legislature, Chapter 1039 (House Bill 2029), Chapter 943 (House Bill 2569) and Chapter 76 (Senate Bill 959). The department has determined that the inclusion of the legislative amendments in these new sections does not require reproposal of the sections. In accordance with these laws as amended, the department is required to investigate reports relating to abuse, neglect, or exploitation in facilities operated, licensed, certified, or registered by the department. Proposed new sec.1.208 is withdrawn as a result of comments; however the language in subsection (c) was revised and moved to sec.1.206(i). The new sections will replace existing sec.1.201 (being repealed) which addresses such investigations. These sections will insure uniformity in investigations of abuse, neglect, or exploitation performed by the department in compliance with the laws relating to such investigations. A summary of the comments received and the department's responses are as follows. Comment: In sec.1.201, a commenter stated that the Family Code, Chapter 34 was recodified in Chapter 261 pursuant to Acts 1995, 74th Legislature, Chapter 20 (House Bill 655) as amended by Acts 1995, 74th Legislature, Chapter 751, sec.sec.86-100 (House Bill 433). Response: The department agrees and has revised the reference to reflect Chapter 261 in sec.1.201. The other reference in sec.1.205(d) to Chapter 34 has been changed to Chapter 261. Comment: In sec.1.202, a commenter stated that it was not clear whether the investigation was done by the department or the facility. Response: The department agrees and has revised the section to clarify that the rules apply to a department investigation. Section 1.205 and sec.1.206 already state that the department is the entity performing the investigations. Comment: In sec.1.203, a commenter stated that under the definition of "client" some clients may be receiving custodial care such as those within a skilled nursing facility wing of a hospital, rather than health care services. Response: The department agrees and has deleted the reference to "health care" in the definition of "client". Comment: In sec.1.203, a commenter stated that the definition of "disabled person" was changed in the last legislative session by Acts 1995, 74th Legislature, Chapter 303 (House Bill 1111) which amended the Human Resources Code, Chapter 48. Response: The department agrees and has revised the definition of "disabled person" in accordance with House Bill 1111. Comment: In sec.1.203, a commenter asked that the definition of "facility" be revised to include licensed end stage renal disease facilities. Response: The department agrees and has revised the definition to include end stage renal disease facilities. Such facilities will be required to be licensed by September 1, 1996, pursuant to the Health and Safety Code, Chapter 251 as added by Acts 1995, 74th legislature, Chapter 608, (House Bill 1023). The department will be authorized to investigate in such facilities once they are licensed. Comment: In sec.1.203, a commenter asked whether the definition of "facility" should include a licensed home and community support services agency or reference emergency medical services (EMS) or hospice. Response: A hospice is licensed as a home and community support services agency. A home and community support services agency is not a "facility". Legislation was filed which would have included such agencies in the definition of "facility" but it did not pass. EMS does not license any type of "facility" but does license certain providers of EMS services. No change was made due to this comment. Comment: In sec.1.203, a commenter asked whether the use of the word "child" in the definition of "incest" should reference other family members. Response: The department disagrees because the term "incest" was only used in the definition of abuse of a child found in proposed sec.1.204(1)(E) and (F). As used in those subparagraphs, the reference was clearly to incest with a child. However, because House Bill 655 and House Bill 433 revised the definition of "abuse" of a child to exclude the term "incest", the term has now been deleted from the definitions. Comment: In sec.1.203, a commenter asked whether under the definition of "nonserious physical injury" an injury would still be nonserious if multiple lacerations, contusions, or abrasions occurred. Response: The department believes that such could constitute a serious physical injury and has added such to the definition of "serious physical injury" in sec.1.203 and made minor punctuation changes necessitated by the addition. Comment: In sec.1.203, a commenter stated that "serious physical injury" should also include first degree scald burns if greater than the percentage of the body involved or if involving hands, feet, face, or genitals. Response: The department agrees and has added this language to the definition. Comment: In sec.1.203, a commenter stated that the term "sexual abuse" has been more clearly addressed in the revisions to the Human Resources Code, Chapter 48, found in House Bill 1111. Response: The department agrees and has added the language from the definition of "abuse" of an elderly or disabled person in House Bill 1111 to the definition of "sexual abuse". Comment: In sec.1.203, a commenter asked that the definition of "sexual exploitation" be revised by deleting the last sentence and substituting a sentence stating that the "term does not include discussing sexual subject matter within standard accepted practice". Another commenter pointed out that the section of the Penal Code (sec.21.14) from which this definition was taken was repealed effective September 1, 1994. Response: Because the legislature repealed the criminal definition of "sexual exploitation" and because that term is only used in the definition of "sexual abuse", the department has deleted the definition of "sexual exploitation" and revised the definition of "sexual abuse" to delete the term. Comment: In sec.1.204(a)(1)(E) and (F), a commenter stated that this part of the definition of abuse of a child was revised by House Bill 433 amending the Family Code. Response: The department agrees and has revised subparagraphs (E) and (F) to reflect the new statutory language of House Bill 433. Comment: In sec.1.204(a)(2), a commenter stated that House Bill 1111 revised the definition of abuse of an elderly or disabled person. Response: The department agrees and has revised the definition to reflect the language of House Bill 1111. Comment: In sec.1.204(a)(3), a commenter stated that this definition of abuse is not found in either the Human Resources Code or the Family Code and should be deleted. Response: The department agrees and has deleted all of proposed paragraph (3). Such interpretations of the statutory definitions of "abuse" may be appropriate for interpretive guidelines established by the department. In addition, some of the language of paragraph (3) went beyond the statutory definitions of "abuse" in either the Human Resources Code or the Family Code. Proposed paragraph (4) was renumbered as paragraph (3). Comment: In sec.1.204(b)(1), a commenter stated that the definition of neglect of a child was revised by House Bill 433. Response: The department agrees and has revised the definition in paragraph (1)(A) and added (B)(iv) to reflect the language in House Bill 433. Comment: In sec.1.204(b)(1)(B)(ii), a commenter stated that some persons fail to follow through with medical care for a child due to lack of knowledge or lack of money. Response: The department understands that such may occur; however, the language used is the statutory definition of neglect of a child and cannot be changed by the department. Comment: In sec.1.204(b)(2), a commenter stated that House Bill 1111 revised the definition of neglect of an elderly or disabled person. Response: The department agrees and has revised the definition to reflect the language in House Bill 1111. Comment: In sec.1.204(b)(2), a commenter asked whether neglect of an elderly or disabled person could include an individual's neglect of himself or herself. Response: The definition does include an individual's self neglect; however, the department recognizes that it is unlikely that such a situation would arise in a facility. Because this is the statutory language, the department will not revise the definition. Comment: In sec.1.204(b)(3), a commenter stated that this definition of "neglect" is not found in any statute. Response: The department agrees and has deleted the language so that only statutory definitions are included. Comment: In sec.1.204(c), a commenter stated that House Bill 1111 revised the definition of exploitation of an elderly or disabled person. Response: The department agrees and has revised the definition to reflect the language found in House Bill 1111. Comment: In sec.1.204(c), a commenter asked whether the term "improper act" should be defined. Response: This term is found in the statutory definition. Because of the difficulty in defining "improper act" to cover every possible situation, the department has not chosen to define the term. Comment: A commenter stated that there is nothing in the sections about client to client or peer to peer conduct. Response: The department disagrees. The sections may cover such conduct in sec.1.204(a)(1) relating to abuse of a child "by any person," in sec.1.204(a)(2) relating to abuse of an elderly or disabled person which could include abuse by a peer or other client, and in sec.1.204(b)(1)(B) relating to neglect of a child "by any person." See also sec.1.205(b) and (c)(5). These sections are intended to address only the situations covered by the Family Code, Chapter 261 or the Human Resources Code, Chapter 48. Abuse or neglect which cannot be investigated by the department could be referred to law enforcement agencies or other appropriate entities. Comment: A commenter stated that there is nothing about neglect by a facility, e.g., lack of staff or failure to seek medical intervention. Response: The department disagrees. While staffing rations are not abuse under sec.1.204(a)(3)(D), a situation created by a facility could be neglect under sec.1.204(b)(1)(B) or (2) if the situation fits within those definitions. Comment: In sec.1.204, a commenter asked why the proposed sexual exploitation language only referred to children, not disabled or elderly persons. Response: In the proposed rules sexual exploitation only referred to children because the Human Resources Code, Chapter 48 did not expressly address sexual conduct. The revisions by House Bill 1111 added sexual abuse of elderly or disabled persons and sec.1.204(a)(2) has been revised to include that language. Comment: In sec.1.205(a), a commenter asked who within the department will investigate allegations. Response: The program within the department which licenses, certifies, registers, or operates the facility where the abuse, neglect or exploitation occurred will be responsible for the investigation unless the department should determine otherwise. There is no need to reflect that internal decision in these rules. Comment: In sec.1.205(c)(1), a commenter stated that some allegations will need to be referred to Child Protective Services as well as the stated Adult Protective Services Division of the Texas Department of Protective and Regulatory Services. Response: The department agrees and has removed the reference to the Adult Protective Services Division. Comment: In sec.1.205(c)(2), a commenter was concerned because no responsibility was placed on the facility which may have been a contributing agent in the abuse or neglect if the allegation was turned over to another licensing agency. Response: The paragraph has been clarified by revising subparagraph (A) so the licensing agencies will still receive allegations involving clinical issues and a health care professional licensed by that agency but the department will investigate the portion of the allegations which do not involve clinical issues. Comment: In sec.1.205(c)(2)(B), a commenter stated that the Family Code, sec.201.101(d) requires the reporter's identity to be kept confidential except by court order or to law enforcement. Response: The department agrees and has revised sec.1.205(c)(2)(B) to keep the identity of a person reporting any abuse or neglect confidential. Comment: In sec.1.205(e)(2), a commenter stated that the Texas Department of Protective and Regulatory Services and the Texas Commission on Alcohol and Drug Abuse already refer dually licensed facilities to the department for its investigation. Response: Section 1.205(e)(2) has been revised to require notice to the other licensing agency only if the other agency is not already aware of the investigation. If another agency referred the allegation to the department for the department's investigation, coordination has already occurred. Comment: A commenter stated that the Family Code was amended at sec.261. 301(f) and (g) by House Bill 2569 to require joint investigations for certain allegations, if possible. Response: The department agrees and has added sec.1.205(e)(3) to reflect the requirements of the Family Code, sec.261.301(f) and (g). Comment: In sec.1.205(h), a commenter asked whether this language changes the department's policy of ruling an allegation of abuse or neglect as not valid if no violation of department rules is found. Response: State law requires a determination as to whether abuse, neglect or exploitation occurred or is likely to occur. It makes absolutely no difference as to whether or not regulatory violations are found. The department's policy under the previous sec.1.201 and previous state law is and has been that a finding of abuse, neglect or exploitation is made without regard to regulatory violations. The department will continue to follow that policy under sec.1.205(h). Comment: In sec.1.205(i)(1), a commenter stated that the alleged victim is not always available or the attending physician may feel it would be detrimental to treatment to interview the person. Response: The department agrees and has revised the paragraph to require the interview, if appropriate. Comment: In sec.1.205(i)(2), a commenter asked why a visit to the place of residence of an elderly or disabled person is required but a visit to the place of residence of a child is at the discretion of the investigator. Response: The difference was due to the difference in language between the Family Code and Human Resources Code. Because of revisions contained in House Bill 655 and House Bill 1111, the reference to a visit to the place of residence has been deleted entirely and the subsequent paragraphs have been renumbered. Comment: In sec.1.205(j)(2), a commenter stated that House Bill 433 and House Bill 655 revised the cited section so that it no longer references investigations of this department. Response: The department agrees and has revised paragraph (2) to reflect the new section of the Family Code. Comment: In sec.1.205(k), a commenter stated that the term "frivolous" is more appropriate than "spurious". Response: The department agrees, especially since the term "frivolous" is found in the Human Resources Code, and has revised the wording. Comment: In sec.1.206(c), a commenter asked who are the "appropriate department personnel." Response: The programs within the department which will conduct the investigations will determine who must review the reports. Such an internal decision does not require further clarification in the subsection. Comment: In sec.1.206, a commenter asked about budget, personnel and Health Care Financing Administration (HCFA) time frames in relationship to the time frames for investigations. Response: The department is required by state law to conduct these investigations. HCFA is the federal Medicare certification organization and its time frames do not apply to these investigations. Budget and personnel issues were considered when the fiscal note for the proposed rules was prepared. There is no revision to the time frames in this section. Comment: In sec.1.206(e)(1), a commenter stated that House Bill 1111 revises the Human Resources Code to require a report to law enforcement agencies if an investigation reveals that an elderly or disabled person has been abused in a manner that constitutes a criminal offense under any law, including the Penal Code, sec.22.04. Another commenter stated that the Family Code requires reports to law enforcement agencies if any abuse or neglect of a child without regard to whether it would be a criminal offense. Response: The department agrees and has added a new paragraph (4) to reflect the language on elderly and disabled persons and revised paragraph (1) to address child abuse or neglect. Comment: In sec.1.206(e), a commenter stated that this subsection places a heavy burden on the department to notify law enforcement without any input from the "victim." Response: State law requires the department to notify law enforcement agencies when abuse, neglect or exploitation is found or when such would be a criminal offense. This subsection reflects state law in the revisions to sec.1. 206(e)(1) and (4). Comment: In sec.1.206(e)(2), a commenter stated that all investigative reports do not have to go to the Department of Protective and Regulatory Services under the revised state laws. Response: The department agrees and has added language to say the reports will be forwarded if protective services are necessary. Comment: In sec.1.206(e)(3), a commenter stated that the Family Code relating to children would not allow a probate court to automatically receive a copy of the report. Response: The department agrees and has revised paragraph (3) to only address elderly or disabled persons. Comment: In sec.1.206(f), a commenter stated that the Family Code relating to children would not permit information relating to the identify of the reporter to be forwarded to a state agency and the Human Resources Code, sec.48. 101(f) permits release to other state agencies only for the purpose of providing services to elderly or disabled persons. Response: The department agrees and has added a sentence so that the identity of the reporter will be deidentified in any report sent to another state agency. Comment: In sec.1.206(f), a commenter pointed out that some health care professionals are certified or registered. Another commenter pointed out that the department may not always want to send the entire copy of the investigative report because only part of the report may involve the health care professional. Another commenter thought that the term "involving" should actually be the preposition "by". Response: The department agrees with all the comments and has revised the subsection to use the term "by"; to reference a licensed, certified, or registered health care professional; and to state that the department "may" forward a copy of the report. Comment: In sec.1.206(g), a commenter stated that the reporter may not be known and therefore could not be contacted about the outcome of the investigation. Response: The department agrees and has revised the subsection to reference known reporters. Comment: In sec.1.206(h), a commenter asked whether notification of the alleged victim would require more than notice that the allegation was found to be valid or not valid. Response: The notice does not require more than that. No change was made to the subsection. Comment: In sec.1.207(a), a commenter stated that the subsection should reference changes made by House Bill 433 and House Bill 1111 by including the word "communications", a reference to papers that are used or developed in the investigation, and a reference to both the Human Resources Code, sec.48.101 and sec.48.038 and the Family Code, sec.261.201. Response: The department agrees and has made these changes to the subsection. Comment: In sec.1.207(d), a commenter stated that House Bill 433 and House Bill 1111 contain specific requirements relating to disclosure under a court order. Response: The department agrees and has added a reference to court order in subsection (d) and deleted the reference to civil or criminal litigation. Comment: In sec.1.207(e), a commenter stated that documents should not be released to a victim if there is an ongoing criminal investigation. Response: The department agrees and has revised subsection (e) to state that documents may be released to a victim if there is no ongoing criminal investigation. Comment: In sec.1.207(e), a commenter stated the Family Code, sec.261.201(f) and the Human Resources Code, sec.48.101(d) require deidentification of individuals whose safety might be endangered by the disclosure. Response: The department agrees and has added the language. Comment: In sec.1.207, a commenter stated that the Family Code, sec.261.201(c) and (e) provide for disclosure to adoptive parents, prospective adoptive parents and adults who were the subject of an investigation as a child. Response: The department agrees and has added subsection (g) to address these disclosures. Comment: In proposed sec.1.208(a) and (b), a commenter stated that the department is no longer required to notify the Texas Department of Protective and Regulatory Services about allegations received about facilities operated by the department or of investigative reports. Response: The department agrees and has deleted these subsections but has revised sec.1.206(e)(2) requiring investigative reports to go to that department if protective services are necessary. Comment: In proposed sec.1.208(c) and (d), a commenter asked why there is a difference between investigations relating to children and investigations relating to an elderly or disabled person. Another commentator stated that House Bill 1111 revised the requirements relating to a complaint about an investigation relating to an elderly or disabled person. Response: Proposed subsections (c) and (d) were different because of the differences between the Family Code and the Human Resources Code; however, because of changes made to House Bill 1111, the department has deleted subsection (d) and revised subsection (c) to state that any complaint about a department investigation in a facility (whether licensed or operated by the department) should be referred to the appropriate associate commissioner or office which oversees the investigations in that particular facility. This subsection was then moved to sec.1.206(I). The following provided comments on the proposed rules: the Texas Psychological Association, the Texas Department of Protective and Regulatory Services and department staff. None of the commenters were against the rules, but they expressed questions and made recommendations which have been incorporated as discussed above. Investigations of Abuse, Neglect, or Exploitation in a Facility Operated, Licensed, or Certified by the Texas Department of Health 25 TAC sec.1.201 The repeal is adopted under the Health and Safety Code, sec.12.001, which provides the Board of Health with authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the Commissioner of Health; the Family Code, sec.261. 401, requiring rules relating to the investigation of abuse or neglect of a child; and the Human Resources Code, sec.48.083, requiring rules relating to the investigation of abuse, exploitation, or neglect of an elderly or disabled person. sec.1.201. Investigations of Abuse, Neglect, or Exploitation. 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 October 26, 1995. TRD-9513821 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 16, 1995 Proposal publication date: June 9, 1995 For further information, please call: (512) 458-7236 Investigations of Abuse, Neglect, or Exploitation of Children or Elderly or Disabled Persons 25 TAC sec.sec.1.201-1.207 The new sections are adopted under the Health and Safety Code, sec.12.001, which provides the Board of Health with authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the Commissioner of Health; the Family Code, sec.261.401, requiring rules relating to the investigation of abuse or neglect of a child; and the Human Resources Code, sec.48.083, requiring rules relating to the investigation of abuse, exploitation, or neglect of an elderly or disabled person. sec.1.201. Purpose. The purpose of these sections is to: (1) define abuse or neglect of a child and describe procedures for reporting and investigating in accordance with the Family Code, Chapter 261; and (2) define abuse, neglect or exploitation of an elderly or disabled person and describe procedures for reporting and investigating in accordance with the Human Resources Code, Chapter 48. sec.1.202. Application. The provisions of this undesignated head shall apply to the Texas Department of Health's investigation of abuse or neglect of a child or abuse, neglect or exploitation of an elderly or disabled person which occurs in any facility licensed, certified, registered, or operated by the Texas Department of Health. sec.1.203. