PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 4. AGRICULTURE Part II. Texas Animal Health Commission Chapter 35. Brucellosis Subchapter A. Eradication of Brucellosis in Cattle 4 TAC sec.sec.35.1, 35.2, 35.6 The Texas Animal Health Commission proposes amendments to sec.sec.35.1, 35.2, and 35.6, concerning branding of cattle and movement of card-test positive, supplemental test negative cattle from market. The amended rules are necessary to amend sec.sec.35.1, 35.2(h)(1), (2), (m)(3), (o), and sec.35.6 to eliminate the option of jaw-branding in order to comply with federal requirements for interstate movement. The amended rules are also necessary to amend sec.35.2(i) to clarify that card-negative cattle in a market consignment with a card-test positive, supplemental-test negative animal may move from the market without restriction. Section 35.2(i) is also amended to remove the reference to "designated" pens; this change is to avoid confusion with feedlot designated pens. Victor Gonzalez, Assistant Executive Director for Support Services, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Robert L. Daniel, Director of Program Records, has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section is to conform to Federal requirements in regard to moving the brand from the jaw to the hip. No restriction will be placed on cattle at markets in consignments with card positive and supplemental negative animals. There will be no effect on small businesses. Comments on the proposal may be submitted to Jo Anne Conner, Executive Secretary, Texas Animal Health Commission, Post Office Box 12966, Austin, Texas 78711-2966. The amendments are proposed under the Texas Agriculture Code, Texas Civil Statutes, sec.163.061, which provides the Commission with the authority to adopt rules regarding testing, vaccination, and movement. The amendment implements the Agriculture Code, Chapters 161 and 163, which provides the Commission with the authority to act to eradicate brucellosis. The amendment implements the Agriculture Code, sec.sec.163.002, 163.061, 163. 064, 163.065, 163.066, and 163.069, which provides the Commission with the authority to regulate and require testing, branding, and movement; and to classify cattle. No other code or article is affected by these amendments. sec.35.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicated otherwise. Spayed Heifer-A heifer which has been neutered by an accredited veterinarian and identified with an official eartag and hot iron brand applied high on the left hip near the tailhead with
    [to the left jaw with] an open spade design () not less than three inches high. The heifer shall be identified on a TAHC Spaying Certificate form completed by an accredited veterinarian or a Texas Animal Health Commission representative. sec.35.2. General Requirements. (a)-(g) (No change.) (h) Identification of brucellosis affected cattle. (1) Reactor cattle. All reactor cattle shall be permanently identified within 15 days of classification by hot iron branding with the letter "B" (at least 2 x 2 inches), placed high on the left hip near the tailhead
      [on the left jaw] An approved reactor tag shall be placed in the left ear. Identification shall be prior to movement. (2) Exposed Cattle. All exposed cattle moving to a quarantined feedlot, designated pen, quarantined pasture, or to slaughter shall be identified by branding with a hot iron the letter "S" (at least 2 x 2 inches) placed high on the left hip near the tailhead.
        [on the left jaw, or high on the tailhead so as to be visible from ground level] Identification shall be prior to movement, except exposed cattle on the premise of origin may be "S" permitted to a livestock market where they shall be identified by "S" brand upon arrival. Exposed cattle returned from the livestock market to the herd of origin are exempt from such identification. (3) (No change.) (i) Movement of cattle classified as reactors, exposed or suspects. There shall be no diversion from the permitted destination. When moved, the cattle must be maintained separate and apart from all other classes of livestock in [designated] pens reserved for this purpose at livestock markets or trucking facilities. These pens must be thoroughly cleaned and disinfected before reuse. (1)-(2) (No change.) (3) Suspects. Suspects will be moved the same as exposed cattle, except a vaccinated suspect(s) at a livestock market in a consignment of otherwise negative cattle, (where the suspect is card positive on the presumptive test and negative to supplemental tests)
          [the CF or Rivanol Test(s)] may move as follows: In a single consignment of cattle, which are from a producer's herd of origin, the owner shall either return the vaccinated suspect(s) under quarantine to the herd of origin until the suspect(s) is negative to the card test, declared a stabilized suspect by an epidemiologist after subsequent test(s) conducted in not less than 30 days, or classified as a reactor on a subsequent test; or sell the suspect(s) to a quarantined feedlot, designated pen, quarantined pasture, or to slaughter, identified with an "S" brand. Card negative cattle in this consignment may move from the market unrestricted.
