ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 87. Notary Public The Office of the Secretary of State adopts amendments to sec.sec.87.1, 87.4, 87.22, 87.23, 87.41, and 87.44; and the repeal of sec.87.2 and sec.87.5, without changes to the proposed text as published in the December 1, 1995, issue of the Texas Register (20 TexReg 10175). Section 87.1 concerns the Application for Appointment as a Texas Notary Public Form, sec.87.4 concerns the Appointment by the Secretary of State, sec.87. 22 concerns the Completion and Execution of the Oath of Office Form, sec.87.23 concerns the Qualification with the Secretary of State, sec.87.41 concerns Rejection of Application and Revocation of Commission, sec.87.44 concerns Qualification under New Name, sec.87.2 concerns the Notice of Expiration and Application for Appointment as a Notary Public, and sec.87.5 concerns the Notice of Expiration by the Secretary of State The amendments and repeals update procedures, and implement changes, effective January 1, 1996, to the Notary Public Act, Texas Government Code, sec.sec.406.001-406.025, that were enacted by the 74th Texas Legislature. The changes will provide individuals with a clarification of the procedure for application as a notary public. No comments were received regarding adoption of the amendments or repeals. Notary Public Qualifications 1 TAC sec.sec.87.1, 87.4, 87.22, 87.23 The amendments are adopted under the Texas Government Code, sec.2001.004(1) and the Notary Public Act, Texas Government Code, sec.406.023(a), which provide the Secretary of State with the authority to prescribe and adopt rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601599 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 27, 1996 Proposal publication date: December 1, 1995 For further information, please call: (512) 463-5570 Notary Public Appointments 1 TAC sec.87.2, sec.87.5 The repeals are adopted under the Texas Government Code, sec.2001.004(1) and the Notary Public Act, Texas Government Code, sec.406.023(a), which provide the Secretary of State with the authority to prescribe and adopt rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601602 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 27, 1996 Proposal publication date: December 1, 1995 For further information, please call: (512) 463-5570 Rejection and Revocation 1 TAC sec.87.41 The amendment is adopted under the Texas Government Code, sec.2001.004(1) and the Notary Public Act, Texas Government Code, sec.406.023(a) which provide the Secretary of State with the authority to prescribe and adopt rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601600 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 27, 1996 Proposal publication date: December 1, 1995 For further information, please call: (512) 463-5570 Administrative Action 1 TAC sec.87.44 The amendment is adopted under the Texas Government Code, Section 2001. 004(1) and the Notary Public Act, Texas Government Code, sec.406.023(a), which provide the Secretary of State with the authority to prescribe and adopt rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601601 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 27, 1996 Proposal publication date: December 1, 1995 For further information, please call: (512) 463-5570 TITLE 7. BANKING AND SECURITIES Part VI. Credit Union Department Chapter 91. Chartering, Operations, Mergers, Liquidations Powers of Credit Unions 7 TAC sec.91.401 The Credit Union Commission adopts an amendment to sec.91.401 providing for a standard for Automated Teller Machine safety, with changes to the proposed text as published in the October 27, 1995, issue of the Texas Register (20 TexReg 8888). The amendment should limit the liability of credit unions that are in compliance. The amendment is adopted as mandated by House Bill 2645 which requires the Credit Union Commission to adopt rules to implement its terms. As adopted the amendment differs from the proposed text in several respects. The adopted version limits the requirement for giving notice only to credit union customers to whom access devices are issued. Notice must be given only when access devices are issued, renewed, or replaced, rather than annually as would have been required in the proposed text. Lastly the adopted amendment contains grammatical changes from the proposed text. Written comments were received from the Texas Credit Union League and Affiliates (the League), an association of more than 700 members. The League suggested that the required notice of basic safety instructions be limited to credit union customers to whom access devices are issued. The League also commented that providing notice annually is expensive and unnecessary. Notice should be required only when an access device is issued, renewed, or replaced. Lastly, the League commented that the word "media" in the amendment should be changed to "medium", and the phase "walk-unmanned" should be changed to "walk- up" in describing unmanned teller machines. The commission agrees with these comments, and the amendment, as adopted, incorporates them. The amendment is adopted under the provision of Texas Civil Statutes, Article 2461-11.07, which provide the Credit Union Commission with the authority to adopt reasonable rules necessary for the administration of the Act. The amendment is adopted also under the authority of the Texas Banking Code, Texas Civil Statutes, Article 342-901, Article 3rd which requires the Credit Union Commission to adopt rules to implement the article. sec.91.401. General Powers. (a) Purchase, Lease and Sale of Property. (1) Restrictions. A credit union shall not purchase real estate (land or buildings) for the principal purpose of engaging in real estate rentals or speculation. (2) Insurance. A credit union shall purchase insurance covering physical damages and personal liability sufficient to protect the credit union from loss relating to property owned or occupied by the credit union. The coverages shall be reviewed annually by the board of directors. (3) Investment or obligation of funds. Any investment or obligation of funds in a building or other fixed assets, by purchase or lease, which in an aggregate amount exceeds 5.0% of the credit union's total assets at the time of the investment shall require the prior written approval of the commissioner. Requests for the approval must be submitted to the commissioner prior to entering into any contracts to purchase, to build, or to lease, and shall be supported by the following information: (A) a current financial and statistical report of the credit union, including a delinquency report; (B) projections showing expected growth in assets, loans, savings and membership, for a five year period, which may be based upon a rate of growth for the previous five years; (C) a description, including current usage, of currently owned real estate; (D) a plan for financing the purchase of land or the construction of any building; (E) a brief statement of the economic advantage and disadvantages relating to the proposed investment; (F) modifications expected, if any, to the site or any improvements thereon and the estimated cost thereof; and (G) the commissioner may require any additional information regarding the economic impact on the credit union of the investment deemed necessary for an informed evaluation of the investment. (b) Unmanned Teller Machine. User Safety (1) Definitions. The definitions set out in Article 3d, sec.1, are incorporated and made a part of this rule as if actually set out herein. As used in this rule, "the Act" means Article 3d. (2) Safety requirements. Not later than September 1, 1996, and unless exempted under the Act, sec.6, a credit union owner or operator shall comply with the safety requirements of the Act. In complying with the minimum lighting requirements, candlefoot power shall be measured under normal, dry weather conditions (i.e., without complicating factors such as fog, rain, snow, sand or duststorm or any other complicating condition). (3) Leased premises. The Act, sec.3(c) provides that if an access area or defined parking area for an unmanned teller machine is not controlled by the owner or operator of the machine, then the landlord or owner of the property is required to comply with the safety procedures in sec.3. If a credit union owner or operator is unable to obtain compliance from such a person, then it shall notify, in writing, the Credit Union Department of such non-compliance. (4) Notice (A) Existing accounts. No later than January 1, 1996, a credit union which issues access devices shall furnish its members with a notice of basic safety precautions that should be employed while using an unmanned teller machine. The notice may be included as a statement stuffer with any other mailing or may be delivered personally or be mailed in any other form to each member whose mailing address is in this state and who has been issued an access device. (B) New Access Devices. A credit union which issues access devices shall furnish its members to whom access devices are issued with the notice of basic safety precautions at the time the initial disclosure of terms and conditions is provided to such member in accordance with Regulation E (12 Code of Federal Regulations 205). (C) Notice. After January 1, 1996, each credit union issuer of access devices shall furnish its members with the notice of basic safety precautions when an access device is issued, renewed or replaced. (D) Content. The notice of basic safety precautions shall be provided in written form in a medium which can be retained by the customer and may include information such as the following: (i) recommendations regarding security at walk-up unmanned teller machines; (ii) protection of code or PIN; (iii) security at drive-up unmanned teller machines; (iv) procedures for lost or stolen access devices; (v) reaction to suspicious circumstances; (vi) taking receipt instead of leaving it at or near the unmanned teller machine; (vii) not giving out information about an access device over the telephone; (viii) treating an access device as if it were cash; (ix) checking receipts against monthly statements to detect fraud; or (x) any other recommendations which the credit union reasonably believes are appropriate to facilitate the security of its users. (5) Video surveillance equipment. After evaluating the usefulness and practicality of usage of video surveillance equipment, the Credit Union Commission has determined that such equipment need not be required at credit union unmanned teller machines. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601651 Harold E. Feeney Commissioner Credit Union Department Effective date: February 27, 1996 Proposal publication date: October 27, 1995 For further information, please call: (512) 837-9236 TITLE 16. ECONOMIC REGULATION II. Public Utility Commission 23. Substantive Rule 278> 16 TAC sec.23.14 The following rule was adopted in the February 6, 1996, issue of the Texas Register (21 TexReg 869). The rule was adopted with changes. However, the text was inadvertently omitted from the February 6th issue. For clarification, the rule is being republished in this issue. The effective date is February 16, 1996. The Public Utility Commission of Texas adopts an amendment to sec.23.14, with changes to the proposed text as published in the August 25, 1995, issue of the Texas Register (20 TexReg 6570). The adopted rule sec.23.14 permits any telecommunications utility as defined in Public Utility Regulatory Act (PURA) sec.3.002(9) or any electric utility as defined in PURA sec.2.0011(1) to keep records, books, accounts, or memoranda outside the State of Texas so long as they return them to the state for any inspection authorized by the Public Utility Regulatory Act of 1995. The public benefit anticipated as a result of enforcing the amendment will be an increased efficiency on the part of the utilities due to their ability to develop record keeping and retention systems that best reflect the manner in which they do business. The following submitted comments in response to the August 25, 1995, Texas Register publication: Central and Southwest Companies (CSW); El Paso Electric Company (EPE), Gulf States Utilities Company (GSU), Texas Telephone Association (TTA); and Texas Statewide Telephone Cooperative, Inc. (TSTCI) Following the publication of the proposed rule, the Commission conducted a public hearing on October 3, 1995, at which the commenting parties further discussed the issues raised in their comments. All parties who commented or attended the public hearing are generally supportive of the proposed rule which did not include the electric utilities in the rule. CSW and GSU supported the proposed rule but urged the commission to broaden it to include electric utilities. None of the other commenters were opposed to including electric utilities within the rule. The Commission agrees with GSU and CSW that electric utilities should be permitted the same freedom as telecommunication utilities to keep records out of state as long as they are returned to the state for PURA authorized inspections. All comments, including those not specifically referenced herein, were fully considered by the commission. The rule is authorized by PURA sec.3.1545 which permits telecommunications utilities to remove books, accounts, records, and memoranda from the State. The rule is adopted under the Public Utility Regulatory Act of 1995, sec.1. 