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Agent-An individual not employed by a facility but working under the auspices of the facility, such as a volunteer, student, or consultant. Allegation-A report by a person believing or having knowledge that a child has been or may be abused or neglected in a facility or that an elderly or disabled person has been or may be abused, neglected or exploited in a facility. Caretaker-An owner, operator, manager, employee, or agent of a facility in which a patient or client is located. Child-A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. Client-A child, disabled person or elderly person receiving services in a facility. Clinical issues -Issues relating to unsafe practice by a licensed health care professional or a violation of a state law or rule relating to the licensure or practice of a licensed health care professional. Confirmed-A finding that an allegation of abuse, neglect, or exploitation is supported by the preponderance of the evidence. Department-The Texas Department of Health. Disabled person -A person with a mental, physical, or developmental disability that substantially impairs the person's ability to provide adequately for the person's care or protection and who is either 18 years of age or older or who is under 18 years of age and has the disabilities of minority removed. Elderly person -A person 65 years of age or older. Facility-A facility providing health care services which is operated, licensed, certified, or registered by the department. Such facilities include licensed general or special hospitals, licensed private psychiatric hospitals, licensed special care facilities, licensed abortion facilities, licensed ambulatory surgical centers, licensed birthing centers, licensed end stage renal disease facilities, the two state chest hospitals operated by the department, and public health clinics operated by the department. This term includes any owner, operator, manager, employee, or agent of a facility. Guardian-Anyone named as "guardian of the person" of a child, elderly person, or disabled person by a probate court order. Inconclusive-A finding that an allegation of abuse, neglect, or exploitation leads to no conclusion or definite result due to a lack of witnesses or other relevant evidence. Nonserious physical injury-Any injury determined not to be serious by the examining physician. Examples of nonserious injury may include superficial laceration, contusion, or abrasion. Observable and material impairment-Discernable and substantial damage or deterioration. Patient-A child, disabled person, or elderly person receiving health care services in a facility. Perpetrator-The person who has committed an act of abuse or neglect of a child or abuse, neglect, or exploitation of an elderly or disabled person. Perpetrator unknown -The term used to describe an incidence in which abuse, neglect, or exploitation is confirmed but positive identification of the responsible person can not be made and in which self injury has been eliminated as the cause. Preponderance of evidence-The greater weight of evidence or evidence which is more credible and convincing to the mind. Reporter-The person filing a report of abuse, neglect, or exploitation, either the: (A) victim of alleged abuse, neglect, or exploitation; (B) a third party filing a report on behalf of the alleged victim; or (C) both. Serious physical injury-An injury determined to be serious by the examining physician. Examples of serious injury may include fracture; dislocation of any joint; internal injury; any contusion larger than two and one-half inches in diameter; concussion; second or third degree burns; first degree scald burns greater than the percentage of the body involved or involving hands, feet, face or genitals; or multiple lacerations, contusions or abrasions. Sexual abuse-Any sexual activity, including any involuntary or nonconsenual sexual conduct that would constitute an offense under the Penal Code, sec.21.08 (indecent exposure) or Chapter 22 (assaulting offenses), involving a facility and a patient or client. Sexual activity includes but is not limited to kissing, hugging, stroking, or fondling with sexual intent; oral sex or sexual intercourse; and request, suggestion or encouragement for the performance of sex. Substantial harm -Real and significant physical injury or damage to a child that includes, but is not limited to, bruises, cuts, welts, skull or other bone fractures, brain damage, subdural hematoma, internal injuries, burns, scalds, wounds, poisoning, human bites, concussions, and dislocations and sprains. Substantial risk -Real and significant possibility or likelihood. Unconfirmed-A finding that an allegation of abuse, neglect or exploitation is not supported by the preponderance of the evidence. Unfounded-A finding that an allegation of abuse, neglect, or exploitation is spurious or patently without factual basis. sec.1.204. Abuse, Neglect, and Exploitation Defined. (a) Abuse defined. (1) Abuse of a child includes the following acts or omissions by any person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident (an unforeseen event that causes or threatens physical injury despite prudent efforts to avoid the risk of injury) or reasonable discipline (correction of behavior that does not result in or risk substantial harm from physical injury) by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action (effort that an ordinary and prudent person would take to stop an action from occurring) by another person that results in physical injury that results in substantial harm to the child; (E) sexual conduct harmful to a child's mental, emotional, or physical welfare; (F) failure to make a reasonable effort to prevent sexual conduct harmful to a child; (G) compelling or encouraging the child to engage in sexual conduct as defined by the Penal Code, sec.43.01 (This is met whether the child actually engages in sexual conduct or simply faces a substantial risk of doing so.); or (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by the Penal Code) or pornographic. (This is met whether or not the child voluntarily participates.) (2) Abuse of an elderly or disabled person means: (A) the negligent or wilful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain or mental anguish; or (B) sexual abuse. (3) Abuse does not include: (A) the proper use of restraints or seclusion in accordance with federal or state laws or regulations or court order; (B) other actions taken in accordance with federal or state laws or regulations or court order; (C) actions an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, patients or clients, 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; or (D) complaints related to the daily administrative operations of a facility (e.g., staffing ratios). (b) Neglect defined. (1) Neglect of a child includes: (A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and a demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of a child; (B) the following acts or omissions by any person: (i) placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (ii) the failure to seek, obtain, or follow through with medical care for the child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child; (iii) the failure to provide the child with food, clothing, or shelter necessary to sustain the life or health of the child (if the failure results in an observable and material impairment to the child's growth, development or functioning or in a substantial risk of such an observable or material impairment), excluding failure caused primarily by financial inability unless relief services had been offered and refused; or (iv) placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or (C) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away. (2) Neglect of an elderly or disabled person means the failure to provide for one's self the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain or the failure of a caretaker to provide such goods or services. (c) Exploitation defined. Exploitation of an elderly or disabled person means the illegal or improper act or process of a caretaker, family member or other individual who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain without the informed consent of the elderly or disabled person. sec.1.205. Reports and Investigations. (a) The Texas Department of Health (department) shall investigate allegations received relating to the abuse or neglect of a child or the abuse, neglect, or exploitation of an elderly or disabled person in a facility. (b) The department will only investigate reports when: (1) the act is reported to have occurred in a facility and the victim was a patient or client of the facility; (2) the act occurred away from the facility but the facility was responsible for the supervision of the patient or client who was the victim at the time the act allegedly occurred; (3) the act is reported to have occurred in a facility and the alleged perpetrator was an owner, operator, manager, employee, or agent of the facility; or (4) the act occurred away from the facility but the facility was responsible for the supervision of the alleged perpetrator at the time the act occurred. (c) The department shall review each allegation and determine that it is appropriate for the department to investigate the allegation. (1) If there is reason to suspect that the patient or client was abused, neglected, or exploited prior to admission to the facility or during an unsupervised absence from the facility, the department shall refer the allegation to the Texas Department of Protective and Regulatory Services. (2) If the allegation involves the actions of a licensed health care professional, the department will determine whether the allegation involves clinical issues. (A) The department will pursue an investigation of the portion of an allegation which does not involve clinical issues. (B) If the allegation involves clinical issues, the allegation shall immediately be forwarded to the state agency which licenses the health care professional involved. The identity of a person reporting abuse or neglect must be blacked out or deidentified. (3) The department need not investigate an allegation that clearly does not involve abuse or neglect of a child in a facility or abuse, neglect or exploitation of an elderly or disabled person in a facility. The department may refer the reporter to other agencies for assistance. (4) Injuries of unknown origin shall be investigated if the attending physician, after examining the patient, suspects that the injury is the result of abuse or neglect. (5) If an allegation involves the daily administrative operations of a facility and has not resulted in a specific case of abuse, neglect, or exploitation, such as the failure to maintain an adequate number of staff, the department need not investigate the matter under this section but may investigate the matter as a complaint investigation involving regulatory issues. (d) Allegations which cannot be investigated by the department pursuant to the Family Code, Chapter 261, or the Human Resources Code, Chapter 48 shall be referred to the Texas Department of Protective and Regulatory Services for appropriate investigation or action consistent with existing law. (e) The department shall make a thorough investigation promptly after receiving an allegation. (1) The primary purpose shall be the protection of the child or elderly or disabled person. (2) If a facility is licensed by the department and another state agency, the department shall notify the other agency (if the other agency is unaware of the allegation) before initiating an investigation and make a reasonable effort to coordinate the investigation and avoid duplication of effort. (3) If a report of serious physical injury or sexual abuse of a child is received by the department from the Texas Department of Protective and Regulatory Services, the investigation shall be conducted jointly by the appropriate local law enforcement agency and the department, if possible. The department shall document any instance in which a law enforcement agency is unable or unwilling to conduct a joint investigation. (f) Anonymous allegations will be received and investigated following the same procedures that are used when the reporter is known. (g) An allegation relating to a patient or client who is in the facility where the act allegedly occurred at the time of the department's receipt of the allegation shall be given priority by the department in the scheduling of investigations. An allegation relating to a patient or client who is no longer in the facility shall be given secondary priority. (h) An investigation of abuse, neglect, or exploitation may occur in conjunction with other survey activities or complaint investigations relating to violations of federal or state laws or rules; however, the determination as to whether abuse, neglect, or exploitation has occurred or is likely to occur is a separate determination from regulatory matters and shall be made without regard as to whether law or rule violations or deficiencies are cited. (i) An investigation shall include: (1) an interview with the alleged victim, if appropriate; (2) an interview with the alleged perpetrator unless the investigator has already determined that there was no abuse, neglect, or exploitation or the risk of the same does not exist; and (3) consultation with persons thought to have knowledge of the circumstances. (j) An investigation shall address the issues set forth in the: (1) Human Resources Code, sec.48.038(a), relating to elderly or disabled persons; or (2) Family Code, sec.261.401, relating to children. (k) If during the course of the investigation it becomes apparent that the allegation is frivolous or patently without factual basis, the investigation may be closed as unfounded with supervisory approval. The reason for this determination, based on specific evidence, will be included in the report. (l) If there is not a preponderance of the evidence to indicate that an allegation should or should not be confirmed, due to lack of witnesses or other available evidence, a finding of inconclusive may be used with supervisory approval. (m) If during the course of the investigation it becomes apparent that abuse, neglect or exploitation has not occurred or is not likely to occur, the investigation may be closed as unfounded with supervisory approval. (n) An investigative report shall indicate "perpetrator unknown" in those incidences where the preponderance of evidence exists to confirm abuse, neglect, or exploitation but positive identification of the person responsible cannot be determined and self injury has been eliminated as the cause. Evidence must exist that abuse, neglect, or exploitation has been committed for the term "perpetrator unknown" to be used. sec.1.206. Completion of Investigation. (a) After receiving an allegation which the Texas Department of Health (department) determines is appropriate for investigation, the department's investigator shall finish an investigation within: (1) 14 days if the child or elderly or disabled person is in the facility at the time the department receives the allegation; (2) 60 days for all other allegations; or (3) the time period set by an extension granted to the investigator by his or her supervisor. (b) Following the investigation, the investigator shall submit an investigative report, including: (1) a statement of the allegations; (2) a summary of the investigation; (3) an analysis of the evidence; (4) the investigator's determination as to whether or not abuse, neglect, or exploitation occurred; (5) designation of the perpetrator, if possible; (6) a determination as to how the incident should be classified in accordance with sec.1.204 of this title (relating to Abuse, Neglect, and Exploitation Defined); and (7) recommendations resulting from the investigation. (c) An investigation is not considered complete until review of the investigative report is completed by all appropriate department personnel. (d) If the department determines that the child or elderly or disabled person should be removed from the facility in order to protect the child or person from further abuse, neglect, or exploitation, the department shall inform the Texas Department of Protective and Regulatory Services within 24 hours of the determination. (e) If the investigation confirms abuse, neglect, or exploitation, the written report of the completed investigation by the department, along with the department's recommendations and related documents, shall be submitted to: (1) the appropriate district or county attorney or law enforcement agency if the report concerns abuse or neglect of a child; (2) the Texas Department of Protective and Regulatory Services if protective services are necessary; (3) the appropriate probate court if a guardian has been appointed for an elderly or disabled person; and (4) the appropriate state or local law enforcement agency if the report concerns abuse of an elderly or disabled person which could constitute a criminal offense under any law, including the Penal Code, sec.22.04. (f) In cases of abuse, neglect, or exploitation by a licensed, certified, or registered health care professional, the department may forward a copy of the completed investigative report to the state agency which licenses, certifies or registers the health care professional. Any information which might reveal the identity of the reporter or any other patients or clients of the facility must be blacked out or deidentified. (g) The department shall notify the reporter, if known, in writing of the outcome of the complete investigation. (h) The department shall notify the alleged victim, and his or her parent or guardian if a minor, in writing of the outcome of the completed investigation. (i) If the department receives a complaint about a department investigation of abuse, neglect, or exploitation in a facility, the department shall refer the complaint to the appropriate associate commissioner or office which oversees the investigations in that particular facility. sec.1.207. Confidentiality of Investigative Process and Report. (a) The allegation and the reports, records, communications and working papers used or developed in the investigative process, including the resulting final report regarding abuse, neglect, or exploitation, are confidential and may be disclosed only as provided in the Family Code, sec.261. 201 or the Human Resources Code, sec.48.101 and sec.48.038(f) and (g) and pursuant to the sections under this undesignated head. (b) Information discussed during deliberations of abuse, neglect, and exploitation investigations may not be discussed outside the purview of those deliberations. (c) The completed investigative report and related documents may be released to governmental agencies as described in this undesignated head. (d) The completed investigative report and related documents may be released by court order. (e) The completed investigative report and related documents may be released to the victim or the victim's parent or guardian if the victim is a minor if there is no ongoing criminal investigation. Any information which might reveal the identity of the reporter, any other patients or clients of the facility or any other person whose life or safety might be endangered by the disclosure must be blacked out or deidentified. (f) The investigative report and related documents shall not be available to the public. (g) The completed investigative report and related documents shall be released to the adoptive parents or prospective adoptive parents of a child who was the subject of an investigation or an adult who was the subject of an investigation as a child. Any information which might reveal the identity of the reporter, the biological parents or any other person whose identity is confidential shall be blacked out or deidentified. 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 October 26, 1995. TRD-9513822 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 16, 1995 Proposal publication date: June 9, 1995 For further information, please call: (512) 458-7236 Chapter 109. Texas Department of Health Hospitals Hospital and Medical Staff Bylaws 25 TAC sec.sec.109.1-109.7, 109.15 The Texas Department of Health (department) adopts new sec.sec.109.1-109.7, and 109.15, concerning the management of hospitals operated by the department and the duties of officers and employees of the hospitals. Sections 109.2-109. 4, 109.6, 109.7, and 109.15 are adopted with changes to the proposed text as published in the May 9, 1995, issue of the Texas Register (20 TexReg 3408). Section 109.1 and sec.109.5 are adopted without changes and therefore will not be republished. Specifically, the new sections cover the governance structure of the hospitals; hospital bylaws, appointment, composition, functions, and meetings of the hospital oversight committee; responsibilities of the hospital director; recusal by the hospital director; hospital committees; interaction between the hospital oversight committee and the medical staff; medical staff bylaws, rules, and regulations; structure of the medical staff; medical staff executive committee; medical staff appointment, reappointment, and clinical privileges; medical staff clinical departments and medical staff clinical committees; ancillary professionals; and corrective action and fair hearing procedures. The new sections identify the hospitals' governing structure in terms of lines of authority and depict the lines of authority relative to key planning, management, operation, and evaluation of responsibilities at each level of governance. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) requires such a document to serve as hospital bylaws and also requires the hospital medical staff to have bylaws. The new sections satisfy JCAHO accreditation requirements and also will enable the Texas Board of Health (board) to adopt rules for the management of the hospitals and the duties of officers and employees of the hospitals as required by Health and Safety Code, Chapter 13. The new sections will reflect the currently existing lines of authority relative to the hospitals, key planning, management, operation, and evaluation of responsibilities at each level of governance, and will enable the department to publish these rules and bylaws in the Texas Register. No comments from outside the department were received regarding the proposal. The following comments were received from staff. Comment: Concerning sec.109.3(a)(2), one commenter suggested that the paragraph be reworded to clarify that only practitioners who have privileges at the hospital may admit patients. Response: The department agrees, and the paragraph has been amended accordingly. Comment: Concerning sec.109.4(a)(1) and (2), a commenter suggested that the hospital oversight committee chair, rather than the hospital director, should serve as the hospital's representative to the Texas Board of Health, and that the appropriate committee of the board should make recommendations to the full board concerning any proposed rules which affect the hospitals. Response: The department agrees and has amended the paragraphs accordingly. Comment: Concerning sec.109.4(b) and (c), one commenter stated that it would be inappropriate for the hospital director to serve as chair of the hospital oversight committee at each hospital, but that the hospital director could be a voting member of the oversight committee because of the provisions concerning recusal. Response: The department agrees in part. The department's regional medical directors will chair the hospital oversight committee meetings. While the department believes the hospital director should be available as a resource to the oversight committee, the committee's ability to provide effective oversight and direction requires that the hospital director be a nonvoting member. Additionally, the vice-chair may be called upon to preside over meetings of the hospital oversight committee in the absence of the chair. The recusal provision at sec.109.4(c) would not adequately address the problem, because that section applies only when the oversight committee makes a final decision in the corrective action and fair hearing process. Since the hospital director often may have obtained relevant information in the course of his or her daily responsibilities which is not part of the record in a fair hearing procedure, sec.109.4(c) has been amended to clarify that the hospital director will not participate in any way in final hearings decisions. Comment: Concerning sec.109.6(f)(2), one commenter suggested that the paragraph should be clarified to more clearly differentiate between the duties and responsibilities of employed medical staff members and those under contract to the department. Response: The department agrees and has amended the paragraph accordingly. Comment: Concerning sec.109.15(a)(3), one commenter stated that employed staff members are expected to hold office and to serve on medical staff committees, and that contract staff members have significant roles in hospital and medical staff governance. However, the commenter suggested that requiring the same level of participation for employed and contract staff would be inappropriate. Response: The department agrees and has amended the paragraph to allow appropriate differentiation among categories of members of the medical staff concerning their participation in hospital and medical staff governance. Comment: Concerning sec.109.15(e)(4)(B), one commenter suggested that the subparagraph should be amended to address the possibility that the credentials committee and an applicant may not be able to agree on a physician or physicians to perform a physical and/or mental evaluation if the applicant's ability to exercise specific clinical privileges is questioned. Response: The department agrees and has amended the subparagraph accordingly. Comment: Concerning sec.109.15(h)(3)(B)(ii), a commenter stated that the role of clinical committee chairs on the hospital medical staff executive committee should be clarified. Response: The department agrees and has amended the clause to state only that clinical committee chairs shall serve on the hospital medical staff executive committee. The amended language will allow the medical staff executive committee to obtain the views of the clinical committee chair, while still permitting his or her recusal in appropriate situations. Minor editorial changes were made for clarification purposes. Commenters included department staff only. While the commenters were generally in favor of the new sections, they raised concerns and questions. The new sections are adopted under the Health and Safety Code, sec.13.034(a), which mandates that the board adopt rules for the management of the hospitals and the duties of officers and employees of the hospitals; Health and Safety Code, sec.12.001(b), which provides the board of with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The JCAHO requires that a document identify the hospitals' governing structure in terms of lines of authority and depict the lines of authority relative to key planning, management, operation, and evaluation of responsibilities at each level of governance. The JCAHO also requires the hospital medical staff to have bylaws. The new sections satisfy the statutory mandate as well as requirements of the accrediting body. sec.109.