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 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 55. Child Support Enforcement Subchapter H. License Suspension 1 TAC sec.55.215 The Office of the Attorney General proposes new sec.55.215, providing for additional prerequisites for suspension of licenses relating to state taxes. Charles G. Childress, Director, Child Support Division, has determined that for the first five-year period the rule is in effect there will be no effect to state or local government as a result of enforcing of administering the rule. Mr. Childress 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 is a clarification of the process of suspending licenses relating to certain state taxes. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments may be submitted to Tod Adamson, Child Support Division, Office of the Attorney General, 210 Barton Springs Road, Room 254, Austin, Texas 78704 or P.O. Box 12017, Austin, Texas 78711-2017, (512) 463-2181, Extension 5535. The new section is proposed under the Family Code, sec.232.015, which provides the Office of the Attorney General with the authority to adopt rules regarding to state taxes and under the Family Code, sec.232.106 which provides the Office of the Attorney General with the authority to prescribe forms and procedures for the implementation of Chapter 232. The Family Code, Chapter 232, is affected by the new section. sec.55.215. Prerequisites for Suspension of Licenses Relating to State Taxes. (a) Each petition seeking to suspend a license relating to state taxes shall list each license to be suspended by license type and, if applicable, by license number. (b) Each petitioner seeking to suspend a license issued by the Texas Alcoholic Beverage Commission (TABC) must determine whether that license is related to the obligor's sales tax permit and, if so, the petitioner must seek to suspend both permits. (c) Each petition seeking to suspend a retail dealer's off-premises license issued by TABC must also seek to suspend a package store permit issued by TABC, to the extent the obligor holds both permits. (d) An order suspending a license issued pursuant to the Tax Code sec.155.041 shall be served on the agency issuing the license. Through August 31, 1996, the agency issuing the license shall notify the Comptroller of Public Accounts of the receipt of the order. After August 31, 1996, the order shall be issued directly to the Comptroller of Public Accounts. (e) An order suspending a license relating to state taxes must be served on each licensing authority which issued a license suspended by the order. 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 January 25, 1996. TRD-9601121 Suzanne Formby Marshall Special Assistant Attorney General Office of the Attorney General Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 475-4291 Part V. General Services Commission Chapter 113. Central Purchasing Division Cooperative Purchasing Program 1 TAC sec.113.87, sec.113.88 The General Services Commission proposes an amendment to s113.87 and new sec.113.88, relating to Central Purchasing. The amendment updates the responsibilities of Cooperative Purchasing Program participants and the new section establishes guidelines for electronic purchasing system in accordance with Texas Local Government Code, sec.271.083 (Vernon Supplement 1996). Pat Martin, Acting Deputy Director of Goods and Services, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state government as a result of enforcing or administering the sections. Data is not available to calculate the cost to local government. Ms. Martin also has determined that for each year of the first five years the sections are in effect the public benefit anticipated is an alternative procurement process for Cooperative Purchasing Program participants. The cost to small or large businesses and/or individuals cannot be currently assessed. The proposed rules allow Cooperative Purchasing Program (CPP) participants to use an alternate system that is approved by the commission to electronically transmit purchase orders directly to vendors and to send reports. The cost to create such an alternate system, and the cost to CPP participants and GSC term contract vendors to purchase information resources for this purpose cannot be assessed at this time. The purchase of an electronic system would be a business decision, not a requirement for participation in the Cooperative Purchasing Program. Comments on the proposal may be submitted to David Brown, Assistant General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78701-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendment and new section are proposed under the Government Code, Title 10, Subtitle D, Chapter 2155, which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purposes of the Code and Chapter. The following statute is affected by these rules: Local Government Code, Subtitle C, Subchapter D, Chapter 271; Government Code, Title 10, Subtitle D, Chapter 2155. sec.113.87. Responsibilities of Qualified Entities. (a) A qualified entity participating in the cooperative purchasing program must: (1) (No change.) (2) transmit information as follows: (A)
    [(2)] send automated term contract and schedule requisition to the commission for processing; send a copy of all non-automated contract purchase orders to the commission for data collection; or (B) using a system approved by the commission, electronically send purchase orders directly to vendors and electronically send reports of actual purchases made through this program to the commission; (3)-(4) (No change.) (b)-(c) (No change.) sec.113.88. Electronic Purchasing Systems. (a) Local governments enrolled in the commission's Cooperative Purchasing Program may use approved systems to electronically transmit purchase orders directly to state term contract vendors and to provide reports to the commission of purchases made through the system. (b) Approval of the automated systems is contingent upon the following. (1) All transactions must be electronic data files. (2) Orders produced by the system must meet or exceed standards applied by the commission when generating purchase orders. (3) Reports to the commission must be received electronically in a fixed record length format provided by the commission. (c) A vendor may request approval of a system by submitting a written request to the Director for Purchasing. The request must include proof of subsection (a) of this title. Additionally, the vendor must submit the system to test by the commission. All costs associated with system development, testing, and maintenance will be borne by the vendor. (d) Testing will consist of comparison of purchase orders generated by the commission to those generated by the system submitted for approval, and verification of data reported to the commission's system. (e) The Director for Purchasing will notify the vendor if the system is approved. 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 January 24, 1996. TRD-9601033 David Ross Brown Assistant General Counsel General Services Commission Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 463-3960 Title 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.10 The Railroad Commission of Texas proposes an amendment to sec.3.10, concerning production of oil and gas from different strata. The proposed amendment conformssec.3.10 to Texas Natural Resources Code sec.sec.85.046 and 86. 012, as amended. The proposed amendment to sec.3.10 authorizes the commission, after notice and an opportunity for affected parties to request a hearing, to approve commingled production administratively. Approval without a hearing is authorized when neither the applicant nor the parties entitled to notice have requested a hearing, and the commission finds that production in a commingled state will prevent waste, promote conservation or protect correlative rights. The proposed amendment also delineates persons entitled to notice of both initial and subsequent applications for commingling exceptions and clarify what constitutes commingled production. Notice of initial applications involving only commission- designated fields must be given to all operators in the fields sought to be commingled. For initial applications involving hydrocarbon reservoirs that have not been designated as fields and for subsequent applications, the proposed notice provisions incorporate the presumption, also found in the statewide spacing rule (sec.3.37(c) of this title), that operators closer than the minimum lease-line distance prescribed by applicable field rules may be affected by the requested exception and are therefore entitled to notice of the request. The standard for consideration of a requested exception is set out in sec.3. 10(b) which uses the newly proposed definition of "different strata." The proposed additional language in sec.3.10(b)(1) was selected because it tracks the amendments to the underlying statutes and concisely states that only an opportunity for a hearing, and not necessarily an actual hearing, is required prior to the grant of an exception. A definition of "different strata" has been inserted as new sec.3.10(a)(1) and the phrase "different strata" is used throughout the proposed text of this section to cure apparent ambiguities in the existing section caused by the use of different phrases to describe the same concept. The specific language of the proposed definition of "different strata" was chosen because it is a concise statement of the concept of "different strata" as that phrase has historically been interpreted by the commission. The notice provisions in sec.3.10(c) were added to the proposed section to formalize the commission's existing procedures regarding notice so that interested persons can easily identify those operators entitled to notice and the manner in which notice must be given. In addition, formalizing the notice procedures will help assure that notice requirements are applied consistently. The specific categories of operators to be given notice reflect the presumption that all operators of adjacent tracts and of tracts within minimum lease-line distances, as set by applicable field rules, may be affected by a proposed exception for a given well. The notice requirements are broader for initial applications because of the potential precedential effect of a grant of an exception and the concomitant need for the commission to have information and input from all directly and indirectly impacted operators. The proposed notice requirements are broadened to include all operators of adjacent tracts and of tracts nearer than minimum applicable lease-line distances when at least one of the hydrocarbon reservoirs for which commingling is sought has not been designated as a field by the commission. This broadening reflects recognition of the potential for differing interpretations of whether a given accumulation of hydrocarbons should be considered as part of a commission- recognized field and the accompanying uncertainty as to which commission-designated fields might be affected by the proposed commingling. Rita E. Percival, systems analyst for the Oil and Gas Division, has determined that for each year of the first five years the rule, as proposed, will be in effect, there will be no fiscal implications for state or local government, nor additional cost to small business, as a result of enforcing or administering this rule. Colin K. Lineberry, hearings examiner in the Office of General Counsel, has determined that for each year of the first five years the rule, as proposed, will be in effect, the public benefit anticipated as a result of enforcing the rule will be a reduction of the regulatory burden by removing the requirement that a hearing be held on every initial application for approval of commingled production as well as by clarifying notice requirements and eliminating ambiguity in the use of the term "different strata." It is anticipated that there will be a beneficial effect on small businesses as formal hearings will no longer be required on unprotested applications resulting in a reduction in the costs incurred in obtaining exceptions to allow commingling. There are no anticipated additional economic costs to persons who are required to comply with the rule as proposed. Comments may be submitted to Colin K. Lineberry, hearings examiner, Office of General Counsel - Oil and Gas Section, Railroad Commission of Texas, P. O. Box 12967, Austin, Texas 78711-2967. The deadline for filing comments is 30 days after publication in the Texas Register. Comments should refer to the docket number of this rule-making proceeding, 20-0209676. The commission proposes the amendment pursuant to Texas Natural Resources Code, sec.sec.81.052, 85.201, and 86.042, which authorizes the commission to prevent waste of oil and gas and to protect correlative rights. The following code sections are affected by this rule: Texas Natural Resources Code, sec.sec.81.052, 85.201, and 86.042. sec.3.10. Restriction of Production of Oil and Gas from Different Strata. (a) General prohibition. Oil or gas shall not be produced from different strata through the same string of casing except as provided in this section. As used in this section, "different strata" means two or more different commission- designated fields (including multiple stratigraphic or lenticular accumulations of hydrocarbons regulated as a single field by the commission), or one or more commission-designated fields and any other hydrocarbon reservoir. (b) Exception. After notice and an opportunity for a hearing, the commission or its delegate may grant an exception to subsection (a) of this section to permit production from a well or wells commingling oil or gas or oil and gas from different strata, if commingled production will prevent waste or promotion conservation or protect correlative rights. [(b) Exception. [(1) After notice and hearing, the commission or its delegate may grant an exception to subsection (a) of this section to permit production from a well or wells commingling oil or gas or oil and gas from two separate reservoirs or multiple stratigraphic or lenticular accumulations of oil or gas or oil and gas if commingled production will: [(A) prevent waste; [(B) promote conservation; or [(C) protect correlative rights. [(2) Subsequent exceptions for wells producing from the same reservoirs may be granted administratively without further notice and hearing.] (c) Notice of Application for Exception (1) Timing of Notice (A) The applicant shall give notice of each request for an exception by serving a copy of the application to commingle production on all affected operators at the same time the application is filed with the commission. (B) Service shall be accomplished by delivering a copy of the application to the party to be served, or to the party's duly authorized representative, in person, by agent, by courier receipted delivery, by first class mail to the parties last known address, by telephone document transfer to the recipient's current telecopier number or by such other manner as the commission may direct. (2) Operators Presumptively Affected By Application (A) An initial exception to commingle production exclusively from different commission-designated fields is presumed to affect all operators in each of the commission- designated fields proposed to be produced through the same string of casing. (B) An initial exception to commingle production from a commission- designated field with production from one or more hydrocarbon reservoirs that have not been designated by the commission as a field is presumed to affect all operators in each of the different commission-designated fields proposed to be produced through the same string of casing and all operators of adjacent tracts, and of tracts nearer to the well for which a commingling exception is sought than the longest applicable minimum lease-line distance. (C) An exception to commingle production exclusively from the same commission-designated fields for which an initial commingling application has previously been granted is presumed to affect all operators of adjacent tracts, and of tracts nearer to the well for which a subsequent commingling exception is sought than the longest applicable minimum lease- line distance, who have a well completed in one or more of the commission-designated fields for which commingling is sought. (D) An exception to commingle production from a commission-designated field and one or more hydrocarbon reservoirs in specified correlative intervals that have not been designated by the commission as fields, for which an initial commingling exception involving the same fields and hydrocarbon reservoirs has previously been granted, is presumed to affect all operators of adjacent tracts, and of tracts nearer to the well for which a commingling exception is sought than the longest applicable minimum lease-line distance. (3) Notice Required Only to Affected Operators (A) Except as provided in subparagraph (B) of this paragraph, all operators described in subsection (c)(2)(A)-(D) of this section are affected by a requested exception to allow commingling and the applicant shall give each of them notice of the application as provided in subsection (c)(1)(A) of this section. (B) The commission or its delegate may determine that an operator described in subsection (c)(2)(A)-(D) will be unaffected by a requested exception to allow commingling. This determination shall be made only upon the applicant's written request and provision to the commission of competent geological or engineering data establishing conclusively that commingling production as requested by the applicant will not physically interfere with the production of hydrocarbons by the operator for which an unaffected determination is requested. An applicant for an exception to allow commingling is not required to give notice of the application to an operator who has been determined to be unaffected as provided in this subparagraph. (d)
      [(c)] Commingled production. Commingled production of gas from different strata
        pursuant to subsection (b) of this section shall be considered production from a common source of supply for purposes of proration and allocation. 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 January 24, 1996. TRD-9601062 Mary Ross McDonald Acting General Counsel, Office of General Counsel Railroad Commission of Texas Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 463-7008 Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Quality of Service 16 TAC sec.23.70 The Public Utility Commission of Texas proposes new sec.23.70, concerning terms and conditions for open-access transmission service. Under the terms of this proposed rule, transmission providers would provide transmission service in accordance with the terms and conditions contained in this section. Such transmission service would allow a transmission customer to deliver energy from its planned resources to serve loads located within Electric Reliability Council of Texas (ERCOT). It also may be used by a transmission customer to deliver unplanned energy purchases to its load without additional facilities charge and to deliver energy to third-parties in connection with a sale of energy to loads within and outside of ERCOT. This section also describes terms and conditions for the purchase of ancillary services. All transmission service pursuant to this section shall be provided in the same manner to that in which the service provider uses them to serve its native load customers. Jess Totten, Assistant Director of the Office of Policy Development, has determined that for the first five years that the proposed section is in effect there will be no additional fiscal implications for state or local government as a result of enforcing or administering the section. The budget appropriations of the commission are based on workload projections that include regulating transmission service. The rule is related to another proposed rule that is expected to permit easier access by electric utilities to remote sources of electric energy and lead to the development of a more robust market for energy within the State. This more robust market should permit municipally-owned utilities to acquire power to meet the needs of their customers on more economical terms. Such a robust market may also permit utilities to sell power more freely than they have been able to do in the past. Revenues from the sale of transmission service and the opportunities for selling power in a broader market may affect the revenues of municipal utilities. There may also be costs to the municipal utilities to operate in a more competitive wholesale environment. Municipal utilities have pointed out, for example, that the unbundling requirements of the other rule will result in additional costs for them. The fiscal impact of the proposed rule on a municipally-owned utility will depend on a number of factors, and while the commission expects that a more competitive wholesale environment will benefit municipal utilities and their customers, it is impossible to estimate the fiscal costs and benefits. There is not likely to be a significant direct impact on other agencies of state and local government. State and local governments are, of course, customers of electric utilities and are affected by the rates that utilities charge for power. As a more competitive market develops, it is expected that the rates that utilities charge for electricity will be reduced, and that State and local government will benefit from these reductions, just as other utility customers. Some of the revenues of State and local government are received from assessments on utility revenues, calculated as a percentage of a utility's revenues from sales. To the extent that this rule results in a reduction in a utility's rates, it may also result in reductions in government revenues. It is impossible to estimate the magnitude of these indirect impacts of this rule on the costs and revenues of State and local government. Mr. Totten also has determined that for the first five years that the proposed section is in effect the public benefit anticipated as a result of enforcing the section includes permitting a transmission customer to integrate, economically dispatch and regulate its current and planned resources to serve load, leading to a more robust wholesale market for energy within the State and lower electric rates. Establishing clear rules for transmission service will foster competition for power-generation resources. The proposed amendments are not likely to measurably increase the direct cost to utilities of complying with the commission's rules. This rule and the other proposed rule on transmission service may result in additional costs, as a result of the requirement to functionally unbundle utility generation, transmission, and distribution functions. The more significant effects of this rule are likely to be indirect, as more utilities compete to supply power in the wholesale market. In such competition, the commission expects that some service providers will prosper, while others will lose market share. The commission expects that, overall, more robust wholesale competition will benefit utilities and their customers, but it is impossible to estimate the costs and benefits. For each of the first five years the section is in effect, there will be no effect on small businesses as a result of enforcing the proposed section. Mr. Totten also has determined that for the first five years the proposed section is in effect there will be no impact on the opportunities for employment in the geographic areas of Texas affected by implementing the requirements of the section. There are several matters that the commission calls to the attention of interested persons and seeks comments on. The first area of interest relates to transmission planning. Subsection (f) of the proposed rule describes an annual planning process by which transmission customers identify the loads and resources that they intend to rely on to meet their future needs. The commission seeks comments on whether the rule should mandate a planning process that takes place on an annual basis. As an alternative, is it reasonable that the rule remain silent on the intervals at which such planning takes place? Is it important that the intervals for conducting this planning be the same as the intervals at which the commission revises transmission rates? The second area in which the commission seeks comments relates to the arrangements that must be completed before a transmission transaction may begin. Subsection (h)(5) of the rule requires a transmission customer to complete certain technical arrangements before transmission service may commence. This paragraph includes a specific list of arrangements that must be completed, but it also refers to "any additional requirements reasonably and consistently imposed to ensure the reliable operation of the utility's system. " Should the commission permit a transmission provider to impose additional requirements that are not specified in the rule? Finally, the commission seeks comments on the schedule for implementing the open-access requirements and standards under this rule and s23.67. The commission expects to adopt sec.23. 