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 22. EXAMINING BOARDS PART XV. Texas State Board of Pharmacy CHAPTER 281. General Provisions 22 TAC sec.281.26 The Texas State Board of Pharmacy adopts an amendment to sec.281.26, concerning rules governing penalties against a license. The amendment is adopted without changes to the proposed text published in the June 25, 1996, edition of the Texas Register (21 TexReg 5828). The amendment clarifies that the definition of "diversion of controlled substances" applies to the phrase as it is used in sec.28B of the Texas Pharmacy Act, which relates to administrative penalties. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) sec.4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; Section 16(a), which gives the Board the authority to adopt and amend rules for the proper administration and enforcement of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1996. TRD-9613816 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: October 11, 1996 Proposal publication date: June 25, 1996 For further information, please call: (512) 305-8027 22 TAC sec.281.75 The Texas State Board of Pharmacy adopts new sec.281.75, concerning vehicle inscription exemption. The rule is adopted without changes to the proposed text published in the April 16, 1996, edition of the Texas Register (21 TexReg 3304). The rule outlines the section of the Texas Pharmacy Act which exempts agency vehicles from bearing agency identification and specifies the primary use of agency vehicles and the purpose to be served by not placing a sign identifying the agency on the vehicle. No comments were received regarding adoption of the rule. The rule is adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) sec.16 (a), which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; sec.17(s) which specifies that Board vehicles are exempt from bearing state government identification and may be registered with the State Department of Highways and Public Transportation in an alias name for investigative personnel only. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1996. TRD-9613815 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: October 11, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 305-8027 CHAPTER 291. Pharmacies All Classes of Pharmacies 22 TAC sec.291.23 The Texas State Board of Pharmacy adopts new sec.291.23, concerning pilot or demonstration research projects for innovative applications in the practice of pharmacy. The rule is adopted without changes to the proposed text published in the April 16, 1996, edition of the Texas Register (21 TexReg 3305). This rule will specify procedures to be followed in applying for approval of a pilot and demonstration research project for innovative applications in the practice of pharmacy. A comment was received regarding adoption of the new rule from Pharmaceutical Research and Manufacturers of America (PhRMA). The comment suggests that the rule should be amended to allow comment prior to the board's approval of a project. The Board disagrees with this comment because a comment period is allowed during the rule making process if the Board decides to propose changes to the rule based on the results of the pilot project. The second comment from PhRMA suggests that sec.291.23 (c)(3) should be amended to include a data collection requirement. The Board disagrees with this comment because a data collection requirement is contained in sec.(e)(1) which specifies that the result of the project be presented to the Board. The rule is adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) sec.16(a) which gives the Board the authority to adopt rules for proper administration and enforcement of the Act and sec.17(v) which states that Board may specify the procedures to be followed in applying for approval of pilot and demonstration research projects for innovative applications in the practice of pharmacy. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1996. TRD-9613824 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: October 11, 1996 Proposal publication date: April 16, 1996 For further information, please call: (512) 305-8027 Community Pharmacy (Class A) 22 TAC sec.291.36 The Texas State Board of Pharmacy adopts an amendment to sec.291.36, concerning Class A Pharmacies Compounding Sterile Pharmaceuticals. The amendment is adopted with changes to the proposed text published in the April 23, 1996, edition of the Texas Register (21 TexReg 3498). The amendment clarifies the special education, training, and evaluation requirements for pharmacy personnel compounding or responsible for the direct supervision of pharmacy personnel compounding sterile pharmaceuticals. Changes to the proposed text published in the April 23, 1996, edition of the Texas Register are as follows: Section 291.36(c)(4)(A)(iii) was changed to clarify that a pharmacist may compound sterile pharmaceuticals without process validation on a temporary basis only. Subclauses (I) and (II) were reformatted to clearly indicate that on-site process validation must occur within seven days of beginning work at a pharmacy. A change to sec.291.36(c)(4)(A)(iv) makes the clause consistent with other portions of the rules by replacing the phrase "risk level" with "type of pharmaceutical." In sec.291.36(c)(4)(B)(i)(I)(-a-) and (C)(ii)(I)(-a-), the phrase "on-the-job" is retained to clarify the type of training required. No comments were received regarding adoption of the amendment. The amendments are adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) Section 4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; Section 