            [return to the herd of origin or move to another premise within the State or move interstate] Consignments containing a card positive but supplemental
              [CF or Rivanol] negative nonvaccinated suspect(s) may move from the market unrestricted.
                [shall be identified and moved as exposed cattle or returned to the premises of origin under quarantine.] (j)-(l) (No change.) (m) Official vaccination requirements. (1)-(2) (No change.) (3) Adult vaccinated cattle shall be permanently identified as vaccinates by tattoo or by hot "V" brand and by official eartag. Tattoos will be applied to the right ear. The tattoo will include the letters AV, which will be preceded by a number indicating the quarter of the year and will be followed by a number corresponding to the last digit of the year in which the vaccination was done. Hot "V" brands will be applied [to the right jaw, or] high on the hip near the tailhead, open end of the "V" up. An official eartag will be placed in the right ear. (4) (No change.) (n) (No change.) (o) Requirements for a quarantined feedlot. All parturient and postparturient cattle must be officially tested for brucellosis within 30 days prior to entry into a quarantined feedlot. All cattle except steers and spayed heifers in a quarantined feedlot shall be classified as exposed to brucellosis. The quarantined feedlot shall be maintained for finish feeding of cattle in drylot with no provisions for pasturing or grazing except in adjacent quarantined pastures. Negative exposed and untested test-eligible cattle must be permanently identified with a hot iron "S" brand [either on the left jaw or] high on the tailhead upon entering the quarantined feedlot. All cattle except steers and spayed heifers located in feedlots adjacent to quarantined pastures must be permanently identified with a hot iron "S" brand [either on the left jaw or] high on the tailhead upon entering such feedlots. All cattle except steers and spayed heifers leaving such feedlot must go directly to slaughter; or may be moved directly to another quarantined feedlot or designated pen with an "S" permit; or may be "S" branded at the feedlot and move to a market to be sold for movement with an "S" permit issued at the market directly to another quarantined feedlot, to designated pens or directly to slaughter. (p)-(u) (No change.) sec.35.6. Indemnity Payments to Owners of Cattle Exposed to Brucellosis. (a)-(b) (No change.) (c) General Requirements. (1)-(4) (No change.) (5) Depopulated cattle shall be branded with the letter "B" high on the left hip near the tailhead
                  [on the left jaw] and identified with a reactor eartag within the specified time intervals according to applicable state/federal requirements and prior to movement from the premise. (6)-(8) (No change.) (d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 28, 1995. TRD-9515300 Terry Beals, DVM Executive Director Texas Animal Health Commission Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 719-0714 Chapter 41. Fever Ticks 4 TAC sec.41.1 The Texas Animal Health Commission proposes an amendment to sec.41.1, concerning Tick Eradication. The proposed amendment is necessary to amend the definition of a adjacent premise in sec.41.1(a)1(1) to clarify its meaning and in sec.41.1(h)(5) to remove ambiguous language concerning the starting date for dipping infested cattle when live ticks are found. Victor Gonzalez, Assistant Executive Director for Support Services, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Robert L. Daniel, Director of Program Records, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section is to provide more certainty that all exposure to fever ticks is included in the eradication effort. There will be no effect on small businesses. Comments on the proposal may be submitted to Jo Anne Conner, Executive Secretary, Texas Animal Health Commission, Post Office Box 12966, Austin, Texas 78711-2966. The amendment is proposed under the Texas Agriculture Code, Texas Civil Statutes, Chapter 167, which provides the Commission with the authority to adopt rules to eradicate ticks. The amendment implements the Agriculture Code, sec.167.003 and sec.167.029, which authorizes the Commission to adopt necessary rules to eradicate ticks and to provide conditions for the handling and movement of livestock. No other code or article is affected by this amendment. sec.41.1. Tick Eradication. (a) Definition of Terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Adjacent premise-A premise that borders
                    [located contiguous to] an exposed or infested premise,
                      [. ] including premises separated by roads, double fences, or fordable streams. A premise that would normally be classified as adjacent may be exempted from adjacent premise requirements by an epidemiologist if the premise is separated from the exposed or infested premise by double fencing sufficient to prevent the spread of ticks with one of the fences being game-proof. (2)-(21) (No change.) (b)-(g) (No change.) (h) Required Dipping of Livestock. (1)-(4) (No change.) (5) The starting date for infested premises
                        for Table I (Pasture Vacation Schedule, South of Highway 90) and Table II (Pasture Vacation Schedule, North of Highway 90), is the date of the first clean dipping of 100% of the livestock. The starting date for exposed premises for Table I and Table II is