67 on February 7, 1996 and to adopt sec.23.70 on March 27. Section 23.67 would probably be effective, under the terms of the Administrative Procedure Act, in late February. Other key dates that the commission has considered for implementing these rules are the following: The commission adopts filing guidelines for transmission rate filings-March 6; utilities file transmission tariffs and cost of service information-April 29; a proposal for governance and operation of an independent system operator is filed-June 6. The chief implementation issues relate to whether the new requirements in sec.23.67 and sec.23.70 should be put into effect all at once or in stages. It is possible for the obligations in sec.23.67, to provide comparable transmission service and ancillary services, to take effect as early as the end of February. It is unlikely that transmission rates for planned service would be effective until sometime after the middle of July, however. Section 23.67 is likely to provide a pricing rule for unplanned service, and this rule could take effect as early as the end of February. The commission seeks the comments of interested parties on whether the obligations to provide transmission service and ancillary services and the pricing rule for unplanned service should be put into effect as soon after the rule is adopted as possible. When should the pricing rule for planned service be implemented? Should the commission approve interim rates for planned service that are subject to refund? In general, the commission seeks comments on a reasonable plan for implementing the requirements that result from the adoption of sec.23. 67 and sec.23.70. Comments on the proposed rule (18 copies) may be submitted to Paula Mueller, Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757, within 20 days after publication. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the section. The commission will consider the costs and benefits in deciding whether to adopt the section. Comments should refer to Project Number 14045. The commission staff will conduct a public hearing on this rulemaking under Government Code, sec.2002.029 at the commission's offices on February 16, 1996 at 10:00 a.m. The new section is proposed under Texas Civil Statutes, Article 1446c-0, sec.1.101, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, sec.2.056, which authorizes the commission to require utilities to provide transmission service, and sec.2.057, which directs it to adopt rules relating to transmission service. No other statute, code or article is affected by this new section. sec.23.70. Terms and Conditions of Open-access Comparable Transmission Service. (a) Purpose. The purpose of this section is to clearly state terms and conditions that govern transmission access and related ancillary services. Service provided pursuant to this section allows a transmission customer to deliver energy from its planned resources to serve loads within ERCOT. Transmission service also may be used by a transmission customer to deliver unplanned energy purchases to its load without an additional facilities charge and to deliver energy to third parties in connection with a sale of energy to loads within ERCOT. The transmission service standards described in this section shall be applicable to transmission service to, from, and over the direct- current interconnections between ERCOT and the Southwest Power Pool (SPP). All transmission service and ancillary services shall be provided in the same manner that the service provider uses them to serve its native load customers. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Ancillary Services-As defined in sec.23.67(b) of this title (relating to Open-access Comparable Transmission Service). (2) Application-A request by an eligible customer for transmission or ancillary services pursuant to the provisions of this section. (3) Commission or Public Utility Commission-The Public Utility Commission of Texas. (4) Control Area-An electric power system or combination of electric power systems to which a common automatic generation control scheme is applied in order to: (A) match, at all times, the power output of the generators within the electric power system(s) and capacity and energy purchased from entities outside the electric power system(s), with the load within the electric power system(s); (B) maintain, within the limits of Good Utility Practice, scheduled interchange with other Control Areas; (C) maintain the frequency of the electric power system(s) within reasonable limits in accordance with Good Utility Practice; and (D) obtain sufficient generating capacity to maintain operating reserves in accordance with Good Utility Practice. (5) Designated Agent-Any entity that performs actions or functions on behalf of a transmission provider, an eligible customer, or a transmission customer. (6) Direct Assignment Facilities-Facilities that are constructed by a transmission provider to facilitate a specific request for service, where a transmission customer requesting the service bears all or a portion of the costs of the facilities or pays a contribution in aid of construction for all or a part of the cost of the facilities. (7) Eligible Customer-Any of the following: (A) the transmission provider (for all uses of its transmission system); (B) any electric utility, federal power marketing agency, exempt wholesale generator, qualifying facility, or power marketer; or (C) any entity acting on behalf of a wholesale load either inside or outside of ERCOT. (8) ERCOT-As defined in sec.23.67 of this title. (9) Facilities Study-An engineering study conducted by a Transmission Provider to determine the required modifications to its transmission system, including the cost and scheduled completion date for such modifications, that will be required to provide a requested transmission service. (10) Good Utility Practice-Any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at the lowest reasonable cost consistent with good business practices, reliability, safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice, method, or act, to the exclusion of all others, but rather to be practices, methods, or acts that are generally accepted in ERCOT and consistently adhered to by the transmission providers. Good Utility Practice shall not be used as a basis to unreasonably withhold access to transmission service. (11) Interconnection Agreement-An agreement that sets forth requirements for physical connection between an eligible transmission customer and transmission provider(s). Transmission providers must have such an agreement with all transmission providers to whom they are physically connected. (12) Native Load Customers-Those wholesale and retail customers on whose behalf the transmission provider, by statute, franchise, regulatory requirement or contract, has an obligation to construct and operate its system to meet in a reliable manner the electric needs of such customers. (13) NERC-The North American Electric Reliability Council. (14) Parties-The transmission providers and the transmission customers receiving service. (15) Planned Resources-Generation owned and purchased by the transmission customer, and designated as planned resources for the purpose of serving load. (16) Planned Service-The use by a transmission customer of the transmission provider's transmission system for the delivery of power from resources to loads, where such use occurs during the ERCOT system peak which is reflected in the most recent ERCOT transmission planning case. (17) SPP-Southwest Power Pool. (18) System Security Study-An assessment by a transmission provider of the adequacy of the transmission system to accommodate a request for transmission service, and/or any costs incurred in order to provide transmission service. (19) Transmission Customer-Any eligible customer receiving transmission service. Where consistent with the context, "transmission customer" includes an eligible customer seeking transmission service. (20) Transmission Provider-A public utility that owns or controls facilities used for the transmission of electricity and provides transmission service. (21) Transmission Service-Is defined in sec.23.67(b) of this title and includes the use of the transmission system to deliver planned and unplanned resources to loads. Transmission service shall include use of the distribution system, where such use is necessary to enable eligible wholesale transmission customers to access generation providers. (22) Transmission System-The transmission facilities at or above 60 kilovolts owned, controlled, operated or supported by a transmission provider and/or transmission customer that are used to provide transmission service. (23) Transmission Upgrade-A modification and/or addition to transmission facilities that is integrated with and supports a transmission provider's transmission system and which is constructed by a transmission provider. (24) Unplanned Resources-Generation owned and purchased by the transmission customer, and that have not been designated as planned resources. (25) Unplanned Service-The use by a transmission customer of the transmission provider's transmission system for delivery of power from resources to loads, where such use does not occur during the ERCOT system peak which is reflected in the most recent ERCOT transmission planning case. (c) Nature of Transmission Service. (1) Scope of Service. Transmission service allows transmission customers to use the transmission providers' transmission systems to utilize generation resources to serve their loads, inside and outside of ERCOT and to, from, and over the direct-current interconnections between ERCOT and SPP. A transmission customer is responsible for obtaining or providing necessary ancillary services. Transmission service provided pursuant to this section may use the transmission systems of all of the transmission providers in ERCOT. (2) Planned Service. A transmission customer shall have the right to use the transmission providers' transmission systems for the delivery of power from planned resources to loads on the same basis as the transmission providers use their transmission systems to reliably serve their native load customers. Service over the transmission providers' transmission systems for the delivery of power from planned resources to load shall have priority over all unplanned uses. (3) Unplanned Service. A Transmission Customer may use the transmission providers' transmission systems to deliver energy to its loads from resources that have not been designated as the transmission customer's planned resources. Such energy shall be delivered if sufficient transmission capacity is available to support the requested service. (d) Availability of Transmission Service. (1) General Conditions. In accordance with the provisions of this section and sec.23.67 of this title, transmission service shall be provided to any eligible customer on a non-discriminatory basis. All transmission service shall be provided in the same manner that the transmission provider uses its transmission system to serve its native load customers. (2) Transmission Service Requirements. As a condition to obtaining transmission service, the transmission customer shall execute interconnection agreements with the transmission provider(s) to which it is physically connected. The transmission provider shall not unreasonably refuse to accept contractual arrangements with another entity for ancillary services. The transmission customer shall either: (A) operate as a control area under applicable guidelines of the North American Electric Reliability Council (NERC) and the Electric Reliability Council of Texas (ERCOT); (B) satisfy its control area requirements, including the provision of all ancillary services, by contracting with the transmission provider; or (C) satisfy its control area requirements, including the provision of all ancillary services, in accordance with Good Utility Practice which satisfies NERC and ERCOT requirements. (3) Transmission Service Requirement For Exports From ERCOT. For unplanned exports from ERCOT, a fee will be assessed to transmission customers for that portion of transmission that is within the boundaries of ERCOT. Such a fee will be assessed in accordance with sec.23.67 of this title. For the purposes of facilitating these transactions, the transmission rate shall be prorated on a monthly, weekly, daily and hourly basis. Transmission customers exporting power from ERCOT on an unplanned basis will be assessed a prorated charge in proportion to the duration of the transaction, and will be charged only for the transmission service actually used. For transmission customers exporting power from ERCOT on a planned basis, a fee will be assessed to the customer for that portion of transmission that is within the boundaries of ERCOT. Such transmission shall have a 30-day minimum term. The monthly on-peak statewide component for planned transactions will be one-fourth the annual rate, and the monthly off-peak statewide component for planned transactions will be one- twelfth the annual rate. The peak period used to determine the applicable transmission rate for such transactions shall be the ERCOT system peak, as that peak is determined under sec.23.67 of this title. The statewide component of the rate for planned transactions shall be the greater of the sum of the monthly rates for the off-peak months for which transmission service is requested or the sum of the monthly rates for the on-peak months for which transmission service is requested. The distance sensitive component will be calculated in accordance with sec.23.67 of this title. (4) Transmission Provider Responsibilities. The transmission provider will plan, construct, operate and maintain its transmission system in accordance with Good Utility Practice in order to provide the transmission customer with planned transmission service over the transmission provider's transmission system in accordance with this section. The transmission provider shall include the transmission customer's load in its transmission system planning and shall, consistent with Good Utility Practice, endeavor to construct and place into service sufficient transmission capacity to deliver power from the transmission customer's planned resources to serve load on the same basis as the transmission provider's delivery of its own generating and purchased resources to the transmission provider's native load customers. (5) Transmission Customer Redispatch Obligation. As a condition for receiving transmission service, a transmission customer agrees to redispatch its resources to provide planned transmission service to third parties. The redispatch of resources pursuant to this section shall be on a non-discriminatory basis as between all transmission customers and transmission providers. (e) Initiating Service. Where a transmission customer uses the transmission facilities in ERCOT, whether its own facilities or those of another transmission provider, in serving its native load or in making sales of energy to a third party, it shall apply for transmission service pursuant to this section. To the extent that transmission planning is performed by an independent system operator or an ERCOT committee, the transmission customer and transmission provider shall provide the information that is required under this section to the independent system operator or appropriate ERCOT committee, rather than to a transmission provider. (1) Conditions Precedent for Receiving Service. Subject to the terms and conditions of this section, the transmission provider will provide transmission service to any eligible customer, provided that: (A) the eligible customer has completed an application for service as provided under this subsection; (B) the eligible customer and the transmission provider have completed the technical arrangements set forth in paragraph (5) of this subsection; (C) the eligible customer has an executed interconnection agreement for service under this section or, if necessary, requested in writing that the transmission provider file a proposed unexecuted agreement with the commission; (D) the eligible customer has arranged for ancillary services necessary for the transaction; and (E) each load shall maintain a power factor of 95% or greater at each point of interconnection. (2) Application Procedures For Annual Planned Service. (A) An eligible customer requesting annual service under this section must submit an application for service by October 1 in the preceding year in which service is to commence. A completed application shall provide information required in subparagraph (B) of this paragraph, particularly a descriptive three year plan of resources and loads served such that the new transmission facilities, if required, can be built and planned in a timely manner. To the extent that transmission planning is performed by an independent System Operator or an ERCOT committee, the eligible customer and transmission provider shall provide the information that is required under subparagraph (B) of this paragraph to the Independent System Operator or appropriate ERCOT committee. To the extent that transmission planning is not performed by an Independent System Operator or an ERCOT committee, the eligible customer shall provide the information to all transmission providers. Transmission customers who were receiving an equivalent service prior to the approval of this section shall provide the information required by subparagraph (B) of this paragraph within 60 days of the approval of this section. (B) The following information shall be provided in connection with an application for service under this section: (i) The identity, address, telephone number and facsimile number of the party requesting service and the name of a contact person to deal with matters relating to the application. (ii) A statement that the party requesting service is, or will be upon commencement of service, an eligible customer under this section. (iii) A description of the load to be served. The description should include a ten-year forecast of summer and winter load and resource requirements beginning with the first year after the service is scheduled to commence. (iv) A description of resources (current and ten-year projection), which shall include, for each resource: (I) Location, unit size and amount of capacity from a unit to be designated as a resource. (II) Var capability (both leading and lagging) of all generators. (III) Operating restrictions, including: (-a-) any periods of restricted operations during the year; (-b-) minimum loading level of unit; (-c-) normal operating level of unit; and (-d-) any must-run unit designations required for system reliability or contract reasons. (IV) A description of purchased power designated as a resource, including source of supply, control area location, transmission arrangements and, if applicable, delivery point(s) into ERCOT. (V) To the extent arrangements have been made for ancillary services, the identity of the providers of ancillary services shall be provided to the appropriate authority. (VI) The service commencement date of the requested transmission service. (C) Unless the parties agree to a different time frame, the transmission provider must acknowledge the request within ten days of receipt. The acknowledgment must include a date by which a response will be sent to the eligible customer and a statement of any fees associated with responding to the request (e.g., system studies). (D) If an application fails to meet the requirements of this section, the transmission provider shall notify the eligible customer requesting service within fifteen days of receipt and specify the reasons for such failure. Wherever possible, a transmission provider will attempt to remedy deficiencies in the application through informal communications with an Eligible Customer. (E) Unplanned transactions of a duration of more than 30 days may be converted to planned transactions upon approval of an application submitted pursuant to paragraph (3) of this subsection. To the extent that such a converted transaction utilizes more megawatt miles than those offset by terminating a previously approved planned transaction, the additional megawatt miles may be purchased from the transmission provider of from other transmission customers. The participants to such a transaction are responsible for the costs of feasibility analysis. (3) Application Procedures For Monthly Planned Service. (A) After January 1 of each year, eligible customers may request a change in their designated planned resources by submitting an application for monthly planned service at least 15 days before the commencement of such service. The application must specify information similar to annual planned service for the number of months the planned service is to be effective. (B) The planned service must be for at least 30 days. (C) When the transmission provider determines that the service can be provided and a system security study is not required it will notify the requesting transmission customer and tender transmission service. (D) If a system security study is required, upon approval of the requesting transmission customer, the transmission provider will initiate such study. Should this study conclude that the transmission system will be adequate to accommodate the request for service, either in whole or in part, or that no costs are likely to be incurred for new transmission facilities or upgrades, the transmission provider will tender transmission service, within 15 days of completion of the system security study. (E) If the transmission provider determines as a result of the system security study that additions or upgrades to the transmission system are needed to supply the transmission's customer's forecasted transmission requirements, it will, upon the approval of the requesting transmission customer, initiate a facilities study. When completed, a facilities study will include an estimate of the contribution in aid of construction of direct assignment facilities to be charged to the transmission customer for the cost of any required facilities or upgrades as determined pursuant to the provisions of this section, and the time required to complete such construction and initiate the requested service. (4) Application Procedures For Unplanned Transmission Service. Uses of the transmission system which are not from planned resources to load are unplanned transmission service. Eligible customers wishing to use the ERCOT transmission system for unplanned service must submit a request for this service to the transmission providers or ERCOT Security Center or Independent System Operator. The duration for unplanned transactions is from one hour to 30 days. In no case shall unplanned transactions be accepted for consideration more than 30 days in advance of the actual commencement of service. (A) Requests for service must be submitted with at least the lead times prescribed in clauses (i)-(iv) of this subparagraph: (i) for hourly transactions, at least one hour in advance, (ii) for daily transactions, no later than by noon the day before the transaction is to commence, (iii) for weekly transactions, at least two days in advance, and (iv) for monthly transactions, at least seven days in advance. The following information shall be provided in connection with an application for unplanned transmission service: (B) A response to a request for service will be made by the appropriate transmission operators as soon as practical after the request is made. Responses to requests for unplanned service shall be provided no later than the times prescribed in clauses (i)-(iv) of this subparagraph: (i) within 30 minutes for hourly transactions, (ii) within four hours for daily transactions, (iii) within 24 hours for weekly transactions, and (iv) within three days for monthly transactions. (C) A request for a transaction will be analyzed first for the next hour and allowed to start if no violations of the transmission operating criteria are anticipated. (D) The following information shall be provided in connection with an application for unplanned transmission service: (i) The identity, address, telephone number and facsimile number of the party requesting service and contact person to deal with questions concerning the application for service. (ii) A statement that the party requesting service is, or will be upon commencement of service, an eligible customer under this section. (iii) A description of resources which shall include, for each resource: (I) Location, unit size and amount of capacity from that unit to be designated as resource. (II) Var capability (both leading and lagging) of all generators. (III) Operating restrictions, including minimum loading level of unit, and normal operating level of unit. (IV) A description of purchased power designated as a resource including source of supply, control area location, transmission arrangements and, if applicable, delivery point(s) into ERCOT. (V) Confirmation that the required ancillary service arrangements are in place. (VI) When service is to begin and the anticipated duration. (D) The transmission providers, ERCOT Security Center, or the ISO will make every reasonable attempt to begin the transactions as soon as possible to conform to the requested commencement date. Operating restrictions, anticipated redispatch needs, the potential for curtailment, and other related information, if known will be communicated to the requester to see if the transactions are still feasible for the eligible customer given the known restrictions. (E) The transmission provider, at its discretion, may take requests outside these timeframes if practical given the current or expected operating conditions on the transmission providers' systems. (5) Technical Arrangements to be Completed Prior to Commencement of Service. Service under this section shall not commence until the transmission provider and the transmission customer, or a third party, have completed installation of all equipment specified under the