16 (a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; Section 17(a)(3) which gives the Board the authority to establish requirements for practical training of pharmacists; and Section 17(o) which gives the board the authority to establish rules for the use of supportive personnel in pharmacies. sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. (a)-(b) (No change.) (c) Personnel. (1)-(3) (No change.) (4) Special education, training, and evaluation requirements for pharmacy personnel compounding or responsible for the direct supervision of pharmacy personnel compounding sterile pharmaceuticals. (A) General. (i)-(ii) (No change.) (iii) Although process validation may be incorporated into the experiential portion of a training program, process validation must be conducted at each pharmacy where an individual compounds sterile pharmaceuticals. No product intended for patient use shall be compounded by an individual until the on-site process validation test indicates that the individual can competently perform aseptic procedures, except that a pharmacist may temporarily compound sterile pharmaceuticals and supervise pharmacy supportive personnel compounding sterile pharmaceuticals without process validation provided the pharmacist: (I) has completed a recognized course in an accredited college of pharmacy or a course sponsored by an American Council on Pharmaceutical Education approved provider which provides 20 hours of instruction and experience in the areas listed in this subparagraph; and (II) completes the on-site process validation within seven days of commencing work at the pharmacy. (iv) Process validation procedures for assessing the preparation of specific types of sterile pharmaceuticals shall be representative of all types of manipulations, products, and batch sizes that personnel preparing that type of pharmaceutical are likely to encounter. (v) (No change.) (B) Pharmacists. (i) All pharmacists who compound sterile pharmaceuticals or supervise supportive personnel compounding sterile pharmaceuticals shall: (I) effective March 1, 1996, complete through a single course, a minimum of 20 hours of instruction and experience in the areas listed in subparagraph (A) of this paragraph. Such training may be through: (-a-) completion of a structured on-the-job didactic and experiential training program at this pharmacy which provides 20 hours of instruction and experience in the areas listed in paragraph (1) of this subsection. Such training may not be transferred to another pharmacy unless the pharmacies are under common ownership and control and use a common training program; or (-b-) completion of a recognized course in an accredited college of pharmacy or a course sponsored by an American Council on Pharmaceutical Education approved provider which provides 20 hours of instruction and experience in the areas listed in subparagraph (A) of this paragraph; and (II) possess knowledge about: (-a-) aseptic processing; (-b-) quality control and quality assurance as related to environmental, component, and end-product testing; (-c-) chemical, pharmaceutical, and clinical properties of drugs; (-d-) container, equipment, and closure system selection; and (-e-) sterilization techniques. (ii) Pharmacists shall discontinue preparation of sterile pharmaceuticals if the training specified in clause (i) of this subparagraph is not completed by March 1, 1996. Such pharmacists may continue to compound sterile pharmaceuticals and supervise supportive personnel compounding sterile pharmaceuticals during the interim between the effective date of these rules and March 1, 1996, if they comply with the previous requirements of these rules and maintain documentation of completion of 20 hours of on-the-job training in the preparation, sterilization, and admixture of sterile pharmaceuticals. (iii) The required experiential portion of the training programs specified in this subparagraph must be supervised by an individual who has already completed training as specified in subparagraph (B) or (C) of this paragraph. (C) Supportive personnel/pharmacy technicians. In addition to the qualifications and training outlined in paragraph (3) of this subsection, all supportive personnel who compound sterile pharmaceuticals shall: (i) have a high school or equivalent education; (ii) either: (I) complete through a single course, a minimum of 40 hours of instruction and experience in the areas listed in subparagraph (A) of this paragraph. Such training may be obtained through the: (-a-) completion of a structured on-the-job didactic and experiential training program at this pharmacy which provides 40 hours of instruction and experience in the areas listed in subparagraph (A) of this paragraph. Such training may not be transferred to another pharmacy unless the pharmacies are under common ownership and control and use a common training program; or (-b-) completion of a course sponsored by an ACPE approved provider which provides 40 hours of instruction and experience in the areas listed in subparagraph (A) of this paragraph; or (II) completion of a training program which is accredited by the American Society of Health-System Pharmacists (formerly the American Society of Hospital Pharmacists). Individuals enrolled in training programs accredited by the American Society of Health-System Pharmacists may compound sterile pharmaceuticals in a licensed pharmacy provided: (-a-) the compounding occurs only during times the individual is assigned to a pharmacy as a part of the experiential component of the American Society of