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 28. INSURANCE PART 28. Texas Workers' Compensation Commission CHAPTER 134.Guidelines for Medical Services, Charges, and Payments The Texas Workers' Compensation Commission (the commission) adopts new sec.134.302 with changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 6937) and the simultaneous repeal of sec.134.301 without changes. Changes made to the proposed rules are in response to public comment received in writing and are described in the summary of comments and responses section of this preamble. The repeal is adopted pursuant to the Texas Labor Code, sec.402.061, which requires the Commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.413.011, which mandates that the Commission by rule establish medical policies and guidelines, and the Texas Labor Code, sec.413.012, which requires periodic review and revision of the medical policies and fee guidelines. Changes made to the proposed rule are in response to public comment received in writing and are described in the summary of comments and responses section of this preamble. The new rule is adopted to update and revise the guideline which addresses the types of services subject to the Workers' Compensation Act and reimbursement and billing for dental services rendered to relieve the effects of and promote recovery from an injury compensable under the Texas Workers' Compensation Act. Just as the 1992 Dental Guideline, the new rule does not list specific dollar values but provides that services subject to the Workers' Compensation Act shall be reimbursed at a fair and reasonable rate. Because reimbursement for dental services make up less than 1.0% of workers' compensation reimbursements, the time and resources necessary to establish a specific list of fees for these treatments and services was not warranted. In addition, reimbursement for dental services is rarely the subject of dispute resolution. TWCC data shows that last year only three or four out of a total of 1,800 disputes involved dental services. The adopted rule will be effective for dental services rendered after the effective date of the rule. Dental services rendered prior to the effective date of the rule will be subject to the provisions of the 1992 Dental Guideline. The language of this new Dental Fee Guideline has been simplified. In addition, the guideline does not include a listing of billing codes as the 1992 Dental Fee Guideline did, but instead refers to the Current Dental Terminology (CDT) codes of the American Dental Association. These CDT codes are standard for the dental profession and widely used. Therefore, it was not necessary to obtain permission to reprint these copyrighted codes in the Dental Fee Guideline. Changes in the proposed text are found in subsection (d)(2). One comment which generally supported new sec.134.302 was received from the Texas Dental Association. Summary of the comment and the commission response is as follows: COMMENT: Subsection (d)(2). The commenter requested clarification of the examples of services which are not covered by workers' compensation insurance. The commenter specifically noted that the text in subsection (d)(2), "multiple units of fixed prosthetics exceeding the number of teeth involved in the original injury" could be interpreted to mean that the teeth adjoining the fixed prosthetic would not be covered. The commenter suggested a change in language to specify that necessary abutments and/or implants are covered. RESPONSE: The staff agrees. It was not the intention of the Commission to exclude from coverage dental work necessary to treat a workers' compensation injury. In some cases this treatment may include the abutting teeth and/or implants. In order to clarify the Commission's intent, the following words will be inserted immediately after the proposed language in subsection (d)(2): "except necessary abutments and/or implants". Subsection (d)(2) has been rewritten to state: (d) Examples of services which are not covered by workers' compensation insurance include: (1) all preventative services; (2) multiple units of fixed prosthetics exceeding the number of teeth involved in the original injury, except necessary abutments and/or implants; (3) hair and tissue analysis; (4) treatments based on mercury toxicity; (5) silent period durations; (6) jaw tracking not induced by trauma; and (7) mandibular kinesiography not induced by trauma. This guideline is adopted in order to comply with the statutory mandates in the Texas Labor Code, sec.413.011 that the commission establish by rule guidelines relating to fees charged or paid for medical services for employees who suffer compensable injuries, including guidelines relating to payment of fees for specific medical treatments or services, that the guidelines for fees be fair and reasonable and designed to ensure the quality of medical care and achieve effective medical cost control. This new rule achieves these objectives by its provisions, including the following: specifying that fair and reasonable fees be paid for dental treatments and services provided under the Texas Workers' Compensation Act; and requiring that reimbursement be allowed only when services are performed by a licensed dentist or a person under the direct supervision of a licensed dentist. SUBCHAPTER C.Medical Fees Guidelines 28 TAC sec.134.301 The repeal section is adopted pursuant to the Texas Labor Code, sec.402.061, which requires the Commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.413.011, which mandates that the Commission by rule establish medical policies and guidelines, and the Texas Labor Code, sec.413.012, which requires periodic review and revision of the medical policies and fee guidelines. 