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Board-The Texas Board of Health. Clinical privileges -Permission to provide medical or other patient care services in the hospital within well-defined limits, based on the individual's professional license and his or her experience, education, competence, ability, and judgment. Commissioner-The commissioner of health. Conflict of interest-Arises when an individual's personal or financial interest conflicts or appears to conflict with his or her official responsibility. Department-The Texas Department of Health. Hospital-Both the Texas Center for Infectious Disease (TCID) and to South Texas Hospital (STH), unless specifically stated otherwise. Hospital director -The chief administrative officer TCID and STH, unless specifically stated otherwise. Medical staff-All physicians, dentists, podiatrists, and other professionals who are granted privileges to treat patients in the hospital. Member-A physician, dentist, podiatrist, or other professional who has been staff and who has been granted privileges by the hospital oversight committee. Oral surgeon-An individual licensed in Texas who has successfully completed a postgraduate program in oral and maxillofacial surgery, accredited by a nationally recognized accrediting body approved by the United States Office of Education. Other professional staff-Individuals other than physicians, dentists, or podiatrists who are permitted by law and by the hospital to provide patient care services without direction or supervision, within the scope of their licenses, and in accordance with individually granted clinical privileges based on criteria established by the hospital. Physician-A doctor of medicine or a doctor of osteopathy who is licensed to practice, or who is otherwise lawfully practicing medicine in Texas and who, by virtue of education, training, and demonstrated competence, is granted clinical privileges by the hospital to perform a specific diagnostic or therapeutic procedure. Professional review activity-An activity of the hospital to determine whether an individual physician, dentist, podiatrist, or other professional staff may have clinical privileges at the hospital, or membership on its medical staff, and to determine the scope or conditions of such privileges or membership, or to change or modify such privileges or membership. Professional review body-The hospital and the hospital oversight committee, or any hospital committee which conducts professional review activity, including any committee of the hospital medical staff when assisting the hospital executive committee in a professional review activity. sec.109.3. Governance. (a) Board of Health. The custody, control, maintenance and operation of all hospitals maintained by the department shall be under the jurisdiction and control of the board, which is ultimately responsible for the quality of care provided at such hospitals. (1) The board has all the powers, duties and functions granted by law to the board, the state commissioner of health (the commissioner), and the department. The department is composed of: (A) the commissioner; (B) an administrative staff; (C) the Texas Center for Infectious Disease; and (D) the South Texas Hospital. (2) The board authorizes practitioners who have been granted privileges at any hospital under its jurisdiction to admit a patient who: (A) is eligible to receive patient services under a department program; and (B) will benefit from hospitalization. (3) Admission to a hospital, as authorized in accordance with Health and Safety Code, Chapter 13, is subject to the availability of: (A) appropriate space, equipment, and facilities for the treatment required, after the needs of eligible tuberculosis patients and other patients diagnosed with other infectious or chronic diseases having public health implications have been met; and (B) trained medical personnel for the necessary medical care and treatment. (4) In accordance with Health and Safety Code, Chapter 11, the board may delegate to the commissioner, or to the person acting as commissioner in the commissioner's absence, any power or duty imposed on the board by law, including the authority to make final orders or decisions, except that the board may not delegate the power or duty to adopt rules. (5) In accordance with Health and Safety Code, Chapter 13, the board may delegate a power or duty of the board to an employee. The delegation does not relieve the board from its responsibility. (6) In accordance with Health and Safety Code, Chapter 13, the board shall adopt rules and bylaws relating to the management of the hospitals, the duties of officers and employees of the hospital and the enforcement of discipline and restraint of patients. The board shall supply each hospital with the necessary personnel for operation and maintenance. The board may: (A) require reports from the director of each hospital relating to the admission, examination, diagnosis, release or discharge of a patient and may visit each hospital regularly to review admitting procedures and the care and treatment of patients; (B) investigate by personal visit a complaint made by a patient or by another person on behalf of a patient; and (C) adopt rules as necessary for the proper and efficient hospitalization of tuberculosis patients. (b) Commissioner. In accordance with sec.1.7 of this title (relating to the Commissioner of Health), the commissioner, as executive head of the department, shall perform the duties delegated and assigned by the board and state law, and shall administer and enforce federal and state health laws applicable to the department. Further, the commissioner shall administer and implement department services, programs and activities, maintain professional standards within the department, and represent the department as its chief executive. To accomplish this goal, the commissioner is authorized to hire and supervise personnel, establish appropriate organization, acquire suitable administrative, clinical and laboratory facilities, and obtain sufficient financial support. (c) Hospital director. In accordance with Health and Safety Code, Chapter 13, the department shall employ a qualified hospital administrator for each hospital, hereinafter referred to as the hospital director. The hospital director is appointed by the commissioner. The hospital director may delegate a power or duty of the hospital director to an employee. The delegation does not relieve the hospital director from the responsibility. sec.109.4. Hospital Bylaws. (a) Appointment of hospital oversight committee. The commissioner shall appoint a hospital oversight committee for each hospital to fulfill all duties regarding the hospital imposed on the board by law, except for the duty to adopt rules. The hospital oversight committee at each hospital shall function in accordance with Joint Commission on Accreditation of Healthcare Organizations (JCAHO) standards for hospital governance and shall fulfill the responsibilities of the governing body, with the exception of the nondelegable power and duty of the board to adopt rules. (1) The hospital oversight committee chair shall represent the hospital oversight committee at the designated committee of the board. An elected member of the medical staff shall have the right to represent the medical staff at all levels of governance of the hospital. (2) The designated committee of the board will make a recommendation to the full board, regarding adoption of proposed rules concerning the hospitals. (3) The hospital director shall provide information to the board regarding hospital operation by presenting a semi-annual written report to the commissioner. (b) Composition of the hospital oversight committee. The hospital oversight committee at each hospital shall consist of the following members: (1) regional medical director, serving as chair, appointed by the commissioner; (2) hospital director, serving as a nonvoting member, appointed by the commissioner; (3) vice chair, appointed by the commissioner; (4) medical staff member, elected at large annually by the medical staff as its representative; (5) chief of staff/deputy director for professional services (DDPS), appointed by the commissioner; and (6) two or more members at large, one serving as secretary, appointed by the commissioner. (c) Recusal by hospital director. The hospital director shall recuse himself or herself from participation and shall not be available as a resource whenever the hospital oversight committee considers any matter for final decision after a hearing and/or appeal under sec.109.15(j)(7) of this title (relating to Medical Staff Bylaws). (d) Support personnel. The hospital director may appoint one or more deputies, assistants, and other individuals to perform duties and responsibilities as the director shall deem advisable to support activities of the hospital oversight committee. Such individuals shall not be members of the hospital oversight committee. (e) Duties of hospital oversight committee. In exercising its authority as the hospital's governing body, the hospital oversight committee shall: (1) establish policy, promote performance improvement, and provide for organizational management and planning at the hospital; (2) monitor the effective functioning of activities related to performance improvement; (3) monitor risk management functions related to patient care and safety; (4) monitor the credentialing function of the medical staff; (5) provide financial oversight; (6) develop and monitor mechanisms and policies designed to ensure the provision of quality patient care; (7) establish a medical staff; (8) act on recommendations concerning medical staff appointments, reappointments, termination of appointments, and the granting of or revision of clinical privileges, ensuring that any differences in those recommendations are resolved within a reasonable period of time by the hospital oversight committee and the medical staff, as specified in the medical staff bylaws; (9) hold the medical staff responsible for the development, adoption and periodic review of medical staff bylaws, rules and regulations that are consistent with hospital policy and with any applicable legal or other requirement; (10) hold the medical staff responsible for assessing the quality of care provided by all individuals with clinical privileges through a designated medical staff mechanism; (11) establish mechanisms designed to obtain appropriate medical staff participation in governance; (12) establish a multidisciplinary team of qualified health care providers and require that individuals who provide patient care services, but are not subject to the medical staff privilege delineation process, are competent to provide such services; (13) establish mechanisms designed to ensure that the organization adheres to relevant statutory and regulatory requirements; (14) require organizational leaders to collaborate in developing necessary policies and procedures; (15) require medical staff, staff of departments and services, and others as appropriate, to review and revise all department and service policies and procedures when warranted, but at least every three years; (16) develop mechanisms designed for resolving conflicts; (17) ensure that any auxiliary organizations and individual volunteers delineate their purpose and function for approval by the governing body; and (18) ensure that a record of hospital oversight committee proceedings is maintained. (f) Term of appointment. Each member of the hospital oversight committee appointed by the commissioner shall hold office for a three-year term, or until his or her successor has been appointed. (g) Filling of vacancies. Vacancies occurring on the hospital oversight committee, including those by resignation or removal, and any vacancy created by an increase in the number of members, shall be filled by the commissioner of health. A member selected to fill a vacancy shall hold office for the remainder of the original member's term. (h) Resignation and attendance requirements. (1) A member-at-large may resign at any time by tendering his or her resignation in writing to the commissioner of health, which shall become effective upon receipt by the Texas Department of Health at its principal place of business. (2) Members shall be expected to attend and participate in all hospital oversight committee meetings unless unavoidably prevented from doing so. In the event of illness or extended absence due to extenuating circumstances for a member-at-large, the chair of the hospital oversight committee, upon request of the affected member-at-large may waive the attendance requirement after considering the circumstances causing the absence of the member. (i) Compensation. Members of the hospital oversight committee and all committees shall receive no compensation for any services to the committee rendered in those capacities. However, nothing contained in this subsection shall be construed to preclude any member from receiving compensation from the Texas Department of Health for services actually rendered as state employees or as independent contractors, or for expenses incurred while serving the committee. (j) Conflict of interest. (1) Each member, prior to taking his or her position on the hospital oversight committee, shall submit in writing to the chair of the hospital oversight committee a list of all business or other organizations of which he or she is an officer, director, trustee, member, owner (either as a sole proprietor or partner), shareholder with a 5.0% or greater interest in all outstanding voting shares, employee or agent, with which the hospital has, or might reasonably in the future, enter into a relationship or a transaction in which the member would have conflicting interests. Each written statement will be re-submitted with any necessary changes each year. The chair of the hospital oversight committee shall become familiar with the statements of all members in order to guide his or her conduct should a conflict arise. The vice chair of the hospital oversight committee shall be familiar with the statements filed by the chair. (2) At such time as any matter comes before the hospital oversight committee in such a way as to give rise to a conflict of interest, the affected member shall make known the potential conflict, whether disclosed by his or her written statement or not, and after answering any questions that might be asked, shall withdraw from the meeting for so long as the matter shall continue under discussion. Should the matter be brought to a vote, the affected member shall not vote on it. In the event that the affected member fails to withdraw voluntarily, the chair of the hospital oversight committee is empowered and shall require that the affected member remove himself or herself from the room during both the discussion and vote on the matter. In the event the conflict of interest affects the chair, the vice chair is empowered and shall require that the chair remove himself or herself in the same manner, and for the duration of discussion and action on the matter the vice chair shall preside. (3) If the matter is the item of business for which a special meeting of the hospital oversight committee was called, the affected member shall not be counted to establish a quorum, nor shall he or she participate in the deliberations or vote on it. (k) Meetings of the hospital oversight committee. (1) Regular meetings. (A) The hospital oversight committee shall meet quarterly and as required by the chair of the hospital oversight committee. (B) The hospital oversight committee shall designate an annual meeting. (2) Special meetings. Special meetings of the hospital oversight committee may be called at any time by the board, the commissioner, the chair of the hospital oversight committee, or upon receipt of the written request of two or more members. The business to be transacted at any special meeting shall be limited to those items of business set forth in the notice of the meeting. (3) Notice of hospital oversight committee meetings. (A) Members shall be given written notice of each regular meeting of the hospital oversight committee. Such notice shall set forth the time and place of the meeting, and shall be delivered to each member either personally, by mail, facsimile, or telegram to his or her residence or place of business as listed in the hospital director's office ten days prior to such regular meeting, and five days prior to such meeting in the case of special meetings. Notice of meetings of the hospital oversight committee shall be posted in compliance with Government Code, Chapter 551. (B) The business to be transacted at any regular meeting of the hospital oversight committee shall be limited to those matters set forth in the notice of meeting. (4) Quorum. At all meetings of the hospital oversight committee, a majority of the members shall constitute a quorum for the transaction of business. The act of a majority of the members present and voting at a meeting at which a quorum is present shall be the act of the hospital oversight committee. Proxy voting shall not be permitted. (5) Withdrawal of members after quorum established. After a quorum has been established at a meeting of the hospital oversight committee, the subsequent withdrawal of members from the meeting so as to reduce the number of members present to fewer than the number required for a quorum shall not affect the validity of any action taken by the hospital oversight committee at the meeting or any adjournment thereof. A majority of the members present, whether or not a quorum exists, may adjourn any meeting of the hospital oversight committee to another time and place. Notice of any such adjourned meeting shall be given to the members who are not present at the time of adjournment. (6) Minutes. Minutes of each meeting of the hospital oversight committee shall be taken by the secretary or a designee and shall be disseminated or otherwise made available to each member as soon as practicable after the conclusion of the meeting. (l) Responsibilities of hospital director. The hospital director shall have the following specific responsibilities: (1) develop and recommend to the hospital oversight committee a plan of organization for the operation of the hospital; (2) prepare program and budget recommendations as required by the commissioner; (3) select, employ, control and discharge, as appropriate, all employees for the hospital within applicable rules, regulations, standards, and bylaws; (4) develop and maintain appropriate personnel policies and practices for the hospital in accordance with policies and practices of the department and other applicable rules, regulations and standards; (5) oversee and supervise business activities of the hospital in accordance with policies and practices of the department; (6) make reports and recommendations to the hospital oversight committee regarding the professional services and financial activities of the hospital; (7) represent the hospital in its relationships with other health agencies and accreditation and certification bodies and agencies; (8) oversee the maintenance of the physical properties of the hospital to provide a safe environment for patients and all personnel; (9) assist the medical staff with its organization and/or medico- administrative responsibilities; (10) grant temporary privileges to medical staff applicants in accordance with the provisions of the medical staff bylaws; (11) summarily suspend, without prior notice or hearing, all or any part of the clinical privileges of a medical staff member or other individual whenever the hospital director believes that failure to take such action may result in an imminent danger to the health of any individual; and (12) attend all meetings of the hospital oversight committee, serve on all committees, and appoint designees to serve in his or her absence or unavailability. sec.109.6. Medical Staff. (a) General. (1) The hospital oversight committee shall appoint a medical staff operating in accordance with these bylaws and the medical staff bylaws approved by the hospital oversight committee. The medical staff shall operate as an integral part of the hospital and, through its officers, medical directors, and committees, shall be responsible and accountable to the hospital oversight committee for the discharge of those duties and responsibilities delegated to the medical staff by the hospital oversight committee. (2) The hospital oversight committee specifically reserves the authority to take any direct action that is appropriate with respect to any individual appointed to the medical staff or given clinical privileges, or the right to practice at the hospital whose clinical competence or professional conduct is questioned or who may have violated hospital or medical staff bylaws, rules or policies. Action taken by the hospital oversight committee in such matters shall follow the procedures outlined in the medical staff bylaws. (b) Medical staff bylaws, rules and regulations. (1) In recommending medical staff bylaws, rules, and regulations, the medical staff shall follow the amendment procedure set forth in sec.109.15(k) of this title (relating to Medical Staff Bylaws). (2) The medical staff may at any time recommend to the hospital oversight committee amendments or modifications of the medical staff bylaws, rules and regulations. The hospital oversight committee shall act promptly on proposed medical staff bylaws amendments, and only such medical staff bylaws, rules and regulations as are approved by the hospital oversight committee and the board shall be effective. (3) Neither the hospital oversight committee nor the medical staff may unilaterally amend the medical staff bylaws. However, in the event the hospital oversight committee believes there should be changes in the medical staff bylaws, rules or regulations, it shall submit such suggested changes to the medical staff. The medical staff shall promptly consider and submit to the hospital oversight committee its recommendation regarding the proposed change. If the medical staff fails to respond to suggestions by the hospital oversight committee within a reasonable time, as determined by the hospital oversight committee, the hospital oversight committee may make such changes as are deemed necessary without the approval of the medical staff. (4) In the event of a conflict between the provisions of the medical staff bylaws and the hospital bylaws, the provisions of the hospital bylaws shall control. (c) Medical staff appointment and clinical privileges. (1) The hospital oversight committee may, upon recommendation of the credentials committee, appoint to the medical staff licensed professionals who meet the personal and professional qualifications prescribed in the medical staff bylaws, and may grant clinical privileges to them. Individuals so appointed shall have full responsibility for treatment of hospital patients subject only to such limitations as the hospital oversight committee, its designees, and/or the medical staff bylaws, rules and regulations may impose. (2) All initial appointments to the medical staff shall be for a period of at least six months, renewable in accordance with the reappointment procedures set forth in the medical staff bylaws and policies and procedures of the department. If at any time, an application for reappointment is not acted upon by the hospital oversight committee