101 and sec.3.1545, 74th Legislature, Regular Session 1995, as amended by House Bill 2128, which provides the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction. Cross Index to Statutes: Article 1446c-O (Vernon Supp. 1995) sec.23.14. Maintenance and Location of Records. All records, books, accounts, or memoranda required of a public utility, as defined in the Public Utility Regulatory Act of 1995, sec.2.0011(1) and sec.3.002(9) may be kept outside the State of Texas so long as those records, books, accounts, or memoranda are returned to the state for any inspection by the commission that is authorized by the Public Utility Regulatory Act of 1995. This agency hereby certifies that the section as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 26, 1996. TRD-9601159 Paula Mueller Secretary of the Commission Public Utility Commission of Texas Effective date: February 16, 1996 Proposal publication date: August 25, 1995 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part X. Texas Funeral Service Commission Chapter 203. Licensing and Enforcement-Specific Substantive Rules The Texas Funeral Service Commission adopts the repeal of sec.203.1 and sec.sec.203.7-203.28; and new sec.203.1 and sec.sec.203.7-203.31, concerning definitions, price disclosures, misrepresentations, required purchase of funeral goods or funeral services, services provided without prior approval, retention of documents, comprehension of disclosures, declaration of intent, display of funeral merchandise, requirements for reciprocal licenses, minimum standards for embalming, clarification of other facilities necessary in a preparation room, clarification of definition of directing a funeral, clarification of facilities in which funeral services may be conducted, clarification of other itemized services provided by funeral home staff, presentation of consumer brochures, required documentation for embalming, location of retained records, professional conduct, franchise tax, clarification of definition of "Unreasonable Time", sponsors of provisional licensees, establishment licenses, funeral establishment names, continuing education as a condition for license renewal, inspection as requirement for renewal of establishment license; fees. New sec.203.1 and sec.sec.203.7-203.31 are adopted with changes to the proposed text as published in the December 15, 1995, issue of the Texas Register (20 TexReg 10725). The repeal of sec.203.1 and sec.sec.203.7-203.28 are adopted without changes and will not be republished. These new sections are adopted to bring Texas into compliance with Federal Trade Commission (FTC) Rules. Comments were received from Restland Funeral Home, Inc. All comments submitted, including those not specifically referenced herein, were fully considered by the commission. Restland commented that the definition of "services of funeral director and staff" in sec.203.1 should be modified by substituting the words "in sec.203.7(b) (4) of this title" for the words "that must be stated on the general price list or written memorandum", to be consistent with the definition contained in the FTC Funeral Rule. The commission found that the modification would be unnecessary and confusing, as the rule is consistent with the FTC rule. Restland commented that the word "purchase" in sec.203.7(b) should be changed to "purchases" to coincide with the caption in sec.203.9(b)(1). The commission amended the rule to reflect this suggestion. Restland commented that the word "provisions" in sec.203.9(a) should be changed to the word "purposes". The commission found that this would be inconsistent with the FTC rules. Restland commented that sec.203.20 should be modified to make clear that all "other itemized services provided by funeral establishment staff" are not required to be included on the general price list, with the exception of those items specifically listed in sec.203.7(b)(4)(B), if offered for sale by the funeral provider. The commission found that this would be inconsistent Texas Civil Statutes, Article 4582b, sec.1(S)(9). Restland commented that the word "Misrepresentations" in sec.203.23(b) should be changed to "Procedures for the Petition for Adoption of Rules", as it references sec.201.8 which is so titled. The commission amended the rule to reflect this correction. 22 TAC sec.sec.203.1, 203.7-203.28 The repeals are adopted pursuant to Texas Civil Statutes, Article 4582b, sec.5, which authorize the Texas Funeral Service Commission to adopt rules as necessary to administer the statute. The adopted repeals affect Texas Civil Statutes, Article 4582b. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601656 Marc Allen Connelly General Counsel Texas Funeral Service Commission Effective date: February 27, 1996 Proposal publication date: December 15, 1995 For further information, please call: (512) 834-9992 22 TAC sec.sec.203.1, 203.7-203.31 The new sections are adopted pursuant to Texas Civil Statutes, Article 4582b, sec.5, which authorize the Texas Funeral Service Commission to adopt rules as necessary to administer the statute. The adopted new sections affect Texas Civil Statutes, Article 4582b. sec.203.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Alternative container -An unfinished wood box or other non-metal receptacle or enclosure, without ornamentation or a fixed interior lining, which is designed for the encasement of human remains and which is made of fiberboard, pressed-wood, composition materials (with or without an outside covering) or like materials. Cash advance item-Any item of service or merchandise described to a purchaser as a "cash advance," "accommodation," "cash disbursement," or similar term. A cash advance item is also any item obtained from a third party and paid for by the funeral provider on the purchaser's behalf. Cash advance items may include, but are not limited to: cemetery or crematory services; pallbearers; public transportation; clergy honoraria; flowers; musicians or singers; nurses; obituary notices; gratuities and death certificates. Casket-A rigid container which is designed for the encasement of human remains and which is usually constructed of wood, metal, fiberglass, plastic, or like material, and ornamented and lined with fabric. Commission-The Texas Funeral Service Commission. Cremation-A heating process which incinerates human remains. Crematory-Any person, partnership or corporation that performs cremation and sells funeral goods. Direct cremation -Disposition of human remains by cremation, without formal viewing, visitation, or ceremony with the body present. Funeral ceremony -A service commemorating the deceased with the body present. Funeral goods-Goods which are sold or offered for sale directly to the public for use in connection with funeral services. Funeral provider -Any person, partnership or corporation that sells or offers to sell funeral goods and funeral services to the public. Funeral services -Any services which may be used to: (A) care for and prepare deceased human bodies for burial, cremation or other final disposition; and (B) arrange, supervise or conduct the funeral ceremony or the final disposition of deceased human bodies. Immediate burial -Disposition of human remains by burial, without formal viewing, visitation, or ceremony with the body present, except for a graveside service. Memorial service -A ceremony commemorating the deceased without the body present. Outer burial container-Any container which is designed for placement in the grave around the casket including, but not limited to, containers commonly known as burial vaults, grave boxes, and grave liners. Person-Any individual, partnership, corporation, association, government or governmental subdivision or agency, or other entity. Services of funeral director and staff -The basic services, not to be included in prices of other categories that must be stated separately on the general price list or written memorandum, that are furnished by a funeral provider in arranging any funeral, such as conducting the arrangements conference, planning the funeral, obtaining necessary permits, and placing obituary notices. sec.203.7. Price Disclosures. (a) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for a funeral provider to fail to furnish accurate price information disclosing the cost to the purchaser for each of the specific funeral goods and funeral services used in connection with the disposition of deceased human bodies, including at least the price of embalming, transportation of remains, use of facilities, caskets, outer burial containers, immediate burials, or direct cremations, to persons inquiring about the purchase of funerals. Any funeral provider who complies with the preventive requirements in subsection (b) of this section is not engaged in the unfair or deceptive acts or practices defined here. (b) Preventive requirements. To prevent these unfair or deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in sec.203.9(b)(1) of this title (relating to Other required purchases of funeral goods or funeral services), funeral providers must: (1) Telephone price disclosure. Tell persons who ask by telephone about the funeral provider's offerings or prices any accurate information from the price lists described in paragraphs (2)-(4) of this subsection and any other readily available information that reasonably answers the question. (2) Casket price list. (A) Give a printed or typewritten price list to people who inquire in person about the offerings or prices of caskets or alternative containers. The funeral provider must offer the list upon beginning discussion of, but in any event before showing caskets. The list must contain at least the retail prices of all caskets and alternative containers offered which do not require special ordering, enough information to identify each, and the effective date for the price list. In lieu of a written list, other formats, such as notebooks, brochures, or charts may be used if they contain the same information as would the printed or typewritten list, and display it in a clear and conspicuous manner. Provided, however, that funeral providers do not have to make a casket price list available if the funeral providers place on the general price list, specified in paragraph (4) of this subsection, the information required by this subsection. (B) Place on the list, however produced, the name of the funeral provider's place of business and a caption describing the list as a "casket price list." (3) Outer burial container price list. (A) Give a printed or typewritten price list to persons who inquire in person about outer burial container offerings or prices. The funeral provider must offer the list upon beginning discussion of, but in any event before showing the containers. The list must contain at least the retail prices of all outer burial containers offered which do not require special ordering, enough information to identify each container, and the effective date for the prices listed. In lieu of a written list, the funeral provider may use other formats, such as notebooks, brochures, or charts, if they contain the same information as the printed or typewritten list, and display it in a clear and conspicuous manner. Provided, however, that funeral providers do not have to make an outer burial container price list available if the funeral providers place on the general price list, specified in paragraph (4) of this subsection, the information required by this subsection. (B) Place on the list, however produced, the name of the funeral provider's place of business and a caption describing the list as an "outer burial container price list." (4) General price list. (A) Availability of general price list. (i) Give a printed or typewritten price list for retention to persons who inquire in person about the funeral goods, funeral services or prices of funeral goods or services offered by the funeral provider. The funeral provider must give the list upon beginning discussion of any of the following: (I) the prices of funeral goods or funeral services; (II) the overall type of funeral service or disposition; or (III) specific funeral goods or funeral services offered by the funeral provider. (ii) The requirement in clause (i) of this subparagraph applies whether the discussion takes place in the funeral home or elsewhere. Provided, however, that when the deceased is removed for transportation to the funeral home, an in- person request at that time for authorization to embalm, required by sec.203.10(a)(2) of this title (relating to Prior approval for embalming), does not, by itself, trigger the requirement to offer the general price list if the provider in seeking prior embalming approval discloses that embalming is not required by law except in certain special cases, if any. Any other discussion during that time about prices or the selection of funeral goods or services triggers the requirement under clause (i) of this subparagraph to give consumers a general price list. (iii) The list required in clause (i) of this subparagraph must contain at least the following information: (I) the name, address, and telephone number of the funeral provider's place of business; (II) a caption describing the list as a "general price list"; and (III) the effective date for the price list; (B) Include on the price list, in any order, the retail prices (expressed either as the flat fee, or as the price per hour, mile or other unit of computation) and the other information specified below for at least each of the following items, if offered for sale: (i) forwarding of remains to another funeral home, together with a list of the services provided for any quoted price; (ii) receiving remains from another