interconnection agreement and consistent with NERC and ERCOT guidelines. The transmission provider shall exercise reasonable efforts, in coordination with the transmission customer, to complete such arrangements as soon as practical prior to the service commencement date. (6) Transmission Customer Facilities. The provision of transmission service shall be conditioned upon the transmission customer's constructing, maintaining and operating the facilities on its side of each point of interconnection that are necessary to reliably interconnect and deliver power from a resource or other resources to the transmission system and from the transmission system to the transmission customer. The transmission customer shall be responsible for constructing and/or installing all facilities on the transmission customer's side of each such interconnection point. (7) Termination of Planned Transmission Service. A transmission customer may terminate service under this section after providing the transmission provider with written notice of the transmission customer's intention to terminate. A transmission customer's provision of notice to terminate service under this section shall not relieve the transmission customer of its obligation to pay transmission providers any rates, charges, or fees, including charges related to the construction of direct assignment facilities, for service previously provided under the applicable interconnection service agreement, and which are owed to transmission providers as of the date of termination. (f) Planned Resources. Planned resources must be designated by transmission customers in a timely fashion on an annual planning basis such that deficiencies in the ERCOT transmission system may be identified and plans may be formulated by transmission providers to correct these deficiencies. (1) Designation of Planned Resources. Planned resources shall include generation owned or purchased by the transmission customer, and the minimum capacity designated as planned resources shall be consistent with ERCOT guidelines or specified by the ERCOT independent system operator. All of the owned and/or purchased resources that were serving such transmission customer's loads under firm agreements entered into on or before the service commencement date shall initially be designated as planned resources. Such resources shall remain planned resources until the transmission customer terminates the designation of such resources. (2) Designation of New Planned Resources. A transmission customer may designate a new planned resource by providing the transmission provider notice of such designation. Until the transmission provider has completed any transmission facilities or upgrades determined in accordance with subsection (g) of this section to be necessary for planned delivery from a new resource to the transmission customer's load, delivery of power from such resource will be provided by the transmission provider, but only to the extent that such service does not impair the reliability of transmission service from a resource to native load customers or other transmission service customers. Notice of a transmission customer's designation of a new resource shall include sufficient engineering and technical information, as described in subsection (e)(2)(B) of this section, to permit the transmission provider to perform a system security study addressing the transmission requirements associated with delivery of such new resource to the transmission customer's load. (3) Transmission Arrangements for Resources Located Outside of ERCOT. It shall be the transmission customer's responsibility to make any transmission arrangements necessary for delivery of capacity and energy produced from a resource outside of ERCOT to the ERCOT/SPP DC ties. The transmission provider shall undertake reasonable efforts to assist the transmission customer in coordinating and scheduling arrangements with connecting systems within ERCOT. (g) Transmission Facilities or Upgrades Related to Designation of New Planned Resources. (1) Queue Priority. Applications for transmission service or new resources will be assigned a priority according to the date and time that the application is received, with the earliest application receiving the highest priority. (2) System Security Study. (A) Once a transmission customer provides the transmission provider with notice of its intent to designate a new resource pursuant to subsection (f)(2) of this section, the transmission provider and the transmission customer shall execute a study agreement under which the transmission provider will perform a system security study to determine the feasibility of integrating such new resource into the transmission provider's transmission system. (B) In performing the system security study, the transmission provider shall apply the same methods and criteria that it employs in integrating new resources acquired by the transmission provider to serve planned uses of the transmission system or integrating new loads. (C) The transmission provider shall complete the system security study within 60 days beginning on the date of receipt of the executed study agreement. In the event the transmission provider is unable to complete the study within the 60 day period, the transmission provider will provide the transmission customer a written explanation of when the study will be completed and the reasons for the delay. (D) A transmission customer shall be responsible for the cost of the system security study and shall be provided with the results thereof, including relevant workpapers. (E) The transmission providers will use a methodology consistent with Good Utility Practice to conduct a system security study. (3) Facilities Study. (A) Based on the results of the system security study, the transmission provider also may perform, pursuant to an executed facilities study agreement with the transmission customer, a facilities study addressing the detailed engineering, design and cost of required transmission facilities. (B) The facilities study will be completed as soon as reasonably practicable and will be used by the transmission provider to provide the transmission customer with an estimate of the cost for constructing facilities. (C) The transmission customer shall be responsible for the cost of the facilities study pursuant to the terms of the facilities study agreement and shall be provided with the results thereof, including relevant workpapers. (D) The transmission provider shall be responsible for the costs of any facilities study undertaken to determine the engineering, design and cost of facilities associated with the transmission provider's addition of new resources used to serve the transmission provider's load. Such costs will be booked by the transmission provider. (4) Changes in Service Requests. Under no circumstances shall a transmission customer's decision to cancel or delay the addition of a new planned resource in any way reduce or relieve the transmission customer's obligation to pay the costs of transmission facilities constructed by the transmission provider and charged to the transmission customer. Upon receipt of a transmission customer's written notice of such a cancellation or delay, the transmission provider will use the same reasonable efforts to mitigate the costs and charges owed by the transmission customer to the transmission provider as it would to reduce its own costs and charges. (5) Annual Load and Resource Information Updates. A transmission customer shall provide the transmission provider with annual updates of load and resource forecasts consistent with those included in its application for transmission service by October first of each year. The transmission customer also shall provide the transmission provider with timely written notice of material changes in any other information provided in its application relating to the transmission customer's planned load, resources, its transmission system or other aspects of its facilities or operations affecting the transmission provider's ability to provide reliable service under this section. (h) Ancillary Services. Ancillary services include all services necessary to support the transmission of electric power from resources to load while maintaining reliable operation of the interconnected transmission system. A customer may purchase the ancillary services necessary for prudent utility operation from the utility or from another supplier, where the purchase is consistent with Good Utility Practice and technically feasible, or supply the service to itself. Provision of all ancillary services within ERCOT shall be in accordance with this section, unless the service provider has submitted and obtained approval of a modified tariff from the Public Utility Commission of Texas. (1) Ancillary Service Customer. An eligible customer shall be an entity that requires ancillary services to utilize transmission service within ERCOT or to transmit power across the ERCOT/SPP DC ties, and shall include the following: (A) the utility (for its own use of the service); (B) any electric utility, federal power marketing agency, exempt wholesale generator, qualifying facility, or power marketer; and (C) any other entity acting on behalf of a wholesale load either inside or outside of ERCOT. (2) Required Ancillary Services. The specific ancillary services, prices, and/or compensation methods are described in sec.23.67 of this title. (3) Initiating Service. In order to receive ancillary services under this section, the eligible customer and the utility shall have completed the technical arrangements set forth in paragraph (5) of this subsection. In addition, the customer shall - (A) complete an application for service as provided under this section; and (B) execute a service agreement for service under this rule, or request in writing that the utility file a proposed unexecuted service agreement with the commission. (4) Application Procedures. (A) An eligible customer requesting service under this section must submit an application to the utility. A completed application shall provide the following information: (i) the identity, address, telephone number, and facsimile number of the party requesting service; (ii) a statement that the party requesting service is, or will be upon commencement of service, an eligible service customer under this subsection; (iii) service commencement date and the term of the requested service. (B) Unless the parties agree to a different time frame, the utility must acknowledge the request within ten days of receipt. The acknowledgment must include a date by which a response will sent to the eligible customer and a statement of any fees associated with responding to the request (e.g., system studies). (C) If an application fails to meet the requirements of this section, the utility shall notify the eligible customer requesting service and specify the reasons of such failure. Requests for ancillary services must be submitted with at least the lead time prescribed in clauses (i)-(v) of this subparagraph: (i) to support hourly transactions, at least one hour in advance of the commencement of the transaction; (ii) to support daily transactions, by noon the day before commencement of the transaction; (iii) to support weekly transactions, at least two days in advance; (iv) to support monthly transactions, at least seven days in advance; and (v) to support annual transactions, at least 15 days in advance. (D) Responses to requests for ancillary services shall be provided by the utility to the transmission customer no later than the time prescribed in clauses (i)-(v) of this subparagraph: (i) for hourly transactions, within 30 minutes of the request; (ii) for daily transactions, within four hours; (iii) for weekly transactions, within 24 hours; (iv) for monthly transactions, within three days; and (v) for annual transactions, within seven days. (D) Wherever possible, the utility will attempt to remedy deficiencies in the application through informal communications with the eligible customer. (E) The utility will not divulge information from the application to its marketing personnel, its affiliates, or persons buying or selling electricity in the bulk power market. (5) Technical Arrangements to be Completed Prior to Commencement of Ancillary Service. Service under this subsection shall not commence until the utility and the customer, or a third party, have completed installation of all equipment specified under the operating agreement and consistent with national and regional guidelines and any additional requirements reasonable and consistently imposed to ensure the reliable operation of the utility's system. The utility shall exercise reasonable efforts, in coordination with the customer, to complete such arrangements as soon as practical prior to the service commencement date. (6) Customer Facilities. The provision of the service shall be conditioned upon the customer's constructing, maintaining, and operating the facilities on its side of each point of interconnection that are necessary to reliably interconnect and receive service from the utility system. The customer shall be solely responsible for constructing and/or installing all facilities on the customer's side of each such interconnection point. (7) Termination of Service. A customer may terminate service under this subsection following written notice of the customer's intention to terminate. A customer's provision of notice to terminate service under this section shall not relieve the customer of its obligation to pay the utility any rates, charges, or fees, including charges related to the construction of direct assignment facilities, for service previously provided under the applicable service agreement or the operating agreement, and which are owed to the utility as of the date of termination. (8) Notification. Both the Customer and Service Provider of any ancillary service shall report to the ISO the identity of the provider and user of such service and the non-price terms and conditions. (i) Load Shedding and Curtailments. (1) Procedures. (A) Prior to the commencement of service hereunder, transmission providers, the ERCOT security centers, and the Independent System Operator shall establish non-discriminatory emergency load shedding and curtailment procedures for responding to emergencies on the transmission system. (B) The transmission provider and the transmission customer will comply with the load shedding and curtailment procedures established by transmission providers, ERCOT security centers, or the Independent System Operator. (C) The parties will implement such programs during any period when the Independent System Operator, an ERCOT security center, or a transmission provider determines that a transmission capacity constraint exists and such procedures are necessary to alleviate the constraint. (D) The transmission provider will notify all affected transmission customers in a timely manner of any scheduled interruption (e.g., scheduled maintenance). (2) Transmission Constraints. (A) During any period when the transmission provider, an ERCOT security center, or the Independent System Operator determines that a transmission constraint exists on the transmission system, and such constraint may impair the reliability of a transmission provider's system or adversely affect the operations of either a transmission provider or a transmission customer, the transmission provider, an ERCOT security center, or the Independent System Operator will take whatever actions, consistent with Good Utility Practice, that are reasonably necessary to maintain the reliability of the transmission provider's system and avoid interruption of service. (B) To the extent the transmission provider, an ERCOT security center, or the Independent System Operator determines that the reliability of the transmission system can be maintained by redispatching resources (including reductions in off-system purchases and sales), or when redispatch arrangements are necessary to facilitate wholesale generation and transmission transactions, the transmission provider will initiate procedures to redispatch the transmission provider's resources and/or require a transmission customer to redispatch its resources. To the extent possible such redispatch shall be made on a least-cost basis. Any redispatch under this section will provide for equal treatment between a transmission provider and other transmission service customers. (C) If the transmission provider determines that it will not have adequate transmission capacity to satisfy the full amount of a valid request for planned transmission service, the transmission provider nonetheless shall be obligated to offer and provide the portion of the requested planned transmission service that can be accommodated without addition of any facilities and through redispatch. However, the transmission provider shall not be obligated to provide the incremental amount of requested planned transmission service that requires the addition of facilities or upgrades to the transmission system until such facilities or upgrades have been placed in service. (3) Cost Responsibility for Relieving Capacity Constraints. (A) ERCOT utilities shall provide redispatch services on a non-discriminatory basis to all wholesale market participants when necessary to preserve system reliability or to alleviate transmission constraints that impede wholesale generation and transmission transactions. The independent system operator established under sec.23.67 of this title shall determine whether a proposed redispatch is cost-effective and which utility shall redispatch its generating resources to facilitate a transaction. (B) The cost of redispatch services for planned transactions shall be based on the cost of providing the service, which shall be allocated among utilities in proportion to each utility's share of the transmission cost of service, as determined by the commission under sec.23.67 of this title. (C) The cost of redispatch services for unplanned transactions shall be borne by the transmission customer for whose benefit the redispatch is made. Utilities shall provide binding advance bids for redispatch services for unplanned transactions. The participants in unplanned transactions shall be promptly notified by the independent system operator when their transactions have been continued through redispatch; shall be informed of the cost of the redispatch measures taken; and shall have the opportunity to curtail their transactions to avoid additional redispatch costs. (D) ERCOT utilities shall include in their tariffs a standard methodology for calculating redispatch costs. (E) The obligation of a utility to redispatch its resources includes the obligation to redispatch non-utility resources that it is relying on. (4) System Reliability. (A) Notwithstanding any other provisions of this section, the transmission provider reserves the right, consistent with Good Utility Practice and on a basis that is not discriminatory, to interrupt transmission service without liability on the transmission provider's part for the purpose of making necessary adjustments to, changes in, or repairs to its lines, substations and other facilities, and in cases where the continuance of transmission service would endanger persons or property. (B) In the event of any adverse condition(s) or disturbance(s) on the transmission provider's system or on any other system(s) directly or indirectly interconnected with the transmission provider's system, the transmission provider, consistent with Good Utility Practice, also may interrupt transmission service on a non-discriminatory basis in order to limit the extent or damage of the adverse condition(s) or disturbance(s), prevent damage to generating or transmission facilities, or expedite restoration of service. (C) The transmission provider will give the transmission customer as much advance notice as is practicable in the event of such interruption. (D) Any interruption of transmission service shall not be discriminatory relative to the transmission provider's use of the transmission system on behalf of its native load customers. (E) The transmission customer's failure to respond to established emergency load shedding and curtailment procedures to relieve emergencies on the transmission system may result in the transmission customer being deemed by the transmission provider to be in default and may result in the termination of transmission service. (j) Billing and Payment for Transmission Service and Ancillary Services. (1) Billing Procedure. Within a reasonable time after the first day of each month, the service provider shall submit an invoice to the customer for the charges for all service furnished under this section during the preceding month. (2) Payment Procedure. The invoice shall be paid to the service provider by the customer so that the service provider will receive the funds by the 16th day after the date that the invoice is received by the customer, unless the provider and the customer agree on another mutually acceptable deadline. All payments shall be made in immediately available funds payable to service provider, or by wire transfer to a bank named by the service provider. (3) Interest on Unpaid Balances. Interest on any unpaid amount shall be calculated in accordance with the methodology specified for interest on overbillings and underbillings in s23.45(g) of this title (relating to Billing). Interest on delinquent amounts shall be calculated from the due date of the bill to the date of payment. When payments are made by mail, bills shall be considered as having been paid on the date of receipt by the service provider. (4) Customer Default. (A) In the event the customer fails, for any reason other than a billing dispute as described in subparagraph (B) of this paragraph, to make payment to the service provider on or before the due date as described in subsection (j) of this section, and such failure of payment is not corrected within 30 calendar days after the service provider notifies the customer to cure such failure, a default by the customer shall be deemed to exist. (B) Upon the occurrence of a default, the service provider may initiate a proceeding with the commission to terminate service but shall not terminate service until the commission approves any such request. In the event of a billing dispute between the service provider and the customer, the service provider will continue to provide service as long as the customer: (i) continues to make all payments not in dispute; and (ii) pays into an independent escrow account the portion of the invoice in dispute, pending resolution of such dispute. (C) If the transmission customer fails to meet the requirements in subparagraph (B)(i)-(ii) of this paragraph, then the service provider will provide notice to the customer and to the commission of its intention to terminate service. (D) Any dispute arising in connection with the termination or proposed termination of service shall be referred to the informal dispute resolution process described in sec.23.67(q) of this title. (5) Unauthorized Use of Ancillary Services. Any person who knowingly makes use of an ancillary service required by the Independent System Operator without the agreement of the party providing that service shall pay to such service provider an amount equal to three times the otherwise applicable charge. In no case shall a service provider knowingly provide such an ancillary service without prior arrangements with the customer nor shall a service provider be able to unilaterally impose such an ancillary service on an unwilling purchaser. (k) Standards of Conduct. (1) Standard of Nondiscrimination. In performing its obligation under this section, a service provider shall apply the provisions of this section in a non discriminatory manner to all users, including itself as a user of its services. (A) The persons in the respective functional organizations within the utility shall adhere to the standards of conduct in this subsection and sec.23.67 of this title. Within 60 days of the adoption of these amendments, each electric utility in ERCOT that owns 100 megawatts or more of generating capacity shall make a filing describing its implementation of the requirements of this subsection and sec.23. 67 of this title, including written procedures governing the exchange of information and physical separation of personnel among its functionally unbundled organizational units. (B) The employees of a utility that are engaged in wholesale merchant functions (that is, the purchase or sale of electric energy at wholesale), other than purchases required under the Public Utility Regulatory Policies Act, shall not: (i) conduct transmission system operations or reliability functions; (ii) have preferential access to the utility's system control center and other facilities, beyond the access that is available to other market participants; (iii) have preferential access to information about the utility's transmission system that is not available to users of the electronic information network established in accordance with section sec.23. 