prior to the expiration of the staff member's then current appointment, the appointment and clinical privileges of the staff member in question shall continue in effect until the hospital oversight committee acts. (3) Only medical staff members with admitting privileges shall be permitted to admit patients to the hospital. Each patient shall be under the medical supervision of a qualified physician appointed to the medical staff, who shall be responsible for the general medical condition of the patient. All other individuals who are granted clinical privileges or who otherwise provide patient care services shall be subject to applicable bylaws or policies designed to determine, monitor, and evaluate their competence and the quality of their care. (d) Medical staff departments, officers and committees. (1) The chairpersons and members of all medical staff committees and the officers of the medical staff shall be elected or appointed in accordance with the provisions of the medical staff bylaws. Said individuals shall act on behalf of the hospital when performing their duties under the medical staff bylaws, and shall perform such additional duties as may be assigned by the hospital oversight committee or the hospital director. (2) All minutes, reports, recommendations, communications, and actions with respect to credentialing, peer review, quality assessment and improvement or related matters made or taken by the hospital oversight committee or its committees or appointed medical directors, medical staff committees and officers for and on behalf of the hospital are covered by state and federal law, providing protection to peer review or related activities. The committees and/or panels charged with making reports, findings recommendations or investigations pursuant to the medical staff and/or hospital bylaws shall be considered to be acting on behalf of the hospital and its hospital oversight committee when engaged in such professional review activities and thus shall be deemed to be "professional review bodies." (e) Strategic planning for the medical staff. The hospital oversight committee shall periodically evaluate the number, expected attrition, and clinical activities of medical staff members in various specialty areas so that a proper number of individuals in each specialty is determined, maintained and revised as needed, in light of the needs of the community served by the hospital, the hospital's strategic planning and budgeting objectives, and the professional personnel requirements of the hospital. (f) Contracts for clinical services. (1) After receiving the recommendations of the chief of staff/DDPS, and in accordance with applicable law, policies, or regulations, the hospital director shall have the authority to enter into contracts or employment relationships with individuals, partnerships or corporations for the performance of certain health care or clinical services, including but not limited to those in medico- administrative positions. All physicians, dentists, podiatrists, and other professional staff practicing at the hospital pursuant to such contracts shall obtain and must maintain medical staff appointments and clinical privileges at the hospital. (2) In the event any contract authorized by subsection (d)(1) of this section provides that the practitioners subject to it have exclusive right to provide the clinical services covered by the contract, no other practitioner may exercise clinical privileges at the hospital to provide the clinical services in question while the contract is in effect. If such an exclusive contract would have the effect of preventing an existing medical staff member under contract from exercising clinical privileges that had previously been granted, the affected staff member shall be given notice of the exclusive contract and have the right to meet with the hospital oversight committee (or a committee designated by the hospital oversight committee) to discuss the matter prior to the effective date of the contract in question, and to present at that meeting any information relevant to the decision to enter into the exclusive contract. Such affected individual shall not be entitled to any other due process rights with respect to the hospital oversight committee's decision or the effect of the contract on their clinical privileges, notwithstanding any provision of the medical staff bylaws. (3) If the terms of any contract provide that the medical staff appointment and/or clinical privileges of any practitioner subject to the contract are incident to and/or coterminous with the contract or the individual's association with the group holding the contract, such contractual provisions shall control, notwithstanding the fact that such may be inconsistent with any provision of the medical staff bylaws. sec.109.7. Auxiliary Organizations. (a) General. (1) Any auxiliary organization that may be established by the hospital oversight committee shall be responsible and accountable to the hospital oversight committee for the discharge of those duties and responsibilities delegated to it by the hospital oversight committee. In establishing an auxiliary organization, the hospital oversight committee shall initiate or approve bylaws, delineate the purpose and function of the organization and shall initiate or approve any and all subsequent amendments thereto. Auxiliary organizations shall report to the hospital oversight committee in a manner established by the hospital oversight committee. (2) The hospital oversight committee is not required to establish any auxiliary organizations and the hospital oversight committee shall retain the power to change, restructure, reorganize or dissolve any such organization, if established. All services and functions performed by such auxiliary organizations and individual volunteers not associated with an auxiliary shall be subject to the overall supervision and direction of the hospital director and his or her designee. (b) Duties. The auxiliary organization shall: (1) elect a president and such other officers as necessary; (2) appoint such committees as it deems necessary; (3) subject to the approval of the hospital oversight committee, adopt a constitution, bylaws and rules and regulations regarding its organization and functions at the hospital; (4) secure the support and cooperation of the area served through promotion and advancing the welfare of the hospital and assisting in interpreting the hospital's services and needs to the community; and (5) serve in various roles of volunteer services throughout the hospital to assist the hospital in meetings its objectives. sec.109.15. Medical Staff Bylaws. (a) Composition of the medical staff. (1) Appointment. All appointments to the medical staff shall be made by the hospital oversight committee upon recommendation of the medical staff executive committee. (2) Clinical privileges. All members shall be eligible for clinical privileges as applied for and recommended by the medical staff executive committee and approved by the hospital oversight committee. Physicians, dentists, podiatrists, and other professionals licensed to practice their respective professions in Texas or who are otherwise lawfully practicing in this state, who are hospital employees, who hold contracts with the hospital, or who provide consultation to medical staff members for patient care and treatment or other services, may be authorized to attend patients. Residents and other students, whether employed or not employed by the hospital, are extended privileges under terms of affiliation agreements and when under the direct supervision of a medical staff member. Ancillary professionals providing services as employees of medical staff members will be credentialed in accordance with subsection (i) of this section. (3) Attending staff. The attending staff shall consist of those physicians, dentists, podiatrists, and other professionals who regularly admit, attend, or are involved in the treatment of patients at the hospital by virtue of employment by the hospital or a contract to provide services to the hospital. Each member of the attending staff shall agree to assume all the functions and responsibilities of appointment to the attending staff, including, where appropriate, care for unassigned patients, emergency care, consultation, and teaching assignments. Attending staff members shall provide timely and continuous care for their patients. (4) Courtesy staff. The courtesy staff shall consist of physicians, dentists, podiatrists, and other professionals of demonstrated competency who attend, admit, or are involved in the care of no more patients at the hospital than recommended by the medical staff executive committee and approved by the hospital director. They shall provide timely and continuous care for their patients. Courtesy staff members may not vote or hold office, except as otherwise provided. (5) Consulting staff. The consulting staff shall consist of specialists who provide consultation in the diagnosis and treatment of patients, but may not admit patients. Consulting staff may not vote or hold office, except as otherwise provided. (6) Resident staff. The resident staff shall consist of physicians serving in a training capacity who have licenses to practice medicine or institutional permits authorizing them to participate in an appropriately accredited training program for graduate medical education conducted in the hospital. They shall not be eligible to vote, hold office, or serve on standing committees of the medical staff, except as otherwise provided. They shall attend all patients in compliance with the terms of the applicable affiliation agreement. They shall admit patients only after notification of and under the direct supervision of an attending staff member. They shall write patient care orders under the direct supervision of their attending physician. (7) Other professional staff. Other professional staff shall consist of those individuals permitted by law and by the hospital to provide patient care services without direction or supervision, within the scope of their licenses, and in accordance with individually granted clinical privileges based on criteria established by the hospital. (b) Structure of the medical staff. (1) Medical staff year. The medical staff year commences on September 1 and ends on August 31 of each year. (2) Qualifications of officers, medical directors, and chairpersons. Unless otherwise specified in this section, the hospital director has the sole authority to appoint and remove members of the medical staff executive committee, medical directors, and the chairmen of medical staff committees after consultation with the medical staff executive committee. The hospital director may remove an officer from his or her position for: (A) insufficient involvement in the leadership responsibilities incumbent in his or her position, as defined in policies approved by the chief of staff/DDPS; or (B) violation of any hospital or medical staff bylaws, rules, or regulations. (3) Officers. At TCID, the officers of the medical staff shall be the chief of staff/DDPS, vice president, and secretary. (A) The chief of staff/DDPS shall: (i) act as the chief medical officer of the hospital, supervising medical care, treatment, and practices in accordance with standards of care; (ii) enforce the medical staff bylaws and rules and regulations, initiate and implement disciplinary actions where indicated, and assure the medical staff's compliance with procedural safeguards in all instances where corrective action has been determined; (iii) establish a mechanism designed to assure that all individuals with clinical privileges provide services within the scope of the privileges granted to them; (iv) call, preside at, and be responsible for the agenda of all general meetings of the medical staff; (v) recommend to the medical directors, committee chairmen, and members, in accordance with the provisions of this section, to all standing and special medical staff committees except the medical staff executive committee; (vi) serve as chair of the medical staff executive committee; (vii) serve as an ex-officio member of all medical staff committees other than the medical staff executive committee without vote, unless otherwise specified; (viii) provide continuing liaison with the hospital director on medical matters; (ix) report to the hospital oversight committee on the medical staff's performance and maintenance of quality of care; (x) serve as spokesperson for the medical staff in any external professional and public relations matters; and (xi) be responsible for the establishment, implementation, and effectiveness of educational activities conducted by the medical staff. (B) The vice president shall: the chief of staff/DDPS at the annual meeting of the medical staff; (ii) assume all the duties and have the authority of the chief of staff/DDPS in the event of his or her temporary incapacity due to illness, absence from the community, or unavailability for any other reason; (iii) serve on the medical staff executive committee; and (iv) perform such duties as are assigned to him or her by the hospital director or the chief of staff/DDPS. (C) The secretary shall: (i) be elected by vote of the medical staff at the annual meeting as its representative to the hospital oversight committee; (ii) represent the views, policies, needs, and grievances of the medical staff and report on the medical activities of the staff to the hospital director and the hospital oversight committee and the board; (iii) assure that accurate and complete minutes of all medical staff and medical staff executive committee meetings are prepared; and (iv) call meetings upon the order of the chief of staff/DDPS, process all correspondence, and perform such other duties as his or her office demands. (D) If an officer, medical director, or committee chair, or member of any medical staff committee has a conflict of interest in any matter involving another medical staff member that comes before such individual or committee, or in any instance where any such individual brings the complaint against the staff member, such individual shall not participate in the discussion or voting on the matter, and shall absent himself or herself from any meeting concerning the staff member in question, although that individual may be asked and may answer any questions concerning the matter before leaving. (4) The medical staff at STH. The medical staff at STH is organized without medical staff officers. A chief of staff shall be appointed by the hospital director, and one member shall be elected annually to represent the medical staff before the hospital oversight committee. (5) Meetings of the medical staff. (A) Regular staff meetings. The medical staff shall hold regular meetings at least twice each year to act on any matters designated by the hospital director and chief of staff/DDPS. (B) Annual staff meeting. One of the regular staff meetings shall be designated as the annual staff meeting, at which officers or staff representatives shall be elected and appointments by the hospital director shall be announced. (C) Special staff meetings. Special meetings of the medical staff may be called at any time by the chief of staff/DDPS with approval of the hospital director. Any requests for a special meeting shall be honored by the hospital director within seven days of that request. Issues shall be decided by vote of a majority of the medical staff present and eligible to vote, provided those matters do not include imposition of fees and assessments; amendments to the medical staff bylaws, rules, and regulations; or removal of the elected medical staff representative. (D) Quorum. The presence of one-half of the persons eligible to vote shall constitute a quorum for any regular or special meeting of the medical staff. A quorum shall cease to exist when fewer than one-third of those eligible to vote are present. (6) Provisions common to all meetings. (A) Notice of meetings. Notice of all regular and special meetings of the medical staff and regular meetings of departments and committees shall be provided to each medical staff member eligible to vote at least five working days in advance of such meetings. Each notice shall state the place, day, date and hour of the meeting. Such notice shall be deemed to constitute actual notice to the persons concerned. Notice shall be mailed to non-voting members. Actual attendance by any individual shall constitute a waiver of any objection by that individual concerning the sufficiency of the notice of the meeting. (B) Rules of order. Unless its provisions conflict with this chapter, the current edition of Robert's Rules of Order shall govern all meetings and elections. (C) Voting. Any individual who, by virtue of position, attends a meeting in more than one capacity shall be entitled to only one vote. (D) Minutes. Minutes of the meetings of each committee and each department shall be prepared and shall include a record of the attendance of members, the issues discussed, the resulting conclusions, the votes taken on each matter, and the actions taken. The minutes shall be signed by the presiding officer and copies thereof shall be promptly forwarded by the medical staff coordinator to the medical staff executive committee and the chief of staff/DDPS or committee chair. The medical staff coordinator shall maintain a permanent file of the minutes of all department and committee meetings. (7) Clinical departments or committees. (A) South Texas Hospital. The hospital does not utilize medical staff clinical departments. The medical staff is organized in clinical committees as described in subsection (h)(3) of this section. (B) Texas Center for Infectious Diseases. The hospital utilizes medical staff clinical departments. Each department director is responsible for the following: (i) all clinically related activities of the department; (ii) all administratively-related activities of the department, unless otherwise provided for by the hospital; (iii) continuing surveillance of the professional performance of all individuals who have delineated clinical privileges in the department; (iv) recommending to the medical staff the criteria for clinical privileges in the department; and (v) recommending clinical privileges for each member of the department. (c) Medical staff executive committee. (1) Composition. (A) Every member of the medical staff at each hospital shall be eligible to serve on the medical staff executive committee. The hospital director at each hospital shall be an ex-officio member of the committee, without vote. (i) South Texas Hospital. The medical staff, as a committee of the whole, shall constitute the medical staff executive committee. The medical staff shall elect one member to represent its views, policies, needs, and grievances and to report on its activities to the hospital director and the hospital oversight committee. (ii) Texas Center for Infectious Diseases. The chief of staff/DDPS, the vice president, and the secretary of the medical staff shall serve as the medical staff executive committee. (B) The chief of staff/DDPS shall be chair of the medical staff executive committee and may vote on all matters before it. (C) Members of the medical staff executive committee may be concurrent members of the credentials committee. (2) Duties. The medical staff executive committee shall: (A) represent and act on behalf of the medical staff in all matters arising between meetings of the full medical staff, without subsequent ratification by the staff, and subject only to any limitations imposed by this chapter; (B) coordinate the activities and general policies of the various clinical areas; (C) receive and act upon committee reports as specified in this chapter, and make recommendations as appropriate concerning committee reports to the hospital director and the hospital oversight committee; (D) implement policies of the medical staff that are not the responsibility of the individual departments; (E) keep the medical staff abreast of applicable accreditation and regulatory requirements affecting the hospital; (F) enforce medical staff rules among all persons who hold membership in the medical staff in the best interest of patient care and of the hospital; (G) review and make recommendations concerning the clinical competence, patient care and treatment, or conduct of any medical staff member in accordance with this chapter; (H) report to the hospital oversight committee on the development and implementation of the hospital's performance assessment and improvement plan as it affects the medical staff; (I) review the bylaws, rules, and regulations of the medical staff and associated documents at least once a year and recommend such changes as may be necessary or desirable; and (J) make recommendations to the hospital oversight committee for its approval pertaining to: (i) the medical staff's structure; (ii) the mechanism used to review credentials and to delineate individual clinical privileges; (iii) recommendations of individuals for medical staff membership; (iv) recommendations for delineated clinical privileges for each eligible individual; (v) the participation of the medical staff in organizational performance- improvement activities as well as the mechanism used to conduct, evaluate, and revise such activities; (vi) the mechanism by which medical staff membership may be terminated; and (vii) the mechanism for fair hearing procedures. (3) Meetings, reports and recommendations. (A) The medical staff executive committee shall meet as often as necessary to transact pending business, but at least once each month. Recommendations of the medical staff executive committee shall be transmitted to the hospital oversight committee after review by the hospital director. The chair of the medical staff executive committee, his or her representative, and such members of the medical staff executive committee as may be necessary shall be available to meet with the hospital oversight committee or its designated subcommittee on all recommendations that the medical staff executive committee may make. (B) An emergency meeting of the medical staff executive committee may be called to act in situations of urgent or confidential concern. (4) Conflict of interest. If a member of the medical staff executive committee has a conflict of interest in any matter that comes before the medical staff executive committee and which involves another medical staff member, or in any instance where a member of the medical staff executive committee brought the complaint against that staff member, that member shall not participate in the discussion of or voting on the matter and shall absent himself or herself from the meeting during that time, although he or she may be asked and may answer questions concerning the matter before leaving. (d) Appointment to the medical staff. (1) Qualifications for appointment. (A) General. Membership in the medical staff is a privilege extended only to professionally competent individuals who meet the qualifications, standards, and requirements set forth in the bylaws and in such policies as are adopted by the medical staff and ratified by the hospital oversight committee. Unless exempted by specific provisions of this chapter, all individuals practicing medicine, dentistry, podiatry, and other professional disciplines in the hospital must first have been appointed to the medical staff. (B) Specific qualifications. Only physicians, dentists, podiatrists, and other professional staff who satisfy the following criteria shall be eligible for membership in the medical staff: (i) are currently licensed to practice in the State of Texas; (ii) are able to provide timely care for their patients; (iii) if applicable, possess or be approved for currently valid professional liability insurance in such form and in minimum amounts as recommended by the medical staff executive committee and approved by the hospital oversight committee. Employees of the department shall not be required to purchase or maintain professional liability insurance coverage. (iv) are certified by the appropriate specialty board or are active candidates for board certification pursuant to the medical staff bylaws, unless such requirement is waived by the hospital oversight committee upon recommendation of the medical staff executive committee; (v) are able to perform the specific clinical privileges they request; and (vi) can document: (I) background, experience, training, and demonstrated competence; (II) adherence to the ethics of their profession; (III) good reputation and character; (IV) ability to work cooperatively with others so that all patients treated by them in the hospital will receive quality care; and (V) ability to meet requirements established by the department. (C) No entitlement to appointment. No individual shall be entitled to appointment to the medical staff or to the exercise of particular clinical privileges in the hospital solely because the individual: (i) is licensed to practice a profession in this or any other state; (ii) is a member of any particular professional organization; or (iii) has had in the past, or currently or privileges in this or another hospital. (D) Offer of membership and