Health-System Pharmacists training program; (-b-) the individual is under the direct supervision of and responsible to a pharmacist who has completed training as specified in subparagraph (B) of this paragraph; and (-c-) the supervising pharmacist conducts in process and final checks; and (iii) acquire the required experiential portion of the training programs specified in this subparagraph under the supervision of an individual who has already completed training as specified in subparagraph (B) or (C) of this paragraph. (D) (No change.) (5) (No change.) (d-f) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1996. TRD-9613823 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: October 11, 1996 Proposal publication date: April 23, 1996 For further information, please call: (512) 305-8027 Institutional Pharmacy (Class C) 22 TAC sec.291.73 The Texas State Board of Pharmacy adopts an amendment to sec.291.73, concerning Personnel in a Class C Pharmacy. The amendment is adopted with changes to the proposed text published in the April 23, 1996, edition of the Texas Register (21 TexReg 3499). The amendment clarifies the special education, training, and evaluation requirements for pharmacy personnel compounding or responsible for the direct supervision of pharmacy personnel compounding sterile pharmaceuticals. Changes to the proposed text published in the April 23, 1996, edition of the Texas Register are as follows: Section 291.73(f)(1)(C) was changed to clarify that a pharmacist may compound sterile pharmaceuticals without process validation on a temporary basis only. Clauses (i) and (ii) were reformatted to clearly indicate that on-site process validation must occur within seven days of beginning work at a pharmacy. Section 291.73(f)(2)(A)(i)(I) and (3)(B)(i)(I), the phrase "on-the-job," is retained to clarify the type of training required. In sec.291.73(f)(3) was modified to clarify that the special qualifications for supportive personnel compounding sterile pharmaceuticals are in addition to the general qualifications for all supportive personnel. This is consistent with the requirements in Class A (Community) Pharmacies Compounding Sterile Pharmaceuticals. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes) Section 4, which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; Section 16 (a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; Section 17(a)(3) which gives the Board the authority to establish requirements for practical training of pharmacists; and Section 17(o) which gives the board the authority to establish rules for the use of supportive personnel in pharmacies. sec.291.73. Personnel. (a)-(e) (No change.) (f) Special education, training, and evaluation requirements for pharmacy personnel compounding or responsible for the direct supervision of pharmacy personnel compounding sterile pharmaceuticals. (1) General. (A)-(B) (No change.) (C) Although process validation may be incorporated into the experiential portion of a training program, process validation must be conducted at each pharmacy where an individual compounds sterile pharmaceuticals. No product intended for patient use shall be compounded by an individual until the on-site process validation test indicates that the individual can competently perform aseptic procedures, except that a pharmacist may compound sterile pharmaceuticals and supervise pharmacy supportive personnel compounding sterile pharmaceuticals without process validation provided the pharmacist: (i) has completed a recognized course in an accredited college of pharmacy or a course sponsored by an American Council on Pharmaceutical Education approved provider which provides 20 hours of instruction and experience in the areas listed in this paragraph; and (ii) completes the on-site process validation within seven days of commencing work at the pharmacy. (D)-(E) (No change.) (2) Pharmacists. (A) All pharmacists who compound sterile pharmaceuticals or supervise supportive personnel compounding sterile pharmaceuticals shall: (i) effective March 1, 1996, complete through a single course, a minimum 20 hours of instruction and experience in the areas listed in paragraph (1) of this subsection. Such training may be evidenced by either: (I) completion of a structured on-the-job didactic and experiential training program at this pharmacy which provides 20 hours of instruction and experience in the areas listed in paragraph (1) of this subsection. Such training may not be transferred to another pharmacy unless the pharmacies are under common ownership and control and use a common training program; or (II) completion of a recognized course in an accredited college of pharmacy or a course sponsored by an American Council on Pharmaceutical Education approved provider which provides 20 hours of instruction and experience in the areas listed in paragraph (1) of this subsection; and (ii) possess knowledge about: (I) aseptic processing; (II) quality control and quality assurance as related to environmental, component, and end-product testing; (III) chemical, pharmaceutical, and clinical properties of drugs; (IV) container, equipment, and closure system selection; and (V) sterilization techniques. (B) Pharmacists shall discontinue preparation of sterile pharmaceuticals if the training specified in subparagraph (A) of this paragraph is not completed by March 1, 1996. Such pharmacists may continue to compound sterile pharmaceuticals and supervise supportive personnel compounding sterile pharmaceuticals until March 1, 1996, if they comply with the previous requirements of these rules and maintain