67(o) of this title. (iv) obtain information about the utility's transmission system and offerings of ancillary services, including calculations of available transmission capacity and information concerning curtailments, through means or sources other than the information network. (C) To the maximum extent practicable, employees of a utility engaged in transmission system operations must function independently of employees engaged in wholesale merchant functions and of employees of any affiliate of the utility. Employees engaged in transmission system operations may disclose information to employees of the utility engaged in merchant functions only through the information network, if the information relates to the utility's transmission system or offerings of ancillary services, including calculations of available transmission capacity and information concerning curtailments. (D) Transfers of persons between an organizational unit that is responsible for transmission system operations and a unit that is responsible for wholesale merchant functions shall be posted on the information network. (E) If an employee of a public utility discloses or obtains information in a manner that is inconsistent with the rules in this subsection, the utility shall post a notice and details of the disclosure on the information network. (F) Employees of a utility engaged in transmission operations shall apply the rules in this section, sec.23.67 of this title, and any tariffs relating to transmission service in a fair and impartial manner. (G) Provisions of this section that allow no discretion shall be strictly applied, and where discretion is allowed, shall be used in a non-discriminatory manner. (H) For all of the commission authorized discounts on ancillary transmission services, the service provider shall offer discounts on all services to similarly-situated transmission customers on a non-discriminatory basis. Service providers shall offer and post on the ERCOT electronic information network on a contemporaneous basis discounts offered to its power marketing personnel, its affiliates, or persons buying or selling electricity in the bulk power market. (I) Bids or offers for ancillary services shall not be bundled with a power sale. The purchase of power from a source shall not be contingent on purchase of ancillary services from the same source. (J) This subsection shall not apply to data that does not relate to transmission service operations such as information on human resource policies. (K) These standards shall be superseded by any current FERC standards governing the exchange of information among utility personnel at such time as those standards become effective for electric utilities subject to the FERC's plenary jurisdiction. (2) Communications with Eligible Customers. A service provider shall use all reasonable efforts to communicate promptly with all eligible customers to resolve any questions regarding their requests for service in a non- discriminatory manner. (3) Standard of Due Diligence. If a service provider or customer is required to complete activities or to negotiate agreements as a condition of service, each party shall use due diligence to complete these actions within a reasonable time. (l) Indemnification and Liability. (1) Neither a customer nor service provider shall be liable to the other for damages for any act that is beyond such party's control, including any event that is a result of an act of God, labor disturbance, act of the public enemy, war, insurrection, riot, fire, storm or flood, explosion, breakage or accident to machinery or equipment, a curtailment, order, regulation or restriction imposed by governmental military or lawfully established civilian authorities, or by the making of necessary repairs upon the property or equipment of either party. (2) Notwithstanding the provisions of the foregoing paragraph, a customer and service provider shall assume all liability for, and shall indemnify each other for, any losses resulting from negligence or other fault in the design, construction, or operation of their respective facilities. Such liability shall include any monetary losses, costs and expenses of defending an action or claim made by a third person, damages for the death or injury of any person, and damage to the property of the service provider, customer, or a third person, and damages for the disruption of the business of a third person. Such liability does not include the service provider's or customer's costs and expenses of prosecuting or defending an action or claim against the other, or damages for the disruption of the business of the service provider or customer. The limitations on liability set forth in this subsection do not apply in cases of gross negligence or intentional wrongdoing. (m) Creditworthiness for Transmission Service and Ancillary Services. (1) For the purpose of determining the ability of a customer to meet its obligations related to service hereunder, a service provider may require reasonable credit review procedures. This review shall be made in accordance with standard commercial practices. (2) The service provider may require a customer to provide and maintain in effect during the term of service, an unconditional and irrevocable letter of credit as security to meet its responsibilities and obligations under this Rule, or an alternative form of security proposed by the customer and acceptable to the service provider and consistent with commercial practices established by the Uniform Commercial Code that protects the service provider against the risk of non-payment. (3) If a transmission customer is creditworthy, no letter of credit or alternative form of security shall be required. (n) Responsibilities of ERCOT Independent System Operator. To the extent that this section or sec.23. 67 of this title assigns a responsibility to another person or entity in conjunction with or in lieu of the ERCOT independent system operator, the independent system operator shall exclusively assume those specified responsibilities at such time as the formation of the independent system operator is approved by the commission. (o) Impact calculations using the vector-absolute megawatt-mile method. The vector-absolute megawatt-mile impacts referred to in sec.23.67(e) of this title shall be calculated in accordance with this subsection. When transmission rates are fixed, in accordance with sec.23.67 of this title, each electric utility in ERCOT shall provide the information necessary to perform the calculations described in this subsection. (1) Megawatt-miles for all ERCOT loads shall be determined using a single load flow model that is based on the following conditions or assumptions: (A) the transmission system will be configured as it is anticipated to operate in the upcoming summer season, and (B) every generator that is a part of any load's planned resource commitment is represented in the calculations. (2) The vector-absolute megawatt-mile impact is an assessment of the impact of the transmission of power and energy made by calculating the sum of the products of the vector-absolute change in megawatt power flows for each transmission line that has a nominal operating voltage of at least 60,000 volts when measured phase-to-phase, and the length of each line miles, calculated for each generator. (3) The impact calculation is based on identifying which generating units, by reason of ownership or contractual entitlement, are serving which loads. Each group of generating units and the loads they serve are referred to in this subsection as a transmission event. Transmission transactions that are not included in a transmission event in the calculation of impacts are considered unplanned transactions. (4) The impact calculation is based on a single load-flow base case that takes into account all transmission events. (5) The impact calculation is performed for each generator bus that serves load within a single transmission event, as follows: (A) The portion of the load on every bus that is assigned to the particular transmission event is removed. (B) The output of the generators in the transmission event is reduced by an amount that results in a balancing of load and generation, without affecting the output of generators that are not included in the transmission event. (C) The vector-absolute change in flow on every line is determined by comparing the flow calculated in subparagraph (B) of this paragraph with the base case and multiplying the vector-absolute change in flow by the length of the line in miles. (D) The megawatt-mile impact per megawatt of generation is determined by dividing the impact determined in subparagraph (C) of this paragraph by the generation change used in subparagraph (B) of this paragraph. (6) From the information calculated in paragraph (5) of this subsection of, a matrix is prepared that shows the megawatt-mile impact on each transmission provider per megawatt of generation for each generator in each transmission event. (7) Each utility that takes transmission service under sec.23.67 of this title shall nominate from its list of planned resources a specific amount of generation from each unit, such that the sum of the nominations is greater than or equal to the 115% of the utility's demand. (8) The total megawatt-mile impact of a transmission event is determined by summing the product of the nomination level for each generator, as prescribed in paragraph (7) of this subsection, and the megawatt-mile impact per megawatt for that generator, as calculated in paragraph (6) of this subsection. (9) The independent system operator established in accordance with sec.23.67(o) of this title shall establish a working group to review the load flow case and the underlying data to be used in the impact calculations, and shall appoint a chair of the working group. The chair of the working group shall indicate in writing to the independent system operator either the working group's unanimous acceptance of the data, or the objections raised to the data by any member of the group. Disputes over the data will be resolved in accordance with the procedures for alternative dispute resolution prescribe by sec.23.67(q) of this title. The independent system operator shall include in the working group any transmission provider or eligible customers that requests to participate. 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 January 26, 1996. TRD-9601130 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part IX. Texas State Board of Medical Examiners Chapter 163. Licensure 22 TAC sec.163.12 The Texas State Board of Medical Examiners proposes an amendment to sec.163.12, concerning relicensure of physicians. The proposed amendment will clarify the requirements for physicians to become relicensed following cancellation of their license due to nonpayment of annual registration fees. Tim Weitz, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications as a result of enforcing or administering the section as proposed. Mr. Weitz also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to outline the circumstances under which a physician would not be required to pass an examination when applying for relicensure. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.3.01(c) is affected by this amendment. sec.163.12. Relicensure. (a) If a physician's license has been expired for one year, it is considered to have been canceled, and the physician may not renew the license. The physician may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (1) The examinations required by this section are: (A) (No change.) (B) SPEX, unless the applicant : (i) has passed a licensure examination or has obtained specialty certification, recertification, or passed an examination of continued demonstration of qualifications by a board that is a member of the American Board of Medical Specialties or the Advisory Board for Osteopathic Specialists within the preceeding ten years or (ii) has been in a training program approved by the board within six months prior to application for relicensure. (2) (No change.) (b) (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 January 29, 1996. TRD-9601208 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 305-7016 Chapter 165. Medical Records 22 TAC sec.165.1 The Texas State Board of Medical Examiners proposes new s165.1, concerning medical records. The proposed new section will clarify what is required of physicians with regard to the release of medical records and will establish reasonable fees for providing such records. Tim Weitz, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications as a result of enforcing or administering the section as proposed. Mr. Weitz also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to set out the requirements for physicians to provide copies of medical records. There will be minimal effect on small businesses. There will be minimal anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The new section is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.5.08, is affected by this new section. sec.165.1. Medical Records. (a) As required by the Medical Practice Act, sec.5.08(k), a physician shall furnish copies of medical records requested or a summary or narrative of the records pursuant to a written release of the information as provided by the Medical Practice Act, sec.5.08(j), except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, and the physician may delete confidential information about another person who has not consented to the release. (b) The requested copies of medical records or a summary or narrative of the records shall be furnished by the physician within 30 days after the date of the request and reasonable fees for furnishing the information shall be paid by the patient or someone on behalf of the patient. (c) If the physician denies the request for copies of medical records or a summary or narrative of the records, either in whole or in part, the physician shall furnish the patient a written statement, signed and dated, stating the reason for the denial, and a copy of the statement denying the request shall be placed in the patient's medical records. (d) For purposes of this chapter, "medical records" shall mean any records pertaining to the history, diagnosis, treatment or prognosis of the patient including copies of medical records of other health care practitioners contained in the records of the physician to whom a request for release of records has been made. (e) The physician responding to a request for such information shall be entitled to receive a reasonable fee for providing the requested information. A reasonable fee shall be a charge of no more than $25 for the first twenty pages and $.15 per page for every copy thereafter. In addition, a reasonable fee may include actual costs for mailing, shipping, or delivery. (f) The physician providing copies of requested medical records or a summary or a narrative of such records shall be entitled to payment of a reasonable fee prior to release of the information unless the information is requested by a licensed Texas health care provider or a physician licensed by any state, territory, or insular possession of the United States or any State or province of Canada if requested for purposes of emergency or acute medical care. In the event the physician receives a proper request for copies of medical records or a summary or narrative of the medical records for purposes other than for emergency or acute medical care, the physician may retain the requested information until payment is received. In the event payment is not routed with such a request, within ten calendar days from receiving a request for the release of such records for reasons other than emergency or acute medical care, the physician shall notify the requesting party in writing of the need for payment and may withhold the information until payment of a reasonable fee is received. A copy of the letter regarding the need for payment shall be made part of the patient's medical record. Medical records requested pursuant to a proper request for release may not be withheld from the patient, the patient's authorized agent, or the patient's designated recipient for such records based on a past due account for medical care or treatment previously rendered to the patient. (g) A subpoena shall not be required for the release of medical records requested pursuant to a proper release for records under this section and the Medical Practice Act, sec.5.08, made by a patient or by the patient's guardian or other representative duly authorized to obtain such records. (h) In response to a proper request for release of medical records, a physician shall not be required to provide copies of billing records pertaining to medical treatment of a patient unless specifically requested pursuant to the request for release of medical records. (i) The allowable charges as set forth in this chapter shall be maximum amounts, and this chapter shall be construed and applied so as to be consistent with lower fees or the prohibition or absence of such fees as required by state statute or prevailing federal law. 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 January 29, 1996. TRD-9601209 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 305-7016 Chapter 190. Disciplinary Guidelines 22 TAC sec.190.1 The Texas State Board of Medical Examiners proposes new s190.1, concerning disciplinary guidelines. The proposed new section will provide guidance for administrative law judges and board members in contested matters related to discipline and licensure. Tim Weitz, general counsel, has determined that for the first five-year period the section is in effect there will be no fiscal implications as a result of enforcing or administering the section as proposed. Mr. Weitz also has determined that for each year of the first five years the section as proposed is in effect the public benefit anticipated as a result of enforcing the section will be to promote consistency in the exercise of sound discretion by board members in disciplinary matters. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The new section is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.4.12 and 4.125 are affected by this new section. sec.190.1. Disciplinary Guidelines. (a) Purpose. This chapter is promulgated to: (1) provide guidance and a framework of analysis for administrative law judges in the making of recommendations in contested licensure and disciplinary matters; (2) promote consistency in the exercise of sound discretion by board members in the imposition of sanctions in disciplinary matters; and, (3) provide guidance for board members for the resolution of potentially contested matters. (b) Limitations. This chapter shall be construed and applied so as to preserve board member discretion in the imposition of sanctions and remedial measures pursuant to the Medical Practice Act (the "Act"), sec.4.12 (related to Methods of Discipline) and sec.4.125 (related to Administrative Penalty). This chapter shall be further construed and applied so as to be consistent with the Act, and shall be limited to the extent as otherwise proscribed by statute and board rule. (c) Aggravation. The following may be considered as aggravating factors so as to merit more severe or more restrictive action by the board. (1) patient harm and the severity of patient harm; (2) economic harm to any individual or entity and the severity of such harm; (3) environmental harm and severity of such harm; (4) increased potential for harm to the public; (5) attempted concealment of misconduct; (6) premeditated misconduct; (7) intentional misconduct; (8) motive; (9) prior misconduct of a similar or related nature; (10) disciplinary history; (11) prior written warnings or written admonishments from any government agency or official regarding statutes or regulations pertaining to the misconduct; (12) violation of a board order; (13) failure to implement remedial measures to correct or mitigate harm from the misconduct; (14) lack of rehabilitative potential or likelihood for future misconduct of a similar nature; and, (15) relevant circumstances increasing the seriousness of the misconduct. (d) Extenuation and Mitigation. The following may be considered as extenuating and mitigating factors so as to merit less severe or less restrictive action by the board. (1) absence of patient harm; (2) absence of economic harm to any individual or entity; (3) absence of environmental harm; (4) absence of potential harm to the public; (5) self-reported and voluntary admissions of misconduct; (6) absence of premeditation to commit misconduct; (7) absence of intent to commit misconduct; (8) motive; (9) absence of prior misconduct of a similar or related nature; (10) absence of a disciplinary history; (11) implementation of remedial measures to correct or mitigate harm from the misconduct; (12) rehabilitative potential; (13) prior community service and present value to the community; (14) relevant circumstances reducing the seriousness of the misconduct; and, (15) relevant circumstances lessening responsibility for the misconduct. 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 January 29, 1996. TRD-9601210 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 305-7016 Part XII. Board of Vocational Nurse Examiners Chapter 231. Administration 22 TAC sec.231.11 The Board of Vocational Nurse Examiners proposes an amendment to sec.231. 11 relative to Headquarters of the Board. This rule is amended to reflect the new address of the Board of Vocational Nurse Examiners. Marjorie A. Bronk, Executive Director, has determined that for the first five year period the rule is in effect, there will be no fiscal implication for state or local government as a result of enforcing or administering the rule. Mrs. Bronk also has determined that for each of the first years the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be a current address for the Board in the rules and regulations. Comments on the proposed amendment may be submitted to Marjorie A. Bronk, R. N., M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 Guadalupe Street, Suite 3-400, Austin, Texas 78701, (512) 305-8100. The amendment is proposed under Texas Civil Statutes, Article 4528c, sec.5(h) , which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. No other statute, article or code will be affected by this proposal. sec.231.11. Headquarters of the Board. The headquarters [office] is located at 333 Guadalupe Street, Suite 3-400
          , [9101 Burnet Road, Suite 105] Austin, Texas 78701
            [78758]. 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 January 26, 1996. TRD-9601167 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 305-8100 Chapter 235. Licensing Application for Licensure 22 TAC sec.235.3, sec.235.6 The Board of Vocational Nurse Examiners proposes amendments to sec.235.3 relative to Qualifications for Licensure by Examination and sec.235.6 relative to Applications for Licensure by Endorsement. Section 235.3 is amended to clarify the language, as the Board no longer gives/administers the licensure examination. Section 235.6 is amended to clarify that there may be additional requirements for licensure for the endorsement applicant that reflect new active and current Texas licensure requirements. Marjorie A. Bronk, Executive Director, has determined that for the first five year period the rules are in effect, there will be no fiscal implication for state or local government as a result of enforcing or administering the rules. Mrs. Bronk also has determined that for each of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rule will be a better understanding of qualifications required for licensure. Comments on the proposed amendments may be submitted to Marjorie A. Bronk, R.N., M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 Guadalupe Street, Suite 3-400, Austin, Texas 78701, (512) 305-8100. The amendments are proposed under Texas Civil Statutes, Article 4528c, sec.5(h), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. No other statute, article or code will be affected by this proposal. sec.235.3. Qualifications for Licensure by Examination. The vocational/practical nurse shall: (1)-(2) (No change.) (3) have passed the examination approved
              [given] by the Board of Vocational Nurse Examiners. sec.235.6. Applications for Licensure by Endorsement An applicant for licensure in Texas by endorsement shall: (1)-(7) (No change.) (8) Comply with additional board staff specified training, education, or examination requirements if not employed as a licensed nurse within the past five years;
                [file another application if original application is not completed within six months; (9) file another application if original application is not completed within six months;
                  [not be refunded fees] (10) Not be refunded fees. 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 January 26, 1996. TRD-9601168 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 305-8100 Chapter 237. Continuing Education Continuing Education 22 TAC sec.237.19 The Board of Vocational Nurse Examiners proposes an amendment to sec.237. 19 relative to Relicensure Process. The rule is amended to create consistency in the rules and to clarify requirements for continuing education for endorsement applicants. Marjorie A. Bronk, Executive Director, has determined that for the first five year period the rule is in effect, there will be no fiscal implication for state or local government as a result of enforcing or administering the rule. Mrs. Bronk also has determined that for each of the first five years the rule is in effect, there will be no anticipated public benefit as a result of enforcing the rule. Comments on the proposed amendment may be submitted to Marjorie A. Bronk, R. N., M.S.H.P., Executive Director, Board of Vocational Nurse Examiners, 333 Guadalupe Street, Suite 3-400, Austin, Texas 78701, (512) 305-8100. The amendment is proposed under Texas Civil Statutes, Article 4528c, sec.5(h) , which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. No other statute, article or code will be affected by this proposal. sec.237.19. Relicensure Process.