privileges. An offer of membership and privileges is contingent on the hospital's ability to subsequently ascertain the physical and/or mental health status of the applicant, regarding the applicant's ability to perform the specific clinical privileges requested. (E) Non-discrimination policy. No individual shall be denied appointment on the basis of gender, race, age, creed, color, religion, or national origin. (2) Conditions of appointment. (A) Duration of initial appointment. All initial appointments to the medical staff regardless of the category of the staff to which appointment is made shall be provisional and all initial clinical privileges shall be provisional for a period of six months from the date of the appointment or longer if recommended by the credentials committee and the medical staff executive committee and if approved by the hospital oversight committee. During this provisional appointment, the appointee's clinical competence, general behavior, and conduct in the hospital shall be evaluated by the chief of staff/DDPS, and by the relevant committees of the medical staff and the hospital. Provisional clinical privileges may be adjusted to reflect clinical competence at the end of the provisional period, or sooner if warranted. Continued appointment after the provisional period shall depend on an evaluation of the factors to be considered for reappointment as set forth in this chapter. Evaluation of these factors will be considered in the performance evaluation process for employees of the department. (B) Rights and duties of members. medical staff shall require that each member assume such reasonable duties and responsibilities as are set forth in this chapter. medical staff, each member agrees to assist in evaluating the quality and appropriateness of patient care through designated peer review activities. These activities include participation in clinical case review of any case selected through quality assessment review mechanisms. Members of professional review bodies who participate in peer review activities are provided immunity under state and federal law, provided that such peer review functions are performed reasonably and fairly and follow the specific due process requirements in this chapter. Such immunity shall apply to individual committee members, consultants to committees, individuals who provide information to committees, and individuals who serve as members of hearing panels. (3) Application for initial appointment and clinical privileges. (A) Information. Applications for appointment to the medical staff shall be in writing, and shall be submitted on forms approved by the hospital oversight committee upon recommendation of the credentials committee and medical staff executive committee. Application forms shall be obtained from the hospital director or his or her designee. The application shall contain a request for the specific clinical privileges desired by the applicant, and shall require detailed information concerning the applicant's professional qualifications including: (i) the names and complete addresses of at least three physicians, dentists, podiatrists, or other professionals, as appropriate, who have recently observed and worked extensively with the applicant and who can provide information pertaining to the applicant's character and current level of competence. Persons providing references may not be associated or about to be associated with the applicant in professional practice or personally related to the applicant. At least one reference shall be from the same specialty area as the applicant; (ii) the names and complete addresses of the individuals who served as chairmen of the particular department of each hospital or other institution at which the applicant worked or trained. If the number of hospitals the applicant has worked in is great or if several years have passed since the applicant worked at a particular hospital, the credentials committee and the hospital oversight committee may take into consideration the applicant's good faith effort to produce this information; (iii) information as to whether the applicant's medical privileges have ever been voluntarily or involuntarily relinquished or terminated, surrendered, resigned, denied, revoked, suspended, reduced, or not renewed at any other hospital or health care facility; (iv) information as to whether the applicant has ever withdrawn his or or resigned from the medical staff before final decision by the governing body of the hospital or health care facility; (v) information as to whether the applicant's membership in local, state, or national professional societies; his or her license to practice any profession in any state; or his or her state or federal controlled substance registrations have ever been challenged, voluntarily relinquished, suspended, modified, surrendered, or terminated. The submitted application shall include a copy of all the applicant's current licenses to practice, as well as copies of his or her controlled substance registrations, medical or dental school diploma, and certificates from all postgraduate training programs completed, including all residencies and fellowships; (vi) information as to whether the applicant has professional liability insurance coverage currently in force, the name of the insurance company, and the amount and classification of the coverage; (vii) information concerning the applicant's malpractice claim experience, specifically including final judgments or settlements, the substance of the allegations, the findings, the ultimate disposition, and any additional information concerning such proceedings or actions as the credentials committee may deem appropriate; (viii) a consent to the release of information from the applicant's present and past professional liability insurance carriers; (ix) information as to whether the applicant has ever been named as a defendant in a criminal action and/or convicted of a crime, with details about such action; (x) information on the citizenship and visa status of the applicant; (xi) the applicant's signature; (xii) all information required by the department's Office of Human Resources if employment is to be considered; and (xiii) such other information as the credentials committee, the medical staff executive committee or the hospital oversight committee may require. (B) National Practitioner Data Bank. On behalf of the hospital, the chief of staff/DDPS shall request information from the National Practitioner Data Bank concerning physicians, dentists, and other practitioners who have applied for appointment to the medical staff. (C) Undertakings. Each applicant for medical staff membership or reappointment specifically shall agree to these undertakings as part of the application. The following undertakings shall be applicable to every medical staff member and applicant for staff membership or reappointment as a condition of consideration of such application and as a condition of continued staff membership if granted: (i) an obligation to provide continuous care and supervision to all patients within the hospital for whom the individual has responsibility; (ii) a willingness to accept call and to provide consultations in accordance with medical staff bylaws, rules, and regulations; (iii) an agreement to abide by all applicable bylaws, policies, rules, and regulations of the medical staff and the hospital; (iv) an agreement to accept committee assignments and such other reasonable duties and responsibilities as shall be assigned to the applicant after appointment; (v) an agreement to provide to the hospital new or updated information as it becomes available concerning any question on the application form; (vi) a statement that the applicant has received and has had an opportunity to read the department's personnel policies, the bylaws of the hospital, and the bylaws, rules, and regulations of the medical staff in force at the time of his or her application, and that he or she has agreed to be bound by the terms thereof in all matters relating to consideration of his or her application without regard to whether or not he or she is granted membership in the medical staff or clinical privileges; (vii) a statement of the applicant's willingness to appear for personal interviews regarding his or her application; (viii) a statement that any material misrepresentation of, misstatement in, or omission from the application, whether intentional or not, shall constitute cause for automatic and immediate rejection of the application resulting in denial of staff membership and clinical privileges. In the event that membership has been granted prior to the discovery of such material misrepresentation, misstatement, or omission, such discovery may result in revocation of medical staff membership and clinical privileges; and (ix) a statement that the applicant will: (I) refrain from promising and/or providing inducements to third parties for patient referrals; (II) refrain from delegating responsibility for diagnosis or care of hospitalized patients to any individual who is not qualified to undertake this responsibility or who is not adequately supervised; (III) refrain from deceiving patients as to the identity of any individual providing treatment or services; (IV) seek consultation whenever necessary; (V) abide by generally recognized ethical principles applicable to his or her profession; and (VI) provide continuous care for the applicant's patients in the hospital. (D) Burden of providing information. The applicant shall have the burden of producing information sufficient for a comprehensive evaluation of his or her competence, character, ethics, and other qualifications, and for resolving any doubts about such qualifications. The applicant shall have the burden of substantiating all statements made and information provided on the application. Until the applicant has provided all information requested by the hospital, the application for appointment or reappointment will be deemed incomplete and will not be processed. (E) Conditions to obtain and release information. The following statements, which shall be included on the application form, are express conditions applicable to any medical staff applicant, any member of the medical staff, and to all others having or seeking clinical privileges in the hospital. By applying for appointment, reappointment, or clinical privileges, the applicant expressly agrees that these conditions shall apply during the processing and consideration of his or her application, whether or not he or she is granted appointment or clinical privileges. This agreement also applies for the duration of any appointment or reappointment. (i) Immunity. To the fullest extent permitted by law, the individual releases from any and all liability, and extends absolute immunity to the hospital, its authorized representatives, and any third parties, with respect to any acts, communications, documents, recommendations, or disclosures involving the individual, concerning the following: (I) applications for appointment or clinical privileges, including temporary privileges; (II) evaluations concerning reappointment or changes in clinical privileges; (III) proceedings for suspension or reduction of clinical privileges or for revocation of medical staff appointment, or any other disciplinary sanction; (IV) summary suspension; (V) hearings and appellate reviews; (VI) medical care evaluations; (VII) utilization reviews; (VIII) other activities relating to the quality of patient care or professional conduct; (IX) matters or inquiries concerning the individual's professional qualifications, credentials, clinical competence, character, mental and physical condition, ethics or behavior; and (X) any other matter that might directly or indirectly have an effect on the individual's competence, on patient care, or on the orderly operation of the hospital. (ii) Evidentiary privilege. The categories of information listed in clause (i) of this subparagraph shall be privileged to the fullest extent permitted by law. (iii) Authorization to obtain information. The individual specifically authorizes the hospital and its authorized representatives to consult with any third party who may have information bearing on the individual's professional qualifications, credentials, clinical competence, character, mental and physical condition, ethics, behavior, or any other matter reasonably having a bearing on the individual's satisfaction of the criteria for initial and continued staff. This authorization also covers the right to inspect or obtain any and all communications, reports, records, statements, documents, recommendations, or disclosures of said third parties that may be relevant to such questions. The individual also specifically authorizes said third parties to release said information to the hospital and its authorized representatives upon request. (iv) Authorization to release information. The applicant specifically authorizes the hospital and its authorized representatives to release such information to other hospitals, health care facilities, and their agents, who solicit such information for the purpose of evaluating the applicant's professional qualifications pursuant to the applicant's request privileges. (4) Procedure for initial appointment. (A) Submission of application. (i) Each applicant for a posted medical staff vacancy as a hospital employee shall submit a completed application for medical staff membership at the same time he or she or she submits the employment application. (ii) After reviewing the applicant's responses to all questions and all references and other information, and after verifying the information provided on the application with primary sources, the chief of staff/DDPS shall determine the application to be complete and shall transmit the application and all supporting materials to the chair of the credentials committee. An application shall be reclassified as incomplete if new, additional, or clarifying information is required at any time during the evaluation. The applicant is responsible for assuring that his or her application is complete, including recommendations from all references. An incomplete application will not be processed. (B) Initial credentials committee procedure. Upon receipt of a completed application for membership, the chair of the credentials committee shall announce the name of the applicant so that each medical staff member may have an opportunity to submit to the credentials committee, in writing, any information he or she may have concerning the applicant's qualifications for staff membership. In addition, any current medical staff member shall have the right to appear in person before the credentials committee to discuss in private any concerns he or she may have about the applicant. (C) Chief of staff/DDPS procedure. The chief of staff/DDPS shall meet with the applicant to discuss any aspect of his or her application, qualifications, and requested clinical privileges, and shall forward a report of the meeting to the credentials committee. (D) Subsequent credentials committee procedure. (i) The credentials committee shall examine the evidence of the applicant's character, professional competence, qualifications, prior behavior, and ethical standing, and shall determine, through information contained in references given by the applicant and from other sources available to the committee, including an appraisal from the chief of staff/DDPS, whether the applicant has established and satisfied all of the necessary qualifications for the staff category and clinical privileges requested. (ii) If, after considering the report of the chief of staff/DDPS, the credentials committee recommends approval of the application, the credentials committee shall also recommend clinical privileges. (iii) As part of the committee's deliberations, the chair of the credentials committee may require the applicant to meet with the credentials committee to discuss any aspect of his or her application, qualifications, and clinical privileges requested. (E) Credentials committee report. (i) The credentials committee shall make a written report and recommendation to the medical staff executive committee concerning the applicant within 90 days of receipt of the completed application. (ii) If completion of the credentials committee's recommendation requires more than 90 days, the chair of the credentials committee shall send a letter explaining the delay to the applicant, with a copy to the medical staff executive committee. (iii) The credentials committee shall transmit to the medical staff executive committee the complete application and its recommendation that the the medical staff, that his or her application be deferred for further consideration, or that the application be denied. The chair of the credentials committee or his or her designee shall be available to the medical staff executive committee to answer any questions about the recommendation. (F) Medical staff executive committee. (i) At its next regular meeting after receipt of the application, report and recommendation from the credentials committee, the medical staff executive committee shall determine whether to recommend to the hospital oversight committee that the applicant staff, that the application be deferred for further consideration, or that the application for staff membership or clinical privileges be denied. The recommendation of the medical staff executive committee shall be promptly forwarded together with a summary of supporting documentation to the hospital oversight committee. All recommendations include the specific clinical privileges to be granted, and any probationary conditions relating to such clinical privileges. (ii) If the medical staff executive committee recommends that the application be deferred for further consideration, a subsequent recommendation for medical staff with specified clinical privileges, or denial of the application must follow within 45 days. (iii) If the medical staff executive committee disagrees with the recommendation of the credentials committee, the medical staff executive committee shall either: (I) remand the matter to the credentials committee for further investigation and/or preparation of responses to specific questions raised by the medical staff executive committee prior to its final recommendation; or (II) set forth in its report and recommendation to the hospital oversight committee the specific reasons for its disagreement with the credentials committee's recommendation, supported by reference to particular aspects of the individual's record or the credentials committee's report. (iv) When the medical staff executive committee affords the applicant a hearing pursuant to this chapter, the hospital director shall promptly so notify the applicant and then shall hold the application until after the applicant has exercised or has been deemed to have waived the right to a hearing after which the hospital director shall forward the recommendation of the medical staff executive committee, together with the application and all supporting documentation, to the hospital oversight committee. All applications from persons not selected to fill a posted vacancy as a hospital employee shall be returned. (5) Clinical privileges. (A) General. Medical staff appointment or reappointment shall confer neither clinical privileges nor any inherent right to practice in the hospital. Each individual who has been granted membership in the medical staff of the hospital shall be entitled to exercise only those clinical privileges specifically granted by the hospital oversight committee upon recommendation of the medical staff executive committee. The clinical privileges recommended to the hospital oversight committee shall be based upon the applicant's education, training, experience, demonstrated clinical competence and judgment, references, utilization patterns, availability of qualified medical coverage, the hospital's available resources and personnel, adequate levels of professional liability insurance coverage, if applicable, and other relevant information. No applicant shall be denied clinical privileges on the basis of gender, race, creed, color, religion, or national origin. (B) Clinical privileges for dentists and oral surgeons. (i) A dentist who has successfully completed a residency program approved by the American Dental Association, who is certified in his or her area of specialization by an appropriate board which is approved by the liaison committee for specialty boards, or its predecessors or successors, or who provides other satisfactory evidence of professional competence shall be qualified for membership and clinical privileges at the hospital. (ii) The scope and extent of surgical procedures that a dentist may perform in the hospital shall be recommended and delineated in the same manner as clinical privileges for physicians. Surgical procedures performed by dentists shall be under the overall supervision of the chief surgeon employed by the hospital. A medical history and physical examination of the patient shall be made and recorded by a physician who holds membership in the medical staff before dental surgery shall be scheduled, and a designated physician shall be responsible for the medical care of the patient throughout the period of hospitalization. (iii) Oral surgeons who admit patients without underlying health problems may perform a complete admission history and physical examination and assess the medical risks of the procedure on the patient if they are deemed qualified to do so by the credentials committee. A designated physician shall be responsible for care of any underlying medical problems the patient may have throughout the hospitalization. (iv) The dentist shall be responsible for the dental care of the patient, including the dental history and dental physical examination, as well as all appropriate elements of the patient's record. Dentists may write orders within the scope of their license and consistent with the medical staff rules and regulations and in compliance with the hospital bylaws, the medical staff bylaws, and applicable medical staff policies. (C) Clinical privileges for podiatrists. (i) A podiatrist who has successfully completed a residency program approved by the Council on Podiatric Medical Education of the American Podiatric Medical Association, who is certified in his or her area of specialization by an appropriate board which is approved by the liaison committee for specialty boards, or its predecessors or successors, or who provides other satisfactory evidence of professional competence shall be qualified for staff membership and clinical privileges at the hospital. (ii) The scope and extent of surgical procedures that a podiatrist may perform in the hospital shall be delineated and recommended to the hospital oversight committee in the same manner as clinical privileges for physicians and shall comply with such policies as may be approved by the hospital oversight committee. Surgical procedures performed by podiatrists shall be under the overall supervision of the chief surgeon employed by the hospital. A medical history and physical examination of the patient shall have taken place and been recorded in the medical record by a physician who holds membership in the medical staff before podiatric surgery is performed. A designated physician shall be responsible for the medical care of the patient throughout the period of hospitalization. The podiatrist shall be responsible for the podiatric care of the patient, including the podiatric history and the podiatric physical examination as well as all appropriate elements of the patient's record. The podiatrist may write orders within the scope of his or her license and consistent with the medical staff rules and regulations and in compliance with the hospital and medical staff bylaws and applicable policies. (D) Clinical privileges for other professional staff members. (i) Other professional staff members who provide satisfactory evidence of their professional competence shall be qualified for staff membership and clinical privileges at the hospital. (ii) The scope and extent of clinical privileges that other professional staff members may perform in the hospital shall be delineated and recommended to the hospital oversight committee in the same manner as clinical privileges for physicians and shall comply with such policies as may be approved by the hospital oversight committee. A medical history and physical examination of any patients to be attended by other professional staff members shall be recorded by physicians who hold membership in the medical staff before professional services are provided in the hospital. A designated physician shall be responsible for the medical care of each patient throughout the period of hospitalization. Other professional staff members may write progress notes or other medical record documentary entries within the scope of their licenses and consistent with the medical staff rules and regulations and in compliance with the hospital and medical staff bylaws and applicable policies. (6) Procedure for temporary clinical privileges. (A) Temporary clinical privileges for applicants. (i) Upon receipt of a completed application for