                          [last scratch inspection and dip when live ticks are discovered, or] when 100% of the livestock on the premise have been dipped. Copies of Table I (Pasture Vacation Schedule, South of Highway 90) and Table II (Pasture Vacation Schedule, North of Highway 90) may be obtained from the Texas Animal Health Commission, P.O. Box 12966, Austin, Texas 78711. (6) (No change.) (i)-(o) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 28, 1995. TRD-9515301 Terry Beals, DVM Executive Director Texas Animal Health Commission Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 719-0714 Chapter 51. Interstate Shows and Fairs 4 TAC sec.51.2 The Texas Animal Health Commission proposes an amendment to sec.51.2, concerning General Requirements. The proposed amendment is necessary to amend sec.51.2(d)(2)(A) to provide that equine must have a negative test for equine infectious anemia within 12 months of entering any show, fair or exhibition. Victor Gonzalez, Assistant Executive Director for Support Services, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Robert L. Daniel, Director of Program Records, also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section is to provide assurance to show participants that Texas origin horses have been tested negative to EIA. There will be no effect on small businesses. Comments on the proposal may be submitted to Jo Anne Conner, Executive Secretary, Texas Animal Health Commission, Post Office Box 12966, Austin, Texas 78711-2966. The amendment is proposed under the Texas Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the Commission with the authority to adopt rules to act to eradicate or control diseases that affect livestock. The amendment implements the Agriculture Code, sec.161.041 and sec.161.046, which authorizes the Commission to adopt necessary rules to protect livestock from disease, including equine infectious anemia, and sec.161.043, which authorizes the Commission to regulate entry of livestock into exhibitions, shows and fairs. No other code or article is affected by this amendment. sec.51.2. General Requirements. (a)-(c) (No change.) (d) Entering Shows, Fairs, and Exhibitions. (1) (No change.) (2) In-state origin. (A) Equine. Must have had a negative EIA test within the past 12 months if entering a show, fair or exhibition
                            [an interstate show, fair or exhibition where equine remain on the grounds for 48 hours or longer. Equine entered in all other events other than race tracks where paramutual wagering has been authorized by the Texas Racing Commission may enter without restriction.] Horses entering a paramutual track must have a negative EIA test within the past 12 months and a Certificate of Veterinary Inspection. (B)-(C) (No change.) (e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 28, 1995. TRD-9515303 Terry Beals, DVM Executive Director Texas Animal Health Commission Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 719-0714 TITLE 22. EXAMINING BOARDS PART XVIII. Texas State Board of Podiatric Medical Examiners Chapter 378. Continuing Education 22 TAC sec.sec.378.2-378.4 The Texas State Board of Podiatric Medical Examiners proposes amendments to sec.sec.378.2-378.4, concerning Continuing Education. The amendments are being proposed to change dates to agree with statute and to explain the method of approval for hours. Allen M. Hymans, Executive Director, has determined that for the first five- year period the rules are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rules. Mr. Hymans has also determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be having the correct dates and knowing how and what hours are approved. No additional cost is anticipated for the podiatrists or the public. Comments of the proposal may be submitted to Janie Alonzo, Staff Services Officer I, Texas State Board of Podiatric Medical Examiners, P.O. Box 12216, Austin, Texas 78711-2216. The amendments are proposed under Texas Civil Statutes, Articles sec.4568(j) and sec.4590(e), which provide the Texas State Board of Podiatric Medical Examiners with the authority to adopt all reasonable or necessary rules, regulations, and by-laws not inconsistent with the law regulating the practice of podiatric medicine, the laws of this state, or of the United States; to govern its proceedings and activities, the regulation of the practice of podiatric medicine, and the enforcement of the law regulating the practice of podiatric medicine. The proposed amendments affect the Podiatric Medical Practice Act, Article 4571(c). sec.378.2. Exceptions and Allowances. (a) (No change.) (b) Any practitioner not actively practicing podiatric medicine shall be exempt from these requirements; however, upon resuming the
                              practice of podiatric medicine
                                [podiatry], that person shall fulfill the requirements of the preceding year from the effective date prior to the
                                  [his] resumption of practice. (c) All cases not covered by the above shall be considered individually by the Board
                                    [board] for continuing education. sec.378.3. Method of Approval of Hours. (a)-(c) (No change.) (d) Holders of current cardio-pulmonary resuscitation certificates expiring after December 31, of the current year] are eligible for three hours credit of continuing education or, current Advance Life Support Course certificates are eligible for six hours credit of continuing education. [(e) Advance Life Support Course Certificate after December 31, of the current year are eligible for six hours credit of continuing education.] sec.378.4. Methods of Reporting Continuing Education Requirements. Hours of continuing education are to be reported prior to the date of annual license renewal