                    In addition to meeting all board requirements specified in Chapter 235 of this title (relating to Licensing), the following conditions for relicensure shall be met: (1)-(2) (No change.) (3) Continuing education is not required for endorsement into Texas. A licensee who has been endorsed into this state shall be exempt from the continuing education requirements for issuance of the initial license and for the immediately succeeding renewal period following initial licensure
                      . (4)-(5) (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 January 26, 1996. TRD-9601170 Marjorie A. Bronk, R.N. Executive Director Board of Vocational Nurse Examiners Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 305-8100 Title 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter GG. Insurance Tax 34 TAC sec.3.831 The Comptroller of Public Accounts proposes new sec.3.831, concerning gross premium definitions for property and casualty, and title insurance companies; and clarification of the taxation of the distribution of title premiums. The proposal clarifies the gross premium definitions for premium tax and maintenance tax purposes and the taxation on the distribution of title premiums. Mike Reissig, chief revenue estimator, has determined that for the first five- year period the rule will be in effect there will be no significant revenue impact on the state or local government. Mr. Reissig 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 in clarifying current law. This rule is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to individuals who are required to comply with the proposed rule. Comments on the new section may be submitted to Karey W. Barton, Manager, Tax Policy Division, P.O. Box 13528, Austin, Texas 78711. The new section is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Insurance Code, Article 4.10, sec.5; and Articles 5.12, 5.24, 5.49, 9.46, 9.59, sec.2; and 9.59, sec.7. sec.3.831. Gross Premium Definitions for Property and Casualty, and Title Insurance Companies; and Clarification of the Taxation on the Distribution of Title Premiums. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Gross premium definition for property and casualty companies- (A) Gross premiums are the total gross amount of premiums, membership fees, assessments, dues, and any other considerations for the taxable year on insurance written on each and every kind of property or risk located in the state: (i) excluding premiums received from other licensed companies for reinsurance premiums and premium finance charges clearly identified in a premium note or other evidence of premium payable that is separately stated to the policyholder (i.e., invoice, billing, contract); and (ii) deducting return premiums (i.e., unearned premiums returned to policyholders) and dividends paid to policyholders, with no deduction for premiums paid for reinsurance. (B) The gross premium definition described in subparagraph (A) of this paragraph applies to every insurance carrier, including Lloyds, reciprocal exchanges, and any other organization or concern writing gross premiums from the business of fire, marine, inland marine, accident, credit, livestock, fidelity, guaranty, surety, casualty, employers' liability, or any other kind or character of insurance. However, the definition does not apply to: (i) title insurance companies; (ii) life insurance, personal accident insurance, life and accident insurance, or health and accident insurance for profit, written by life insurance companies, life and accident insurance companies, or health and accident insurance companies; (iii) fraternal benefit associations or societies in this state, non-profit group hospital service plans, stipulated premium companies, mutual assessment associations, companies or corporations regulated by the Insurance Code, Chapter 14, as amended; and (iv) cooperative or mutual fire insurance companies administered by the members thereof solely for the protection of their own property and not for profit. Gross premium definition for title insurance companies-Gross premiums are the total gross amount of premiums, membership fees, dues, and any other considerations received by the title insurer or its agent for the taxable year on title insurance written on property located in this state: (A) excluding premiums received from other licensed title insurance companies for reinsurance; and (B) deducting return premiums paid to policyholders, with no deduction for premiums paid for reinsurance. Taxation on distribution of title insurance premiums- (A) Premium and maintenance taxes are levied on all amounts defined to be title premiums whether paid to the title insurance company or retained by the title insurance agent. (B) The collection of the title premium and maintenance taxes remitted to the comptroller on the premium retained by the title agent is incorporated in the division of the premium between insurer and agent so that the insurer receives the premium and maintenance taxes due on the agent's portion of the premium. (C) The insurer is required to remit to the comptroller the total title premium and maintenance taxes due. 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 January 26, 1996. TRD-9601131 Martin Cherry Chief, General Law Comptroller of Public Accounts Earliest possible date of adoption: March 8, 1996 For further information, please call: (512) 463-4028 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled Eligibility 40 TAC sec.48.2912, sec.48.2928 The Texas Department of Human Services (DHS) proposes amendments to sec.48. 2912 and sec.48.2928, concerning congregate and home-delivered meals and emergency response services, in its Community Care for Aged and Disabled (CCAD) chapter. The purpose of the amendments is to increase the functional eligibility score for home-delivered meals and emergency response services so that the most needy clients are served. The changes are the result of a DHS Board directive to address the funding shortfall in CCAD for fiscal year 1996. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Raiford 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 positive impact on the CCAD funding shortfall while still providing services to the most needy clients. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Armando Delgado at (512) 438-3217 in DHS's Long Term Care Services division. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy Services-163, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendments are proposed under the Human Resources Code, Title 2, Chapters 22, which provides the department with the authority to administer public assistance programs. The amendments implement sec.sec.22.001-22.024 of the Human Resources Code. sec.48.2912. Congregate and Home-delivered Meals. To be eligible for congregate or home-delivered meals, applicants and clients must score at least 20
                        [16] on the client needs assessment questionnaire. [Individuals receiving congregate or home-delivered meals on July 1, 1986, continue to be eligible for services as long as they score at least nine on the client needs assessment questionnaire. If services are terminated for these grandfathered clients, they must meet an eligibility score of at least 16 to requalify for services.] sec.48.2928. Emergency Response Services. A client must score at least 20
                          [18] on the client needs assessment questionnaire and meet the requirements in paragraphs (1)-(5) of this section to be eligible for emergency response services. [Individuals receiving emergency response services on July 1, 1986, continue to be eligible for services as long as they score at least nine on the client needs assessment questionnaire. If services are terminated for these grandfathered clients, they must meet an eligibility score of at least 18 to requalify for services.] (1)-(5) (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 January 25, 1996. TRD-9601092 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: April 15, 1996 For further information, please call: (512) 438-3765 Part XIX. Texas Department of Protective and Regulatory Services Chapter 700. Child Protective Services The Texas Department of Protective and Regulatory Services (TDPRS) proposes the repeal of sec.sec.700.104, 700.105, 700.507, and 700.510; proposes new sec.sec.700.104-700.114, 700.507, 700.510, 700.521, 700.1111, 700.1352- 700. 1355; and proposes amendments to sec.sec.700.501-700.503, 700.506, 700.508, 700. 511-700.518, 700.520, 700.601-700.605, 700.702, 700.703, 700.705, 700.1103, 700.1310, 700.1312, 700.1315, 700.1316, 700.1321, 700.1322, 700.1332, 700.1333, 700.1350, 700.1405, and 700.1502 in its Child Protective Services chapter. The purpose of the repeals, amendments, and new sections is to incorporate changes due to legislative decisions and automation of the program. Jerry Abel, chief fiscal officer, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Abel 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 streamlined eligibility determination process and public access to correct information. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Max Villarreal at (512) 438-5443 in TDPRS's Protective Services for Families and Children department. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy Services-012, Texas Department of Protective and Regulatory Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register . Subchapter A. Administration 40 TAC sec.700.104, sec.700. 105 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Human Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The repeals implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.104. Child Abuse and Neglect Reporting Inquiry System (CANRIS). sec.700.105. Criminal Records Checks for Authorized Volunteer Organizations. 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 January 26, 1996. TRD-9601178 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 40 TAC sec.sec.700.104-700.114 The new sections are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The new sections implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.104. Child Abuse and Neglect Central Registry. (a) General description. As required in the Texas Family Code (TFC), sec.261. 002, the Texas Department of Protective and Regulatory Services (TDPRS) maintains a central registry of reported cases of child abuse and neglect. The registry is maintained as a subset of information in the TDPRS automated system, Child and Adult Protective Services System (CAPS). While CAPS is used for recording and storing all casework related activities for both child and adult protective services, the child protective services central registry consists only of information gathered during investigations of child abuse and neglect in cases which were given a disposition of "reason to believe" and the person had a role of designated perpetrator or sustained perpetrator. (b) Retention period. Central registry information retention is equal to case retention. When the case containing the investigation record is no longer retained, the central registry information is also removed. (c) Release of information. When an individual has submitted a notarized written request, approved by TDPRS, for central registry information about himself, TDPRS has the authority to release the results of the central registry check to the requestor. (d) Content of release. TDPRS has the authority to release a confirmation of the fact that the person, as qualified in subsection (c) of this section, is listed as a designated or sustained perpetrator of child abuse or neglect. sec.700.105. Criminal Record Checks for Authorized External Volunteer Organizations. (a) To obtain criminal history records on volunteers or volunteer applicants, the agencies authorized by law to obtain these through the Texas Department of Protective and Regulatory Services (TDPRS) must give TDPRS identifying information about the applicant on a form designated by TDPRS for that purpose. (b) The volunteer agency must ensure that the person on whom the information is being requested has consented in writing to TDPRS disclosing the information to the volunteer agency. (c) TDPRS discloses the criminal history information received from the Texas Department of Public Safety directly to the volunteer agency that requests it, although TDPRS must not give the volunteer agency a copy of the information or allow the volunteer agency to make a photocopy of the information. (d) TDPRS retains the criminal records check information obtained on behalf of the volunteer agency only as long as is needed to ensure that the volunteer agency has received the information and then TDPRS deletes or destroys the information. (e) TDPRS may charge an organization that requests criminal record history information a fee in the amount necessary to cover the costs of obtaining the information on the organization's behalf. sec.700.106. Retention and Disposal of Case Information. (a) The Texas Department of Protective and Regulatory Services (TDPRS) retains Child Protective Services case information after case closure in order to document services provided to clients, and to meet state and federal accountability requirements. (b) When the retention period has elapsed, TDPRS permanently removes the case information from the Child and Adult Protective Services System (CAPS) database and destroys the paper case record in a manner that does not jeopardize confidentiality. (c) Case information to be destroyed does not include that given to the criminal justice system for its use in investigation and prosecution, such as a videotape of a child's outcry. Such information given to the criminal justice system is subject to destruction according to that system's guidelines. (d) Information in CAPS on persons who are principals or collaterals is retained until the last case in which the person is a member is removed from CAPS and then all the information on the person is also removed. (e) The CAPS system classifies cases for retention and destruction purposes according to the criteria in this section at the time the cases are closed. If a closed case on a family is re-opened for subsequent action by TDPRS, such as another intake, investigation, services, or a casework-related special request, staff merge the open and closed cases into one. Staff may also merge cases while both are closed or open. When the merged case is closed it is reclassified and retained for the length of the reclassified retention period. Reclassification is based on the contents of the entire merged case or related cases and the case(s) is given the retention classification highest in the hierarchy. (f) TDPRS may extend the retention period for a case for any of the following purposes: (1) If an activity such as a fiscal or program audit, release notice or hearing, as specified in sec.700.601 of this title (relating to Definitions), fair hearing, lawsuit or appeal involving the case is in process, staff may extend the retention. The case information is retained as long as required by the auditor, administrative law judge, or attorney representing TDPRS. (2) If a person is in more than one case, but the cases are not merged, the CAPS system relates the cases to the person. When the related cases are closed, staff may extend the retention of each of the related cases when necessary to assess risk of abuse/neglect of children and when it is necessary to retain the case information on-line. When it is not necessary to retain the information on- line, staff include the information in the paper case record. (g) The regional director or the director of TDPRS's Office of Protective Services for Families and Children or either's designee must approve the extension of the retention period for a case. The retention period may be extended as long as needed. The reason for the longer retention and the approval must be documented on the records retention window in CAPS. sec.700.107. Retention of Conservatorship or Foster Care Case Information. The Texas Department of Protective and Regulatory Services (TDPRS) must retain permanently the case information of a child, including the case information about the child's family, who has been in TDPRS's managing conservatorship or TDPRS's foster care program under any statutory authority, including when the child's adoption has been consummated (including the home study for the adoptive family, case information about the supervision of the placement and foster care, and adoption assistance information). sec.700.108. Retention of Family Preservation Services Case Records. (a) Family preservation case information is the documentation of a case in which the Texas Department of Protective and Regulatory Services (TDPRS) provided ongoing protective services in the child's home, but TDPRS was not the managing conservator of the child and the child was never in foster care under any legal basis. (b) TDPRS must retain ongoing services case information for at least five years after the case is closed or until the 18th birthday of the youngest child living in the home when services were provided, whichever is longer. The case information must then be destroyed. sec.700.109. Retention of Case Records for Cases Closed After Investigation. (a) Closed-after-investigation case information is the documentation of a case in which all of the following apply: (1) The case contains only completed investigations and related intakes. It may contain an authorization for day care after closure of the investigation. (2) The Texas Department of Protective and Regulatory Services (TDPRS) did not provide family preservation services to the family or child. (3) TDPRS was not designated as the child's managing conservator and did not provide placement for the child in TDPRS's foster care program. (b) The retention period for closed-after-investigation case information depends on the disposition of the investigation. Information about possible dispositions of an investigation is specified in sec.700.511 of this title (relating to Disposition of the Allegations of Abuse or Neglect). When the overall disposition of all the investigations in the case is "ruled out," the case retention period depends on TDPRS's conclusion about the risk of child abuse/neglect in the foreseeable future. Information about risk findings on an investigation is specified in sec.700.514 of this title (relating to Risk Assessment and Safety Evaluation). The retention periods for the closed-after- investigation cases are specified in sec.sec.700.110 and 700.111 of this title (relating to Retention of Closed- After-Investigation/Ruled Out Case Records and Closed-After-Investigation/Other Case Records). sec.700.110. Retention of Closed-After-Investigation/Ruled Out/Case Records. (a) No risk case records. (1) Case information is retained 18 months after the case is closed if the Texas Department of Protective and Regulatory Services (TDPRS) has concluded that risk of abuse or neglect is ruled out and that: (A) the family's children are not at risk of abuse or neglect in the foreseeable future, as specified in sec.700. 514(e) of this title (relating to Risk Assessment and Safety Evaluation); or (B) Child Protective Services (CPS) is not in a position to assess risk, as specified in sec.700.514 of this title (relating to Risk Assessment and Safety Evaluation). (2) The 18-month retention period applies only if all the investigations in the case are given the disposition of "ruled out" and given one of the following three findings: (A) no significant factors; (B) risk controlled; or (C) risk not applicable. (b) Risk indicated case records. (1) Case information is retained three years after the case is closed if TDPRS has concluded that abuse/neglect is ruled out and that a child in the family is at risk of abuse or neglect in the foreseeable future as specified in sec.700. 514(d) of this title (relating to Risk Assessment and Safety). (2) The retention period applies if any one investigation in the case is "ruled out" with risk indicated. sec.700.111. Closed-After-Investigation/Other Case Records. When the overall disposition of any one investigation in the case is "reason-to-believe," "unable-to-determine," or "moved," the case retention period lasts until the 18th birthday of the youngest child involved in the investigation or until five years after the case is closed, whichever is longer. sec.700.112. Case Records Not Involving Abuse/Neglect or Conservatorship. (a) Closed non-abuse/neglect case information is documentation of a case in which the Texas Department of Protective and Regulatory Services (TDPRS) took some action that did not include any of the following: (1) the case did not include a completed abuse/neglect investigation; (2) TDPRS did not provide family preservation services to the family or the children; and (3) TDPRS's Office of Protective Services for Families and Children was not designated as the child's managing conservator. (b) Non-abuse/neglect case information may include: (1) casework-related special requests in which a removal did not occur; (2) investigations that are closed administratively; and (3) intakes that are closed without assignment for investigation. (c) TDPRS retains non-abuse/neglect case information for three years after closure. Exception: Intakes that are closed without assignment for investigation are retained for only 18 months after closure. sec.700.113. Retention of Case Records Related to Foster and Adoptive Homes.
                            The Texas Department of Protective and Regulatory Services (TDPRS) maintains case record information for foster homes or adoptive homes through TDPRS automated systems and in paper form. When the case record retention period has elapsed, TDPRS permanently removes the case information from TDPRS's automated systems and destroys the paper case record in a manner that does not jeopardize confidentiality. When a foster or adoptive home case record is closed, the retention and destruction policies specified in this section apply. However, if there are concerns about the family, the supervisor may approve an extension of the retention of the case information for up to 20 years. (1) Records are kept for three years after the last case action, unless an extension is granted when the home: (A) has an inquiry-only status; or (B) is closed after TDPRS has received an application from the family but before TDPRS has made a decision about whether to verify and/or approve the home. (2) Records are kept for five years after the last case action, unless an extension is granted when the home: (A) is closed and no placement is made; (B) is a foster home that is closed, and placements have been made in the past; or (C) is an adoptive home that is closed after a disrupted adoptive placement and no subsequent placements are made with the adoptive family. (3) Records are kept permanently when an adoptive home is closed in which placements are made and the adoption is consummated. The family record is consolidated with the child's record. sec.700.114. Retention of Post-Adoption Services Case Records. Post-adoption case records are retained permanently. 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 January 26, 1996. TRD-9601179 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter E. Intake, Investigation, and Assessment 40 TAC sec.sec.700.501-700.503, 700.506-700.508, 700.510-700.518, 700.520, 700.521 The amendments and new sections are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendments and new sections implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.501. Terminology Used in Statutory Definitions of Child Abuse and Neglect and Person Responsible for a Child's Care, Custody, or Welfare. When the Texas Department of Protective and Regulatory Services (TDPRS)
                              [(PRS)] receives and investigates reports of child abuse and neglect, the department applies the statutory definitions of "abuse," "neglect, " and "person responsible for a child's care, custody, or welfare" that appear in the Texas Family Code, sec.261.101. The following paragraphs clarify and define words and phrases that occur in those definitions. (1)-(7) (No change.) [(8) "...if the child is present only to arouse or gratify... ." A condition of the statutory definition of sexual abuse. Provided that or as long as the child is present to arouse or gratify.] (8)
                                [(9)] Incest. Any sexually oriented practice with a child by a person who knows or should know that he or she and the child are related by consanguinity or affinity. (9)
                                  [(10)] Managing or possessory conservator. A person responsible for a child as the result of a district court order pursuant to the Texas Family Code, Chapter 153. (10)
                                    [(11)] ".. .necessary to sustain the life or health of the child ...." A condition of the statutory definition of physical neglect. It is met if the failure to provide food, clothing, or shelter results in an observable and material impairment to the child's growth, development, or functioning, or in a substantial risk of such an observable and material impairment. (11)
                                      [(12)] Observable and material impairment. Discernible and substantial damage or deterioration. (12)
                                        [(13)] Pornographic. Containing an image that depicts a child under 18 at the time the image was made, who is involved in, performing, or simulating a sexually oriented act. (13)
                                          [(14)] "...reasonable discipline...that does not expose the child to a substantial risk of harm...." Correction of a child's behavior that does not result in or risk substantial harm from physical injury. (14)
                                            [(15)] "...reasonable effort to prevent...." Actions that an ordinary and prudent person would take to stop an event from occurring. (15)
                                              [(16)] Sexual assault. Any sexually oriented act or practice that results in harm or in substantial risk of harm to a child's growth, development, or psychological functioning. (16)
                                                [(17)] Sodomy. Anal or oral copulation with another person or an animal. (17)
                                                  [(18)] 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. (18)
                                                    [(19)] Substantial risk. Real and significant possibility or likelihood. sec.700.502. Definitions.
                                                      The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. [Collateral source -Any person other than the principals in the investigation who may have information about an alleged case of child abuse or neglect.] Serious physical abuse-Injuries which require or required prompt medical attention, may require hospitalization, and may endanger the child's life or cause permanent functional impairment, death, or disfigurement if untreated. Serious sexual abuse-Oral, anal, or genital intercourse; or sexual acts performed with the child that involve the genitals or anus of either party, whether or not intercourse or contact occurred or that involve touching or fondling of the genitals, breasts, or anus of either party. sec.700.503. Response to Reports That Do Not Allege Abuse or Neglect. The Texas Department of Protective and Regulatory Services' Protective Services for Families and Children (PSFC)
                                                        [Child Protective Services (CPS)] staff must assist the public in understanding what to report and what can be done about it. If a report clearly does not involve child abuse or neglect or risk of abuse or neglect
                                                          , PSFC
                                                            [CPS] will provide information and refer the reporter to other services which may help the child and family. [If the report is vague, but nonetheless appears to involve abuse or neglect, it will be investigated. However, reports] Reports
                                                              about the following types of circumstances are not considered allegations of abuse or neglect or risk of abuse or neglect
                                                                unless accompanied by some other information which appears to involve abuse or neglect. (1)-(6) (No change.) [(7) Young children engaged in delinquent conduct. Children between the ages of seven and ten who are reported to CPS by law enforcement agencies for engaging in delinquent conduct as defined in the Texas Family Code, sec.51.03.] sec.700.506. Notification of Law Enforcement Agencies.
                                                                  The Texas Department of Protective and Regulatory Services (TDPRS)
                                                                    must notify appropriate law enforcement agencies of reports of child abuse or neglect within the following time frames: (1) TDPRS
                                                                      [The department] must give [verbal] notice within 24 hours of receiving a priority I report, a sexual abuse report, or a report alleging abuse or neglect in a public or private school. The initial notification may be given orally or by facsimile.
                                                                        This deadline applies even if subsequent information shows that the report is unfounded or does not qualify for priority I treatment. TDPRS
                                                                          [The department] must follow up an initial oral notification
                                                                            [the verbal notice] with written notification within three days after receiving the report. (2) TDPRS
                                                                              [The department] must send written notification of all other reports within three days of receiving them. Facsimile generated reports are considered written notification. sec.700.507. Investigation Interviews. (a) Basic steps. The primary purpose of the investigation is the protection of the child, as specified in the Texas Family Code, sec.261.201(d). To this end, the Texas Department of Protective and Regulatory Services (TDPRS) Protective Services for Families and Children (PSFC) staff seek to identify protective issues as early in the investigatory process as possible, and terminate the investigation as early as possible if protective issues or risk based dynamics are not discovered. The PSFC worker may: (1) interview and examine, or obtain an examination of, each alleged victim; (2) interview each child in the home who may be at risk of abuse or neglect; (3) interview each of the alleged victim's parents; (4) interview the alleged perpetrator of abuse or neglect; (5) contact collateral sources; (6) make a home visit; (7) conduct a criminal background check on the alleged perpetrator and/or the parents; and/or (8) interview every child in the home who may have information that will help determine whether any child in the home: (A) has been abused or neglected; or (B) is at risk of abuse or neglect; and (9) examine each child in the household unless information from other reliable sources makes doing so unnecessary. (b) Response to allegations of abuse or neglect. PSFC staff may respond to allegations of abuse or neglect in one of three ways. (1) Preliminary investigation (administrative closure). (A) Under certain circumstances, a report which was initially assigned for investigation may be closed administratively as a result of additional information, such that the situation no longer appears to meet the statutory definitions of abuse/neglect or risk of abuse/neglect. Criteria TDPRS uses for consideration when deciding to administratively close a case include, but are not limited to, situations where a preliminary investigation reveals that: (i) the allegations have already been investigated by TDPRS; (ii) another authorized entity, such as law enforcement or another state agency, is, or will be, conducting the investigation; or (iii) TDPRS does not have the authority to finish the investigation because: (I) the alleged victim is not a child or was not born alive; or (II) the abuse or neglect or risk of abuse or neglect is not occurring in Texas; or (III) the initial collateral contacts refute the allegations and do not support evidence of abuse or neglect or risk thereof. This includes when a worker finds no corroboration of abuse or neglect in a preliminary investigation of an anonymous report. (B) Administrative closure applies to the whole investigation, not individual allegations; therefore, PSFC staff must give all allegations the disposition of administrative closure if the goal is to close a case administratively. (C) To administratively close a case assigned for investigation, PSFC staff must have made at least one contact with either a collateral or a principal who provides credible information. (2) Abbreviated investigation with a disposition of "ruled out/no risk." To conclude an investigation with findings of "ruled out/no risk," PSFC staff must, at a minimum: (A) interview and examine the alleged victim child; (B) interview at least one parent of the victim child; and (C) have determined that no abuse or neglect has occurred or is likely to occur in the foreseeable future because no significant risk factors were identified or risk is controlled. PSFC staff must assess the impact of any noted risk factors and document how those factors are controlled. (3) Thorough investigation. (A) PSFC staff complete the steps to conduct a thorough investigation if the interview with the alleged victim child or the child's parent suggests that: (i) abuse or neglect did occur; (ii) risk of abuse or neglect is indicated; or (iii) it is impossible to determine, based on the child's and parent's statements, whether or not abuse or neglect occurred or risk of abuse or neglect is indicated. (B) Conducting a thorough investigation may include all of the basic steps specified in subsection (a) of this section, but must, at a minimum include: (i) an interview and examination of the alleged victim child; (ii) an interview with at least one of the parents of the alleged victim child; and (iii) an interview with the alleged perpetrator. Exception: If the alleged perpetrator is in police custody, PSFC staff must obtain authorization from the investigating police officer before conducting the interview to ensure that the alleged perpetrator's rights under criminal law are protected. sec.700.508. Interviews with Parents or Other Alleged Perpetrators. (a) (No change.) (b) At the first contact with the parents or with the alleged perpetrators, the worker must: (1) identify himself and have the Texas Department of Protective and Regulatory Services (TDPRS)
                                                                                [(PRS)] identification available for inspection; (2) (No change.) (3) explain TDPRS's
                                                                                  [PRS'] role and legal responsibilities in the investigation; (4)-(5) (No change.) (c) If at any point in the investigation it is learned that a parent may be a victim of domestic violence, information concerning community services available to domestic violence victims must be given to the parent. sec.700.510. Completion of the Investigation and Assessment. (a) To complete the preliminary investigation with an administrative closure, Texas Department of Protective and Regulatory Services (TDPRS) Protective Services for Families and Children (PSFC) staff must have contacted at least one source who provided credible information such that the situation met the criteria for preliminary investigation as specified in sec.700.507(b)(1) of this title (relating to Investigation Interviews). (b) To complete an abbreviated investigation, PSFC staff must have: (1) interviewed the victim child; (2) interviewed at least one parent of the victim child; (3) determined that abuse or neglect did not occur and that risk of abuse or neglect does not exist; and (4) documented how and why any noted risk factors are believed to be controlled. (c) To complete a thorough investigation and assessment, PSFC staff must have: (1) interviewed the victim child; (2) interviewed at least one parent of the victim child; (3) interviewed the alleged perpetrator. Exception: If the alleged perpetrator is in police custody, PSFC staff must obtain authorization from the investigating police officer before conducting the interview to ensure that the alleged perpetrator's rights under criminal law are protected; (4) taken any other actions necessary to complete a thorough investigation; (5) completed a full risk assessment and documented the results; (6) determined whether abuse or neglect has occurred and the involvement of the persons in the situation; (7) determined whether there is a reasonable likelihood that a child will be abused or neglected in the foreseeable future; and (8) taken appropriate actions to provide for the child's immediate or short- term safety if the child is at risk of abuse or neglect in the immediate or short-term future. (d) At the end of the investigation, staff must assign a disposition to each allegation identified for the investigation in order to: (1) specify their conclusions about the occurrence of abuse or neglect; (2) derive the overall disposition for the investigation; and (3) derive the overall role for each person with respect to the abuse or neglect that was investigated. sec.700.511. Disposition of the Allegations of Abuse or Neglect. (a) Allegation dispositions.