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 October 11, 1996. TRD-9614895 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: December 1, 1996 Proposal publication date: July 26, 1996 For further information, please call: (512) 440-3700 28 TAC sec.134.302 The new section is adopted pursuant to the Texas Labor Code, sec.402.061, which requires the Commission to adopt rules necessary for the implementation and enforcement of the Texas Workers Compensation Act; the Texas Labor Code, sec.413.011, which mandates that the Commission by rule establish medical policies and guidelines, and the Texas Labor Code, sec.413.012, which requires periodic review and revision of the medical policies and fee guidelines. sec.134.302.Dental Fee Guideline. (a) Dental services rendered under the Texas Workers' Compensation Act shall include the repair or replacement of those teeth and oral structures injured or directly affected by an occupational injury or disease. This guideline is effective for dental services provided after the effective date of this rule. Dental services provided prior to the effective date of this rule shall be subject to the 1992 Dental Guideline. Preauthorization of any treatments or services shall be as required in the Commission's preauthorization rule. (b) The coding for dental services shall be the most recent Current Dental Terminology (CDT) of the American Dental Association with the modifier "DS" listed before each CDT code. (c) Reimbursement for services rendered shall be a fair and reasonable rate. Reimbursement is allowed only when a licensed dentist is performing compensable services within the dentist's scope of practice or when a nonlicensed individual is rendering care under the direct supervision of a licensed dentist. (d) Examples of services which are not covered by workers' compensation insurance include: (1) all preventative services; (2) multiple units of fixed prosthetics exceeding the number of teeth involved in the original injury, except necessary abutments and/or implants; (3) hair and tissue analysis; (4) treatments based on mercury toxicity; (5) silent period durations; (6) jaw tracking not induced by trauma; and (7) mandibular kinesiography not induced by trauma. (e) If multiple procedures are performed during the same operative session, then the following rule for reimbursement applies: (1) reimbursement for the primary procedure is 100% of the fair and reasonable value for the major procedure; and (2) reimbursement for the secondary procedure(s) is 50% of the fair and reasonable value for the secondary procedure(s). (f) Reimbursement for laboratory procedures performed in dental laboratories are included in the reimbursement for the dental procedure code(s). 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 October 11, 1996. TRD-9614896 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: December 1, 1996 Proposal publication date: July 26, 1996 For further information, please call: (512) 440-3700 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 122.Federal Operating Permits SUBCHAPTER B.Permit Requirements Permit Application 30 TAC sec.122.135 The commission adopts new sec.122.135, concerning grandfather requirements, without changes to the proposed text as published in the July 23, 1996, issue of the Texas Register (21 TexReg 6872). The new section provides owners or operators with sites subject to this chapter an exemption from the state-only requirement regarding the submission of grandfather emission rates. The exemption will simplify the application process that is required for an operating permit under this chapter, and will reduce the financial burden on both the owners and operators and the agency in implementing the operating permits program. The commission has prepared a Takings Impact Assessment for this rule proposal pursuant to Texas Government Code, sec.2007.043. The purpose of this rulemaking is to provide owners or operators with an exemption from having to submit grandfather emission rates in their federal operating permit application. This adopted rule will substantially advance this specific purpose, because it will codify the exemption which may be used by the owners or operators who are required to submit an application for a federal operating permit. The promulgation and enforcement of this rule will not burden private real property because this rulemaking adoption provides an exemption from an existing requirement. A public hearing was held on August 19, 1996, however, no oral testimony was offered at that time; no written comments were received on the proposed rule by the close of comment period. The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.382.017, which provides the commission with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 October 9, 1996. TRD-9614932 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: November 4, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 239-1966 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART V. Texas Board of Pardons and Paroles CHAPTER 141.General Provisions Definition of Terms 37 TAC sec.141.111 The Texas Board of Pardons and Paroles adopts an amendment to sec.141.111, concerning definitions, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7359). The Board adopts the amendment in order to increase the efficiency of the Board in managing its case load. No comments were received regarding adoption of the amendment. The amendment is adopted under the Code of Criminal Procedure, Article 42.18, sec.7 and sec.8(a)-(f), which vests the Board with authority to make decisions related to parole release. 