                                      [September 1, of each year], to the office of the Texas State Board of Podiatric Medical
                                        [Podiatry] Examiners, P.O. Box 12216
                                          Austin, Texas 78711-2216
                                            , Each separate occurrence must include a certificate of attendance or a letter from the sponsoring organization that includes the practitioner's name, course attended, date, location and number of CME hours credited. Reproduced copies of verification of an individuals attendance of each program shall be presented to the board. It is the responsibility of the Licensee to provide this to the State Board Office. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 28, 1995. TRD-9515288 Janie Alonzo Staff Services Officer I Texas State Board of Podiatric Medical Examiners Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 305-7000 Part XXII. Texas State Board of Public Accountancy Chapter 501. Professional Conduct Professional Standards 22 TAC sec.501.25 The Texas State Board of Public Accountancy proposes an amendment to sec.501.25, concerning Mandatory Continuing Education Program. The proposed amendment will subject a licensee's Certificate to revocation for at least 12 months upon the licensee's third suspension for failing to satisfy the continuing professional education requirements. William Treacy, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect the anticipated public benefit as a result of enforcing or administering the rule will be improved compliance with continuing professional education requirements and more severe consequences for repeated failures to comply. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3900. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law, and sec.15A which requires licensees to complete continuing professional education. The rule implements Texas Civil Statutes, Article 41a-1, s6 and sec.15A. sec.501.25. Mandatory Continuing Professional Education. Each certificate or registration holder shall comply with the mandatory continuing professional
                                              education reporting and the mandatory continuing professional
                                                education attendance requirements of Chapter 523 of this title (relating to Mandatory Continuing Education Program). Once an individual's license has been suspended a third time by the board for failing to complete the 120 hours of continuing professional education required by sec.523.63 of this title (relating to Mandatory CPE Attendance), the individual's certificate shall be subject to revocation and may not be reinstated for at least 12 months from the date of the revocation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 9, 1995. TRD-9515346 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 505-5566 Other Responsibilities and Practices 22 TAC sec.501.37 The Texas State Board of Public Accountancy proposes new s501.37, concerning Practicing Without a License or Through an Unregistered Entity. The proposed section will subject a Certificate to revocation for at least 12 months upon the Certificate holder's third occasion of practicing without a license or through an unregistered entity. William Treacy, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect the anticipated public benefit as a result of enforcing or administering the rule will be improved compliance with the licensing and registration requirements and more severe consequences for repeated refusals to license and register. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3900. The new section is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law, sec.8 which prohibits the practice of accountancy without a license, and sec.10 which requires individuals and practice units to register with the Board. The rule implements Texas Civil Statutes, Article 41a-1, ssec.6, 8, and 10. sec.501.37. Practicing Without a License or Through an Unregistered Entity. Practicing without a License or through a Unregistered Entity on the third determination by the board that a certificate holder has practiced without a license or through an unregistered entity in violation of sec.501.40 of this title (relating to Registration Requirements), the individual's certificate shall be subject to revocation and may not be reinstated for at least 12 months from the date of the revocation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 9, 1995. TRD-9515347 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 505-5566 Chapter 505. The Board 22 TAC sec.505.10 The Texas State Board of Public Accountancy proposes an amendment to sec.505.10, concerning Board Committees. The proposed amendment will increase the number of board members on committees to at least two board members. William Treacy, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect the anticipated public benefit as a result of enforcing or administering the rule will be increased board member participation on board committees. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3900. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law. The rule implements Texas Civil Statutes, Article 41a-1, s6. sec.505.10. Board Committees. (a)-(d) (No change.) (e) Standing committee structure and charge to committees. The standing committees shall consist of the following individuals and shall be charged with the following responsibilities. (1)-(7) (No change.) (8) The board rules committee shall be comprised of at least two