medical staff membership which may reasonably be relied upon as to the licensure, competence, character, ethical standing, and professional liability insurance coverage, and upon receipt of a favorable recommendation from the chair of the credentials committee and the chief of staff/DDPS, or their designees, the hospital director shall grant temporary admitting and specified clinical privileges to an applicant, which will be valid until the medical staff executive committee and hospital oversight committee either approve or deny the application. The applicant shall exercise such privileges under the supervision of the chief of staff/DDPS or his or her designee. (ii) If the chief of staff/DDPS recommends that temporary privileges not be granted, the chief of staff/DDPS shall so notify the hospital director, and continue according to this chapter, but the applicant shall not receive temporary privileges. (iii) Temporary status is not a staff category, but an arrangement under which an applicant is accorded privileges until the completion of the credentialing process. The chief of staff/DDPS, or his or her designee, shall be responsible for reviewing the progress of the applicant with temporary privileges at regular and frequent intervals. (iv) The chief of staff/DDPS may recommend termination of temporary clinical privileges to the medical staff executive committee at any time he or she decides the applicant's performance is unsatisfactory and/or he or she is not qualified for staff membership. If the medical staff executive committee adopts the recommendation of the chief of staff/DDPS to terminate the applicant's temporary privileges, it shall so notify the hospital director who will notify the applicant of that decision, in writing, within 30 days. (B) Temporary clinical privileges for nonapplicants. Temporary admitting and clinical privileges for care of a specific patient or patients may be granted by the hospital director or his or her designee, with the concurrence of the chief of staff/DDPS, to a physician who is not an applicant for membership in the same manner and upon the same conditions as set forth in this subparagraph, provided that the hospital director shall first obtain the individual's written agreement to be bound by the hospital bylaws, and the medical staff bylaws, rules, and regulations then in force in all matters relating to his or her temporary clinical privileges. Such privileges shall be restricted to consultations and services for the specific patients for which they are granted. (C) Special requirements. Special supervision and reporting requirements may be imposed on any individual granted temporary clinical privileges. Temporary privileges shall be immediately terminated by the hospital director after consultation with the chief of staff/DDPS, or his or her designee, upon notice of any failure by the individual to comply with such special conditions. (D) Locum tenens. Locum tenens privileges may be granted to an individual serving as a locum tenens for a member of the medical staff. Temporary admitting and clinical privileges may be granted to a qualified individual to attend patients of a medical staff member. Locum tenens privileges must be specifically requested. Locum tenens privileges shall be granted according to the same procedures as set forth in this section, provided that the hospital director shall first receive a completed form requesting clinical privileges; a letter from the applicant's chief of service or the department chairmen at all hospital(s) where the applicant currently practices; a copy of the applicant's Texas medical license; favorable recommendations from the department chief concerned, the chair of the credentials committee, and the chief of staff/DDPS, or their designees; and the individual's signed acknowledgment that he or she has read the currently effective medical staff bylaws, rules, and regulations and that he or she agrees to be bound by the terms thereof in all matters relating to his or her temporary clinical privileges. The individual serving as a locum tenens must also have in force professional liability insurance coverage which meets the hospital's minimum requirements. (E) Termination of temporary clinical privileges. (i) The hospital director, or in his or her absence, his or her designee, may at any time after receiving a recommendation from the chief of staff/DDPS or his or her designee, terminate an individual's temporary admitting privileges. Clinical privileges shall then be terminated when the physician's inpatients are discharged from the hospital. However, if the chief of staff/DDPS determines that the care or safety of such patients would be endangered by continued treatment by the individual, the hospital director shall summarily terminate the individual's temporary clinical privileges upon the recommendation of the chief of staff/DDPS. Such termination shall be immediately effective. (ii) The chief of staff/DDPS shall assign responsibility for the care of such terminated individual's patients to a medical staff member until they are discharged from the hospital, giving consideration wherever possible to the wishes of the patients in the selection of the substitute physician. (iii) The hospital grants temporary admitting and clinical privileges as a courtesy. Neither the granting, denial, nor termination of such privileges shall entitle the individual affected to any of the procedural rights concerning hearings or appeals provided in this chapter. (iv) Temporary privileges shall be automatically terminated if the credentials committee recommends that the applicant staff. (7) Emergency clinical privileges. (A) In an emergency involving a particular patient, a practitioner who is not currently a member of the medical staff may be permitted by the hospital to exercise any and all clinical privileges permitted by his or her license, and to use all facilities of the hospital, including calling for any consultation necessary or desirable. (B) Similarly, in an emergency involving a particular patient, any medical staff member may be permitted by the hospital to exercise clinical privileges not specifically assigned to him or her to the degree permitted by his or her license. (C) When the emergency situation no longer exists, the practitioner treating the patient must request temporary privileges necessary to continue to treat the patient. If such temporary privileges are denied or are not requested, the patient shall be assigned by the chief of staff/DDPS or his or her designee to an appropriate person currently appointed to the medical staff. The wishes of the patient shall be considered in the selection of a substitute physician. (e) Reappointment to the medical staff. (1) Application. (A) An application for reappointment and a copy of the member's current clinical privileges shall be delivered to each member by certified mail, return receipt requested, with a request that those seeking reappointment complete the reappointment application form and return it to the hospital director or his or her designee, within 15 days. If the reappointment application is not returned within the 15 days, one reminder notification shall be mailed to the member, return receipt requested. Failure to submit a completed reappointment application within 30 days shall result in automatic expiration of the member's appointment and clinical privileges at the end of his or her current appointment, unless appropriate reasons for delay are submitted by the member to the credentials committee. Any member who fails to apply for reappointment as specified in this chapter shall not be entitled to reappointment or to the procedural rights contained herein. However, such individual shall be eligible to reapply for membership as a new applicant. (B) Reappointment may be granted for a period of not more than two years, based on the anniversary date of the applicant's initial appointment. The member's current appointment and clinical privileges shall continue in effect until the hospital oversight committee acts on his or her complete reappointment application. (C) The following documentation must be provided with the application for reappointment: (i) evidence of the applicant's current Texas medical licensure; (ii) a copy of his or her current United States Drug Enforcement Administration (DEA) registration, if applicable; (iii) a copy of his or her current Texas controlled substance registration, if applicable; (iv) proof of professional liability insurance coverage, including the name of the practitioner, specialty, type of coverage (claims made or occurrence), dates of coverage, and limits of liability, if applicable; (v) a copy of his or her board certification or recertification, if applicable; and (vi) a copy of his or her current basic cardiopulmonary resuscitation (CPR) certification, if applicable. (D) If the member requests additional privileges at the time the reappointment application is submitted, he or she must provide documentation of the training and experience which support the request. (2) Factors to be considered. Each recommendation concerning reappointment of a current member of the medical staff or a change in a member's staff category shall be based upon the member's: (A) current licensure, professional performance, judgment, and clinical/technical skills, as indicated by the results of quality assessment activities or other reasonable indicators of continuing competence; (B) information as to whether the member's medical staff appointment or clinical privileges have ever been voluntarily or involuntarily relinquished or terminated, surrendered, resigned, denied, revoked, suspended, reduced, or not renewed at any other hospital or health care facility since his or her initial appointment or most recent reappointment to the medical staff of this hospital; (C) information as to whether the applicant's membership in local, state, or national professional societies, or his or her license to practice any profession in any state, or his or her DEA registration has been challenged, voluntarily relinquished, suspended, modified, surrendered, or terminated since his or her initial appointment or most recent reappointment to the medical staff of this hospital; (D) information concerning the applicant's malpractice claim and litigation experience since his or her initial appointment or most recent reappointment to the medical staff of this hospital; (E) attendance at medical staff and department meetings and participation in staff assignments; (F) compliance with hospital and medical staff bylaws, rules, and regulations; (G) ability to work cooperatively with others so that all patients treated in the hospital will receive quality care; and (H) current ability to perform the specific clinical privileges the applicant then holds. (3) Evaluation by the chief of staff/DDPS. (A) No later than three months prior to the end of the current appointment period, the hospital director or his or her designee shall send to the chief of staff/DDPS a current list of all members who have clinical privileges and the clinical privileges each then holds, accompanied by copies of their applications for reappointment. (B) On behalf of the hospital, the chief of staff/DDPS shall request information from the National Practitioner Data Bank at least every two years concerning physicians, dentists, and other practitioners who have applied for reappointment to the medical staff. (C) The chief of staff/DDPS shall review all pertinent information about each member seeking reappointment, any change in staff category, or continued clinical privileges that is available from committees of the medical staff and from hospital management. In addition, the chief of staff/DDPS shall consider and, if necessary, verify the health status of each member if it relates to the performance of the clinical privileges requested. The vice president of the medical staff shall review the application for reappointment of the chief of staff/DDPS and make all necessary recommendations to the credentials committee. (D) No later than 15 days after he or she receives an application, the chief of staff/DDPS or vice president, as applicable, shall transmit to the credentials committee a report on each individual seeking reappointment in the same medical staff category with the same clinical privileges. The chief of staff/DDPS or vice president also shall submit individual reports, including the reasons for any recommended changes in staff category or in clinical privileges, or for nonreappointment, both for those staff members who applied for changes and for those who did not. (4) Credentials committee procedure. (A) The credentials committee shall review the reports of the chief of staff/DDPS or vice president and all other pertinent information available to make its recommendations for staff appointment, for changes in staff category, and for granting clinical privileges for the ensuing appointment period. (B) If the credentials committee has information which indicates that the applicant may have a physical or mental impairment which limits or prohibits the applicant's performance of any of the specific clinical privileges he or she then holds, the committee may require that the applicant for reappointment undergo a physical and/or mental examination by a physician or physicians mutually agreeable to the applicant and the credentials committee. If mutual agreement cannot be achieved, the selection of the credentials committee shall prevail. Failure by an individual seeking reappointment to undergo such an examination or to authorize provision of the results to the credentials committee within a reasonable time after being requested to do so in writing shall cause the credentials committee to treat the application as incomplete and to defer consideration until the requested information is provided. (C) The credentials committee shall prepare a list of persons holding staff membership whom it recommends for reappointment with no changes in staff category or clinical privileges. Recommendations for nonreappointment and for changes in staff category or privileges, with supporting data and reasons attached, shall be considered individually. (D) If the credentials committee is considering a recommendation which would entitle the member to a hearing under subsection (j) (5)(B) of this section, the chair of the credentials committee shall notify the applicant of the general tenor of the possible recommendation and ask whether he or she wishes to meet with the credentials committee prior to any final recommendation. At such meeting, the applicant shall be informed of the general nature of the evidence supporting the action contemplated and shall be invited to discuss, explain, or refute it. This interview shall not constitute a hearing, and none of the procedural rules in this chapter concerning hearings shall apply, nor shall a record of the meeting be made. However, the credentials committee shall indicate in its report to the medical staff executive committee whether an informal interview was conducted. (5) Medical staff executive committee. The medical staff executive committee shall review the application file, including the recommendation of the credentials committee, the report of the chief of staff/DDPS or the vice president, and all other supportive information and then shall forward its recommendation concerning each member to the hospital oversight committee for final action. If a recommendation by the medical staff executive committee concerning reappointment would entitle the applicant to a hearing under this chapter, the hospital director shall promptly notify the individual of the recommendation. The recommendation shall not be forwarded to the hospital oversight committee until the individual either has exercised his or her right to a hearing as provided in this section or has waived that right by failing to request a hearing in a timely manner. (f) Requests for additional clinical privileges. (1) A member of the medical staff who desires additional clinical privileges shall apply to the chief of staff/DDPS on a form approved by the hospital oversight committee. The application shall state in detail the specific additional clinical privileges desired and the applicant's relevant recent training and/or experience which supports the additional privileges. The application will be processed in the same manner as an application for initial clinical privileges if the request is made during the term of appointment, or as a part of the reappointment application if the request is made at that time. (2) Requests for additional clinical privileges shall be evaluated based upon: (A) recent, relevant training; (B) observation of patient care provided; (C) review of the records of patients treated in this or other hospitals; (D) results of this hospital's performance assessment and improvement activities; and (E) other reasonable indicators of the individual's continuing qualifications for the privileges sought. (g) Rules, regulations, and policies of the medical staff. (1) Adoption of rules, regulations, and policies of the medical staff. (A) The medical staff shall adopt such rules, regulations, and policies as may be required. Such rules, regulations, and policies shall be in conformity with this section, but are to be regarded as guidelines and not as absolute requirements. As general procedures, they will not necessarily be appropriate in all circumstances and are not designed to interfere with the sound exercise of medical judgment of staff members. They are specifically not designed to define a standard of care. (B) Specific rules, regulations, and policies may be adopted, amended, repealed, or added by vote of the medical staff, upon the recommendation of the appropriate department or unit, or the medical staff executive committee, at any regular or special meeting if copies of the proposed amendments, additions, or repeals are mailed to the medical staff at least 14 days before being voted on and if all written comments on the proposed changes by persons holding current membership in the medical staff are brought to the attention of the medical staff before the change is voted upon. (C) Rules, regulations, and policies may also be adopted, amended, repealed, or added by the medical staff at a regular meeting or special meeting called for that purpose, provided that the procedure used in amending the medical staff bylaws is followed. (D) The rules, regulations and policies of the medical staff shall be adopted by the medical staff and shall become effective following approval of the hospital oversight committee. (2) Medical Services Trust Fund. The hospital shall bill for professional services rendered by attending and consulting staff members and shall manage and disburse funds received as provided by the Medical Services Trust Fund Bylaws. (3) Continuing education. (A) The employed members of the attending staff must obtain continuing medical education (CME) hours each year sufficient to comply with the requirements of the Texas State Board of Medical Examiners and the department. (B) Contractors in the attending staff, courtesy staff, and consulting staff categories shall demonstrate continued proficiency in their specialties in accordance with this section. (h) Committees of the medical staff. (1) Medical staff organization plan. (A) Development of plan. The medical staff executive committee shall develop a medical staff organization plan annually. This plan shall describe the organization of the medical staff and shall specify the functions of each committee. (B) Special committees. Special or ad hoc committees may be created by the medical staff executive committee from time to time to perform specific tasks identified by the medical staff executive committee. Such committees shall confine their activities to the purposes for which they were appointed, and shall make reports after each meeting to the medical staff executive committee. (2) Appointment. (A) Chair. Unless this section provides otherwise, all committee chairmen shall be appointed by the hospital director on the recommendation of the medical staff executive committee. All chairmen shall be selected from among persons appointed to the attending staff. (B) Members. (i) Except as otherwise provided in this chapter, members of each committee majority vote of the medical staff executive committee, with no limitation on the number of terms they members may be removed and vacancies filled by majority vote of the medical staff executive committee. (ii) Nursing staff, ancillary personnel, and other hospital shall be designated by the hospital director. Nonphysician resource individuals and may be members of committees as designated in the medical staff organization plan. (iii) The hospital director and the chief of staff/DDPS, or their respective designees, shall be ex-officio members of all committees without vote, unless otherwise specified. (3) Committee meetings. (A) Functions of clinical committees at South Texas Hospital. (i) Each clinical committee chair shall recommend to the credentials committee written criteria for the assignment of clinical privileges within its specialty services. Such criteria shall be consistent with and subject to this chapter, and to policies, rules, and regulations of the medical staff and the hospital. These criteria shall be effective when approved by the hospital oversight committee upon recommendation of the medical staff executive committee. Clinical privileges shall be based upon demonstrated current competence, training, and experience within the specialty covered by the clinical committee. (ii) Each clinical committee shall monitor and evaluate the quality and appropriateness of care on a retrospective, concurrent, and prospective basis in all major clinical activities of its clinical service. The monitoring and evaluation must include at least: (I) identification of the indicators used to monitor the quality and appropriateness of the important aspects of care; (II) routine collection of information about important aspects of patient care provided in both inpatient and outpatient services and about the clinical performance of its practitioners in the provision of those services; and (III) periodic assessment of this information to identify opportunities to improve care and important problems in patient care. (iii) Each clinical committee shall select cases for presentation at its meetings that will contribute to the continuing education of the members of the clinical committee. Such presentations should include cases involving deaths or complications, quality assessment clinical monitors, and other cases believed to be important, such as those involving patients currently in the hospital with unsolved clinical problems. (iv) Subject to approval and adoption by the medical staff executive committee and the hospital oversight committee, each clinical committee shall recommend objective criteria that reflect current knowledge and clinical experience. These criteria shall be used by each clinical committee hospital's performance improvement program in the monitoring and evaluation of patient care. When important problems in patient care and clinical performance or opportunities to improve care are identified, each clinical committee shall document the actions taken and evaluate the effectiveness of such actions. (v) In discharging these functions, each clinical committee shall submit a written report after each meeting to the medical staff executive committee detailing its analysis of patient care. (B) Functions of the chairmen of clinical committees. Each clinical committee chair shall: (i) assure the use of a planned and systematic process for monitoring and evaluating the quality and appropriateness of care and treatment of patients served by the particular hospital department, and the clinical with clinical privileges in the specialty of the committee; (ii) serve as a member of the medical staff executive committee; (iii) maintain continuing surveillance of the professional performance of all individuals who have delineated clinical privileges in the area of the committee's purview, and report and recommend thereon to the chief of staff/DDPS and credentials committee as part of at such other times as may be indicated; (iv) recommend criteria for clinical privileges in the committee's area; (v) monitor and evaluate the quality and appropriateness of patient care provided within the committee's area of responsibility; (vi) make reports to the chief of staff/DDPS concerning the delineation of clinical privileges for all applicants seeking privileges in the committee's area of responsibility; (vii) assist in the establishment and implementation of any teaching, education, and research programs in the committee's area of responsibility; (viii) assist the hospital with matters affecting patients, including personnel, supplies, schedules, special regulations, standing orders, and techniques; and (ix) assist the hospital in the preparation of annual reports and such budget planning pertaining to the committee's area of responsibility as may be requested by the hospital director. (i) Ancillary professionals. (1) Qualifications. (A) Persons other than