funeral home, together with a list of the services provided for any quoted price; (iii) the price range for the direct cremations offered by the funeral provider, together with: (I) a separate price for a direct cremation where the purchaser provides the container; (II) separate prices for each direct cremation offered including an alternative container; and (III) a description of the services and container (where applicable), included in each price; (iv) The price range for the immediate burials offered by the funeral provider, together with: (I) a separate price for an immediate burial where the purchaser provides the casket; (II) separate prices for each immediate burial offered including a casket or alternative container; and (III) a description of the services and container (where applicable) included in that price; (v) transfer of remains to funeral home; (vi) embalming; (vii) other preparation of the body; (viii) use of facilities and staff for viewing; (ix) use of facilities and staff for funeral ceremony; (x) use of facilities and staff for memorial service; (xi) use of equipment and staff for graveside service; (xii) hearse; and (xiii) limousine. (C) Include on the general price list, in any order, the following information: (i) Either of the following: (I) The price range for the caskets offered by the funeral provider, together with the statement: "A complete price list will be provided at the funeral home."; or (II) The prices of individual caskets, disclosed in the manner specified by paragraph (2)(A) of this subsection; and (ii) Either of the following: (I) The price range for the outer burial containers offered by the funeral provider, together with the statement: "A complete price list will be provided at the funeral home."; or (II) The prices of individual outer burial containers, disclosed in the manner specified by paragraph (3)(A) of this subsection; and (iii) Either of the following: (I) The price for the basic services of funeral director and staff, together with a list of the principal basic services provided for any quoted price and, if the charge cannot be declined by the purchaser, the statement: "This fee for our basic services will be added to the total cost of the funeral arrangements you select. (This fee is already included in our charges for direct cremations, immediate burials, and forwarding or receiving remains.) ". If the charge cannot be declined by the purchaser, the quoted price shall include all charges for the recovery of unallocated funeral provider overhead, and funeral providers may include in the required disclosure the phrase "and overhead" after the word "services"; or (II) The following statement: "Please note that a fee of (specify dollar amount) for the use of our basic services is included in the price of our caskets. This same fee shall be added to the total cost of your funeral arrangements if you provide the casket. Our services include (specify)." The fee shall include all charges for the recovery of unallocated funeral provider overhead, and funeral providers may include in the required disclosure the phrase "and overhead" after the word "services." The statement must be placed on the general price list together with the casket price range, required by clause (i)(I) of this subparagraph, or together with the prices of individual caskets, required by clause (i)(II) of this subparagraph. (D) The services fee permitted by subparagraph (C)(iii)(I) or (II) of this paragraph is the only funeral provider fee for services, facilities or unallocated overhead permitted by this part to be non-declinable, unless otherwise required by law. (5) Statement of funeral goods and services selected. (A) Give an itemized written statement for retention to each person who arranges a funeral or other disposition of human remains, at the conclusion of the discussion of arrangements. The statement must list at least the following information: (i) the funeral goods and funeral services selected by that person and the prices to be paid for each of them; (ii) specifically itemized cash advance items. (These prices must be given to the extent then known or reasonably ascertainable. If the prices are not known or reasonably ascertainable, a good faith estimate shall be given and a written statement of the actual charges shall be provided before the final bill is paid.); and (iii) the total cost of the goods and services selected. (B) The information required by paragraph (5) of this subsection may be included on any contract, statement, or other document which the funeral provider would otherwise provide at the conclusion of discussion of arrangements. (6) Other pricing methods. Funeral providers may give persons any other price information, in any other format, in addition to that required by paragraphs (2), (3), and (4) of this subsection so long as the statement required by paragraph (5) of this subsection is given when required by the rule. sec.203.8. Misrepresentations. (a) Embalming provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that state or local law requires that a deceased person be embalmed when such is not the case; (B) fail to disclose that embalming is not required by law except in certain special cases, if any. (2) Preventive requirements. To prevent these deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in sec.203.9(b)(1) of this title (relating to Other required purchase of funeral goods or funeral services) and sec.203.10(a) of this title (relating to Services provided without prior approval), funeral providers must: (A) not represent that a deceased person is required to be embalmed for: (i) Direct cremation; (ii) Immediate burial; or (iii) A closed casket funeral without viewing or visitation when refrigeration is available and when state or local law does not require embalming; and (B) Place the following disclosure on the general price list, required by sec.203.7(b)(4) of this title (relating to General price list), in immediate conjunction with the price shown for embalming: "Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing. If you do not want embalming, you usually have the right to choose an arrangement that does not require you to pay for it, such as direct cremation or immediate burial." The phrase "except in certain special cases" need not be included in this disclosure if state or local law in the area(s) where the provider does business does not require embalming under any circumstances. (b) Casket for cremation provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that state or local law requires a casket for direct cremations; (B) represent that a casket is required for direct cremations. (2) Preventive requirements. To prevent these deceptive acts or practices, as well as the unfair or deceptive acts or practices defined in sec.203.9(a)(1) of this title (relating to Casket for cremation purposes), funeral providers must place the following disclosure in immediate conjunction with the price range shown for direct cremations: "If you want to arrange a direct cremation, you can use an alternative container. Alternative containers encase the body and can be made of materials like fiberboard or composition materials (with or without an outside covering). The containers we provide are (specify containers)." This disclosure only has to be placed on the general price list if the funeral provider arranges direct cremations. (c) Outer burial container provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods and funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that state or local laws or regulations, or particular cemeteries, require outer burial containers when such is not the case; (B) fail to disclose to persons arranging funerals that state law does not require the purchase of an outer burial container. (2) Preventive requirement. To prevent these deceptive acts or practices, funeral providers must place the following disclosure on the outer burial container price list, required by sec.203.7(b)(3)(A) of this title (relating to Outer burial container price list), or, if the prices of outer burial containers are listed on the general price list, required by sec.203.7(b) (4) of this title (relating to General price list), in immediate conjunction with those prices: "In most areas of the country, state or local law does not require that you buy a container to surround the casket in the grave. However, many cemeteries require that you have such a container so that the grave will not sink in. Either a grave liner or a burial vault will satisfy these requirements." The phrase "in most areas of the country" need not be included in this disclosure if state or local law in the area(s) where the provider does business does not require a container to surround the casket in the grave. (d) General provisions on legal and cemetery requirements. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for funeral providers to represent that federal, state, or local laws, or particular cemeteries or crematories, require the purchase of any funeral goods or funeral services when such is not the case. (2) Preventive requirements. To prevent these deceptive acts or practices, as well as the deceptive acts or practices identified in subsections (a)(1), (b)(1), and (c)(1) of this section, funeral providers must identify and briefly describe in writing on the statement of funeral goods and services selected (required by sec.203.7(b)(5)) of this title (relating to Statement of funeral goods and services selected) any legal, cemetery, or crematory requirement which the funeral provider represents to persons as compelling the purchase of funeral goods or funeral services for the funeral which that person is arranging. (e) Provisions on preservative and protective value claims. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (1) represent that funeral goods or funeral services will delay the natural decomposition of human remains for a long-term or indefinite time; (2) represent that funeral goods have protective features or will protect the body from gravesite substances, when such is not the case. (f) Cash advance provisions. (1) Deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is a deceptive act or practice for a funeral provider to: (A) represent that the price charged for a cash advance item is the same as the cost to the funeral provider for the item when such is not the case; (B) fail to disclose to persons arranging funerals that the price being charged for a cash advance item is not the same as the cost to the funeral provider for the item when such is the case. (2) Preventive requirements. To prevent these deceptive acts or practices, funeral providers must place the following sentence in the itemized statement of funeral goods and services selected, in immediate conjunction with the list of itemized cash advance items required by sec.203.7(b)(5)(A)(ii) of this title (relating to Statement of funeral goods and services selected): "We charge you for our services in obtaining: (specify cash advance items)," if the funeral provider makes a charge upon, or receives and retains a rebate, commission or trade or volume discount upon a cash advance item. sec.203.9. Required Purchase of Funeral Goods or Funeral Services. (a) Casket for cremation provisions. (1) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for a funeral provider, or a crematory, to require that a casket be purchased for direct cremation. (2) Preventive requirement. To prevent this unfair or deceptive act or practice, funeral providers must make an alternative container available for direct cremations, if they arrange direct cremations. (b) Other required purchases of funeral goods or funeral services. (1) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services, it is an unfair or deceptive act or practice for a funeral provider to: (A) condition the furnishing of any funeral good or funeral service to a person arranging a funeral upon the purchase of any other funeral good or funeral service, except as required by law or as otherwise permitted by this part; (B) charge any fee as a condition to furnishing any funeral goods or funeral services to a person arranging a funeral, other than the fees for: (i) services of funeral director and staff, permitted by sec.203.7(b) (4)(C)(iii) of this title (relating to General price list); (ii) other funeral services and funeral goods selected by the purchaser; and (iii) other funeral goods or services required to be purchased, as explained on the itemized statement in accordance with sec.203.8(d)(2) of this title (relating to General provisions on legal and cemetery requirements). (2) Preventive requirements. (A) To prevent these unfair or deceptive acts or practices, funeral providers must: (i) Place the following disclosure in the general price list, immediately above the prices required by sec.203.7(b)(4)(B) and (C) of this title (relating to General price list): "The goods and services shown below are those we can provide to our customers. You may choose only the items you desire. If legal or other requirements mean you must buy any items you did not specifically ask for, we will explain the reason in writing on the statement we provide describing the funeral goods and services you selected." Provided, however, that if the charge for "services of funeral director and staff" cannot be declined by the purchaser, the statement shall include the sentence: "However, any funeral arrangements you select will include a charge for our basic services" between the second and third sentences of the statement specified