                                                                                    An allegation disposition is the finding made in the investigation about each individual allegation of abuse/neglect which was identified at intake or during the investigation. [To specify their conclusions about the occurrence of abuse or neglect as defined in the Texas Family Code, sec.261.001, staff assign one of the following four dispositions.] (1) (No change.) (2) Ruled-out. Staff determine, based on available information, that it is reasonable to conclude that the abuse or neglect has not occurred.
                                                                                      [conclude that the investigation:] [(A) clearly rules out abuse or neglect, or [(B) warrants a reasonable conclusion that no abuse or neglect has occurred.] (3) Moved. Before staff could draw a conclusion, the persons involved in the allegation
                                                                                        [report] moved and could not be located. (4) Unable-to-determine. Staff conclude that none of the [other] dispositions specified in paragraphs (1) through (3) of this subsection
                                                                                          is appropriate. (5) Administrative closure. Information received after a case was assigned for investigation reveals that continued Protective Services for Families and Children intervention is unwarranted as outlined in sec.700.507 of this title (relating to Investigation Interviews). (b) Overall disposition. The overall investigation disposition is the summary finding about the abuse or neglect that was investigated. The overall disposition is derived from the individual allegation dispositions in the following manner: (1) Reason-to-believe. If any allegation disposition is "reason-to- believe," the overall case disposition is "reason-to-believe." (2) Ruled out. If all allegation dispositions are "ruled out," the overall case disposition is "ruled out." (3) Moved. If any allegation disposition is "moved" and no allegation disposition is "reason-to-believe" or "unable to determine," the overall investigation disposition is "moved." (4) Unable to determine. If any allegation disposition is "unable to determine" and no allegation disposition is "reason to believe," the overall case disposition is "unable to determine." (5) Administrative closure. Decisions with regard to administrative closure are made at the case level as specified in sec.700.507 of this title (relating to Investigation Interviews). Therefore, all allegations must be disposed of by indicating that administrative closure has been selected. If any one allegation meets criteria for allegation dispositions as specified in paragraphs (1) through (4) of this subsection, a case is not eligible for administrative closure. sec.700.512. Conclusions About Roles [Possible Perpetrators] . (a) The Texas Department of Protective and Regulatory Services (TDPRS) does not investigate an individual as a possible perpetrator of child abuse or neglect unless the individual is: (1) at least 10 years old; and (2) a member of the family or household
                                                                                            [responsible for the care, custody, or welfare of a child in the investigation]. (b) The overall role for a person at the end of the investigation is the summary finding about the person's involvement in the abuse or neglect that was investigated. After staff have given a disposition to all allegations, the roles for the persons involved in the abuse or neglect are derived. The following are the roles that can be derived at
                                                                                              [At] the end of an investigation of child abuse or neglect :
                                                                                                [, TDPRS draws one of the following conclusions about each individual whom TDPRS has investigated as a possible perpetrator of child abuse or neglect:] (1) Designated victim. Based on some credible evidence, staff conclude that the child has been abused or neglected as defined in the Texas Family Code, (TFC) sec.261. 001(1) and (4). (2)
                                                                                                  [(1)] Designated
                                                                                                    [Alleged] perpetrator. Based on some credible evidence, staff
                                                                                                      [TDPRS] conclude
                                                                                                        [concludes] that the individual is responsible for abuse or neglect of a child for whom that person has responsibility for care, custody, or welfare as defined in TFC sec.261.001(5)
                                                                                                          [in the investigation]. (3) Designated victim/perpetrator. Based on some credible evidence, staff conclude that the child, age 10 years or older, has both been a victim as described in paragraph (1) of this subsection and has abused or neglected other children who are in the family or household and are named in the same investigation. (4)
                                                                                                            [(2)] Unknown (unable-to-determine)
                                                                                                              [role]. Staff could not determine in the investigation whether the person was or was not involved in the alleged abuse or neglect because the worker could not determine whether or not the alleged abuse or neglect occurred
                                                                                                                [TDPRS cannot determine whether the individual is responsible for abuse or neglect of a child in the investigation]. (5) Unknown (moved). Staff could not determine in the investigation whether alleged abuse or neglect involving the person occurred or not because the person or family moved before a determination could be made. (6)
                                                                                                                  [(3)] No role. Either: (A) the overall disposition for the investigation is
                                                                                                                    [the alleged occurrence of abuse or neglect has been] ruled out or administrative closure, as these are defined in sec.700.511 of this title (relating to Disposition of the Allegations of Abuse or Neglect), in which case all persons named in allegations are given the role of "no role;"
                                                                                                                      [as specified in sec.700.511(2) of this title (relating to Disposition of the Allegations of Abuse or Neglect) ; or] (B) staff have
                                                                                                                        [TDPRS has] determined that [:] [(i) the individual is clearly not responsible for abuse or neglect of a child in the investigation; or] [(ii) ] based on the available
                                                                                                                          information [available], it is reasonable to conclude that the individual was not a victim of child abuse or neglect or
                                                                                                                            is not responsible for abuse or neglect of a child in the investigation; or
                                                                                                                              [.] (C) the person was not alleged to have abused or neglected a child in the case. sec.700.513. Notification about Results. (a) Notification in abbreviated and thorough investigations.
                                                                                                                                [Who must be notified.] The Texas Department of Protective and Regulatory Services (TDPRS) must notify the following parties about the disposition of an investigation: (1)-(3) (No change.) (4) each person interviewed as an
                                                                                                                                  alleged perpetrator; and (5) (No change.) (b) Form of notification. Except as specified in subsection (c) of this section, TDPRS's notifications about the disposition of an investigation may be either written or oral. [In either case, each notification must be documented in the case record.] (c) Written notification of the designated
                                                                                                                                    [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                      . Within 15 days after completing an investigation, TDPRS must give written notice of the findings of the investigation to everyone who has been identified
                                                                                                                                        [designated] as a designated
                                                                                                                                          [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                            as specified in sec.700.512(b)(1) of this title (relating to Conclusions About Roles
                                                                                                                                              [Possible Perpetrators]). For a designated victim/perpetrator, the notice is sent to the child's parents.
                                                                                                                                                Under the Texas Family Code, sec.261.309(f)
                                                                                                                                                  [ s261.309], however, this requirement does not apply to cases in which a court determination is consistent with a finding that there is reason to believe that abuse or neglect has occurred, as specified in sec.700.511(1) of this title (relating to Disposition of the Allegations of Abuse or Neglect). (d) (No change.) (e) Notification in administratively closed investigations. When an investigation is closed administratively, TDPRS staff notify: (1) the person who reported the apparent abuse or neglect, if his identity is known; and (2) the parents as described in the Texas Family Code, sec.261.311, if a child was interviewed. [(e) Notification of independent facilities. When an investigation addresses a report of child abuse or neglect in a facility that is not operated, licensed, certified, or registered by a state agency, TDPRS must provide the facility's policy-making body with written notification of the disposition of the investigation as specified in the Texas Family Code, sec.34.05(e).] sec.700.514. Risk Assessment and Safety Evaluation. (a) (No change.) (b) When CPS cannot assess risk. When any of the following conditions exists, CPS is not in a position to assess the likelihood of child abuse or neglect occurring in the foreseeable future: (1)-(2) (No change.) (3) the investigation was conducted in a school [or a juvenile detention facility,] and did not involve members of the child's family or household; or (4) the preliminary investigation is closed administratively, as specified in sec.700.507(b)(1) of this title (relating to Investigation Interviews)
                                                                                                                                                    [the investigation was conducted by TDPRS's Licensing department, and did not involve members of the child's family or household]. (c) When CPS can assess risk. (1) When none of the conditions specified in subsection (b) of this section exists, CPS is in a position to assess the likelihood of child abuse or neglect occurring in the foreseeable future as specified in subsections (d) and (e) of this section. (2) In situations which are clearly ruled out and in which there are either no risk factors or the noted risk factors are controlled, the documentation of the risk assessment may be abbreviated; however, the assessment must be sufficient to support the risk conclusion. (d) (No change.) (e) Conclusions about risk. After reviewing elements of risk and sources of strength in the family, TDPRS determines whether there is a reasonable likelihood that a child will be abused or neglected in the foreseeable future. There are two alternatives. (1) TDPRS concludes that the family's children are not at risk if: (A) no significant risk factors have been identified, and abuse or neglect has not been found to have occurred in the current investigation;
                                                                                                                                                      or (B) the family appears willing and able, through use of family and community resources, to deal with risk factors in their lives in such a manner as to ensure the safety of the child(ren) for the foreseeable future
                                                                                                                                                        [to manage the risk factors that have been identified]. If TDPRS concludes that the family's children are not at risk, TDPRS
                                                                                                                                                          [the department] closes the case. (2) TDPRS concludes that the family's children are
                                                                                                                                                            [a child is] at risk of abuse or neglect if: (A) TDPRS
                                                                                                                                                              [the department] has identified significant risk factors; and (B) the family appears unable or unwilling to utilize family and community resources to deal with
                                                                                                                                                                [manage] the risk factors in a manner that will ensure the safety of the child(ren) for the foreseeable future
                                                                                                                                                                  [without CPS assistance]. If TDPRS concludes that a child is at risk of abuse or neglect, TDPRS
                                                                                                                                                                    [the department] must evaluate the child's need for immediate or short-term protection as specified in subsections (f) and (g) of this section. (f) (No change.) (g) Conclusions about the child's need for immediate or short-term protection. After assessing the severity of the possible harm to the child, the immediacy of the risk, and the family's capacity to protect the child without CPS assistance, TDPRS determines whether CPS services are needed to provide for the child's immediate or short-term safety. There are two alternatives. (1) (No change.) (2) TDPRS may arrange for the family to receive family preservation services as specified in Subchapter G of this chapter (relating to Family Preservation Services) if risk factors were identified and
                                                                                                                                                                      : (A) there are not sufficient strengths and available resources to provide for the safety of the children in the foreseeable future without CPS intervention
                                                                                                                                                                        [the family: [(i) can provide for the child's immediate or short-term safety, but [(ii) would benefit from services to help manage the risk to the child in the foreseeable future]; and (B) the family would benefit from services to help manage the risk to the child in the foreseeable future
                                                                                                                                                                          [it is feasible for CPS to provide such services]. (h) Documentation of spouse or partner abuse. The worker must document an occurrence or history of spouse or partner abuse during the risk assessment. The documentation contains information obtained during the investigation as it relates to principals within that case. sec.700.515. Providing Immediate or Short-Term Protection. (a) (No change.) (b) When a child needs immediate or short-term protection as specified in subsection (a) of this section, CPS must complete a child safety evaluation, develop a plan to provide for the child's immediate or short-term safety, and ensure that the plan is implemented. This includes situations where the method of assuring the child's short-term protection is to remove the alleged perpetrator from the home, either voluntarily or by court order. sec.700.516. Administrative Review of Investigation Findings. (a) The purpose of an administrative review of investigation findings is to review the determination of whether abuse or neglect occurred, not to review the decision about risk conclusions.
                                                                                                                                                                            Anyone whom the Texas Department of Protective and Regulatory Services' (TDPRS's) Office of Protective Services for Families and Children (PSFC) designates as a
                                                                                                                                                                              [an alleged] perpetrator or victim/perpetrator
                                                                                                                                                                                of child abuse or neglect as specified in sec.700.512(b)(1) of this title (relating to Conclusions About Roles
                                                                                                                                                                                  [Possible Perpetrators]) may request an administrative review of PSFC's investigation determination of whether abuse or neglect occurred
                                                                                                                                                                                    [findings], unless the case involves: (1) (No change.) (2) any
                                                                                                                                                                                      [a protective court] order limiting the designated
                                                                                                                                                                                        [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                          access to the child; or (3) (No change.) (b) The designated
                                                                                                                                                                                            [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                              must request the review in writing within 45
                                                                                                                                                                                                [15] days after receiving TDPRS's written notice of findings. (c) If civil or criminal court proceedings related to the abuse or neglect that PSFC has investigated are pending when a designated
                                                                                                                                                                                                  [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                    requests an administrative review, or if such proceedings are initiated before PSFC begins the review, PSFC may postpone the review until the proceedings are completed. (d) Civil suits to remove the child from the home or restrict the designated
                                                                                                                                                                                                      [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                        access to the child are not delayed by a request for an administrative review. (e) The designated
                                                                                                                                                                                                          [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                            has a right to: (1) -(3) (No change.) (f) If the designated
                                                                                                                                                                                                              [alleged] perpetrator or designated victim/perpetrator or his parents do
                                                                                                                                                                                                                [does] not speak English or are hearing impaired
                                                                                                                                                                                                                  [is deaf], TDPRS must provide a certified interpreter unless the designated
                                                                                                                                                                                                                    [alleged] perpetrator or designated victim/perpetrator or his parents choose
                                                                                                                                                                                                                      [chooses] to provide a certified interpreter of their own
                                                                                                                                                                                                                        [himself]. (g) The designated
                                                                                                                                                                                                                          [alleged] perpetrator or designated victim/perpetrator or his parents are
                                                                                                                                                                                                                            [is] responsible for all costs they incur
                                                                                                                                                                                                                              [he incurs] in connection with the review, including the cost of an interpreter if they choose
                                                                                                                                                                                                                                [he chooses] to provide one [himself]. (h) The regional director for protective services for families and children, or his designee, conducts the review. The reviewer must confirm or revise PSFC's original dispositions
                                                                                                                                                                                                                                  [findings] based on the same policies that PSFC applied during the original investigation. Within 30 days after completing the review, the reviewer notifies the designated
                                                                                                                                                                                                                                    [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                      of the outcome of the review. (i) The reviewer's notification must inform the designated
                                                                                                                                                                                                                                        [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                          that he can complain to TDPRS's Office of the Ombudsman if he is dissatisfied with the reviewer's decision. To this end, the notification must include the address and telephone number of the ombudsman. (j) If the reviewer revises PSFC's original findings or advises PSFC to take any other actions in the case, PSFC must: (1) enter the revised findings into the Child and Adult Protective Services System (CAPS)
                                                                                                                                                                                                                                            [Child Abuse and Neglect Reporting and Inquiry System (CANRIS)], (2) notify each person who was notified of the original findings about the revised findings, except for reporters who report in a non-professional capacity
                                                                                                                                                                                                                                              ; and (3) (No change.) (k) Since the designated victim/perpetrator is a child, the parents may act on his behalf throughout the review process. The parents may request the review and participate in related decisions and requests as a representative of their child. sec.700.517. Investigation of Lack of Medical Care because of Religious Beliefs. (a) The Texas Department of Protective Services' Office of Protective Services for Families and Children
                                                                                                                                                                                                                                                [Child Protective Services] investigates allegations of lack of medical care because of religious beliefs if the child's condition appears to involve medical neglect. (b) (No change.) sec.700.518. Texas Department of Protective and Regulatory Services (TDPRS) [(PRS)] Managing Conservatorship of Children in TDPRS [PRS] Regulated Care. (a) If the investigation finding is reason-to-believe in a case of reported abuse or neglect involving children in TDPRS's
                                                                                                                                                                                                                                                  [PRS's] managing conservatorship, TDPRS's Office of Protective Services for Families and Children
                                                                                                                                                                                                                                                    [Child Protective Services (CPS)] staff must notify: (1)-(4) (No change.) (b) If the investigation finding is reason-to-believe in a case of reported abuse or neglect involving a child in a foster care home or in an adoptive home before the adoption is consummated, TDPRS considers
                                                                                                                                                                                                                                                      [PRS must assess the risk of further abuse or neglect and consider] removing the child from the home. If there is a continuing risk of substantial harm to the child, TDPRS
                                                                                                                                                                                                                                                        [PRS] removes the child. If TDPRS
                                                                                                                                                                                                                                                          [PRS] does not remove the child, the department and the foster or adoptive family must develop and implement a plan for corrective action within 30 days after the investigation is completed. The plan must address the needs of all children in TDPRS's
                                                                                                                                                                                                                                                            [PRS's] conservatorship who reside in the home. TDPRS
                                                                                                                                                                                                                                                              [PRS] must also review its records regarding the foster or adoptive home, including the plan for corrective action, and determine whether to continue placing children in the home. (c) If a law enforcement investigation of a report of abuse or neglect involving a child in a foster care or adoptive home results in criminal indictment of either of the foster or adoptive parents, TDPRS
                                                                                                                                                                                                                                                                [PRS] must close the home unless the regional director determines that there is not a continuing risk of substantial harm to children placed there. sec.700.520. Criminal 23>Records [Background] Checks. (a) As specified in the Government Code, sec.411.114, the Texas Department of Protective and Regulatory Services (TDPRS)
                                                                                                                                                                                                                                                                  "is entitled to obtain criminal history information records maintained by the Department of Public Safety, the Federal Bureau of Investigation identification division, or another law enforcement agency to investigate . . . a person who is the subject of a report . . . alleging that the person has abused or neglected a child." (b) [Under the authority cited in subsection (a) of this section, when] When
                                                                                                                                                                                                                                                                    necessary to complete a
                                                                                                                                                                                                                                                                      [the] risk assessment, family assessment, or other assessment (including home studies or child care arrangements),
                                                                                                                                                                                                                                                                        [during an investigation of child abuse or neglect, the] TDPRS'
                                                                                                                                                                                                                                                                          Office of Protective Services for Families and Children (PSFC) staff
                                                                                                                                                                                                                                                                            can ask the Texas Department of Public Safety or local law enforcement
                                                                                                                                                                                                                                                                              to check the criminal records
                                                                                                                                                                                                                                                                                [background] of any of the following parties: (1) persons with a role of alleged perpetrator, alleged victim/perpetrator, designated perpetrator, designated victim/perpetrator, or sustained perpetrator; (2) the alleged victim's custodial or absent parents or other person legally responsible for the child whom the worker is evaluating during the investigation to determine whether they have failed to protect the child or are otherwise active or passive perpetrators, whether or not this was alleged by the reporter, as indicated in sec.700.508 of this title (relating to Interviews with Parents or Other Alleged Perpetrators); and (3) a person with whom the parent or other legally responsible person has placed an alleged or designated victim in accord with a safety plan. [(1) the alleged perpetrator; [(2) the alleged victim's custodial parent(s); [(3) any absent parent involved in the investigation; and [(4) anyone else responsible for the child's care, custody, or welfare.] (c) The statute indicates that a criminal history check can be made on a "person who is the subject of a report the department receives...provided that the report has proven to have merit." TDPRS defines "...proven to have merit..." as reports that: (1) meet the criteria for assignment for investigation; or (2) are assignable other than that an alleged criminal history needs to be verified through a criminal history check before it is appropriate to decide that the report meets the criteria for assignment. sec.700.521. Roles Alleged at Intake. Each person named in the report is assigned a role in the alleged abuse or neglect. Roles assigned at the initial acceptance of the report are: (1) Alleged victim. An alleged victim is a child who is suspected of being a victim of abuse or neglect as defined in Texas Family Code (TFC) sec.261.001(1) and (4). (2) Alleged perpetrator. An alleged perpetrator is a person responsible for the child as defined in TFC sec.261.001(5), who is suspected of being responsible for the alleged abuse or neglect. (3) Alleged victim/perpetrator. An alleged victim/perpetrator is a child 10 years of age or older who is suspected of being a victim as described under paragraph (1) of this section, and is also suspected of victimizing other children in the family/household named in this same report. (4) Unknown. A person with the role of unknown is a person whose actions with regard to the alleged abuse or neglect are not known by the reporter. The person may or may not have played a part in the suspected abuse or neglect. (5) No Role. A person with the role of no role is a person, according to the reporter, who could clearly not have had a role in the alleged abuse or neglect. 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 January 26, 1996. TRD-9601181 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 40 TAC sec.700.507, sec.700.510 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The repeals implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.507. Investigation Interviews. sec.700.510. Completion of the Investigation and Assessment. 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 January 26, 1996. TRD-9601180 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter F. Release Hearings 40 TAC sec.sec.700. 601-700.605 The amendments are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendments implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.601. Definitions.