                                                  [one] board members
                                                    [member], one of whom shall serve as chairman, assisted by any number of non-board members who shall serve in an advisory capacity. The committee shall make recommendations to the board regarding board rules defined by the board chairman as requiring action. (9)-(11) (No change.) (f)-(h) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 9, 1995. TRD-9515351 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 505-5566 Chapter 519. Practice and Procedure 22 TAC sec.519.5 The Texas State Board of Public Accountancy proposes an amendment to sec.519.5, concerning Rulemaking Proceedings. The proposed amendment corrects the citation to the Administrative Procedure Act, requires a request for a public hearing on a proposed rule to be filed with the Board at least ten working days before the rulemaking meeting and requires persons wishing to testify at a rulemaking meeting to provide written copies of their testimony at least five working days before the rulemaking meeting. William Treacy, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect the anticipated public benefit as a result of enforcing or administering the rule will be enhanced scheduling of Board meeting agendas and will allow Board members more time to consider witnesses' oral comments. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3900. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law, and sec.2001.029, Government Code, which requires state agencies to hold public hearings in rulemaking if properly requested. The rule implements Texas Civil Statutes, Article 41a-1, s6 and sec.2001. 029, Government Code. sec.519.5. [Service in] Rulemaking Proceedings. (a) Service of a proposed section or amendment of any existing section shall be governed by [Section] Sections
                                                      [5(a), et seq] 2001.023 and 2001.024
                                                        [,] of the Administrative Procedure [and Register] Act. (b) A request for a public hearing to receive comments on a proposed rulemaking must be received in the offices of the board no later than 5:00 p.m. of the tenth working day prior to the board meeting scheduled to consider the adoption of the proposed rule. (c) A person wishing to testify at a public hearing to receive comments on a proposed rulemaking or revision must file a written copy of his or her testimony in the offices of the board by no later than 5:00 p.m. of the fifth working day prior to the public hearing unless the board announces a different filing date. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 9, 1995. TRD-9515348 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 505-5566 22 TAC sec.519.26 The Texas State Board of Public Accountancy proposes an amendment to sec.519.26, concerning Informal Conferences. The proposed amendment states the two choices the Board has when it considers agreed consent orders and removes the prohibition against using as evidence information discovered or disclosed in an informal conference. William Treacy, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect the anticipated public benefit as a result of enforcing or administering the rule will be a better understanding of the options available to the Board when it considers agreed consent orders, and allowing the use as evidence in contested hearings information which was discovered or disclosed during an informal conference. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3900. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law, sec.2001.054, Government Code, which requires licensees be afforded an opportunity to show their compliance with the law, and sec.2001.056, Government Code, which allows for the informal disposition of contested cases. The rule implements Texas Civil Statutes, Article 41a-1, ssec.6, 2001.054, and 2001.056. sec.519.26. Informal Conferences. (a)-(d) (No change.) (e) Ratification by the board. An
                                                          agreed consent order
                                                            [orders] shall be submitted to the board for ratification and the board may: (1) adopt the order, at which time it becomes final; or [(2) reject the order and order a hearing; or] [(3) reject the order and order an en banc hearing; or] (2)
                                                              [(4)] reject remand the order [and remand; or] to the committee. [(5) reject the order and order the disciplinary action dismissed.] [(f) Proceedings inadmissible. Proceedings at an informal conference are inadmissible in a subsequent hearing; however, evidence otherwise discoverable shall not be excluded from a hearing merely because it is presented in the course of an informal conference.