above herein. The statement may include the phrase "and overhead" after the word "services" if the fee includes a charge for the recovery of unallocated funeral provider overhead; (ii) Place the following disclosure in the statement of funeral goods and services selected, required by sec.203.7(b)(5)(A) of this title (relating to Statement of funeral goods and services selected): "Charges are only for those items that you selected or that are required. If we are required by law or by a cemetery or crematory to use any items, we will explain the reasons in writing below." (B) A funeral provider shall not violate this section by failing to comply with a request for a combination of goods or services which would be impossible, impractical, or excessively burdensome to provide. sec.203.10. Services Provided Without Prior Approval. (a) Unfair or deceptive acts or practices. In selling or offering to sell funeral goods or funeral services to the public, it is an unfair or deceptive act or practice for any provider to embalm a deceased human body for a fee unless: (1) state or local law or regulation requires embalming in the particular circumstances regardless of any funeral choice which the family might make; or (2) prior approval for embalming (expressly so described) has been obtained from a family member or other authorized person; or (3) the funeral provider is unable to contact a family member or other authorized person after exercising due diligence, has no reason to believe the family does not want embalming performed, and obtains subsequent approval for embalming already performed (expressly so described). In seeking approval, the funeral provider must disclose that a fee will be charged if the family selects a funeral which requires embalming, such as a funeral with viewing, and that no fee will be charged if the family selects a service which does not require embalming, such as direct cremation or immediate burial. (b) Preventive requirement. To prevent these unfair or deceptive acts or practices, funeral providers must include on the itemized statement of funeral goods and services selected, required by sec.203.7(b)(5) of this title (relating to Statement of funeral goods and services selected), the statement: "If you selected a funeral that may require embalming, such as a funeral with viewing, you may have to pay for embalming. You do not have to pay for embalming you did not approve if you selected arrangements such as a direct cremation or immediate burial. If we charged for embalming, we will explain why below." sec.203.11. Retention of Documents. To prevent the unfair or deceptive acts or practices specified in sec.203.7 of this title (relating to Price disclosures) and sec.203.8 of this title (relating to Misrepresentations) of this rule, funeral providers must retain and make available for inspection by Commission officials true and accurate copies of the price lists specified in sec.203.7(b)(2)-(4) of this title (relating to Casket price list, outer burial container price list, and general price list), as applicable, for at least two years after the date of their last distribution to customers, and a copy of each statement of funeral goods and services selected, as required by sec.203.7(b)(5) of this title (relating to Statement of funeral goods and services selected), for at least two years from the date of the arrangements conference. sec.203.12. Comprehension of Disclosures. To prevent the unfair or deceptive acts or practices specified in sec.sec.203.7-203.10 of this title (relating to Price disclosures, misrepresentations, required purchase of funeral goods or services, and services provided without prior approval), funeral providers must make all disclosures required by those sections in a clear and conspicuous manner. Providers shall not include in the casket, outer burial container, and general price lists, required by sec.203.7(b)(2)-(4) of this title (relating to Casket price list, outer burial container price list, and general price list), any statement or information that alters or contradicts the information required by this Part to be included in those lists. sec.203.13. Declaration of Intent. (a) Except as otherwise provided in sec.203.7(a) of this title (relating to Price disclosures), it is a violation of this rule to engage in any unfair or deceptive acts or practices specified in this rule, or to fail to comply with any of the preventive requirements specified in this rule. (b) The provisions of this rule are separate and severable from one another. If any provision is determined to be invalid, it is the Commission's intention that the remaining provisions shall continue in effect. (c) This rule shall not apply to the business of insurance or to acts in the conduct thereof. sec.203.14. Display of Funeral Merchandise. The commission will approve only those display rooms in funeral establishments which meet the requirements of Texas Civil Statutes, Article 4582b, sec.4(C)(5), that are designed and utilized to allow the public to make a private inspection and selection, if they so desire. sec.203.15. Requirements for Reciprocal Licenses. (a) All applicants for a reciprocal license must provide proof that the license held from another issuing authority is not lapsed and is in good standing. If the license is lapsed, the applicant must pass all examinations required by the commission for licensure in Texas. (b) Each reciprocal applicant must pass a written examination of not more than 50 questions on applicable state laws and commission rules. The written examination will be available to be administered at each regularly scheduled meeting of the commission. (c) At such time the examination is taken, the applicant may also be required to personally appear before the commission. sec.203.16. Minimum Standards for Embalming. (a) In order to ensure the maximum inhibition of pathogenic organisms in the dead human body, the following minimum standards of performance shall be required of such licensed embalmer in the State of Texas in each instance in which he or she is authorized or required to embalm a dead human body. (1) Embalming shall be performed only by embalmers licensed by the commission, in properly equipped and licensed establishments, or, in the event of a disaster of major proportions, in facilities designated by a medical examiner, coroner, or state health officials. Only three types of people may assist licensed embalmers in embalming: provisional embalmers; students who are enrolled in an accredited school of mortuary science; and, in the event of a disaster of major proportions and with the prior approval of the executive director, embalmers licensed in another state as long as they are working with and under the general supervision of a person licensed as an embalmer in this state. (2) In order to prevent those involved in the embalming procedure from becoming unwitting carriers of pathogenic organisms into the community, they shall be required to utilize such protective devices as sterilizable gloves, aprons, or operating gowns during the embalming procedure. Disposable garments and/or gloves shall be permitted. (3) Clothing directly exposed to contamination by pathogenic organisms shall either be burned or thoroughly cleaned and disinfected with a solution having a phenol coefficient of not less than one before delivery to any person or before any further utilization. (4) The technique utilized to effect eye, mouth, and lip closure shall be any technique accepted as standard in the profession. Regardless of the technique chosen, the embalmer shall be required to achieve the best results possible under prevailing conditions. (5) The entire body shall be washed with an antiseptic soap or detergent. Fingernails, hair (including mustache and beard) shall be thoroughly cleaned, either before or immediately after arterial injection. (6) Body orifices (open lesions and surgical incisions, nostrils, mouth, anus, and vagina) shall be treated with appropriate topical disinfectants either before or immediately after arterial injection. After cavity treatment has been completed, body orifices shall be packed in cotton saturated with a suitable disinfectant of a phenol coefficient not less than one. (7) The arterial fluid to be injected shall be one commercially prepared and marketed with its percent of formaldehyde, or other approved substance, by volume (index) clearly marked on the label or in printed material supplied by the manufacturer. (8) The fluids selected shall be injected into all bodies in such dilutions and at such pressures as the professional experience of the embalmer shall indicate, except that in no instance shall dilute solution contain less than 1.0% formaldehyde, or an approved substance that acts the same as formaldehyde, and in no instance shall less than one gallon of dilute solution be used for each 50 pounds of body weight. Computation of solution strength is as follows. C x V = C' x V' C = strength of concentrated fluid V = volume of ounces of concentrated fluid C' = strength of dilute fluid V' = volume of ounces of dilute fluid For example, how much of a 20 index fluid will it take to make two gallons (256 oz.) of a one index (1.0%) injection solution? Solving for V. C x V = C' x V' 20 x V = 1 x 256 20v = 256 V = 256/20 = 12.8 oz. (9) Abdominal and thoracic cavities shall be treated in the following manner. (A) Liquid, semi-solid, and gaseous contents which can be withdrawn through a trocar shall be aspirated by the use of at least 18 inches (mercury) vacuum. (B) Concentrated, commercially prepared cavity fluid which is acidic in nature (6.5 pH or lower) and contains at least two preservative chemicals shall be injected and evenly distributed throughout the aspirated cavities. A minimum of 16 ounces of concentrated cavity fluid shall be used for each adult body. (C) Should distension and/or purge occur after treatment, aspiration and injection as required shall be repeated as necessary. (10) The embalmer shall be required to check each body thoroughly after treatment has been completed. Any area not adequately disinfected by arterial and/or cavity treatment shall be hypodermically injected with disinfectant fluid for maximum disinfection results. (11) On bodies in which the arterial circulation is incomplete or impaired by advance decomposition, burns, trauma, autopsy, or any other cause, the embalmer shall be required to hypodermically inject all areas which cannot be properly treated through whatever arterial circulation remains intact (if any). (12) In the event that the procedures in paragraphs (1)-(11) of this subsection leave a dead human body in condition to constitute a high risk of infection to anyone handling the body, the embalmer shall be required to apply to the exterior of the body a standard embalming powder and to enclose the body in a zippered plastic or rubber pouch prior to burial or other disposal. (13) Dead human bodies donated to the State Anatomical Board shall be embalmed as required by the State Anatomical Board and where conflicting requirements exist, those requirements of the State Anatomical Board shall prevail. (14) Nothing in this section shall be interpreted to require embalming if the next-of-kin does not authorize embalming. (15) All bodies should be treated in such manner and maintained in such an atmosphere as to avoid infestation by vermin, maggots, ants, and other insects; however, should these conditions occur, the body should be treated with an effective vermicide and/or insecticide to eliminate these conditions. (16) No licensed establishment or licensed embalmer shall take into its care any dead human body for embalming without exerting every professional effort, and employing every possible technique or chemical, to achieve the highest level of disinfection. (17) Nothing in this section shall be interpreted to prohibit the use of supplemental or additional procedures or chemicals which are known to and accepted in the funeral service profession and which are not specifically mentioned in this subsection. (b) Minor variations in these procedures shall be permitted as long as they do not compromise the purpose of this rule as stated in subsection (a) of this section. (c) A report form, approved by the Texas Funeral Service Commission, shall be completed on each case of embalming. The completed form shall be retained for a two-year period and be made available to the Texas Funeral Service Commission, upon request, for inspection. sec.203.17. Clarification of Other Facilities Necessary in a Preparation Room. (a) The commission will approve only those preparation rooms which meet the requirements of Texas Civil Statutes, Article 4582b, sec.4(C)(4), and the following minimum standards prescribed by the commission: (1) must be of sufficient size and dimensions to accommodate an operating table, a sink with water connections, and an instrument table, cabinet, or shelves: (A) the operating table must have a rust proof metal or porcelain top, with edges raised at least 3/4 inch around the entire table and a drain opening at the lower end; (B) the sink must have hot and cold running water and drain freely; (C) the faucet must be equipped with an aspirator; (2) must contain an injection/embalming machine and sufficient supplies and equipment for normal operations; (3) must be clean, sanitary, and not used for other purposes; (4) must not have defective construction which permits the entrance of rodents; (5) must not have evidence of infestation of insects or rodents; (6) must be private and have no