physicians, dentists, podiatrists, and other professional staff who are licensed or certified by their respective licensing or certifying agencies, and who are approved by the hospital oversight committee to provide services as employees of medical staff members are eligible to serve as ancillary professionals, unless specifically excepted by the hospital oversight committee, upon recommendation by the medical staff executive committee. (B) Credentialing for ancillary professionals shall be based upon each applicant's qualifications and whether the activities of the individual will enhance quality care. (2) Selection procedure. (A) To the extent the hospital oversight committee authorizes such ancillary professionals to act in the hospital, the credentials committee shall recommend to the medical staff executive committee the scope of each individual's activities within the hospital. The recommendation of the medical staff executive committee shall be forwarded to the hospital oversight committee for final action. (B) Ancillary professionals may not provide services in the hospital unless and until the credentials committee has received, on a form approved by the medical staff executive committee and the hospital director, sufficient information about their qualifications to permit the credentials committee to recommend the scope of activities the individuals will be permitted to undertake in the hospital. The form shall be prepared by each individual's employer, if appropriate, and signed by both the employer and the individual. (C) Upon the recommendation of the chief of staff/DDPS or his or her designee, the credentials committee shall recommend to the medical staff executive committee a written delineation of the scope of activities each applicant shall be permitted to undertake. This delineation shall be final with no right of hearing or appeal. Staff members seeking to employ ancillary professionals in the hospital shall have the opportunity to appear before the credentials committee and discuss the proposed scope of activities of their employees before any recommendations are made to the medical staff executive committee and before any final actions are taken by the hospital oversight committee. An ancillary professional applicant may act in the hospital pursuant to the approved delineation only so long as he or she remains an employee of or is supervised by a member of the medical staff. (3) Conditions of practice. (A) Ancillary professionals shall practice in the hospital at the discretion of the hospital oversight committee. If their activities are terminated by the hospital director upon consultation with the chief of staff/DDPS, and they shall not be entitled to a hearing on or an appeal of the termination. (B) Ancillary professionals shall not be entitled to the rights, privileges, and responsibilities of membership in the medical staff and may engage only in acts within the scope of practice specifically delineated by the hospital oversight committee. (C) Any activities permitted by the hospital oversight committee or the department to be done in the hospital by ancillary professionals shall be done only under the direct and immediate supervision of their employers. However, "direct and immediate supervision" shall not require the actual physical presence of the employer, unless otherwise specified in this section, the medical staff rules and regulations, or policies of the hospital. Should any physician or hospital employee who is licensed or certified by the State of Texas have any question regarding the clinical competence or authority of ancillary professionals either to act or to issue instructions outside the physical presence of their employers in a particular instance, the physician or hospital employee has the right to require their employers or supervisors to validate, either at the time or later, the instructions in question. Any acts or instructions of persons exercising privileges as ancillary professionals shall be delayed until the physician or hospital employee can be certain that the acts are clearly within the scope of their activities as permitted by the hospital oversight committee. At all times an employing or supervising staff member will remain responsible for all acts of his or her ancillary professionals within the hospital. (D) The number of ancillary professionals acting as employees of one physician, as well as the activities they may undertake, shall be consistent with applicable state statutes and regulations, the rules and regulations of the medical staff, and the policies of the hospital oversight committee. (E) It shall be the responsibility of the physicians employing ancillary professionals to provide professional liability insurance, with their employees specifically named as additional insureds, in amounts required by the hospital oversight committee, and to furnish evidence of such coverage to the hospital for review and approval. Such ancillary professionals shall act in the hospital only while such coverage is in effect. (j) Corrective action and fair hearing procedures. (1) Investigation. (A) Request for investigation. A majority of the credentials committee, the chief of staff/DDPS on his or her own initiative, or the hospital director may at any time submit a written request to the medical staff executive committee for an investigation, citing specific concerns relating to: (i) the clinical competence of any medical staff member; (ii) the care, treatment, or management of a patient or patients by any medical staff member; (iii) the known or suspected violation by any medical staff member of applicable ethical standards, or the bylaws, policies, rules, or regulations of the hospital, the hospital oversight committee, or the medical staff; or (iv) behavior or conduct by any medical staff member that disrupts the orderly operation of the hospital or the functions of the medical staff. (B) Investigative procedure. The medical staff executive committee shall meet as soon after receiving the request as practicable. If the medical staff executive committee determines that: (i) the initial investigation contains sufficient information or documentation to warrant a recommendation, the medical staff executive committee shall afford the medical staff member under investigation an opportunity to explain his or her conduct relating to the matter under investigation before making its recommendation; or (ii) the request for investigation does not contain information sufficient to warrant a recommendation, the medical staff executive committee shall a subcommittee to do hoc investigating committee. (I) An ad hoc investigating committee shall consist of at least two but no more than five physicians, and may include no more than two physicians who are not members of the medical staff of the hospital. This committee shall not include relatives of the affected individual or any physicians who are in direct economic competition with the affected individual. (II) The committee conducting the investigation shall have access to the resources of the medical staff and the hospital to complete its work, as well as the authority to call upon consultants as required. The committee may require the affected individual to undergo a physical and/or mental examination by a physician or physicians selected by the committee and shall require that the results of such examination be made available to the committee. (III) The medical staff member under investigation shall be afforded an opportunity to meet with the investigating committee before it makes its report. At that time the individual shall be informed of the general nature of the evidence and shall be invited to discuss, explain, or refute it. This interview shall not constitute a hearing, and none of the procedural rights in this section concerning hearings shall apply. A summary of such interview shall be made by the investigating committee and included with its report to the medical staff executive committee. (IV) The medical staff executive committee may accept, modify, or reject a recommendation it receives from a subcommittee or an ad hoc investigating committee and shall report its findings to the hospital director. (2) Summary suspension of privileges. The hospital director or his or her designee shall have the authority at any time to summarily suspend, without prior notice or hearing, all or any part of the clinical privileges of a medical staff member or other individual whenever the hospital director believes that failure to take such action may result in an imminent danger to the health of any individual. Summary suspension shall become effective immediately, shall be reported in writing within 24 hours to the chief of staff/DDPS and the chair of the credentials committee, shall include the specific reasons for its imposition, and shall remain in effect until modified or terminated by the chief of staff/DDPS or by the medical staff executive committee. Additionally, the medical staff executive committee may recommend to the hospital oversight committee that all or part of the clinical privileges of the person being investigated should be summarily suspended. Summary suspension shall constitute neither a final determination adverse to the affected individual nor the beginning of an investigation. The investigation shall be completed within 14 days of the imposition of the suspension. If the investigation has not been completed within 14 days, a statement of reasons for the delay shall be transmitted to the hospital oversight committee so that it may consider whether the suspension should lifted in the interim. (A) Additional grounds for summary suspension. (i) Failure to complete medical records. (I) All clinical privileges of a staff member shall be summarily suspended for failure to complete medical records within 30 days after a patient's discharge, unless the individual demonstrates good cause for the delinquency. (II) Medical staff members shall be notified periodically concerning the status of their incomplete medical records. Staff members shall also be notified 72 hours before any record becomes 30 days delinquent. Such suspension shall continue until all the records of the patients of the individual in question are no longer delinquent. The chief of staff/DDPS shall assign to another individual with appropriate clinical privileges responsibility for care of the practitioner's patients still in the hospital at the time of the summary suspension of clinical privileges until the affected practitioner's clinical privileges have been restored or all his or her patients have been discharged. The wishes of the patients of an affected practitioner shall be considered by the chief of staff/DDPS in selecting a substitute provider of care. (III) Failure to complete medical records within 30 days of the summary suspension may constitute grounds for termination of medical staff membership and/or loss of all clinical privileges. (ii) Action by state licensing agency or other government sanctions. Action by the Texas State Board of Medical Examiners, the Texas State Board of Dental Examiners, or the Texas Board of Podiatry Examiners revoking or suspending a staff member's professional license, or loss or lapse of state licensure for any reason, shall result in summary suspension of all hospital clinical privileges as of the effective date of the action until the matter is resolved. If an individual has been the subject of disciplinary action by an appropriate governmental agency, the credentials committee shall notify the medical staff executive committee, which then shall recommend action to the hospital oversight committee concerning the individual's medical staff privileges. (iii) Failure to be adequately insured. If at any time a consulting staff member's professional liability insurance coverage lapses, falls below the required minimum level, is terminated, or otherwise ceases to be in effect in whole or in part, all the member's clinical privileges that would be affected thereby shall be summarily suspended or restricted as applicable as of that date until adequate professional liability insurance coverage is restored. (B) Medical staff executive committee. Upon receipt of information from the chief of staff/DDPS concerning the imposition of summary suspension, the medical staff executive committee shall complete a review of the matter resulting in the summary suspension within a reasonable time not to exceed 30 days from the date of the suspension, or reasons for the delay shall be transmitted to the hospital oversight committee so that it may consider whether the suspension should be lifted. If the medical staff executive committee lifts the suspension, it shall also take such other actions as may be required by this section. (3) Proposed corrective actions following investigation. (A) After an investigation, the medical staff executive committee may: (i) recommend that no action is justified; (ii) issue a written warning; (iii) issue a letter of reprimand; (iv) impose a requirement for consultation; (v) recommend reduction of clinical privileges; (vi) recommend suspension of clinical privileges for a term; (vii) recommend revocation or (viii) make such other recommendations as it deems necessary and appropriate. (B) Any recommendation by the medical staff executive committee that would entitle the affected individual to a hearing as provided in paragraph (5)(B) of this subsection shall be forwarded to the hospital director who shall promptly notify the affected individual by certified mail, return receipt requested. The hospital director shall then hold the recommendation until after the individual has either requested a hearing or has waived his or her right to a hearing as provided in this section. If the affected individual does not request a hearing in a timely manner, the hospital director shall forward the recommendation of the medical staff executive committee, together with all supporting documentation, to the chair of the hospital oversight committee. The chair of the medical staff executive committee, or his or her designee, shall be available to the hospital oversight committee to answer any questions about the recommendation. (C) If the action of the medical staff executive committee does not entitle the individual to a hearing in accordance with paragraph (5)(B) of this subsection, the action shall take effect upon confirmation by the hospital oversight committee chair and without right of appeal to the whole hospital oversight committee. A report of the action taken and the reasons therefore shall be made to the hospital oversight committee by the hospital director, and the action shall stand unless subsequently modified by the hospital oversight committee. (D) If the hospital oversight committee decides to consider any modification of the action of the medical staff executive committee which would entitle the individual to a hearing under paragraph (5)(B) of this subsection, the hospital oversight committee shall: (i) remand the matter to the medical staff executive committee for further investigation and/or preparation of responses to specific questions raised by the hospital oversight committee prior to its final decision; or (ii) set forth in the report supporting its decision the specific reasons for its disagreement with the medical staff executive committee's recommendation, including references to particular aspects of the individual's record or the medical staff executive committee's report. (4) Further review. If the hospital oversight committee's decision remains contrary to the recommendation of the medical staff executive committee after receipt of additional information from the medical staff executive committee on remand, the chair of the hospital oversight committee shall appoint an ad hoc investigating committee to consider all issues which form the basis for its disagreement with the medical staff executive committee. No further action shall be taken by the hospital oversight committee until the ad hoc investigating committee has submitted its report. (5) Hearing procedures. (A) Entitlement to a hearing. An applicant for medical staff appointment or a medical staff member shall be entitled to a hearing whenever a recommendation adverse to him or her listed in subparagraph (B) of this paragraph has been made by the medical staff executive committee. The purpose of the hearing shall be to recommend a course of action to the hospital oversight committee. (B) Grounds for hearing. Only the recommendations or actions enumerated in this subparagraph shall entitle an affected individual to a hearing: (i) denial of initial medical staff appointment; (ii) denial of requested advancement in medical staff category; (iii) denial of medical staff reappointment; (iv) revocation of medical staff appointment; (v) denial of requested initial clinical privileges; (vi) denial of requested increased clinical privileges; (vii) decrease of clinical privileges; (viii) suspension of all clinical privileges; or (ix) imposition of mandatory concurring consultations. (C) Unappealable actions. The following actions shall take effect without hearing or appeal: (i) voluntary relinquishment of clinical privileges by the affected member; (ii) any consultation requirement, except one which requires mandatory concurrence by the consultant; and (iii) required retraining, additional training, or continuing education. (D) Notice of proposed action. (i) When a recommendation is made which entitles an individual to a hearing prior to a final decision of the hospital oversight committee, the hospital director shall promptly give the affected individual notice by certified mail, return receipt requested, stating: (I) that the hospital proposes to take a professional review action against the individual; (II) reasons for the proposed action; (III) that the individual has the right to request a hearing on the proposed action; (IV) that the individual has 30 days from his or her receipt of the notice to request a hearing; and (V) a summary of the individual's rights in the hearing as specified in this section. (ii) If the affected individual does not request a hearing within the time period and in the manner specified in this section, he or she shall be deemed to have waived his or her right to such hearing and to have accepted the action involved. Such action shall thereupon become effective upon final action by the hospital oversight committee. (E) Notice of hearing. (i) If a hearing is requested on a timely basis under subparagraph (D)(i)(IV) of this paragraph, the hospital director shall provide notice to the individual involved stating: (I) the place, time, and date of the hearing, which shall not be less than 30 days after the date of the notice, unless the hospital and the affected individual agree otherwise; (II) a list of any witnesses who will testify at the hearing in support of the recommended adverse action; and (III) a list of patient record numbers and all other information which the hospital believes supports the proposed recommendation. (ii) The hospital's statement of reasons for the proposed action, the list of patient record numbers, and other supporting information may be amended or supplemented at any time, if the amendment or supplemental material is relevant to the proposed action. The affected individual, his or her attorney, and/or other designated representative shall be afforded sufficient time to study the additional information and to prepare a rebuttal. (iii) The individual and/or his or her attorney or other designated representative shall have the right to review and copy any relevant evidence relied upon and used to support the adverse recommendation. (F) Conduct of the hearing. (i) The hearing shall be held before a panel of three medical staff members who: (I) have not actively participated in the consideration of the matter at any prior level; (II) are not in direct economic competition with the affected individual; (III) are not professionally associated with or personally related to the affected individual. (ii) After considering the recommendations of the chief of staff/DDPS, the hospital hearing panel and shall designate one member as its chair. (iii) A legal advisor to assist the hearing by the department's Office of General Counsel. (iv) The legal advisor shall act solely to ensure that all participants in the hearing have a reasonable opportunity to be heard and to present evidence and to ensure that all information relevant to the proposed action affecting the is considered by the hearing panel in formulating its recommendations. The legal advisor may provide legal advice to the hearing panel, but may not function as an advocate during the hearing. He or she may not participate in the closed deliberations of the hearing panel, may not vote on the hearing panel's recommendations, and may not advise the hospital oversight committee when it considers the hearing panel's recommendations. (v) Postponements and extensions of time beyond limits set forth in this section may be requested by the affected individual or by members of the panel, and may be granted by the chair upon a showing of good cause. (vi) Failure of the individual requesting the hearing to appear and proceed without good cause shall constitute voluntary acceptance of the recommendations or actions pending, which shall become effective upon final action by the hospital oversight committee. (vii) The individual whose personal or professional conduct is the subject of the hearing shall have the right: (I) to representation by an attorney or another person of his or her choice; (II) to have a stenographic record made of the proceedings, copies of which may be obtained by the affected individual upon payment of reasonable charges associated with its preparation; (III) to call, examine, and cross-examine witnesses; (IV) to present any evidence determined to be relevant by the presiding officer upon which reasonable persons rely in the conduct of serious affairs, regardless of its admissibility in a court of law; and (V) to submit a written statement at the close of the hearing. (viii) The hearing panel shall have the authority to examine and cross-examine witnesses on any matter relevant to the issues, to call additional witnesses, and to request documentary evidence it deems appropriate. (ix) Oral evidence shall be received only on the witnesses' oath or affirmation. (x) All three members of the hearing panel must be present to conduct a hearing. Matters before the panel shall be decided by vote of a majority the hearing panel, and no hearing panel member may vote by proxy. (xi) The panel's decision shall be based on the preponderance of the evidence presented at the hearing. (xii) The presiding officer may adjourn and reconvene the hearing at the convenience of the participants with reasonable notice. Upon conclusion of the presentation of oral and written evidence, the hearing shall be closed. (xiii) Within ten days after final adjournment of the hearing, the hearing panel shall conduct its deliberations in closed session, and shall render a recommendation, accompanied by a report, which shall contain a concise statement of the reasons justifying the recommendation made, and shall deliver such report to the hospital director. (xiv) The hospital director shall forward the hearing panel's report and recommendation, along with all supporting documentation, to the hospital oversight committee for further action. The hospital director shall simultaneously forward a copy of the report and recommendation, return receipt requested, to the individual who requested the hearing, and to the medical staff executive committee for information purposes. (6) Appellate procedure. (A) Grounds for appeal. Grounds for appeal from an adverse recommendation shall include: (i) substantial failure by the hearing panel to comply with the medical staff bylaws in the conduct of the hearing so as to deny the affected individual due process or a fair and impartial hearing; or (ii) lack of support for the recommendations of the hearing panel by a preponderance of the evidence. (B) Time for appeal. Within 20 days after the affected individual is notified of an adverse recommendation from the hearing panel, he or she may request an appellate review. The request shall be in writing, and shall be delivered to the hospital director either in person or by certified mail, and shall include a brief statement of the reasons for the requested appeal. If such appellate review is not requested within 20 days, the affected individual shall be deemed to have accepted the recommendation involved, and it shall become effective upon final action by the hospital oversight committee. (C) Notice. If an appeal is filed, the chair of the hospital oversight committee shall schedule an appellate review within ten days after receipt of the request. The hospital oversight committee shall give the affected individual notice of the time, place, and date of the appellate review. The date of appellate review shall not be less than 20 days, nor more than 40 days, from the date of receipt of the request for appellate review. However, if a request for appellate review is received from a staff member whose medical staff membership and/or clinical privileges are suspended, the appellate review shall be held as soon as the arrangements can reasonably be made, but not more than 14 days from the date of receipt of the request for appellate review. The time for appellate review may be extended by the chair of the hospital oversight committee for good cause. (D) Nature of appellate review. (i) The chair of the hospital oversight committee panel composed of not less than three persons, either members of the hospital oversight committee or others, including but not limited to reputable persons outside the hospital, or any combination of the same, to consider the record upon which the recommendation before it was made. The majority of the panel shall be composed of members of the medical staff who shall not have actively participated in the consideration of the matter involved at any previous level. (ii) At its discretion, the review panel may accept additional oral or written evidence subject to the same rights of cross-examination or confrontation which governed the hearing panel proceedings, but only if the affected individual can demonstrate that the evidence was offered but excluded at the hearing. (iii) The affected individual shall have the right to present a written statement in support of his or her position on appeal, and the review panel may allow the affected individual or his or her representative to appear personally and present oral argument. The review panel shall recommend a final disposition of the matter to the hospital oversight committee. (7) Final decision of the hospital oversight committee. (A) Within 30 days after receipt of the review panel's recommendation, the hospital oversight committee shall render a final decision in writing affirming, modifying, or reversing the recommendation of the hearing panel and shall deliver copies of the decision to the affected individual and to the chief of the medical staff in person or by certified mail. (B) No applicant or medical staff member shall be entitled as a matter of right to more than one appellate review on any single action or decision. If the hospital oversight committee ultimately denies initial appointment or reappointment to the medical staff to an applicant or revokes or terminates the medical staff appointment and clinical privileges of a current staff member, that individual may not apply again for medical staff appointment or clinical privileges at the hospital for two years from the date of the decision, unless the hospital oversight executive committee provides otherwise in its written decision. (k) Amendments. There shall be an annual review of the medical staff bylaws, and the rules and regulations. The chief of staff/DDPS shall compile all proposed amendments for referral to the medical staff executive committee for its information and comment. Proposed amendments shall be voted upon at that meeting, provided that they shall have been mailed to the medical staff at least 14 days prior to the meeting. To be approved, an amendment must receive two- thirds of the votes cast by those present and voting. Amendments so adopted shall be effective when approved by the hospital oversight committee and the board. (l) Approval. These medical staff bylaws shall be approved by the hospital oversight committee and shall become effective upon adoption by the board, superseding and replacing any and all previous medical staff bylaws. Henceforth, all activities and actions of the medical staff and of each individual exercising clinical privileges in the hospital shall be undertaken pursuant to the this chapter. 