                                                                                                                                                                                                                                                                                  The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Release-The disclosure of information about an individual whom the Texas Department of Protective and Regulatory Services (TDPRS) has designated as a
                                                                                                                                                                                                                                                                                    [an alleged] perpetrator or victim/perpetrator
                                                                                                                                                                                                                                                                                      of child abuse or neglect as specified in sec.700.512(b) (1) of this title (relating to Conclusions About Roles
                                                                                                                                                                                                                                                                                        [Possible Perpetrators]) to any party outside TDPRS
                                                                                                                                                                                                                                                                                          [the department] without the consent of the designated
                                                                                                                                                                                                                                                                                            [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                              . For purposes of this subchapter, however, the term "release" does not apply to: (A) (No change.) (B) disclosures to: (i) the designated
                                                                                                                                                                                                                                                                                                [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                  himself; (ii) parents or caretakers who are legally responsible for the designated
                                                                                                                                                                                                                                                                                                    [alleged] victim's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                      care, custody, or welfare; or (iii) (No change.) Release hearing -An administrative proceeding provided under the Administrative Procedure and Texas Register Act, Texas Revised Civil Statutes, Article 6252-13a, to give a designated perpetrator or designated victim
                                                                                                                                                                                                                                                                                                        [an alleged] perpetrator an opportunity to appeal a decision by TDPRS to release information about him to individuals who have control over his access to children. Release hearings conducted under this subchapter are subject to the requirements for hearings set forth in Chapter 730, Subchapter R of this title (relating to Legal Services). sec.700.602. Sustained Conclusions About Designated [Alleged] Perpetrators and Designated Victims/Perpetrators. (a) A preponderance of the evidence. When the Texas Department of Protective and Regulatory Services (TDPRS) concludes that an individual is responsible for abuse or neglect of a child in the investigation as specified in sec.700.512(b)(1) of this title (relating to Conclusions About Roles
                                                                                                                                                                                                                                                                                                          [Possible Perpetrators]), the conclusion is based on "some credible evidence." However, TDPRS cannot release information about a designated
                                                                                                                                                                                                                                                                                                            [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                              to people outside the investigation unless TDPRS's
                                                                                                                                                                                                                                                                                                                [the department's] conclusion is based on a preponderance of the evidence. TDPRS considers its conclusion about a designated
                                                                                                                                                                                                                                                                                                                  [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                    sustained [based on a preponderance of the evidence] whenever any of the following conditions is satisfied: (1) based on a preponderance of the evidence presented in a release hearing, an administrative law judge has sustained the conclusion that the designated
                                                                                                                                                                                                                                                                                                                      [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                        is responsible for abuse or neglect of a child in the investigation; (2) as specified in sec.700.604 of this title (relating to Notice Requirements for Releasing Information to Outside Parties), the designated
                                                                                                                                                                                                                                                                                                                          [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                            has been provided with written notice of his right to a release hearing, but has not requested one within 15 days after receiving the notice; or (3) the designated
                                                                                                                                                                                                                                                                                                                              [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                                                right to a release hearing has been waived by operation of law. (b) Authority to release information when conclusions are sustained. When TDPRS's conclusion about a designated
                                                                                                                                                                                                                                                                                                                                  [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                    has been sustained as specified in subsection (a) of this section, TDPRS changes the person's role to sustained perpetrator and
                                                                                                                                                                                                                                                                                                                                      has the authority to: (1) release information about the [alleged] perpetrator to individuals who have control over his access to children as specified in sec.700.603 of this title (relating to Releasing Information About Designated
                                                                                                                                                                                                                                                                                                                                        [Alleged] Perpetrators or Designated Victims/Perpetrators
                                                                                                                                                                                                                                                                                                                                          to Outside Parties), and (2) take other adverse action against the designated
                                                                                                                                                                                                                                                                                                                                            [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                              in accordance with applicable law. sec.700.603. Releasing Information about Designated [Alleged] Perpetrators or Designated Victims/Perpetrators to Outside Parties. (a) Prerequisites. Subject to the limitations specified in subsections (b) and (c) of this section, the Texas Department of Protective and Regulatory Services (TDPRS) has the authority to release information about a designated
                                                                                                                                                                                                                                                                                                                                                [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                  of child abuse or neglect to individuals who have control over his access to children whenever [both of the following conditions have been satisfied:] [(1) ] TDPRS, by a preponderance of the evidence,
                                                                                                                                                                                                                                                                                                                                                    has determined
                                                                                                                                                                                                                                                                                                                                                      [designated] the individual to be a designated
                                                                                                                                                                                                                                                                                                                                                        [as an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                          of child abuse or neglect as specified in sec.700.512(b) (1) of this title (relating to Conclusions About Roles
                                                                                                                                                                                                                                                                                                                                                            [Possible Perpetrators]).
                                                                                                                                                                                                                                                                                                                                                              [; and] [(2) based on a preponderance of the evidence from a completed investigation, TDPRS has concluded that the alleged perpetrator poses a substantial risk of harm to one or more children outside the family of the alleged victim.] (b) Nonemergency release. (1) Except as specified in subsection (c) of this section, before TDPRS releases information about a designated
                                                                                                                                                                                                                                                                                                                                                                [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                  to individuals who have control over his access to children, TDPRS's conclusion about the designated
                                                                                                                                                                                                                                                                                                                                                                    [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                      must be sustained as specified in sec.700.602(a) of this title (relating to Sustained Conclusions About Designated
                                                                                                                                                                                                                                                                                                                                                                        [Possible] Perpetrators and Designated Victim/Perpetrators
                                                                                                                                                                                                                                                                                                                                                                          ). (2) (No change.) (c) Emergency release. When TDPRS has evidence that the risk of harm to one or more children outside the family of the alleged victim is both substantial and immediate, TDPRS has the authority to release information about a designated perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                            [an alleged perpetrator] to individuals who have control over his access to children on an emergency basis. When releasing information about a designated perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                              [an alleged perpetrator] on an emergency basis, TDPRS acts as quickly as possible, without regard for the timing of any appeal that the designated
                                                                                                                                                                                                                                                                                                                                                                                [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                  may choose to initiate. In other words, TDPRS releases the information without waiting to sustain its conclusion about the designated
                                                                                                                                                                                                                                                                                                                                                                                    [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                      as specified in subsection (b) of this section. Before releasing the information, however, [TDPRS must still ensure that each of the following conditions has been satisfied: [(1) the disposition of the completed investigation must be "reason-to- believe"; [(2) the conclusion that the alleged perpetrator poses a substantial risk of harm to one or more children outside the family of the alleged victim must be based on a preponderance of the evidence from a completed investigation as specified in subsection (a)(2) of this section; and] [(3) ] the release must be approved by the parties specified in subsection (b)(2) of this section. sec.700.604. Notice Requirements for Releasing Information to Outside Parties. (a) Written notice. When the Texas Department of Protective and Regulatory Services (TDPRS) decides to release information about a designated
                                                                                                                                                                                                                                                                                                                                                                                        [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                          of child abuse or neglect to individuals who have control over his access to children as specified in sec.700.603 of this title (relating to Releasing Information About Designated
                                                                                                                                                                                                                                                                                                                                                                                            [Alleged] Perpetrators or Designated Victim/Perpetrators
                                                                                                                                                                                                                                                                                                                                                                                              to Outside Parties), TDPRS must give the designated
                                                                                                                                                                                                                                                                                                                                                                                                [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                  written notice of TDPRS's
                                                                                                                                                                                                                                                                                                                                                                                                    [the department's] decision to release the information. TDPRS
                                                                                                                                                                                                                                                                                                                                                                                                      [The department] must give the designated
                                                                                                                                                                                                                                                                                                                                                                                                        [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                          such notice without regard to the designated
                                                                                                                                                                                                                                                                                                                                                                                                            [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                                                                                                                              previous receipt of written notice of the investigation findings. (b) No additional notice. [If TDPRS has previously released information about an alleged perpetrator as specified in sec.700.603 of this title (relating to Releasing Information About Alleged Perpetrators to Outside Parties), and if] If
                                                                                                                                                                                                                                                                                                                                                                                                                TDPRS's conclusion about the designated
                                                                                                                                                                                                                                                                                                                                                                                                                  [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                    has already been sustained as specified in sec.700.602(a) of this title (relating to Sustained Conclusions About Designated
                                                                                                                                                                                                                                                                                                                                                                                                                      [Alleged] Perpetrators and Designated Victim/Perpetrators
                                                                                                                                                                                                                                                                                                                                                                                                                        ), TDPRS
                                                                                                                                                                                                                                                                                                                                                                                                                          [the department] has the authority to release the same information again without additional notice to the [alleged] perpetrator , victim/perpetrator, or victim/perpetrator's parents
                                                                                                                                                                                                                                                                                                                                                                                                                            . (c) Prior approval by attorney. Before the written notice is given to the designated
                                                                                                                                                                                                                                                                                                                                                                                                                              [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                , it must be approved by the attorney who will represent TDPRS if the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                  [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                    appeals the decision to release the information. (d) (No change.) (e) What the notice must include. The department's notice must include: (1) a specification of the investigation findings as defined in sec.sec.700.511 and 700.512 of this title (relating to Disposition of the Allegations of Abuse or Neglect and Conclusions About Roles
                                                                                                                                                                                                                                                                                                                                                                                                                                      [Possible Perpetrators]); (2) notice of the department's decision to release information about the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                        [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                          to individuals who have control over his access to children; (3) (No change.) (4) notice that: (A) the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                            [alleged] perpetrator or designated victim perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                              has a right to appeal the decision to release information about him; (B) to appeal the decision, the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                  must submit two copies of a written request for an appeal; and (C) the two copies of the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                    [alleged] perpetrator's or designated victim perpetrator's
                                                                                                                                                                                                                                                                                                                                                                                                                                                      written request for an appeal must be: (i) postmarked within 15 days after the individual
                                                                                                                                                                                                                                                                                                                                                                                                                                                        [alleged perpetrator] receives TDPRS's
                                                                                                                                                                                                                                                                                                                                                                                                                                                          [the department's] written notice; and (ii) (No change.) (5) notice that failure to appeal the decision may result in TDPRS's release of the information without the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                            [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                                                                                                                                                                              consent and without additional notice at any time in the future
                                                                                                                                                                                                                                                                                                                                                                                                                                                                ; (6) specification: (A) whether it is necessary in the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                    particular case to conduct an administrative review of investigation findings before holding a release hearing as specified in sec.700.605 of this title (relating to Prerequisites for Release Hearings); and (B) (No change.) (7) notice of the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                        right to: (A) -(B) (No change.) (8) notice of TDPRS's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [the department's] obligation to delete the following information from all written documentation that TDPRS
                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [the department] provides to the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                : (A) -(B) (No change.) (9) notice of the amount, if any, that the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    must pay for a copy of the written documentation included in the investigation record; and (10) notice that the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [alleged] perpetrator's or designated victim/perpetrator's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        request for a copy of the written documentation included in the investigation record may be denied if: (A)-(B) (No change.) sec.700.605. Prerequisites for Release Hearings. (a) Notice and appeal. Except as specified in subsection (b) of this section, the Texas Department of Protective and Regulatory Services (TDPRS) arranges for a release hearing to be conducted when the following two actions have taken place: (1) TDPRS has notified the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            of TDPRS's
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [the department's] decision to release information about him to individuals who have control over his access to children; and (2) the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  has appealed the decision within 15 days after receiving notice of that decision to release
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [it]. (b) Prior completion of an administrative review. (1) Before a release hearing is conducted, [the] TDPRS'
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      Protective Services for Families and Children (PSFC) [department] must conduct an administrative review of the investigation findings as specified in sec.700.516 of this title (relating to Administrative Review of Investigation Findings), unless PSFC and the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          agree to waive the administrative review. (2) Any administrative review of current or past investigation findings is sufficient to satisfy the requirement specified in paragraph (1) of this subsection as long as: (A) the investigation findings include a designation of the person who has requested the release hearing as a designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [an alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              of child abuse or neglect as specified in sec.700.512(b)(1) of this title (relating to Conclusions About Roles
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Possible Perpetrators]); and (B) the individual who conducts the review confirms that PSFC
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [the child protective services (CPS) program] has some credible evidence from a completed investigation that the designated
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [alleged] perpetrator or designated victim/perpetrator