general passageway through it; (7) must be properly ventilated with an exhaust fan that provides at least five room air exchanges per hour; (8) must not have unenclosed or public restroom facilities located within the room; (9) must have walls which run from floor to ceiling and be covered with tile, or by plaster or sheetrock painted with washable paint; (10) must have floors of concrete with a glazed surface, or tiled in order to provide the greatest sanitary condition possible; (11) must have doors, windows, and walls constructed to prevent odors from entering any other part of the building; (12) must have all windows and openings to the outside screened. (b) The majority owner or designated agent of record of a funeral establishment may submit a written petition to the commission requesting an exemption to subsection (a)(2) of this section and the portion of subsection (a)(3) of this section pertaining to the use for other purposes. Each petition shall clearly state: (1) each location's name and address; (2) that the location is operated as a satellite to another location, giving its name and address; (3) that both funeral establishments are under common management; (4) that the primary establishment or location has full embalming facilities; and (5) that the primary establishment or location is located within 50 miles of the satellite location. (c) Upon receipt of the petition and the determination by the executive director that the criteria listed in subsection (b)(1)-(5) of this section have been met, the executive director will notify the petitioner that the exemption has been granted and will remain in effect so long as the criteria listed in subsection (b)(1)-(5) of this section remain unchanged. sec.203.18. Clarification of Definition of Directing a Funeral. (a) "Directing", as used in Texas Civil Statutes, Article 4582b, sec.1(B) , shall mean the personal supervision of those duties unless otherwise exempted by statute or rule. (b) The responsibility of the funeral director for the personal supervision of a dead human body shall end at the point when the family is dismissed at the cemetery and the body is turned over to the cemetery staff for entombment or burial. (c) A dead human body that is "released to a common carrier' may be transported to the common carrier by an unlicensed employee of the funeral establishment if so directed by the funeral director in charge. (d) Only a licensed funeral director or registered funeral director apprentice, under the direct supervision of a licensed funeral director, shall present funeral services and merchandise to a customer or prospective customer and only a licensed funeral director shall sign all contractual agreements for funeral services or merchandise unless such services and merchandise are arranged and contracted for under a permit issued under the provisions of Texas Civil Statutes, Article 548b, Prepaid Funeral Benefits Act. sec.203.19. Clarification of Facilities in Which Funeral Services May Be Conducted. For the purpose of these sections and Texas Civil Statutes, Article 4582b, sec.4(C)(1), the facilities in which funeral services may be conducted must meet the following criteria: (1) must have reasonable access by the public; (2) must contain a pulpit, podium, lectern or table from which a sermon, eulogy, or speech can be given; (3) must have sufficient space for display and viewing of a casket; (4) must have seating for a minimum of ten people. sec.203.20. Clarification of Other Itemized Services Provided by Funeral Home Staff. The term "other itemized services provided by the funeral establishment staff" in Texas Civil Statutes, Article 4582b, sec.1(S), is interpreted to include only those services, if any, of the funeral director and staff which are not included in the definition of "services of funeral director and staff", as defined in sec.203.1 of this title (relating to Definitions), and which therefore must be declinable. sec.203.21. Presentation of Consumer Brochures. Consumer information brochures, containing information specified by the commission, will be presented in the same manner and timing as required price lists. sec.203.22. Required Documentation for Embalming. (a) If permission to embalm is oral, the funeral establishment must maintain for two years written documentation of the name of the person authorizing embalming, that person's relationship to the deceased, and the time permission was obtained. (b) When oral or written permission to embalm cannot be obtained from the person authorized to make funeral arrangements, the funeral establishment must maintain for two years written documentation of the efforts taken over a period of at least three hours to obtain permission to embalm. (c) In cases where a medical examiner or justice of the peace has given permission to a funeral establishment to take custody of a body, the receiving funeral establishment may not embalm the body until the person authorized to make funeral arrangements has given permission or until the medical examiner or justice of the peace has provided written documentation of the efforts taken over a period of at least three hours to contact the person authorized to make funeral arrangements. Nothing in this subsection shall be construed as allowing a funeral establishment to initiate contact with the person authorized to make funeral arrangements. sec.203.23. Location of Retained Records. (a) All records required for retention by Texas Civil Statutes, Article 4582b, sec.3(H)(23) and (25) (relating to violations of this Act) and sec.203.16 of this title (relating to Minimum standards for embalming), will be maintained for a minimum of two years within the physical confines of the licensed establishment where the funeral arrangements were made. The records must be made available to the Texas Funeral Service Commission through its staff and members, or to the next of kin or person authorized for the making of funeral arrangements during regular business hours, and copies must be provided upon request to the commissioner. (b) Any interested persons as defined in sec.201.8(a)(2) of this title (relating to Procedures for the Petition for Adoption of Rules), may submit a petition to the commission requesting an exemption to the portion of subsection (a) of this section which requires that retained records be kept within the physical confines of the licensed funeral establishment where the funeral arrangements were made. (c) Each petition will clearly state: (1) a brief explanation of the problem(s) created by that portion of the rules; (2) the rational or justification for the granting of the exemption; (3) the specific remedy requested, including the alternative location selected; (4) assurances that the commission or its representative will be able to easily access all records by name of establishment, name of individual, or by date of service. (d) The executive director will advise the commission of all petitions submitted in accord with this procedure, along with his recommendations. (e) The commission will consider each petition submitted at its next scheduled meeting and may either grant, deny, or modify the remedy requested. The executive director will advise interested parties in writing of the action taken by the commission. (f) Each petition will be considered separately and upon its own merit. When considering the petition, the commission will take into account the proposed geographical location of the records, and the licensee's demonstrated ability to substantially comply with the mortuary laws and the rules and regulations of the Texas Funeral Service Commission as demonstrated in prior inspection reports and other documents submitted to the commission. sec.203.24. Professional Conduct. (a) The commission may, in its discretion, refuse to issue or renew a license or may fine, revoke, or suspend any license granted by the commission, and may probate any license suspension if the commission finds that the applicant or licensee has engaged in unprofessional conduct as defined in this section. (b) For the purpose of this section, unprofessional conduct shall include but not be limited to: (1) providing funeral goods and services or performing acts of embalming in violation of Texas Civil Statutes, Article 4582b, the adopted rules of the Texas Funeral Service Commission and applicable health and vital statistic laws and rules; (2) refusing or failing to keep, maintain or furnish any record or information required by law or rule; (3) operating a funeral establishment in a unsanitary manner; (4) failing to practice funeral directing or embalming in a manner consistent with the public health or welfare; (5) obstructing a commission employee in the lawful performance of such employee's duties of enforcing Article 4582b and commission rules or instructions; (6) copying, retaining, repeating, or transmitting in any manner the questions contained in any examination administered by the commission; (7) physically abusing or threatening to physically abuse a commission employee during the performance of his lawful duties; (8) conduct which is willful, flagrant, or shameless or which shows a moral indifference to the standards of the community; (9) in the practice of funeral directing or embalming, engaging in: (A) fraud, which means an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him, or to surrender a legal right, or to issue a license; a false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives or is intended to deceive another; (B) deceit, which means the assertion, as a fact, of that which is not true by any means whatsoever to deceive or defraud another; (C) misrepresentation, which means a manifestation by words or other conduct which is a false representation of a matter of fact. sec.203.25. Franchise Tax. (a) Any corporation contracting with the Texas Funeral Service Commission and/or any corporate applicant for a license or permit issued by the agency must certify in writing, on a form provided by the agency, that its franchise taxes are current, that the corporation is exempt from payment of the franchise tax or that it is an out-of-state corporation that is not subject to the franchise tax. (b) The making of a false statement as to corporate franchise tax status on any license or permit application shall be grounds for disciplinary action. (c) The making of a false statement as to corporate franchise tax status with regards to a state contract shall be grounds for cancellation of the contract at the option of the agency by treating the statement as a material breach of contract. sec.203.26. Clarification of Definition of "Unreasonable Time". "Unreasonable time", as used in Texas Civil Statutes, Article 4582b, sec.3H(18), shall be defined as retention of excess funds for a period not to exceed ten days from the time the funds were received by the funeral establishment or its agent. sec.203.27. Sponsors of Provisional Licensees. (a) Each participant in the provisional licensure program shall have a sponsor who is licensed by the commission in the specific discipline of the provisional program served. The sponsor must have been licensed in that discipline for at least two consecutive years prior to the date that he or she becomes a sponsor. (b) No sponsor may sponsor more than two provisional licensees at one time. (c) A sponsor shall ensure that direct supervision is provided in order to provide firsthand and factual documentation of work accomplished by the provisional licensee on each case report submitted. (d) The sponsor is ultimately responsible for providing a work environment and assigning duties that are conducive to the provisional licensee's acquiring proficiency in the skills required of a funeral director and/or embalmer. (e) Prior to the provisional licensee's attendance at the exit interview required by sec.203.6 of this title (relating to Provisional Licensees), the sponsor shall execute and provide to the commission an affidavit attesting to the proficiency of the provisional licensee in all required skills. (f) In those cases where it is unlikely that a provisional licensee will be able to acquire sufficient cases at one funeral establishment to complete the requirements of the program, the provisional licensee may obtain additional sponsors, as long as each additional sponsor notifies the commission in writing of the sponsorship. sec.203.28. Establishment Licenses. (a) The intentional submission of false information by any applicant for an original or renewed funeral establishment license is grounds for denial or revocation of the license. (b) The use of subterfuge or other evasive means, such as applying for a license or renewal through a second party when an individual is disqualified from receiving the license, is grounds for denial or revocation of the license. (c) All licensed funeral establishments shall display their establishment license in a conspicuous location in an area of the establishment that is open to the general public. sec.203.29. Funeral Establishment Names. (a) In order to prohibit false, misleading, or deceptive practices, each licensed funeral home shall select and indicate to the commission the one name under which the funeral home is to be licensed (it may be a trade name), and no licensed funeral establishment may use any name other than the one under which the license is issued by the commission. (b) Names shall be approved by the executive director, and the executive director shall not issue a license with a name that is either deceptively or substantially similar to the name of another licensed funeral establishment in the same county, metropolitan area, or service area unless the funeral establishment with the similar name consents in writing to the use. (c) A denial by the executive director of a funeral establishment name may be appealed, in writing, to the commission, which shall consider the appeal at its next meeting. (d) Nothing in this rule prohibits a licensed funeral establishment from changing names; however, a licensed funeral establishment may not use a new or proposed name unless and until the commission has approved the name and issued a license in that name. sec.203.30. Continuing Education as a Condition for License Renewal. (a) Purpose. In order to ensure that all licensees maintain and improve their professional skills, each person holding a license issued by the commission is required to participate in continuing education as a condition for renewal of any licenses. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Accredited sponsor-Any person or organization conducting or sponsoring a specific program of instruction that has been approved by the commission. (2) Approved program-A continuing education program activity that has received prior approval by the commission. (3) Hour of continuing education-A 50-minute clock hour completed by a licensee in attendance at an approved continuing education program. (c) Standards for course approval. A continuing education activity will be considered for approval if the commission determines that the activity: (1) constitutes an organized program of learning that contributes directly to the professional competence of the licensee; (2) pertains to subject matters that relate to the practice of funeral directing, mortuary science, or related subjects; and (3) is conducted by an individual(s) who has specialized expertise in the subject matter. (d) Approval of sponsors, programs, and activities. (1) Any person or organization wishing to present an educational program must submit, in a form approved by the commission, an application that outlines the course content, the total hours of instruction, the date and location of training, and the name(s) and professional qualifications of the instructor(s). The application must be submitted at least 30 days before the proposed training and accompanied by a non-refundable fee in an amount set by the commission. The commission shall either approve or reject the application within 20 days of application and shall notify the applicant of the decision in writing. (2) Any licensee who seeks credit for participation in an educational activity that did not receive prior approval by the commission may submit an application for post approval of the activity. The application shall be in a form approved by the commission and submitted within 30 days of the completion of the activity along with a non-refundable fee in an amount set by the commission. The commission shall either approve or reject the application within 30 days of application and shall notify the applicant of the decision in writing. No applications may be accepted by the commission less than 30 days prior to the license renewal date. (3) An appeal of denial of an application may be made, in writing, to the executive director. The appeal must be filed in the commission office within 15 days of the notification of denial, and the executive director shall rule on the appeal within 30 days of filing. (4) The commission or its authorized representative may monitor, inspect, or review any approved continuing education activity, and upon evidence of significant variation in the program presented from the program approved, may disapprove all or any part of the approved hours granted the activity. (5) Any person or organization sponsoring or conducting an approved program shall submit, in a form approved by the commission, a sworn affidavit attesting to the attendance and satisfactory completion of training of all persons in attendance. This information shall be provided to the commission within 15 days following the presentation of material. The commission may initiate disciplinary action against any licensee who knowingly falsely certifies training or who attempts through subterfuge to bypass the requirements listed herein. (6) A provider of an approved continuing education activity may charge a reasonable fee to individuals registered for the activity. An individual may not be required to pay an additional fee in the form of registration for ancillary activities or events that are concurrent to the approved continuing education activity if the individual wishes only to attend the continuing education portion of the program. All fees shall be uniformly charged to all registrants; however, the authorized sponsor may exempt employees of the sponsoring organization. (e) Continuing education requirements. (1) All persons licensed by the commission shall complete a minimum of eight hours of approved continuing education in each two-year period, to coincide with the renewal date of the license, as a requirement of license renewal. (2) Carryover credit of continuing education hours is not permitted. (3) The maximum credit hours for participation in any course may not exceed the number approved by the commission. (4) A licensee may not receive credit for attending the same course more than once during the same two-year period. (5) No credit may be granted for partial completion of any continuing education activity. (6) Two hours of credit may be granted for attendance at an entire, regularly scheduled commission meeting if the individual makes a prior request and follows commission procedures. The prohibition in paragraph (4) of this subsection does not apply to credit for regularly scheduled commission meetings. (7) A licensed individual who conducts an approved course may receive credit for attendance at continuing education. However, the prohibition in paragarph (4) of this subsection will apply. (f) Exemptions/waivers. (1) Continuing education requirements for individuals newly licensed by examination shall be waived for the first-time renewal of license. (2) Individuals licensed in Texas but residing outside of the state are exempt from the continuing education requirements set forth in this rule. Any individual who returns to residency in this state shall, within the first full year after his or her return, meet the continuing education requirements. (3) Persons in a "Retired, Inactive" status will be exempted from the continuing education requirement. Any person changing from the "Retired, Inactive" status to a "Retired, Active" status shall, within the first full year after his or her change in status, meet the continuing education requirement. (4) Persons in an active military status will be exempted, upon request, from the continuing education requirement. Upon release from active duty and return to residency in the state, the individual shall, within the first full year after his or her release and return, meet the continuing education requirement. (5) Upon request, the executive director may authorize partial or full exemption from the continuing education requirement based on personal or family hardship. This request must be made at least 30 days prior to the expiration of the license(s) and the executive director may require documentation of the hardship. (g) Record keeping procedures. (1) It shall be the responsibility of the commission and the individual licensee to maintain accurate records of the continuing education of the individual licensee. (2) All records pertaining to training will be retained by the sponsor for a period of not less than two years and are subject to examination by the commission. (h) Failure to comply. Failure by any licensee to comply fully and in a timely manner with the continuing education requirements as presented in this section, will result in rejection of any application for renewal of a license. If a renewal application is rejected, the individual will be notified, the rejected application will be held, and any renewal fee submitted with the rejected application will be returned. A rejected renewal application will be processed only after the commission has received satisfactory documentation that the continuing education required during the prior licensing period has been completed and payment of all required fees and/or penalties have been received. If a license is not renewed prior to expiration because of noncompliance with continuing education requirements, a late compliance fee of $250 must be paid in addition to the renewal fee applicable to such license and the appropriate penalty fee for renewing after expiration of the license. sec.203.31. Inspection as Requirement for Renewal of Establishment License; Fees. (a) No establishment license may be renewed in the absence of completion of an annual inspection, as required by Texas Civil Statutes, Article 4582b, sec.4G (relating to Funeral establishments), unless the absence of such an inspection was due to the failure of the commission, its employees, or agents, to attempt to inspect the funeral establishment. (b) At any time that an agent or employee of the commission attempts to inspect a funeral establishment and such establishment is not open or is otherwise unavailable for inspection, the inspector shall notify the owner of the establishment, its funeral director in charge, or any other employee or agent of the establishment, that an inspection was attempted but could not be made due to the unavailability of the establishment for such inspection. An attempt to give such notice shall be made by the inspector, in person or by telephone, on the same date as the initially attempted inspection, with the intent that the inspection shall be made on that date or before the inspector leaves the general area in which the establishment is located. (c) If an inspector is unable to contact the establishment owner, its funeral director in charge, or any other employee or agent of the establishment to provide notice of the attempted inspection before leaving the general area, the inspector shall notify the funeral establishment by mail of the attempted inspection. (d) If an inspector is required to make a special trip to the county in which an establishment is located to make a subsequent attempt to inspect an establishment which previously was not available for inspection, an inspection rescheduling fee of $250 must be paid to the commission prior to such inspection unless a waiver is granted by the Executive Director for good cause shown. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601657 Marc Allen Connelly General Counsel Texas Funeral Service Commission Effective date: February 27, 1996 Proposal publication date: December 15, 1995 For further information, please call: (512) 834-9992 Part XIX. Polygraph Examiners Board Chapter 391. Polygraph Examiner Internship 22 TAC sec.391.3 The Polygraph Examiners Board adopts an amendment to sec.391.3, concerning the internship training schedule, without changes to the proposed text as published in the November 14, 1995, issue of the Texas Register (20 TexReg 9372). The amendment is adopted so that the polygraph industry will be more closely regulated in areas that the Board determines to be critical. This section will function by insuring that only qualified polygraph schools will be approved by the Board. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to Texas Civil Statutes, Article 4413(29cc), sec.6(a) and sec.8(a)(3) which allow the Board the statutory authority to issue regulations consistent with the provisions of the Polygraph Examiners Act. This agency hereby certifies that the section as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on February 6, 1996. TRD-9601674 Michael C. Gougler Secretary of the Board Polygraph Examiners Board Effective date: February 28, 1996 Proposal publication date: November 14, 1995 For further information, please call: (512) 424-2058 Part XXVIII. Executive Council of Physical Therapy and Occupational Therapy Examiners Chapter 651. Fees 22 TAC sec.651.2 The Executive Council of Physical Therapy and Occupational Therapy Examiners adopts an amendment to sec.651.2, concerning Physical Therapy Board Fees, without changes to the proposed text as published in the December 5, 1995, issue of the Texas Register (20 TexReg 10250). The amendment sets fees for the new inactive status established by the Texas Board of Physical Therapy Examiners. The amended section establishes the cost of returning to active status after having been inactive for a period of time. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512e-1, which provide the Executive Council of Physical Therapy and Occupational Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601653 John P. Maline Executive Director Executive Council of Physical Therapy and Occupational Therapy Examiners Effective date: February 27, 1996 Proposal publication date: December 5, 1995 For further information, please call: (512) 305-6900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 13. Health Planning and Resource Development Data Collection 25 TAC sec.sec.13.13, 13.17, 13.18 The Texas Department of Health (department) adopts amendments to sec.sec.13. 