documentation of completion of 20 hours of on-the-job training in the preparation, sterilization, and admixture of sterile pharmaceuticals. (C) The required experiential portion of the training programs specified in this paragraph must be supervised by an individual who has already completed training as specified in paragraph (2) or (3) of this subsection. (3) Supportive personnel/pharmacy technicians. In addition to the qualifications and training outlined in subsection (e) of this section, all supportive personnel who compound sterile pharmaceuticals shall: (A) have a high school or equivalent education; (B) either: (i) complete through a single course, a minimum of 40 hours of instruction and experience in the areas listed in paragraph (1) of this subsection. Such training may be obtained through the: (I) completion of a structured on-the-job didactic and experiential training program at this pharmacy which provides 40 hours of instruction and experience in the areas listed in paragraph (1) of this subsection. Such training may not be transferred to another pharmacy unless the pharmacies are under common ownership and control and use a common training program; or (II) completion of a course sponsored by an ACPE approved provider which provides 40 hours of instruction and experience in the areas listed in paragraph (1) of this subsection; or (ii) complete a training program which is accredited by the American Society of Health-System Pharmacists (formerly the American Society of Hospital Pharmacists). Individuals enrolled in training programs accredited by the American Society of Health-System Pharmacists may compound sterile pharmaceuticals in a licensed pharmacy provided: (I) the compounding occurs only during times the individual is assigned to a pharmacy as a part of the experiential component of the American Society of Health-System Pharmacists training program; (II) the individual is under the direct supervision of and responsible to a pharmacist who has completed training as specified in this subparagraph of this paragraph; and (III) the supervising pharmacist conducts in process and final checks; and (C) acquire the required experiential portion of the training programs specified in this paragraph under the supervision of an individual who has already completed training as specified in this paragraph or paragraph (2) of this subsection. (D) discontinue preparation of sterile pharmaceuticals if the training specified in subparagraphs (A) and (B) of this paragraph is not completed by March 1, 1996. Such supportive personnel may continue to compound sterile pharmaceuticals during the interim between the effective date of these rules and March 1, 1996, if they comply with the previous requirements of these rules and maintain documentation of completion of 40 hours of on-the-job training in the preparation, sterilization, and admixture of sterile pharmaceuticals. (4) (No change.) (g) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1996. TRD-9613817 Fred S. Brinkley, Jr., R.Ph., M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: October 11, 1996 Proposal publication date: April 23, 1996 For further information, please call: (512) 305-8027 PART XVII. Texas State Board of Plumbing Examiners CHAPTER 361.Administration Contested Case: Investigations 22 TAC sec.361.26 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.26, Contested Cases: Investigations, without changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 6934). This amended to require more plumbers to put the name and mailing address and the telephone number of the Board on service documents to provide the public with an avenue to complain about the services provided. No comments were received regarding adoption of the amended rules. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613846 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: October 14, 1996 Proposal publication date: July 26, 1996 For further information, please call: (512) 458-2145 Rule of Practice and Procedure 22 TAC sec.361.27 The Texas State Board of Plumbing Examiners adopts new sec.361.27, concerning Rules of Practice and Procedure, with nonsubstantive changes to the proposed text as published in the June 11, 1996, issue of the Texas Register (21 TexReg 5235). This new rule is being adopted to specify the process for entry of appearance, failure to enter an appearance, and failure to appear at a hearing on a contested case. A public hearing was held on August 14, 1996, to discuss this new rule. The comments related to this new rule encouraged the Board to give a plumber every opportunity to appear in court before requesting a default judgement. In response to the public hearing the Board increased the number of required methods used to notify a plumber of the impending case. The new section is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.361.27.Rules of Practice and Procedure. (a) Entry of Appearance; Continuance (1) When a contested case has been instituted, the respondent or the representative of the respondent shall enter an appearance within 20 days of the date on which the notice of hearing is provided to the respondent. (2) For the purposes of this section, a contested case shall mean any action that is referred by the Texas State Board of Plumbing Examiners to the State Office of Administrative Hearings. (3) For purposes of this section, an entry of appearance shall mean the filing of a written answer or other responsive pleading with the State Office of Administrative Hearings. (4) For purposes of this section, notice of hearing is provided to