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 9, 1995. TRD-9515349 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 505-5566 22 TAC sec.519.27 The Texas State Board of Public Accountancy proposes an amendment to sec.519.27, concerning Hearings in Disciplinary Actions. The proposed amendment requires requests for oral argument before the Board to be filed with the Board at least five working days before the meeting. William Treacy, Executive Director, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering this rule. Mr. Treacy also has determined that during the first five-year period the rule is in effect the anticipated public benefit as a result of enforcing or administering the rule will be allowing the Board to be better able to schedule its meeting agenda. There is no effect on small businesses. There is no anticipated economic cost to persons required to comply with the section as proposed. Comments on the proposal may be submitted to J. Randel (Jerry) Hill, General Counsel, 333 Guadalupe, Tower III, Suite 900, Austin, Texas, 78701-3900. The amendment is proposed under Texas Civil Statutes, Article 41a-1, sec.6, which provide the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law. The rule implements Texas Civil Statutes, Article 41a-1, s6. sec.519.27. Hearings in Disciplinary Action. (a)-(e) (No change.) (f) Oral argument before the board. Any party may request oral argument before the board before the final determination of any proceeding, but the request must be filed in the offices of the board by no later than 5: 00 p.m. of the fifth working day prior to the board meeting. Oral
                                                                [oral] argument shall be allowed only at the discretion of the board. A request for oral argument may be incorporated in the exception, reply to exceptions, or in a separate pleading. In the event oral argument is granted by the board, each party who has filed exceptions and replies may be limited to a maximum of 20 minutes for presentation thereof. The board shall require one spokesman per party and position. (g)-(i) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 9, 1995. TRD-9515350 William Treacy Executive Director Texas State Board of Public Accountancy Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 505-5566 Part XXVIII. Executive Council of Physical Therapy and Occupational Therapy Examiners Chapter 651. Fees 22 TAC sec.651.2 The Executive Council of Physical Therapy and Occupational Therapy Examiners proposes an amendment to sec.651.2, concerning Physical Therapy Board Fees. This amendment sets fees for the inactive status established by the Texas Board of Physical Therapy Examiners. John Maline, Executive Director of the Executive Council of Physical Therapy and Occupational Therapy Examiners, has determined that for the first five-year period the rule is in effect there will be no effect on local or state government as a result of enforcing or administering the rule. Mr. Maline also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be provision of better physical therapy licensing services. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposed rule may be submitted to Nina Hurter, Executive Council of Physical Therapy and Occupational Therapy Examiners, 3001 South Lamar, Suite 101, Austin, Texas 78704. The amendment is proposed under Texas Civil Statutes, Article 4512e-1, which provide the Executive Council of Physical Therapy and Occupational Therapy Examiners with the authority to promulgate rules. Texas Civil Statutes, Article 4512e, is affected by this amendment. sec.651.2. Physical Therapy Board Fees. (a)-(b) (No change.) (c) License. (1)-(2) (No change.) (3) Inactive to Active Status. (A) Physical therapist-$50; (B) Physical therapist assistant -$25. (d)-(k) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 27, 1995. TRD-9515245 John P. Maline Executive Director Executive Council of Physical Therapy and Occupational Therapy Examiners Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 305-6900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 41. Utilization Review On behalf of the State Medicaid Director, the Texas Department of Health (department) submits proposed amendments to sec. s41.104, 41.108, and 41.110 and the repeal of sec.41.106, concerning utilization and review procedures. Specifically, the sections cover the Texas Medical Review Program (TMRP) review process; denials and recoupments for TMRP and Tax Equity and Fiscal Responsibility Act (TEFRA) hospitals; appeal requirements under TMRP and TEFRA and hospital notification; and attestation statements for TMRP hospitals. The amendments and repeal remove the requirement for the physician attestation statement to be kept in the hospital medical record. Gary Bego, health care financing budget director, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Bego also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be a reduction in the administrative burden for physicians and hospitals. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated effect on local employment. Comments on the proposal may be sent to Brenda Salisbery, Health Care Financing, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 338-6521. Comments will be accepted for 30 days following publication of this proposal in the Texas Register. Waiver for Utilization Review Procedures 25 TAC sec.sec.41.104, 41.108, 41.110 The amendments are proposed under the Human Resources Code, sec.32.021 and Texas Civil Statutes, Article 4413 (502), s16, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature. The amendments affect Chapter 32 of the Human Resources Code. sec.41.104. Texas Medical Review Program (TMRP) Review Process. (a) For all Medicaid admissions identified for review, the TMRP review process includes, but is not limited to, the following: (1) (No change.) (2) diagnosis-related group (DRG) validation, which consists of a determination that the critical elements necessary to assign a DRG are present in the medical record. Hospital staff are responsible and held accountable for the accuracy of the required critical elements.