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 October 14, 1996. TRD-9615036 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 CHAPTER 145.Parole Parole Process 37 TAC sec.145.6 The Texas Board of Pardons and Paroles adopts an amendment to sec.145.6, concerning the denial of parole by a parole panel or the Board, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7360). The Board adopts the amendment in order to clarify that, while the Board will notify the inmate in writing following the denial of parole, the Board has full discretion to make parole decisions. No comments were received regarding adoption of the amendment. The amendment is adopted under the Code of Criminal Procedure, Article 42.18, sec.7 and sec.8(a)-(f), which vests the Board with authority to determine which inmates are to be released on parole in the best interest of society. 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 October 14, 1996. TRD-9615041 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 Terms and Conditions of Parole 37 TAC sec.145.22 The Texas Board of Pardons and Paroles adopts the repeal of sec.145.22 and new sec.145.22, concerning the conditions and rules of parole, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7360). The Board adopts the repeal and new rule in order to facilitate the Board's adoption of new conditions and rules of parole imposed both at its discretion and by law. No comments were received regarding adoption of the repeal and new section. The repeal is adopted under the Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Board with the authority to adopt reasonable rules as it may deem necessary with respect to conditions and rules which may be imposed upon parolees and persons released to mandatory supervision. 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 October 14, 1996. TRD-9615043 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 The new rule is adopted under the Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Boardwith the authority to adopt reasonable rules as it may deem necessary with respect to conditions and rules which may be imposed upon parolees and persons released to mandatory supervision. 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 October 14, 1996. TRD-9615042 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 Revocation of Administrative Release (Parole, Mandatory Supervision, and Executive Clemency 37 TAC sec.145.46 The Texas Board of Pardons and Paroles adopts an amendment to sec.145.46, concerning the preliminary hearing in the revocation process, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7361). The Board adopts the amendment in order to conform the rule to the law, which requires a preliminary hearing only to determine if there is probable cause or reasonable ground to believe that the releasee committed acts which would constitute a violation of parole conditions. Consequently, no preliminary hearing is required if that determination has been made in another forum. No comments were received regarding adoption of the amendment. The amendment is adopted under the Code of Criminal Procedure, Article 42.18, sec.14, which vests the Board with authority to promulgate rules under which releasees are to be heard in parole revocation hearings. 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 October 14, 1996. TRD-9615040 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 37 TAC sec.145.49 The Texas Board of Pardons and Paroles adopts an amendment to sec.145.49, concerning the preliminary hearing in the revocation process, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7362). The Board adopts the amendment in order to conform the rule to the law, which requires a preliminary hearing only to determine if there is probable cause or reasonable ground to believe that the releasee committed acts which would constitute a violation of parole conditions. Consequently, no preliminary hearing is required if that determination has been made in another forum. No comments were received regarding adoption of the amendment. The amendment is adopted under the Code of Criminal Procedure, Article 42.18, sec.14, which vests the Board with authority to promulgate rules under which releasees are to be heard in parole revocation hearings. 