a respondent on the date of mailing the notice via certified mail and via regular mail containing a notice of hearing in accordance with provisions of the Administrative Procedure Act. (5) The filing of an untimely appearance by a party, or entering an appearance at the contested case hearing, entitles the Texas State Board of Plumbing Examiners to a continuance of the hearing in the contested case at the Board's discretion for such a reasonable period of time as determined by the Administrative Law Judge, but not for a period of less than 20 days. For purposes of this section, an untimely appearance is an appearance not entered within 20 days of the date of the mailing of the notice. (6) The notice of hearing provided to a licensee for a contested case as defined in this section shall include the following language in capital letters in bold face type: THE FILING OF AN UNTIMELY APPEARANCE IN PERSON OR THROUGH AN ANSWER OR OTHER RESPONSIVE PLEADING TO THE ALLEGATIONS CONTAINED IN THE COMPLAINT WITHIN 20 DAYS OF THE DATE THIS NOTICE WAS MAILED SHALL ENTITLE THE STATE BOARD OF PLUMBING EXAMINERS TO A CONTINUANCE OF THE HEARING FOR A TIME PERIOD SET BY THE ADMINISTRATIVE LAW JUDGE, BUT NOT FOR LESS THAN 20 DAYS. (b) Failure to Attend Hearing: Default Judgment (1) If a respondent fails to appear in person or through their legal representative on the day and at the time set for hearing in a contested case regardless of whether an appearance has been entered, the Administrative Law Judge, upon motion by the petitioner, shall enter a default judgement in the matter adverse to the respondent who has failed to attend the hearing. (2) For purposes of this section, default judgment shall mean the issuance of a proposal for decision against the respondent in which the factual allegations against the respondent contained in the Complaint shall be admitted as prima facie evidence, and deemed admitted as true, without any requirement for additional proof to be submitted by the petitioner. (3) Any default judgment granted under this section will be entered on the basis of the factual allegations contained in the Complaint, and upon the proof of proper notice to the defaulting party opponent. Such notice also shall include the following language in capital letters in bold face type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU SET OUT IN THE COMPLAINT BEING ADMITTED AS TRUE. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1996. TRD-9613845 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: October 14, 1996 Proposal publication date: June 11, 1996 For further information, please call: (512) 458-2145 Criminal Record Review 22 TAC sec.361.28 The Texas State Board of Plumbing Examiners adopts new sec.361.28, concerning Criminal Record Review, without changes to the proposed text as published in the June 11, 1996, issue of the Texas Register (21 TexReg 5236). This new rule is being adopted to allow individuals convicted of a first time misdemeanor driving while intoxicated or possession of drugs to be approved by the Chief Examiner to take the requested examination and the Chief Field Representative to renew their license. A public hearing was held on August 14, 1996, to discuss this new rule. The comments related to this new rule encouraged the Board to ensure that they had the final approval over the denial of individuals with a criminal record and not the Chief Examiner or Chief Field Representatives. The Board believes their concerns were addressed in the new rule. The new section is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613848 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: October 14, 1996 Proposal publication date: June 11, 1996 For further information, please call: (512) 458-2145 CHAPTER 365.Licensing Application for License or Endorsement after Revocation 22 TAC sec.365.10 The Texas State Board of Plumbing Examiners adopts an amendment sec.365.10, Application for License or Endorsement after Revocation, without changes to the proposed text as published in the June 11, 1996, issue of the Texas Register (21 TexReg 5237). This rule is being amended to clarify that an individual's application must be approved by the Board after a revocation. A public hearing was held on August 14, 1996, to discuss this rule amendment. The comments related to this amendment encouraged the Board to ensure that they had the final approval over individuals requesting to take the plumbing examination after revocation. The Board believes their concerns were addressed in the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613849 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: October 14, 1996 Proposal publication date: June 11, 1996 For further information, please call: (512) 458-2145 Continuing Education Programs 22 TAC sec.365.14 The Texas State Board of Plumbing Examiners adopts an amendment to sec.365.14, concerning Continuing Education Programs, without changes to the proposed text as published in the June 11, 1996, issue of the Texas Register (21 TexReg 5237). This rule is being amended to change the legal cite for Central Education Agency certification requirements and allows for more than 4 providers of continuing education. A public hearing was held on August 14, 1996, to discuss this rule amendment. The comments related to this amendment encouraged the Board have as many continuing education providers as possible. The Board believes their concerns were addressed in the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613850 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: October 14, 1996 Proposal publication date: June 11, 1996 For further information, please call: (512) 458-2145 CHAPTER 367.Enforcement Display of License 22 TAC sec.367.4 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367.4, concerning Display of License, without changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 6934). This rule is being amended to make it clear that magnetic signs on service vehicles are not sufficient to comply with the permanency requirement of this rule. One comment was received on this proposed rule which questioned the merit of the requirement because he felt temporary magnetic signs were sufficient. The Board disagrees with this comment because magnetic signs would not satisfy the permanency requirement of this rule. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613844 Ernest Pereyra, CPA Chief Fiscal Officer Texas State Board of Plumbing Examiners Effective date: October 14, 1996 Proposal publication date: July 26, 1996 For further information, please call: (512) 458-2145 PART XXII. Texas State Board of Public Accountancy CHAPTER 515.Licenses 22 TAC sec.515.1 The Texas State Board of Public Accountancy adopts an amendment to sec.515.1 without changes to the proposed text as published in the August 8, 1996, issue of the Texas Register, (21TexReg7321). The amendment allows for a clearer understanding that the board may reject applications because they are incomplete or are accompanied with insufficient payment of fees. The amendment will function by requiring applicants and licensees to complete and return their applications to the board accompanied by the required fees. No comments were received concerning adoption of the rule. The rule is adopted under Texas Civil Statutes, Article 41a-1, Section 6, which provides the Texas State Board of Public Accountancy with the authority to make such rules as may be necessary or advisable to carry in effect the purposes of the law. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1996. TRD-9613861 William Treacy Executive Director Texas State Board of Public Accountancy Effective date: October 14, 1996 Proposal publication date: August 8, 1996 For further information, please call: (512) 505-5566 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 330. Municipal Solid Waste Texas Natural Resource Conservation Commission (commission) adopts an amendment to sec.330.602, concerning Municipal Solid Waste Disposal Fees and new sec.330.804, concerning The Use of Tire Shreds in Landfills. The amendment and new section are adopted without changes to the proposed text as published in the July 23, 1996, issue of the Texas Register (21 TexReg 6873) and will not be republished. Similar rules were adopted on an emergency basis by the commission on March 20, 1996, as necessary to prevent imminent peril to the public health, safety or welfare. The emergency rules were published in the April 12, 1996, issue of the Texas Register (21 TexReg 3103) with an expiration date of July 18, 1996, and were subsequently extended by the commission until September 16, 1996, as published in the July 23, 1996, issue of the Texas Register (21 TexReg 6861). The commission had received numerous reports from state, city and county health officials that whole waste tires were piling up at generator locations due to the lack of sufficient end-use markets to meet the volume of tires generated. The concerns associated with this problem included fire, the creation of breeding grounds for mosquitoes, snakes and rodents, and human health problems, as well as traffic safety due to tires piling up alongside roadways. Whole tire piles are easily ignited and extremely difficult to control. An uncontrolled burning tire pile releases toxic chemicals into the air and may also result in contamination to groundwater. The dangerous conditions involving the overabundance of whole tire piles is connected in large part to the fact that many waste tire processors are close to or over authorized tire shred storage capacity. This situation intensified significantly after January 1, 1996, when the end-use market requirement became a condition of reimbursement for processors. In spite of significant efforts to promote the development of end-use markets for whole tires and tire shreds, only 37% of the scrap tires generated in Texas are being forwarded to end use markets. Due to the lack of sufficient end-use markets to meet the volume of tires generated, tire shreds have piled up at storage sites. Although several landfills throughout the state had been using tire shreds for landfill drainage layers, protective covers or final covers, high transportation costs have made the use of tire shreds cost prohibitive for many landfill owners and operators. Under the amendment and new section, as an incentive to encourage increased usage of tire shreds in landfills, owners and operators of municipal solid waste landfills who utilize tire shreds in their landfill design may receive a reduction in the fee they pay for waste disposal. This is a one-time, 50% (62.5 cents per ton) reduction in the fee corresponding to the number of tire-shred tons used in the landfill design. Therefore, a landfill using 15 tons of tire shreds in an approved component of landfill design can receive a 50% reduction in its Municipal Solid Waste Disposal Fee for 15 tons of municipal waste in the quarterly billing period following use of the tire shreds. This fee reduction is designed to mitigate the cost differential between tire shreds and other more commonly used materials. Utilizing tire shreds as part of the landfill design is an approved