                                                                  Those elements are age, sex, discharge status, principal diagnosis, principal procedures, and any complications or comorbidities. This process is also a determination that the principal and secondary diagnoses and procedures are sequenced correctly. The principal diagnosis is the diagnosis (condition) established after study to be chiefly responsible for occasioning the admission of the patient to the hospital for care. The secondary diagnoses are conditions that affect the patient care in terms of requiring: clinical evaluation, therapeutic treatment, diagnostic procedures, extended length of hospital stay, or increased nursing care and/or monitoring, or in case of a newborn, one which the physician deems to have clinically significant implications for future health care needs. Normal newborn conditions or routine procedures are not to be considered as complications or comorbidities for DRG assignment. If the principal diagnosis, secondary diagnoses, or procedures are not substantiated in the medical record, are not sequenced correctly, or have been omitted, codes may be changed, added, or deleted. When it is determined that the diagnoses and procedures are substantiated and sequenced correctly, the information will be entered into the applicable version of the Grouper software for a DRG determination. The Health Care Financing Administration (HCFA) approved DRG Grouper software considers each diagnosis and procedure and the combination of all codes and makes a determination of the final DRG assignment; (3)-(7) (No change.) (b) The department or its contractor shall review the complete medical record to make decisions on all aspects of the review process including but not limited to the medical necessity of the admission, DRG validation, and quality of care. The complete medical record must include but is not limited to: medical/surgical history and physical examination, discharge summary, physicians' progress notes, physicians' orders, lab reports, x-ray reports, operative reports, pathology reports, nurses' notes, medication sheets, vital signs sheets, therapy notes, specialty consultation reports, and
                                                                    special diagnostic and treatment records[, and completed attestation statements]. If the complete medical record is not available or is not made available during the review, a preliminary technical denial is issued and the facility is notified. (c) (No change.) sec.41.108. Denials and Recoupments for Texas Medical Review Program (TMRP) and Tax Equity and Fiscal Responsibility Act (TEFRA) Hospitals. (a) The following denials are issued as a result of the review process. (1) (No change.) (2) Technical denials. A technical denial shall be issued when a hospital fails to make available for review a complete medical record [including a properly completed physician attestation statement,] on the date of an onsite review or, for mail-in hospitals, within specified time frames. [A technical denial also shall be issued when the physician attestation statement is not available for review, is dated after the claim was submitted, or is not properly completed. A properly completed attestation statement must include a narrative description of the diagnoses and procedures, the initials of the physician changing the sequencing of diagnoses or procedures, the certification statement, the physician's signature, and the date (month, day, year) the physician signed the statement. [(A) If the properly completed attestation statement is not available or is not made available during the onsite review, a final technical denial shall be issued, and the payment shall be permanently recouped. For mail-in hospitals, a final technical denial shall be issued if the properly completed physician attestation statement is not included in the medical record submitted for review, and the payment shall be permanently recouped.] (A)
                                                                      [(B)] If the complete medical record [(other than the properly completed attestation statement)] is not available or is not made available during the onsite review or, for mail-in hospitals, within the specified time frames, a preliminary technical denial shall be issued. Preliminary technical denials shall be issued onsite for onsite reviews. The facility must submit a complete medical record within 60 calendar days from the exit conference date. For mail-in hospitals, preliminary technical denials shall be issued by certified mail or FAX machine, and the facility shall have 60 calendar days from the receipt date of the notice to submit a complete medical record. (B)
                                                                        [(C)] If the complete medical record[, including the properly completed attestation statement in the case of a TMRP hospital,] is received by the department or its contractor within 60 days after the preliminary technical denial, a final technical denial shall not be issued, and the case will be reviewed. If the complete medical record[, including the properly completed attestation statement in the case of a TMRP hospital,] is not received by the department or its contractor within the 60 calendar days, a final technical denial shall be issued, and payment shall be recouped. Medical records not received by the department or its contractor within the 60 calendar days must be denied review on the merits, and any claim the hospital has to the Medicaid funds at issue must be barred. Extensions of time are not granted for the filing of a medical record beyond the 60 calendar days. (3)-(5) (No change.) (b)-(c) (No change.) sec.41.110. Appeals Requirements under the Texas Medical Review Program (TMRP) and Tax Equity and Fiscal Responsibility Act (TEFRA), and Hospital Notification. Beginning October 1, 1990, hospitals may appeal adverse decisions made under the TMRP and TEFRA review programs under the following guidelines. (1) If a hospital receives notification from the Texas Department of Health (department) or its contractor of an adverse decision regarding: medical necessity of admission and/or continued stay, or diagnosis