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 October 26, 1995. TRD-9513824 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 16, 1995 Proposal publication date: May 9, 1995 For further information, please call: (512) 458-7236 Part VIII. Interagency Council on Early Childhood Intervention Services Chapter 621. Early Childhood Intervention Early Childhood Intervention Service Delivery for Milestones Services 25 TAC sec.621.83 The Interagency Council on Early Childhood Intervention Services adopts an amendment to sec.621.83, concerning program requirements, in its Early Childhood Intervention Program chapter, without changes to the proposed text as published in the September 5, 1995, issue of the Texas Register (20 TexReg 6887). The purpose of the amendment is to comply with federal regulations. The adopted rule will allow Milestones programs to serve 1,500 gram babies who are also receiving WIC and Champus services. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The amendment implements the Human Resources Code, sec. sec.73.001-73.021. 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 October 26, 1995. TRD-9513933 Donna Samuelson Deputy Executive Director Interagency Council on Early Childhood Intervention Effective date: November 20, 1995 Proposal publication date: September 5, 1995 For further information, please call: (512) 502-4900 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 115. Control of Air Pollution From Volatile Organic Compounds Subchapter B. General Volatile Organic Compound Sources Water Separation 30 TAC sec.sec.115.131-115.133, 115.135, 115.137, 115.139 The Texas Natural Resource Conservation Commission (TNRCC) adopts amendments to sec.sec.115.131-115.133, 115.135, 115.137, and 115.139, concerning Water Separation. Sections 115.135, 115.137, and 115.139 are adopted with changes to the proposed text as published in the May 26, 1995, issue of the Texas Register (20 TexReg 3886). Sections 115.131-115.133 are adopted without changes and will not be republished. Revisions to Chapter 115, concerning Control of Air Pollution from Volatile Organic Compounds (VOC), and to the State Implementation Plan are adopted in response to petitions for rulemaking from four companies in oil and gas production and the Texas Mid-Continent Oil and Gas Association (TMOGA). The revisions are adopted in order to provide for more cost-effective regulation. The rule previously did not set a deminimis exemption level for VOC water separators used in conjunction with the production of crude oil or condensate in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston ozone non-attainment areas. The affected ozone nonattainment counties are Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller. In response to testimony, the rule now exempts VOC separators which primarily handle stormwater. The amendments are also adopted in order to clarify existing requirements, update rule references, and delete obsolete or unnecessary language. The amendments to sec.115.131, concerning Emission Specifications, and sec.115.132, concerning Control Requirements, delete language made obsolete by the passage of the May 31, 1995, compliance date. The amendment to sec.115.133, concerning Alternate Control Requirements, updates a reference to sec.115.910 to reflect a title change. The amendment to sec.115.135, concerning Testing Requirements, provides new and updated test methods for determining true vapor pressure. The amendment to sec.115.137, concerning Exemptions, establishes an exemption for low emitting VOC water separators used in crude oil and condensate production and delete language made obsolete by the passage of the May 31, 1995, compliance date. The amendment to sec.115.139, concerning Counties and Compliance Schedules, deletes language made obsolete by the passage of the May 31, 1995, compliance date. A public hearing was held on June 22, 1995 in Houston. Written comments were accepted through July 7, 1995. Nine commenters submitted testimony on sec.sec.115.131-115.133, 115.135, 115. 137, and 115.139, concerning Water Separation. Mitchell Energy Corporation; Pennzoil Company; and Texaco Exploration and Production, Incorporated fully supported the proposed revisions, while Chevron USA Production Company (Chevron); Citgo Petroleum Corporation (Citgo); City of Dallas (Dallas); Exxon Company, U.S.A. (Exxon); Mobil Oil Corporation (Mobil); and TMOGA generally supported the proposed revisions but suggested changes. Mobil commented on the test methods at sec.115.135(a)(5) and (b)(5) and stated that the wording "for the measurement of Reid vapor pressure" should be deleted because some of the referenced test methods can provide true vapor pressure without any need to convert from Reid vapor pressure. The TNRCC agrees with Mobil that the reference should be more generic. In addition, it has come to the TNRCC's attention that sec.115.135(a) and (b) refer only to sec.115.132 rather than to sec.sec.115.131, 115.132 and 115.137. The gaseous VOC concentration test methods are used to demonstrate compliance with the emission specifications of sec.115.131, and the liquid VOC vapor pressure test methods are used to demonstrate compliance with the vapor pressure exemptions in sec.115.137. The TNRCC has corrected sec.115.135(a) and (b) to make it clear that these test methods are applicable in determining compliance with sec.sec.115.131, 115.132 and 115.137. Chevron, Citgo, Exxon and TMOGA commented on sec.115.137(a)(1). Exxon and TMOGA stated that the proposed mass emission rate exemption for VOC water separators used exclusively in conjunction with the production of crude oil or condensate should be extended to include all VOC water separators. Chevron and Citgo recommended that the proposed mass emission rate exemption be broadened specifically to include VOC water separators at petroleum bulk terminals (Standard Industrial Classification code 5171), due to the poor cost- effectiveness of controlling vented emissions from these separators. The TNRCC did not extend the mass emission rate exemption to include all VOC water separators. A difference between VOC water separators at oil and gas production facilities and other separators is that oil and gas production facilities are typically located at remote sites which do not have flares available or personnel on-site to monitor control devices. More importantly, separators used in oil and gas production may continuously emit gases, due to the depressurization of entrained gases in the produced oil and water. In contrast, VOC water separators used in wastewater systems produce VOC emissions largely from surface evaporation. A vented tank or other enclosure is a reasonable and very cost-effective control measure for wastewater separators, since there is not a continuous outflow of process gas. The United States Environmental Protection Agency (EPA) estimates that a VOC wastewater separator which is enclosed, with a pressure relief vent set to open at the maximum pressure necessary for proper system operation, will control 85% of the VOC emissions, compared to an open-tank separator. The cost-effectiveness is estimated by the EPA at $36/ton for refinery separators. The TNRCC agrees that vapor recovery systems are not cost-effective air pollution control for the VOC water separator vents at gasoline bulk terminals, as described by the commenters. These separators are essentially backup units to catch gasoline or other petroleum product spills. To address the concerns of these commenters, the TNRCC has added an exemption for covered VOC water separators which are designed solely to capture stormwater, spills, or exterior surface cleanup waters. These separators would have to be enclosed, but would not need pressure relief valves or vapor recovery systems to control emissions. Under sec.115.132, there are three options for controlling emissions from VOC water separators. One option is for each VOC water separator compartment to have all openings sealed and totally enclose the liquid contents. Another option is to equip each compartment with a floating roof or internal floating cover which rests on the surface of the liquid contents and is equipped with a closure seal or seals to close the space between the roof edge and tank wall. The third option is to vent the emissions from the compartment to a vapor recovery system. These three options have been available since the initial adoption of the VOC water separator rules by the former Texas Air Control Board on January 26, 1972. The TNRCC believes that the requirements of the first control option (sec.115.132(a)(1), (b)(1) and (c)(1)) have been recently misinterpreted to mean that no venting to the atmosphere is allowed. The agency clarifies that the intent of these control requirements is to allow for venting of emissions through a pressure relief valve, without vapor recovery, provided that the pressure relief valve is designed to open only as necessary to allow proper operation, and is set at the maximum possible pressure to minimize unnecessary venting. The VOC water separator needs to operate at nearly constant level for proper operation, and excessive pressure could alter the liquid levels and impair the separation effect. Conservation vents, a type of pressure relief valve, allow minor pressure equilibration (e.g.tank "breathing" losses), and are of fairly standardized design. A conservation vent designed to hold at least 0.5 ounce of vacuum and eight ounces of pressure, and operable, based on a visual inspection, would be considered compliant. The effectiveness of the separator, and rule compliance, is primarily dependent upon roof seals, access doors, and other openings being well-sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through the pressure relief valve. To incorporate these clarifications, sec.sec.115.132(a)(1) , (b)(1), (c)(1), and 115.137(b) need to be revised. Because these rules were not proposed for revision as part of the current rulemaking, the TNRCC intends to propose these revisions in separate rulemaking at a later date. Dallas commented on sec.115.139 and suggested that the appropriate rule title be given after each rule reference, rather than including multiple rule titles together. The rule reference format initially proposed in sec.115.139 is allowed by the Texas Register and results in less repetition of the wording "relating to." However, because the May 31, 1995 compliance date in the proposed sec.115.139 has passed, the TNRCC has revised sec.115.139 to include only a reference to sec.115.930, concerning Compliance Dates. Section 115.930 states, in part, that "if the compliance dates are not specified for any provision, the compliance date is past and all affected persons must be and remain in compliance with the provision as of the original compliance date. The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.115.135. Testing Requirements. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, compliance with sec.115.131(a), sec.115.132(a), and sec.115.137 of this title (relating to Emission Specifications; Control Requirements; and Exemptions) shall be determined by applying the following test methods, as appropriate: (1) -(4) (No change.) (5) determination of true vapor pressure at actual storage temperature using American Society for Testing Materials (ASTM) Test Methods D323-89, D2879, D4953, D5190, or D5191; using API Publication 2517, Third Edition, 1989 or standard reference texts to convert from Reid vapor pressure to true vapor pressure, where applicable; or (6) (No change.) (b) For Gregg, Nueces, and Victoria Counties, compliance with sec.115.131(b), sec.115.132(b), and sec.115.137(b) of this title shall be determined by applying the following test methods, as appropriate: (1) -(4) (No change.) (5) determination of true vapor pressure at actual storage temperature using ASTM Test Methods D323-89, D2879, D4953, D5190, or D5191; and using API Publication 2517, Third Edition, 1989 or standard reference texts to convert from Reid vapor pressure to true vapor pressure, where applicable; or (6) (No change.) sec.115.137. Exemptions. (a) For the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, the following exemptions shall apply. (1) Any volatile organic compound (VOC) water separator used exclusively in conjunction with the production of crude oil or condensate is exempt from sec.115.132(a) of this title (relating to Control Requirements) if the emissions from the separator have a combined weight of VOC equal to or less than 100 pounds (45.4 kg) in any continuous 24-hour period. When emissions from multiple sources (including, but not limited to, VOC water separators, treaters, storage tanks, and saltwater disposal tanks) are routed through a common vent, the calculation of VOC emissions for purposes of this exemption shall be based upon the total of all emission sources which are routed to the common vent. It is unacceptable to disconnect any of the multiple sources routed through a common vent for purposes of complying with this exemption. (2) Any single or multiple compartment VOC water separator which separates materials having a true vapor pressure of VOC less than 0.5 psia (3.4 kPa) obtained from any equipment is exempt from sec.115.132(a) of this title. (3) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters, provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor recovery systems. (b) (No change.) (c) For Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following exemptions shall apply: (1)-(3) (No change.) (4) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters, provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor recovery systems. sec.115.139. Counties and Compliance Schedules. All affected persons in Aransas, Bexar, Brazoria, Calhoun, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Matagorda, Montgomery, Nueces, Orange, San Patricio, Tarrant, Travis, Victoria, and Waller Counties shall continue to comply with this undesignated head (relating to Water Separation) as required by sec.115.930 of this title (relating to Compliance Dates). 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 October 25, 1995. TRD-9513922 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 20, 1995 Proposal publication date: May 26, 1995 For further information, please call: (512) 239-1970 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 5. Funds Management (Fiscal Affairs) Claims Processing-Purchase Vouchers 34 TAC sec.5.57 The Comptroller of Public Accounts adopts new sec.5.57, concerning use of credit cards by state agencies, without changes to the proposed text as published in the July 21, 1995, issue of the Texas Register (20 TexReg 5368). The new section covers the procedures that state agencies must follow when using credit cards to pay for purchases and when paying credit card issuers. No comments were received regarding adoption of the new section. The new section is adopted under the Government Code, sec.403.023(b), which authorizes the comptroller to adopt rules relating to the use of credit cards by state agencies. 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 October 24, 1995. TRD-9513761 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: November 15, 1995 Proposal publication date: July 21, 1995 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 11. Food Distribution and Processing The Texas Department of Human Services (DHS) adopts the repeal of sec.11. 105, new sec.11.105, and an amendment to sec.11.6008, without changes to the proposed text as published in the September 12, 1995, issue of the Texas Register (20 TexReg 7177). The justification for the repeal, new section, and amendment is to clarify and simplify the adverse action process and time frames for sanctions for contractors participating in the Special Nutrition Programs who fail to comply with the requirements of the Single Audit Act. The adoption also moves the notification process in advance of the audit due date and deletes the suspension of payment step in the sanction process. The sections will function by enhancing program accountability by enabling DHS to expedite the collection and resolution of audits required under the Single Audit Act. No comments were received regarding adoption of the sections. Food Distribution Program 40 TAC sec.11.105 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The repeal implements the Human Resources Code, sec.sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513937 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The new section implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513938 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 The Emergency Food Assistance Program (TEFAP) 40 TAC sec.11.6008 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513939 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 Chapter 12. Special Nutrition Programs The Texas Department of Human Services (DHS) adopts amendments to sec.sec.12. 24, 12.121, 12.209, 12.309, and 12.409, without changes to the proposed text as published in the September 12, 1995, issue of the Texas Register (20 TexReg 7180). The justification for the amendments is to clarify and simplify the adverse action process and time frames for sanctions for contractors participating in the Special Nutrition Programs who fail to comply with the requirements of the Single Audit Act. The adoption also moves the notification process in advance of the audit due date and deletes the suspension of payment step in the sanction process. The amendments will function by enhancing program accountability by enabling DHS to expedite the collection and resolution of audits required under the Single Audit Act. No comments were received regarding adoption of the amendments. Child and Adult Care Food Program 40 TAC sec.12.24 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513940 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 Summer Food Service Program 40 TAC sec.12.121 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513941 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 Special Milk Program 40 TAC sec.12.209 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513942 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 School Breakfast Program 40 TAC sec.12.309 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513943 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 National School Lunch Program 40 TAC sec.12.409 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment implements the Human Resources Code, sec. sec.22.001-22.024 and sec.sec.33.001-33.024. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 30, 1995. TRD-9513944 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 1, 1995 Proposal publication date: September 12, 1995 For further information, please call: (512) 438-3765 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe, Austin.) The Commissioner of Insurance, at a public hearing under Docket Number 2176 held at 9:00 a.m., October 19, 1995, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, Texas, adopted a forms filing by the Texas Department of Transportation for revised surety bond forms. Forms 1382 (Revised August 1995), 1382-A (Revised July 1995), and 1383 (Revised August 1995) are surety forms required for vehicles used exclusively for the transportation of ready-mix concrete or concrete pump trucks. Forms 1575 (Revised August 1995), 1576 (Revised July 1995), and 1577 (Revised July 1995) are surety forms required for vehicles used exclusively for the transportation of solid waste and recyclable materials. These forms are a requirement of Texas Civil Statutes, Articles 6701d-12, 6701-19a, and 6701d-19c. The forms were filed in the Chief Clerk's Office on September 20, 1995. House Bill 1547, as passed by the 74th Legislature, amended Article 6701d-12 by adding a new sec.5 to include concrete pump trucks as vehicles used exclusively to transport ready-mixed concrete. This amendment required revisions to the following surety bond forms: Bond form 1382 (Revised August 1995), certificate form 1382-A (Revised July 1995), and amendment form 1383 (Revised August 1995). House Bill 2584, as passed by the 74th Legislature, amended Article 6701 by adding a new sec.19c to require the same bonding requirements for vehicles used exclusively for the transportation of recyclable materials as those already existing for vehicles used exclusively for the transportation of solid waste. This amendment required revisions to the following surety bond forms: Bond form 1575 (Revised August 1995), certificate form 1576 (Revised July 1995), and amendment form 1577 (Revised July 1995). The full text of the revised surety bond form filing (Reference Number O-0995- 32), was published in the September 26, 1995, issue of the Texas Register (20 TexReg 7887). The Texas Department of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.13, 5.15, and 5.97. The full text of the revised surety bond form numbers 1382 (Revised August 1995), 1382-A (Revised July 1995), 1383 (Revised August 1995), 1575 (Revised August 1995), 1576 (Revised July 1995), and 1577 (Revised July 1995), as adopted by the Texas Department of Insurance are filed with the Chief Clerk under (Reference Number O-0995-32) and is incorporated by reference by Commissioner Order Number 95-1119. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure Act. This agency hereby certifies that the adopted form filing referenced herein has been reviewed by legal counsel and found to be within this agency's authority to adopt. Issued in Austin, Texas, on October 26, 1995. TRD-9513839 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: November 18, 1995 For further information, please call: (512) 463-6327