method for recycling tires. Since the adoption of the emergency rule, there has been an increase in the number of landfills which utilize tire shreds. With the reduction in the disposal fee, it is anticipated that 950,000 tons of tire shreds could be recycled through use in landfills. This will enable the continued collection of tires, because storage space will be made available with the movement of the existing shred piles, which will in turn reduce whole tire piles and the hazards these piles represent. In authorizing the fee reduction for the use of tire shreds in landfill design, the agency is in no manner approving or advocating the use of any particular method or process for the use of tire shreds. The comment period closed on August 22, 1996. The commission did not receive any comments concerning the amendment and new rule. The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to provide procedures that will allow the commission to prevent imminent peril to the public health, safety, and welfare by establishing an incentive for the beneficial use of shredded tires in landfills. Due to the lack of sufficient end-use markets to meet the volume of tire shreds produced, tire shreds have piled up at storage sites, and whole tires are piling up at generator locations resulting in numerous reports from state, county and city health officials about their concerns of the threat of fires, creation of breeding grounds for mosquitos, snakes and rodents, and their attendant human health nuisances and problems, as well as traffic safety due to tires piling up alongside roadways. Because of those concerns, the commission adopted emergency rules on March 20, 1996, to temporarily alleviate the problems pending adoption of the permanent rules through the normal rulemaking process. When tire storage sites are filled to capacity, tire processors cannot legally accept additional tires for shredding and, therefore, cannot collect waste tires from generators. The rules will substantially advance this specific purpose by allowing landfill operators to use tire shreds in their landfills as part of the leachate collection system drainage layer, protective cover, or final cover as a means of reducing the amount of tire shreds in storage which prevent tire processors from shredding additional tires. The rules only provide an incentive to expedite the elimination of waste tire piles and therefore do not place a burden on any individual. These rules make existing rules less stringent only to the extent that they provide for a reduction in fees paid and allow the use of an additional type of material for landfill construction. Since transportation of the tire shreds to a landfill location is expensive, the commission will provide an incentive by reducing the amount of solid waste disposal fees paid to the commission by 50% for the equivalent tonnage of tire shreds used at the landfill. Promulgation and enforcement of these rules will not affect private real property because the rules pertain only to a new incentive to increase the level of collection, shredding, and beneficial use of waste tires, all of which are currently authorized. The rules will not create a burden on private real property because they are specifically designed to remove any threat to its safety or its environment by providing an incentive to remove any nearby waste tire piles that could result in uncontrolled fires. This action is also covered by exemptions in Senate Bill 14 concerning public nuisances and actions taken in response to a real and substantial threat to public health and safety. SUBCHAPTER P. Fees and Reporting. 30 TAC sec.330.602 The amendment is adopted under Health and Safety Code sec.361.024 which gives the commission the authority to adopt rules consistent with Chapter 361, Health & Safety Code, and under Health and Safety Code sec.361.484 which gives the commission the authority to adopt rules necessary to implement Subchapter P, Chapter 361, Health and Safety Code, relating to the Waste Tire Recycling Program. sec.330.602. Fees. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613682 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 9, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 239-1970 SUBCHAPTER R. Management of Whole Used or Scrap Tires 30 TAC sec.330.804 The new section is adopted under Health and Safety Code sec.361.024 which gives the commission the authority to adopt rules consistent with Chapter 361, Health & Safety Code, and under Health and Safety Code sec.361.484 which gives the commission the authority to adopt rules necessary to implement Subchapter P, Chapter 361, Health and Safety Code, relating to the Waste Tire Recycling Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613683 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 9, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 239-1970 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART III. Texas Youth Commission CHAPTER 85. Admission and Placement Placement Planning 37 TAC sec.85.21 The Texas Youth Commission (TYC) adopts an amendment to sec.85.21, concerning program assignment system, without changes to the proposed text as published in the August 13, 1996, issue of the Texas Register (21 TexReg 7645). The justification for amending the section is to prevent danger to youth and staff which is frequently caused by extreme overcrowding of delinquent youth in high restriction programs. The amendment will provide for initially placing medium and low risk general offenders in medium restriction TYC programs. High risk general offenders will continue to be placed in high restriction TYC programs. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to determine placement and treatment. The proposed rule implements the Human Resource Code, sec.61.034. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 18, 1996. TRD-9613677 Steve Robinson Executive Director Texas Youth Commission Effective date: October 9, 1996 Proposal publication date: August 13, 1996 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid Certification SUBCHAPTER I.Resident Assessment 40 TAC sec.19.801 The Texas Department of Human Services (DHS) adopts an amendment to sec.19.801, with changes to the proposed text as published in the June 21, 1996, issue of the Texas Register (21 TexReg 5681). Justification for the amendment is to reduce paperwork in Medicaid facilities, thereby freeing staff time to devote to the care of the residents. The amendment will function by complying with House Bill 867, passed by the 74th Texas Legislature, which requires that the Texas Medicaid Nursing Facility Program use a single instrument for both payment and assessment. The rules require that nursing facilities submit the Minimum Data Set (MDS) electronically beginning January 1, 1997, and that quarterly assessments be an expanded version containing additional assessment data. The department received comments from the Texas Health Care Association. Comment: The proposed rule does not clearly describe what is an expanded version of the MDS quarterly assessment. The adopted rule needs to specify what is included in the expanded version. Response: The department disagrees. The proposed language, which references the MDS expanded core elements specified in the Health Care Financing Administration's (HCFA's) Resident Assessment Instrument, is clear. Section S, a Texas-specific addendum, has been approved by HCFA as part of the Texas MDS, so there is no need to mention it specifically. Comment: The proposed rule will cause many facilities to change their system that triggers the completion of an MDS. Change the last sentence in sec.19.801 to the following: "Nursing facilities must have a policy that their schedule for submission of all future assessments will be set on one of the following schedules: (1) No more that 365 days from the last assessment; or (2) Annually on the date of the first full assessment after April 1, 1996." Response: The department will delete the sentence in sec.19.801 which references a fixed schedule. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs, and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.801.Resident Assessment. The facility must conduct initially and periodically a comprehensive accurate, standardized, reproducible assessment of each resident's functional capacity. By January 1, 1997, in Medicaid nursing facilities, annual and quarterly assessments must be transmitted electronically to the Texas Department of Human Services. (1) (No change.) (2) Comprehensive assessments. (A) The facility must make a comprehensive assessment of all residents' needs, utilizing the Health Care Financing Administration's (HCFA) approved Resident Assessment Instrument (RAI), which describes the resident's capability to perform daily life functions and significant impairments in functional capacity. Licensed-only facilities do not have to complete Medicaid-specific sections. (B)-(C) (No change.) (D) The nursing facility must examine each resident, and review the minimum data set expanded core elements specified in HCFA's RAI no less than once every three months and as appropriate. Results must be recorded to assure continued accuracy of the assessment. (E)-(F) (No change.) (3)-(4) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1996. TRD-9613746 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: October 15, 1996 Proposal publication date: June 21, 1996 For further information, please call: (512) 438-3765 CHAPTER 47.Primary Home Care Service Requirements 40 TAC sec.47.2913 The Texas Department of Human Services (DHS) adopts an amendment to sec.47.2913, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7363). The justification for the amendment is to reflect the streamlined prior approval process. The amendment will function by allowing fewer breaks in services to primary home care clients. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements sec.sec.22.001-22.030 and 32.001-32.041 of the Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1996. TRD-9613747 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: November 1, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 438-3765 CHAPTER 48.Community Care for Eligibility 40 TAC sec.48.2904 The Texas Department of Human Services (DHS) adopts an amendment to sec.48.2904, without changes to the proposed text published in the August 13, 1996, issue of the Texas Register (21 TexReg 7653). The justification for the amendment is to clarify that the income exclusion of the first $65 plus one-half of the client's earnings applies only to earned income received by the client or spouse. Only one income exclusion is applied to the individual's or the couple's earned income. The amendment will function by providing a better understanding of the type of income the income exclusion can be applied to. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment implements sec.sec.22.001-22.030 of the Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 19, 1996. TRD-9613748 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: November 1, 1996 Proposal publication date: August 13, 1996 For further information, please call: (512) 438-3765