                                                                          [diagnostic] related group (DRG) validation, the methods for appealing the decisions are as follows. (A) If a hospital is dissatisfied with the original utilization review decision made by the department or the department's contractor, the hospital may submit a written request for a desk review to the Texas Department of Health, Bureau of Medical Appeals, 1100 West 49th Street, Austin, Texas 78756-3172. The request should indicate the reason the decision by the department was incorrect and must include a copy of the complete medical record; the original signed, properly completed, and notarized affidavit in the format provided or approved by the department, which allows the hospital to certify the record as a business record[; and a properly completed physician attestation statement in the case of a TMRP hospital.] If the written request for a desk review is not received by the department within 180 days from the date the hospital received the original utilization review decision, the desk review shall not be conducted. No appeal of any type is thereafter available on the merits and the previous decision by the department shall be final. Any claim the facility may have to the Medicaid funds at issue shall be barred. Extensions of time shall not be granted for the filing of a written request for a desk review, submission of the complete medical record, the notarized business record affidavit[, or the completed physician attestation.] (B)-(C) (No change.) (2) The hospital may appeal a technical denial to the department if the hospital determines that the department or the contractor issuing the denial made an incorrect denial or did not provide proper notification of the technical denial. (A) The hospital must submit a written request for a desk review, accompanied by the complete medical record; an original signed, properly completed and notarized business record affidavit in the format provided by or approved by the department, which allows the hospital to certify the record as a business record[; and a properly completed physician attestation statement in the case of a TMRP hospital]; and should state the reason the decision by the department or its contractor was incorrect. The hospital must submit copies of any supporting documentation at the time of filing the appeal. Appeals of final technical denials must be received no later than 180 days from the date the hospital receives the final technical denial notice from the department or its contractor and must be sent to the Texas Department of Health, Bureau of Medical Appeals, 1100 West 49th Street, Austin, Texas 78756-3172. Receipt by the Bureau of Medical Appeals of the written appeal request within the 180 days is a jurisdictional prerequisite. Any such requests received beyond the 180 days is subject to dismissal for want of jurisdiction and the entry of an order sustaining the previous decision by the department or its contractor. (B)-(E) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 28, 1995. TRD-9515290 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 458-7236 25 TAC sec.41.106 (Editor's Note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Human Resources Code, s32.021 and Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature. The repeal affects Chapter 32 of the Human Resources Code. sec.41.106. Attestation Statement for Texas Medical Review Program (TMRP) Hospitals. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 28, 1995. TRD-9515289 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 458-7236 Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter A. Advisory Committees 25 TAC sec.401.27 The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new sec.401.27 of Chapter 401, Subchapter A, concerning advisory committees. The proposed new section allows for the formation and reimbursement of member expenses for the Ad Hoc Committee on Mental Retardation and Managed Care. Don Green, chief financial officer, has determined that for the first five-year period the rule is in effect there wil be no significant fiscal cost for state or local government as a result of administering the rule. There will be no local economic impact. There will be no effect on small businesses. Karen Hale, assistant commissioner, has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be the adoption of department rules that reflect legislative intent. There are no anticipated economic costs to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Linda Logan, Director, Policy Development, Texas Department Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication. The rule is proposed under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. The proposal would affect the Texas Health and Safety Code, Chapters 533, 552, and 593. sec.401.77. Ad Hoc Committee on Mental Retardation and Managed Care. (a) The purpose of the Ad Hoc Committee on Mental Retardation and Managed Care is to provide recommendations to the Texas Board of Mental Health and Mental Retardation to guide the design of pilots to test a system of services and supports for persons with mental retardation that best balances access, quality, cost, and choice to produce desired outcomes for people with mental retardation. (b) Tasks of the Ad Hoc Committee on Mental Retardation and Managed Care include recommendations in at least the following areas: ' (1) a method to obtain broad-based input from all stakeholders; (2) values and principles that are consistent with the 1994 Recommendations from the Quality of Life Project; (3) management of initial and on-going consumer access, (e.g., case management, individual service coordination, continuity of services, waiting lists, utilization review, etc.); (4) resources that should be included in the system, (e.g., federal, state and local (ICF-MR, HCS, targeted case management, general revenue, required local match, etc.)); (5) consumer eligibility criteria, (e.g., all or some subset of persons with mental retardation, pervasive developmental disabilities, other developmental disabilities, etc.); (6) benefit packages that are based on person-centered planning and emphasize prevention and building on strengths and resources rather than deficits; (7) role of the local authority, as defined in the Texas Health and Safety Code, Chapters 531 and 533, (i.e., assembling a network of service providers and determining whether to become a provider of a service or to contract that service to another organization); (8) managing provider networks and performing utilization management; (9) assurance of consumer and provider appeals and grievances; (10) evaluating local authority and provider network performance based on outcomes that include participation of consumers, their families, and advocates; and (11) variables to be considered in designing the pilots required by the Texas Health and Safety Code, Chapters 531 and 533, and Senate Concurrent Resolutions 55 and 58, (e.g. types of geographic areas, such as urban and/or rural; separate pilots or combining both pilots in the same area; mix of participants such as local authorities which are both Community MHMR Centers and state-operated community service divisions; providers which include private-for-profit, private-not-for-profit, public entities, etc.). (c) The advisory committee shall be abolished on September 1, 1996, unless reauthorized. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on November 29, 1995. TRD-9515342 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Earliest possible date of adoption: January 5, 1996 For further information, please call: (512) 206-4516