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      has been responsible for child abuse or neglect. 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 January 26, 1996. TRD-9601182 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter G. Services to Families 40 TAC sec.sec.700.702, 700.703, 700.705 The amendments are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendments implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.702. Family Preservation Services. (a)-(b) (No change. ) (c) Case closure. PSFC closes family preservation cases in the following two situations: (1) (No change.) (2) Administrative closure. If it is determined that the child is at risk of abuse or neglect, the worker and supervisor may close the case in the following situation
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [When both of the following conditions are satisfied, the worker and supervisor close a family preservation case even though the family still appears to need PSFC assistance to reduce the risk to the child]: (A) the family has moved and cannot be located; (B)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(A)] there is not enough evidence of a threat to the child's immediate and short-term safety for legal intervention
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [to involve the court]; and (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(B)] either: (i) the family refuses to accept further services
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [assistance]; or (ii) PSFC has already offered or provided all the services: (I) that are appropriate to the family's needs, (II) that PSFC can provide or arrange, and (III) that the family has requested and is eligible to receive. sec.700.703. Intensive Family-Preservation Services. (a)-(b) (No change.) (c) Eligibility. All of the following criteria must be satisfied before PSFC provides intensive family-preservation services: (1)-(4) (No change.) (5) TDPRS
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [the Texas Department of Protective and Regulatory Services (TDPRS)] is not the possessory or managing conservator of any child in the family. (d) Case closure or transfer. PSFC closes or transfers intensive family- preservation cases in the following three situations: (1) (No change.) (2) Administrative closure. If it is determined that the child is at risk of abuse or neglect, the worker and supervisor may close the case in the following situation
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [When both of the following conditions are satisfied, the worker and supervisor close an intensive-services case even though the family still appears to need PSFC assistance to reduce the risk to the child]: (A) the family has moved and cannot be located; (B)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(A)] there is not enough evidence of a threat to the child's immediate and short-term safety for legal intervention
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [to involve the court]; and (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(B)] either: (i) the family refuses to accept further services
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [assistance]; or (ii) PSFC has already offered or provided all the services: (I) that are appropriate to the family's needs, (II) that PSFC can provide or arrange, and (III) that the family has requested and is eligible to receive. (3) (No change.) sec.700.705. Family Service Plan. (a)-(b) (No change.) (c) Required content. The family service plan must: (1) include the reasons PSFC is involved with the family; (2)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(1) ] include an assessment, developed with the family, of family problems and strengths and resources that are available
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                related to the risk of child abuse and neglect; (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(2)] identify the goals of
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    changes needed to reduce the level of risk; (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(3)] specify the tasks the family must complete during the effective period of the plan in order to make the needed changes; (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(4)] describe the services PSFC must provide to help the family complete those tasks; and (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(5)] indicate how PSFC will evaluate the family's progress in completing each task and individual goal
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [completion of those tasks]. (d)-(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 January 26, 1996. TRD-9601183 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter K. Court-Related Services 40 TAC sec.700.1103, sec.700.1111 The amendment and new section are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendment and new section implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.1103. Provision of In-Home Services When an Emergency Hearing Cannot Be Held Within Legally Required Time Limits. When the Texas Department of Protective and Regulatory Services has removed a child from a home without a court order pursuant to Texas Family Code (TFC), sec.262.104, and must return the child to the home because an emergency hearing cannot be held within the time limits required in TFC, sec.262.106(c),
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [ s262. 106(a) and (c),] Protective Services for Families and Children
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Child Protective Services] must provide whatever services it can in the home to protect the child from further harm. sec.700.1111. Protective Court Orders. (a) The Texas Department of Protective and Regulatory Services (TDPRS) may apply for a protective order for the protection of a member of a family or household. Before filing an application for a protective order, the worker must consult with the: (1) supervisor; (2) designated legal council; and (3) nonabusive parent. (b) All parties must be involved in the decision to file an application for a protective order. (c) The worker must provide written notice to the nonabusive parent of TDPRS's decision to apply for a protective order. 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 January 26, 1996. TRD-9601184 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter M. Substitute-Care Services 40 TAC sec.sec.700.1310, 700.1312, 700.1315, 700.1316, 700.1321, 700.1322, 700.1332, 700. 1333, 700.1350, 700.1352-700.1355 The amendments and new sections are proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendments and new sections implement the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.1310. Permanency Planning. (a) Definition. Permanency planning consists of: (1) the identification of a safe and permanent living situation as the goal towards which the Office of Protective Services for Families and Children's (PSFC's) services to a child [in substitute care] (and usually to the child's family) are directed; and (2) (No change.) (b)-(d) (No change.) sec.700.1312. Family Reunification. (a)-(b) (No change.) (c) Priority. (1) PSFC must explore the possibility of selecting family reunification as the permanency-planning goal for every child in substitute care:
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [,] (A) except for children whose parents: (i)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(A)] cannot be found with reasonable effort
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      ; (ii)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(B)] have either: (I)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(i)] executed an affidavit of relinquishment as specified in the Texas Family Code, sec.161.103; or (II)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(ii)] had their parental rights terminated by the court; or (iii)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(C)] have so severely mistreated the child or the child's siblings that any reasonable person would consider family reunification inappropriate; or
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [.] (B) unless TDPRS can document reasonable efforts to work with the family and the family has been unwilling or unable to protect the child or the child's siblings from further abuse. (2) (No change.) sec.700.1315. Alternative Long-Term Care. (a) (No change.) (b) Selection criteria. The criteria for selecting alternative long-term care as a child's permanency-planning goal depend on the type of care under consideration. There are five possibilities. (1) (No change.) [(2) Long-term residential group-care for a child with severe disabilities. PSFC may select this type of long-term care as a child's permanency-planning goal if: [(A) the child cannot return home safely; [(B) adoption is not an option; [(C) the child's caregiver will not accept managing conservatorship; and [(D) the child has a permanent disability that can be managed only with intensive assistance in a residential group-care setting.] (2)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(3)] Foster care with a commitment to raise the child to adulthood. PSFC may select this type of long-term care as a child's permanency- planning goal if: (A) the child cannot return home safely; (B) adoption is not an option; and (C) the child's foster caregiver is: (i) willing to protect, care for, and raise the child; but (ii) unwilling to assume managing conservatorship. (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(4)] Foster care without a commitment to raise the child to adulthood. PSFC may select this type of long-term care as a child's permanency- planning goal if: (A) the child cannot return home safely; (B) adoption is not an option; (C) the child's foster caregiver does not want to be the child's managing conservator; and (D) the caregiver is currently capable of meeting the child's special needs, but cannot commit to meeting them until the child reaches adulthood. (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(5)] Another living arrangement. PSFC may accept another living arrangement as a child's permanency-planning goal if: (A) the child cannot return home safely, or will not return home; (B) adoption and transferring managing conservatorship are not options; [(C) ongoing substitute care with a qualified caregiver is not an option; and] (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(D)] the child needs PSFC's services, but will not receive them unless PSFC accepts the reality of the child's current living arrangement; and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [.] (D) no other category of alternative long term care is appropriate. sec.700.1316. Adult Living. (a) (No change.) (b) Selection criteria. PSFC selects adult living as a youth's permanency- planning goal when: (1)-(2) (No change.) (3) the youth is at least 14 years old; [and] (4) PSFC will probably not be able to arrange a permanent placement for the youth before the youth ages out of foster care ; and (5) the child turns 16 unless transfer of conservatorship is planned or another permanency goal is selected. sec.700.1321. Types of Licensed Caregivers. (a) Foster family-homes. (1)-(3) (No change.) (4) Types of care. Depending on their licensure, foster family-homes can provide any of the [four] types of care specified in sec.700.1322 of this title (relating to Types of Care). (b) Foster group-homes. (1)-(4) (No change.) (5) Types of care. Depending on their licensure, foster group-homes can provide any of the [four] types of care specified in sec.700.1322 of this title (relating to Types of Care). (c) Residential group-care facilities. (1)-(4) (No change.) (5) Types of care. Depending on their licensure, group-care facilities can provide any of the [four] types of care specified in sec.700.1322 of this title (relating to Types of Care). (6) TDPRS licensed institutions serving children with mental retardation. For information about these residential group-care facilities, see sec.700.1352 of this title (relating to Texas Department of Protective and Regulatory Services Licensed Institutions Serving Children with Mental Retardation). (d) Emergency shelters. (1)-(3) (No change.) (4) Type of care. Of the [four] types of care specified in sec.700.1322 of this title (relating to Types of Care), emergency shelters provide only emergency care. (e) Facilities under the authority of other state agencies. (1) When appropriate, the court may order a child in TDPRS's managing conservatorship to be placed in a foster-care facility operated or regulated by: (A)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [(1)] the Texas Youth Commission; (B)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(2)] the Texas Juvenile Probation Commission; (C)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(3)] the Texas Department of Mental Health and Mental Retardation; (D)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(4)] the Texas Education Agency; (E)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(5)] the Texas Department of Health; (F)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(6) ] the Texas Commission on Alcohol and Drug Abuse; (G)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(7)] the Texas School
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [Commission] for the Blind and Visually Impaired
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            ; or (H)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(8)] the Texas School for the Deaf. (2) For information about intermediate care facilities for persons with mental retardation and/or related conditions, see sec.700.1353 of this title (relating to Intermediate Care Facilities for Persons with Mental Retardation and/or Related Conditions). (3) For information about nursing homes, see sec.700.1354 of this title (relating to Nursing Homes). sec.700.1322. Types of Care. (a)-(c) (No change.) [(d) Supportive care. [(1) Definition. Supportive care consists of specialized supportive care and services provided to children who are medically fragile, mentally retarded, or developmentally delayed by foster family-homes and group-homes that have been licensed or verified to care for children who: [(A) have primary medical needs; [(B) are mentally retarded or developmentally delayed (requiring "habilitative" care); or [(C) display autistic behavior, as specified in the Office of Child-Care Licensing's Minimum Standards for Child-Placing Agencies. [(2) When appropriate. Supportive care is appropriate for children who are so medically fragile, mentally retarded, or developmentally delayed that they have substantial limitations in at least three of the following major areas of life- activity: [(A) self-care; [(B) mobility; [(C) communication; [(D) learning; [(E) self-direction; [(F) capacity for independent living; and [(G) capacity for economic independence.] (d) Primary medical needs care. (1) Definition. Primary medical needs care consists of specialized care and services provided to children who are medically fragile, by foster family homes and foster group homes that have been licensed or verified as meeting the requirements for child placing agencies and agency homes providing care for children with primary medical needs as specified in the Office of Child-Care Licensing's 23>Minimum Standards for Child Placing Agencies. (2) When appropriate. Primary medical needs care is appropriate for children who are medically complex or medically fragile. (3) Licensing standards and typical services. Foster homes that provide primary medical needs care must meet the requirements for providing care for children with primary medical needs in the Office of Child-Care Licensing's Minimum Standards for Child Placing Agencies . Meeting these requirements typically involves the provision of such services as: (A) taking the child to frequent appointments with providers; (B) working with and accepting training from physical and occupational therapists and nurses who visit the child at the caregiver's home; and (C) developing and maintaining a daily schedule of medical and non-medical activities designed to meet the child's special needs. (4) Types of providers. Primary medical needs care must be provided by a caregiver that is specifically licensed or verified to provide such care. To be licensed or verified, the caregiver must be: (A) a foster family home; or (B) a foster group home. (e) Habilitative care. (1) Definition. Habilitative care consists of specialized care and services provided to children who have mental retardation, developmental disability, or developmental delay by foster family homes and foster group homes that have been licensed or verified as meeting the requirements for child- placing agencies and agency homes providing habilitative foster care as specified in the Office of Child-Care Licensing's 23>Minimum Standards for Child Placing Agencies. (2) When appropriate. Habilitative care is appropriate for children who have substantial limitation in at least three of the following major areas of life activity: (A) self care; (B) mobility; (C) communication; (D) learning; (E) capacity for independent living; and (F) capacity for economic independence. (3) Licensing standards and typical services. Foster homes that provide habilitative care must meet the requirements for providing habilitative foster care in the Office of Child-Care Licensing's Minimum Standards for Child Placing Agencies. Meeting these requirements typically involves the provision of services such as: (A) taking the child to frequent appointments with medical providers; (B) working with and accepting training from physical and occupational therapists and nurses who visit the child at the caregiver's home; and (C) developing and maintaining a daily schedule of activities designed to meet the child's special needs. (4) Types of providers. Habilitative care must be provided by a caregiver that is specifically licensed or verified to provide such care. To be licensed or verified, the caregiver must be; (A) a foster family home; or (B) a foster group home. sec.700.1332. The Family's Service Plan. (a) Time frame. Within 45 days after a child's placement in substitute care, the Office of Protective Services for Families and Children (PSFC) must develop a written plan for services to the family unless: (1) the child's parents: (A) cannot be found with reasonable efforts
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ; or (B) (No change.) (2) (No change.) (b)-(d) (No change.) sec.700.1333. Case Plan Review. (a) (No change.) (b) What the review must cover. Each case plan review must: (1) cover: (A) the child's service plan, if the child is still in substitute care
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  ; and (B) the family's service plan,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    unless the Texas Department of Protective and Regulatory Services has been named permanent managing conservator or the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      child's parents: (i) cannot be found with reasonable effort
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ; (ii)-(iii) (No change.) (2) (No change.) (c)-(d) (No change.) (e) Parents' participation. (1) PSFC must ensure that the child's parents have an opportunity to participate in every case plan review unless the parents: (A) cannot be found with reasonable effort
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          ; (B)-(C) (No change.) (2) (No change.) sec.700.1350. Special Services. (a) Day care for children in foster homes that the Office of Protective Services for Families and Children (PSFC) has verified. Children in the Texas Department of Protective and Regulatory Services' (TDPRS's) managing conservatorship who have been placed in foster family-homes and group-homes that PSFC has trained and verified may receive TDPRS-paid day-care services from licensed and registered day-care providers if: (1) [regional] funds are available to pay for the services; and (2) (No change.) (b) (No change.) sec.700.1352. Texas Department of Protective and Regulatory Services (TDPRS) Licensed Institutions Serving Children with Mental Retardation. (a) Definition. A licensed institution serving children with mental retardation is a residential facility, licensed by TDPRS, which serves more than 12 children and/or adolescents who are significantly below average in general intellectual functioning, and who have deficits in adaptive behavior. Care and treatment are provided 24 hours per day. (b) Licensing standards. Institutions serving children with mental retardation must meet the core standards in the Office of Child-Care Licensing's Consolidated Standards for 24-Hour Child Care Facilities
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            , plus the specialized standards for institutions serving mentally retarded children. In addition, some institutions for children with mental retardation may also meet Additional Minimum Standards for Institutions Serving Mentally Retarded Children with Primary Medical Needs, found in Appendix IX of the Consolidated Standards for 24-Hour Child Care Facilities
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              . (c) Funding. Foster care money funds children placed in TDPRS's licensed institutions serving children with mental retardation. (d) Specialized populations. Each institution for children with mental retardation may serve a specialized population of children. For example, the institution may serve: (1) children with severe to profound mental retardation who have medical disabilities; (2) children with moderate to mild retardation; (3) children with any level of mental retardation but no other significant disability; or (4) children who are dually diagnosed with mental retardation and emotional disturbance. (e) When appropriate. An institution for children with mental retardation is a large-group setting and should be considered for placement only after all possible family-like living environments have been ruled out. The preferred and least restrictive placement for most children with mental retardation is a family (birth, foster, adoptive, or relative) home in which needed support services are provided to assist the child in functioning as independently as possible in his community. If a foster home or other family home (including a group home) which can meet the child's needs is not available, an institution for children with mental retardation may be considered. (f) Educational services. All children in institutions for mental retardation must receive educational services, usually from the local school district. It is preferable that services be provided at the local school, but if the child is so medically fragile that transporting the child to the school jeopardizes the child's health, the child can receive educational services at the facility. In addition, if a child's behavior is unacceptable at school, services may be provided in an alternate location (facility-based schooling, alternative school, alternate learning center, etc.) to prevent expulsion from school. (g) Continuation of placement. Placement in an institution should be considered a temporary placement for most children, until a more home-like setting can be located. sec.700.1353. Intermediate Care Facilities for Persons with Mental Retardation/Related Conditions (ICF-MR/RC). (a) Definitions. (1) ICF-MR/RC program. The ICF-MR/RC program is a federal Title XIX (Medicaid funded) program which provides residential and habilitative services to persons with mental retardation and/or a related condition. Facilities range in size from small group homes (six beds or less) to very large institutions (state schools). ICFs-MR/RC may be operated by the state, by a community mental health/mental retardation center, or may be privately funded. ICFs-MR/RC are licensed by the Texas Department of Human Services, but the Texas Department of Mental Health and Mental Retardation manages the program. Some facilities serve adults, some serve children, and some serve both. Some ICFs-MR/RC specialize in certain disabilities (such as cerebral palsy, behavior problems), certain ages (such as school age only), or accept only males or females. (2) Mental retardation. Mental retardation is a condition characterized by subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. Individuals with mental retardation have difficulty learning and applying what they learn in different situations. Generally, the intelligence quotient (IQ) is below 70. (3) Related condition. A related condition is a severe, chronic disability that meets all of the following conditions: (A) a condition attributable to: (i) cerebral palsy or epilepsy; or (ii) any other condition, excluding mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation and requires treatment or services similar to those required for these persons; (B) a condition manifested before the person reaches age 22 years; (C) a condition likely to continue indefinitely; and (D) a condition that results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care; (ii) understanding and use of language; (iii) learning; (iv) mobility; (v) self-direction; and (vi) capacity for independent living. (b) When appropriate. (1) A child may be considered for placement in an ICF-MR/RC when: (A) the child has a diagnosis of mental retardation and/or related condition; (B) there is no single-family home (foster or relative) available that can provide the needed support services; (C) the child has an adaptive behavior level (ABL) or I, II, III, or IV; and (D) the child is Medicaid eligible. (2) The least restrictive placement for most children with mental retardation and/or a related condition is a family (birth, foster, adoptive, relative) home in which support services are provided as needed to assist the child in functioning as independently as possible within his community. Support services include, but are not limited to, Medicaid, respite care, homemaker services, home modifications, transportation, habilitative therapies, speech therapy, caregiver training, and special education. (3) If a family home is not available, an ICF-MR/RC may be appropriate. The most desirable ICF-MR/RC for most children with mental retardation and/or a related condition is a homelike, small group home, with the least desirable being a large institution. sec.700.1354. Nursing Homes. (a) Definition. A nursing home is a privately operated, residential group-care facility where custodial, personal, and/or nursing care is provided by nurses and nurse aides for persons who are unable to adequately care for themselves and/or their medical needs. Persons included in this population may include, but are not limited to the aged, disabled, and chronically ill. (b) When appropriate. A nursing home may be appropriate for a severely medically-involved child whose needs cannot be met in a less restrictive environment, such as a child who is comatose, in a vegetative state, anencephalic (missing all or parts of the brain), or has other serious or life- threatening medical conditions. A child may be considered for placement in a nursing home when: (1) the child's health needs cannot be met in a foster home, even with intensive support services; (2) the child requires 24-hour nursing supervision and frequent medical intervention to sustain life; (3) the child's physician feels strongly that needed support services could not by provided adequately in a home setting and recommends nursing home placement; (4) a determination of "medical necessity" has been granted; (5) a Pre-Admission Screening and Annual Resident Review (PASARR) determination for eligibility for specialized services has been made for children with mental retardation, mental illness, or a related condition; (6) in regions where available, a Community Resources Coordination Group (CRCG) staffing has been held to pursue alternatives to placement in a nursing home; and (7) the program director, regional director, and the Office of Protective Services for Families and Children (PSFC) staff in state office have approved the placement. (c) PASARR. If the child has a diagnosis of mental retardation, mental illness, or a related condition, a PASARR must be completed prior to nursing home placement to determine medical necessity and eligibility for specialized services provided by the local mental retardation authority. (d) Educational services. School age children in nursing homes must receive school services unless the physician and admission, review, and dismissal committee have determined that it would be detrimental to the child's health. (1) Lack of transportation is not an excuse for not providing educational services. If transportation is a problem, the PSFC worker contacts the school district. (2) A medical disability is usually not an acceptable excuse for not providing school services. For children who are too fragile to attend school (as determined by the child's physician and the admission, review, and dismissal committee), services can be provided at the nursing home, with the teacher providing educational services in the child's room or another location in the nursing home. sec.700.1355. Sibling Contact.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Siblings should be placed together, unless there are reasons not to. When a child has one or more siblings who have been placed with other substitute caregivers, the child must be given appropriate opportunities to maintain contact with those siblings, unless there are identified therapeutic or safety reasons not to. 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 January 26, 1996. TRD-9601185 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter N. AIDS Policies for Children in TDPRS's Conservatorship 40 TAC sec.700.1405 The amendment is proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendment implements the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.1405. Caregiver Training. (a) The Texas Department of Protective and Regulatory Services (TDPRS) must ensure that all Protective Services for Families and Children
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [child protective services (CPS)] staff and foster parents who care for children in the department's conservatorship annually receive [training and] informational materials about the human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), and universal precautions to prevent HIV transmission. Providers of 24-hour residential child care must ensure that their direct-care staff also receive such [training and] informational materials every year. (b) When a child in TDPRS's conservatorship has AIDS, or when the results of a child's HIV-antibody testing have been confirmed as positive as specified in sec.700.1401(e) of this title (relating to Testing Children in TDPRS's Conservatorship for HlV Antibodies), the foster parents, 24-hour child-care providers, prospective adoptive parents, or relatives with whom the child has been placed (or with whom staff plan to place the child) must receive
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [participate in] specialized information
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [training] arranged for
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        or provided by TDPRS. No child in TDPRS's conservatorship who is known to have AIDS or to have tested positive for HIV antibodies may be placed with a nonparental caregiver who has not received such specialized information
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [training]. (c) TDPRS may either directly provide the [types of training and] information required in subsections (a) and (b) of this section or secure the required [training and] information from local health departments, contracted family- planning agencies, or local programs that serve people with AIDS. 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 January 26, 1996. TRD-9601186 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765 Subchapter O. Foster and Adoptive Home Development 40 TAC sec.700.1502 The amendment is proposed under the Human Resources Code, Title 2, Subtitle D, Chapter 40, which provides the department with the right to propose and adopt rules to comply with state law and implement departmental programs; and under the Texas Family Code, Chapter 261, which provides the department with the right to investigate abuse or neglect of children. The amendment implements the Human Resources Code, Title 2, Subtitle D, Chapter 40 and the Texas Family Code, Chapter 261. sec.700.1502. Adoptive Home Screening. The Texas Department of Protective and Regulatory Services' (TDPRS') policies for screening and approval of adoptive homes are as follows: (1)-(13) (No change.) (14) Criminal History. (A) Criminal history checks are required for all persons 18 years old and older who live in the applicant's home. Criminal history is evaluated in terms of the potential danger it presents to placement, rearing, and protection of children. Persons who have been convicted of offenses against the person, offenses against the family, public indecency, or a felony violation of the Texas Controlled Substances Act must submit proof of rehabilitation to TDPRS
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [PRS] for their application to be considered further. (B) TDPRS staff may provide a copy of the criminal records check received from the Texas Department of Public Safety or local law enforcement to the court when the court will accept the material in lieu of ordering adoptive parents to provide their own criminal records check to the court. 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 January 26, 1996. TRD-9601187 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Proposed date of adoption: August 1, 1996 For further information, please call: (512) 438-3765