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 October 14, 1996. TRD-9615037 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 CHAPTER 149.Mandatory Supervision The Texas Board of Pardons and Paroles adopts the repeal of sec.149.1 and new sec.149.1, concerning rules and conditions of mandatory supervision, without changes to the proposed text as published in the August 6, 1996, issue of the Texas Register (21 TexReg 7362). The Board adopts the repeal and new rule in order to facilitate the Board's adoption of new conditions and rules of mandatory supervision imposed both at its discretion and by law. No comments were received regarding adoption of the repeal and new section. Rules and Conditions of Mandatory Supervision 37 TAC sec.149.1 The repeal is adopted under the Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Board with authority to adopt reasonable rules as it may deem necessary with respect to conditions which may be imposed upon parolees and persons released to mandatory supervision. 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 October 14, 1996. TRD-9615038 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 The new rule is adopted under the Code of Criminal Procedure, Article 42.18, sec.8(g), which provides the Board with authority to adopt reasonable rules as it may deem necessary with respect to conditions which may be imposed upon parolees and persons released to mandatory supervision. 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 October 14, 1996. TRD-9615039 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: November 4, 1996 Proposal publication date: August 6, 1996 For further information, please call: (512) 463-1883 PART IX. Commission on Jail Standards CHAPTER 273.Health Services 37 TAC sec.273.5 The Commission on Jail Standards adopts an amendment of sec.273.5, concerning Health Services, with changes to the proposed text published in the August 13, 1996 issue of the Texas Register (21TexReg7646). Adoption of this amendment will include new standards for the care of inmates who are mentally disabled. The rule functions to provide procedures requiring county jails to identify, provide services for and divert inmates who are mentally disabled. No comments were received regarding adoption of this 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 custody, care, and treatment of prisoners. The statute that is affected by this rule is the Local Government Code, Chapter 351, sec.351.002 and sec.351.015. sec.273.5.Mental Disabilities/Suicide Prevention Plan. (a) Each sheriff/operator shall develop and implement a mental disabilities/suicide prevention plan, in coordination with available medical and mental health officials, approved by the commission by March 31, 1997. The plan shall address the following principles and procedures: (1) Training. Provisions for staff training (including frequency and duration) on the procedures for recognition, supervision, documentation, and handling of inmates who are mentally disabled and potentially suicidal inmates. Supplemental training should be provided to those staff members responsible for intake screening; (2) Identification. Procedures for intake screening to identify inmates who are mentally disabled and potentially suicidal inmates and procedures for referrals to available mental health officials; (3) Communication. Procedures for communication of information relating to inmates who are mentally disabled and potentially suicidal inmates and procedures between staff members; (4) Housing. Procedures for the assignment of inmates who are mentally disabled and potentially suicidal inmates to appropriate housing; (5) Supervision. Provisions for adequate supervision of inmates who are mentally disabled and potentially suicidal inmates and procedures for documenting supervision; (6) Intervention and Emergency Treatment. Procedures for staff intervention prior to the occurrence of a suicide and during the progress of a suicide attempt, or serious deterioration of mental condition; (7) Reporting. Procedures for reporting of completed suicides to appropriate outside authorities and family members; and (8) Follow-Up Review. Procedures for follow-up review by the sheriff/operator and mental health and medical officials of all potential, attempted, and completed suicides. (b) Screening Instrument. An approved mental disabilities/suicide prevention screening instrument shall be completed immediately on all inmates admitted. 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 October 2, 1996. TRD-9614425 Jack E. Crump Executive Directorl Commission on Jail Standards Effective date: October 23, 1996 Proposal publication date: August 13, 1996 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART IV. Texas Commission for the Blind CHAPTER 163.Vocational Rehabilitation Program SUBCHAPTER A.General Information 40 TAC sec.163.4 The Texas Commission for the Blind adopts an amendment to sec.163.4, concerning vocational rehabilitation services, without changes to the proposed text as published in the September 10, 1996, issue of the Texas Register (21 TexReg 8648). The commission adopts the amendment to comply with the Rehabilitation Act of 1973, sec.101(a)(5)(A) as amended, which requires the definitions of most severely disabled, severely disabled, and nonseverely disabled to be based on functional limitations. These terms are used in the agency's order of selection, which may be used in times of extremely limited funds. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. 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 October 11, 1996. TRD-9614890 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: November 1, 1996 Proposal publication date: September 10, 1996 For further information, please call (512) 459-2611