13, 13.17, and 13.18, concerning reporting of charity care and community benefits data by nonprofit hospitals. Section 13.13 and sec.13.17 are adopted with changes to the proposed text as published in the October 31, 1995, issue of the Texas Register (20 TexReg 8957). Section 13.18 is adopted without changes and therefore will not be republished. The amendments implement amendments to Health and Safety Code, Chapter 311, adopted by the 74th Texas Legislature. The sections as amended provide procedures for filing reports on a hospital system basis where appropriate, rather than by each individual institution; and also a revised methodology to be used to estimate the "cost" of providing charity and other types of care. The amendments are effective for reports required to be submitted to the department after September 1, 1995. The department will allow hospitals to revise reports previously filed. The following comments were received regarding the proposed sections. COMMENT: Concerning sec.13.13, one commenter suggested that statutory definitions for "government sponsored program unreimbursed costs," "net patient revenue," and "tax exempt benefits" be included. RESPONSE: The department agrees and has added these statutory definitions to sec.13.13. COMMENT: Concerning sec.13.17, one commenter stated that the rules should clarify whether the amendments apply to hospital fiscal years ending after September 1, 1995 or to hospital reports submitted to the department after September 1, 1995. RESPONSE: The department will apply the amendments to the law and rules to hospital reports submitted to the department after September 1, 1995. Sections 13.17(a)(1) and sec.13.17(b)(1) authorize filing of the annual report of the community benefit plan and the annual statement of community benefit standard on either a hospital or hospital system basis. No change in the rules was made as a result of this comment. COMMENT: Concerning sec.13.17(c)(5), relating to the exemption of hospitals in a particular county from the community benefits and charity care standards, one commenter suggested that it would be more appropriate to place the information in sec.13.17(b), which relates to the election of a community benefit standard and exemptions from the standard. RESPONSE: The department agrees that grouping provisions of the rules concerning exemptions to standards would be appropriate. The department has reorganized the rules to create a new subsection (e) for "exemptions" and has placed the information in paragraph (1) of the new subsection. COMMENT: Concerning sec.13.17(c)(6), one commenter recommended that the subsection be deleted if the statutory definition of "nonprofit hospital" is incorporated into the rules. RESPONSE: The department has retained the language in sec.13.17(c)(6) because it includes additional information regarding the timing of designation of an area as a "health professional shortage area" and exemption from the law, but has relocated the language under new subsection (e)(2), concerning exemptions. COMMENT: Concerning sec.13.17(c)(6), one commenter suggested continued designation as a "health professional shortage area" should be required as a condition for exemption from the law. RESPONSE: The department agrees and has worded new sec.13.17(e)(2) accordingly. Comments were received from the Texas Hospital Association and were neither for nor against the sections in their entirety, but contained questions and suggestions for changes. The TDH Hospital Data Advisory Committee also provided suggestions for minor changes in the sections. These sections are adopted under Health and Safety Code, sec.104.042(a), which requires the Board of Health (board) by rule to establish reasonable procedures for the collection and dissemination of data from health facilities necessary to facilitate health planning and resource development; sec.311.032(b) , which requires the board to adopt necessary rules consistent with Chapter 311 for the reporting and collection of hospital data; and sec.12.001(b), which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.13.13. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Charity care-The unreimbursed cost to a hospital of providing, funding, or otherwise financially supporting health care services on an inpatient or outpatient basis to a person classified by the hospital as financially or medically indigent and/or providing, funding or otherwise financially supporting health care services provided to financially indigent persons through other nonprofit or public outpatient clinics, hospitals or health care organizations. Government-sponsored program unreimbursed costs-The unreimbursed cost to the hospital of providing health care services to the beneficiaries of Medicare, the Civilian Health and Medical Program of the Uniformed Services, and other federal, state, or local government health care programs. Health care organization-A nonprofit or public organization that provides, funds, or otherwise financially supports health care services provided to financially indigent persons. Hospital system -A system of local nonprofit hospitals under the common governance of a single corporate parent that are located within a radius of not more than 125 linear miles of the corporate parent. Net patient revenue-An accounting term that shall be calculated in accordance with generally accepted accounting principles for hospitals. Tax exempt benefits -All of the following, calculated in accordance with standard accounting principles for hospitals for tax purposes using the applicable statutes, rules and regulations regarding the calculation of these taxes: (A) the dollar amount of federal, state, and local taxes foregone by a nonprofit hospital and its nonprofit supporting entities. For purposes of this definition federal, state, and local taxes include income, franchise, ad valorem, and sales taxes; (B) the dollar amount of contributions received by a nonprofit hospital and its nonprofit supporting entities; and (C) the value of tax-exempt bond financing received by a nonprofit hospital and its nonprofit supporting entities. Unreimbursed costs -The costs a hospital incurs for providing services after subtracting payments received from any source for such services including but not limited to the following: third-party insurance payments; Medicare payments; Medicaid payments; Medicare education reimbursements; state reimbursements for education; payments from drug companies to pursue research; grant funds for research; and disproportionate share payments. For purposes of this definition, the term "costs" shall be calculated by applying the cost to charge ratios derived in accordance with generally accepted accounting principles for hospitals to billed charges. The calculation of the cost to charge ratios shall be based on the most recently completed and audited prior fiscal year of the hospital or hospital system. For fiscal years beginning prior to January 1, 1996, for purposes of this definition, charitable contributions and grants to a hospital, including transfers from endowment or other funds controlled by the hospital or its nonprofit supporting entities, shall not be subtracted from the costs of providing services for purposes of determining unreimbursed costs. For fiscal years beginning after January 1, 1996, for purposes of this definition, charitable contributions and grants to a hospital, including transfers from endowment or other funds controlled by the hospital or its nonprofit supporting entities, shall not be subtracted from the costs of providing services for purposes of determining the unreimbursed costs of charity care and government-sponsored indigent health care. sec.13.17. Duties of Nonprofit Hospitals. (a) Report of the annual community benefits plan. (1) For reports required to be submitted to the Texas Department of Health (department) on or after September 1, 1995, the annual report of the community benefits plan may be filed on a hospital or hospital system basis. (2) A nonprofit hospital or hospital system shall file an annual report of the community benefits plan, as required by Health and Safety Code, sec.311. 046, with the department no later than 120 days after the hospital's or hospital system's fiscal year ends. (3) The nonprofit hospital's or hospital system's annual report of the community benefits plan must include, at a minimum, the hospital's or hospital system's mission statement, a disclosure of the health care needs of the community that were considered in developing the community benefits plan and a disclosure of the amount and types of community benefits, including charity care, actually provided. Charity care shall be reported as a separate item from other community benefits. (b) Annual statement of community benefits standard. (1) For statements required to be submitted to the department on or after September 1, 1995 the annual statement of community benefits standard may be filed on a hospital or hospital system basis. (2) A nonprofit hospital or hospital system shall file an annual statement with the department no later than 120 days after the end of the hospital's or hospital system's fiscal year, stating which of the standards for providing community benefits have been satisfied. The annual statement filed under this subsection shall be based on the most recently completed and audited prior fiscal year. A nonprofit hospital or hospital system may elect to provide community benefits according to any of the following standards: (A) charity care and government-sponsored indigent health care are provided at a level which is reasonable in relation to the community needs, as determined through the community needs assessment, the available resources of the hospital or hospital system, the tax-exempt benefits received by the hospital or hospital system, and other factors that may be unique to the hospital or hospital system, such as the hospital's or hospital system's volume of Medicare and Medicaid patients; (B) charity care and government-sponsored indigent health care are provided in an amount equal to at least 4.0% of the hospital's or hospital system's net patient revenue; (C) charity care and government-sponsored indigent health care are provided in an amount equal to at least 100% of the hospital's or hospital system's tax- exempt benefits, excluding federal income tax; (D) prior to January 1, 1996, charity care and community benefits are provided in a combined amount equal to at least 5.0% of the hospital's or hospital system's net patient revenue, provided that charity care and government- sponsored indigent health care are provided in an amount equal to at least 3.0% of net patient revenue; or (E) beginning with the hospital's or hospital system's fiscal year starting after December 31, 1995, charity care and community benefits are provided in a combined amount equal to at least 5.0% of the hospital's or hospital system's net patient revenue, provided that charity care and government-sponsored indigent health care are provided in an amount equal to at least 4.0% of net patient revenue. (3) For purposes of satisfying paragraph (2)(E) of this subsection, a hospital or hospital system may not change its existing fiscal year unless the hospital or hospital system changes its ownership or corporate structure as a result of a sale or merger. (4) A nonprofit hospital or hospital system shall use the form developed by the department for reporting under this section and shall submit the form as part of the annual report of the community benefits plan. (5) The department will accept written revisions of the annual statement of community benefits standard for 30 days after the filing date. (6) A nonprofit hospital that has been designated as a disproportionate share hospital under the state Medicaid program in the current fiscal year or in either of the previous two fiscal years shall be deemed in compliance with these standards. (7) A hospital that satisfies paragraphs (2)(A) or (6) of this subsection shall be excluded in determining a hospital system's compliance with the standards provided in paragraph (2)(B)-(E) of this subsection. (c) Reporting. (1) The department shall notify nonprofit hospitals in writing that the annual report of a community benefits plan and the statement of community benefits standard must be filed within 120 days after the end of the hospital's or hospital system's fiscal year. The notification will include a form to be used by nonprofit hospitals or hospital systems to file the annual statement of community benefits standard. (2) Nonprofit hospitals changing to a hospital system reporting basis shall report for a continuous period of time. (3) All hospitals or hospital systems shall report as required under this title if the hospital or hospital system, for the previous fiscal year, reported as a nonprofit hospital or hospital system under sec.13.15 of this title (relating to Survey Forms). (4) All hospitals or hospital systems shall report to the department any change of ownership or control which may effect the nonprofit status of the hospital or hospital system. (d) (No change.) (e) Exemptions. (1) A nonprofit hospital that is located in a county with a population under 110,000 which has a hospital district created pursuant to Section 5, Article IX, Texas Constitution, and Chapter 136, Acts of the 55th Legislature, 1957, shall not be required to comply with one or more of the standards set forth in subsection (c) of this section. This exemption expires with a hospital's fiscal year starting on or after September 1, 1996. (2) A nonprofit hospital is exempt from the reporting requirements in subsection (c) of this section if the hospital is located in a county with a population under 50,000 and in which the entire county or the population of the entire county has been designated as a "health professional shortage area" during the current or any previous fiscal year and has continued to maintain that designation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1996. TRD-9601680 Susan K. Steeg General Counsel Office of General Counsel Texas Department of Health Effective date: February 28, 1996 Proposal publication date: October 31, 1995 For further information, please call: (512) 458-7236 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Commission on Jail Standards Chapter 269. Records and Procedures The Commission on Jail Standards adopts new sec.sec.269.10-269.14 and sec.sec.269.20-269.32, concerning Records and Procedures, without changes to the proposed text as published in the December 22, 1995, issue of the Texas Register (20 TexReg 10982). Adoption of these rules will relocate the jail population reports and felony backlog reports requirements from the Fees and Payments chapter to the Records and Procedures chapter. The rules function to provide reporting procedures for jail populations and felony backlogged inmates. No comments were received regarding adoption of the new sections. Jail Population Reports 37 TAC sec.sec.269.10-269.14 The new rules are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the custody, care and treatment of prisoners. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 5, 1996. TRD-9601536 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 26, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 463-5505 Transfer of Felony Backlog 37 TAC sec.sec.269.20-269.32 The new rules are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the custody, care and treatment of prisoners. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1996. TRD-9601537 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 26, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 463-5505 Chapter 275. Supervision of Inmates 37 TAC sec.275.4 The Commission on Jail Standards adopts amendment to sec.275.4, concerning Supervision of Inmates, without changes to the proposed text as published in the December 22, 1995 issue of the Texas Register (20 TexReg 10984). Adoption of this rule will clarify the requirement for jails to staff supervisors to oversee jail staff. The rule functions to provide for safer and more efficient jail operations. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the number of jail supervisory personnel and for programs and services to meet the needs of prisoners. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 5, 1996. TRD-9601538 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 26, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 463-5505 Chapter 300. Fees The Commission on Jail Standards adopts the repeal of sec. sec.300.21-300.28, 300.51-300.63, and 300.80-300.84, concerning Fees, without changes to the proposed text as published in the December 22, 1995, issue of the Texas Register (20 TexReg 10984). Adoption of these repeals will result in administrative rules consistent with statute. The statutory requirement for the commission to make payments to counties for housing state ready inmates expired September 1, 1995. The repeals function to make rules current. No comments were received regarding adoption of the repeals. Emergency Overcrowding Relief 37 TAC sec.sec.300.21-300.28 The repeals are adopted under Government Code, Chapter 511 which provides the Texas Commission on Jail Standards with the authority to revise, amend or change rules and procedures if necessary. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 5, 1996. TRD-9601539 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 26, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 463-5505 Transfer of Felony Backlog 37 TAC sec.sec.300.51-300.63 The repeals are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend or change rules and procedures if necessary. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on February 5, 1996. TRD-9601540 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 26, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 463-5505 Tuberculosis Screening Payment 37 TAC sec.sec.300.80-300.84 The repeals are adopted under Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to revise, amend or change rules and procedures if necessary. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1996. TRD-9601541 Jack E. Crump Executive Director Commission on Jail Standards Effective date: February 26, 1996 Proposal publication date: December 22, 1995 For further information, please call: (512) 463-5505 Part XIII. Texas Commission on Fire Protection Chapter 511. Standards for State Fire Marshal Inspections 37 TAC sec.sec.511.1, 511.3, 511.5, 511.7 The Texas Commission on Fire Protection adopts new Chapter 511, concerning Standards for State Fire Marshal Inspections, including sec.sec.511.1, 511.3, 511.5, and 511.7, without changes to the proposed text as published in the November 14, 1995, issue of the Texas Register (20 TexReg 9401). The justification for this section is to provide a reasonable level of safety by reducing the probability of injury and loss of life from the effects of fire, smoke, fumes, or panic, and other emergencies having the potential for similar consequences with due regard to the nature and function of the occupancy. The degree or level of life safety afforded a particular occupancy is an interwoven combination of prevention of ignition, detection of fire, control of fire development, confinement of the effects of fire, extinguishment of fire, egress or evacuation, staff reaction, and provision of life safety information to occupants. The new chapter is adopted for the purpose of adopting standards for life safety inspections conducted by the State Fire Marshal's office pursuant to the Government Code, sec.417.008. The new chapter adopts by reference the 1994 edition of the Life Safety Code, NFPA 101, developed by the National Fire Protection Association, a nationally recognized standards-making association. The Life Safety Code will NOT apply in geographic areas under the jurisdiction of a local government that has adopted fire protection ordinances that apply in that geographic area. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Government Code, sec.417.008(e) which provides the Texas Commission on Fire Protection with authority to adopt by rule any appropriate standard developed by a nationally recognized standards- making association under which the state fire marshal may conduct inspections of buildings open to the public and order the correction of dangerous conditions. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601621 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 27, 1996 Proposal publication date: November 14, 1995 For further information, please call: (512) 918-7188 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XIX. Texas Department of Protective and Regulatory Services Chapter 700. Child Protective Services Subchapter Y. Contracting with Licensed Residential Child-Care Providers 40 TAC sec.sec.700.2501, 700.2502, 700.2505 The Texas Department of Protective and Regulatory Services (TDPRS) adopts new sec.sec.700.2501, 700.2502, and 700.2505, without changes to the proposed text as published in the November 24, 1995, issue of the Texas Register (20 TexReg 9837). The board has deferred action on sec.700.2503 and sec.700.2504 until a later date. The new sections are adopted in new Subchapter Y, Contracting with Licensed Residential Child-Care Providers. The justification for the new sections is to set forth TDPRS's requirements for contracting with licensed residential child- care providers to provide substitute care to children in TDPRS's managing conservatorship. The sections describe general organizational, contractual, and service requirements and identify additional requirements that prospective contractors must meet at the time of their enrollment. The sections also describe TDPRS's authority to remove children and stop making placements if conditions in a contracted facility constitute an immediate threat to the health, safety, or welfare of any child currently or prospectively in placement there. The new sections will function by improving the quality and effectiveness of the residential care support provided to children in TDPRS's managing conservatorship who have been removed from their homes to protect them from abuse and neglect. The sections will do so by clarifying TDPRS's requirements for contracting with licensed residential child-care providers to provide substitute care to such children. Other than as indicated in sec.700.2505, these sections are not intended to supplant any licensing or contractual provisions in this title, but are intended to set out specific requirements for contracts for these services. During the comment period, TDPRS received a written comment from the Bair Foundation. The commenter stated that the Foundation was pleased with TDPRS's efforts to enhance the quality of care for children in placement and was positive about the proposed rules. The commenter, however, expressed its concern that the number of children placed in a foster home should have been addressed in the licensing standards rather than in these sections so that waivers would be granted by a neutral third party, licensing. The commenter stated that by having licensing grant the waiver, TDPRS would not be driven to grant placement waivers out of necessity rather than for the reasons stated in these sections. Response: TDPRS appreciates the concern of the commenter. The limitation is being placed in these sections because these are the sections of the rules which deal with the placement of children, rather than with the licensing of the facility. TDPRS does have the responsibility for licensing these facilities and these sections are in no way intended to limit the licensing or other contract rules of TDPRS. In addition to its role as regulator, however, TDPRS has a separate and distinct duty as the agency charged with providing protective services for children and as the managing conservator of the children. Additionally, as a contracting party, the agency has separate duties and responsibilities for assuring that terms of contracts are being met. These various duties are met by the agency through different divisions and different rules are needed to regulate those different activities. The waivers under these sections will be scrutinized carefully by the area of the agency responsible for the placement and protection of these children and will only be granted in accordance with these rules. Following the comment period, TDPRS received five telephone call comments and oral comments were made at the Board meeting at which the adoption of these sections was considered. The following groups made oral comments at the Board meeting against the proposed sections sec.700.2503 and sec.700.2504: Lambert Foster Group Homes, Habilitative Homes, Star Programs, Inc., Pathways Youth Home, and Youth Achievement Foundation. The telephone inquiries and comments were also about those sections of the proposed rules, except for one inquiry about for-profit eligibility for contracts. The groups making telephone inquiries and comments were: Boysville, Lighthouse Family Network Child Placing Agency, Health Care of America, and Methodist Home Child Placing Agency. The comments against the section were that there was no overall plan for requirements for these facilities so that the facilities could not plan for changes, that the staffing age limits were not realistic and did not make sense, and that providers could not afford to operate with such a small number of children. Response: TDPRS has made efforts over the past two years to deal with these issues and continues to examine ways to improve quality. Also, there was a waiver process within sec.700.2504 to allow exceptions, where appropriate, of the numbers of children which could be placed in a facility. Also, in response to these comments the Board has decided to proceed with the three sections which were not commented upon, but to defer action on sec.700.2503 and sec.700. 2504 until a later date after more information can be received on them. The new sections are adopted under the Texas Family Code, Title 5, Chapters 261 and 264, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. In addition, the new sections are adopted under Public Law Number 96-272, Title I, which authorizes the department to administer foster-care and adoption assistance programs provided for under the Social Security Act, Title IV-E. The new sections are also adopted under the Human Resources Code (HRC), Chapter 40, which describes the services authorized to be provided by the Texas Department of Protective and Regulatory Services; and authorizes the department to enter into agreements with federal, state, or other public or private agencies or individuals to accomplish the purposes of the programs authorized by the HRC; and grants authority to contract to that Department. The new sections implement the HRC, Chapter 40, which authorizes the department to enter into agreements with federal, state, or other public or private agencies or individuals to accomplish the purposes of the programs authorized by the HRC and which authorizes the department to enter into contracts as necessary to perform any of its powers or duties. This agency hereby certifies that the sections as adopted have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1996. TRD-9601615 Nancy Murphy Section Manager, Media and Policy Services Effective date: March 1, 1996 Proposal publication date: November 24, 1995 For further information, please call: (512) 438-3765