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 16. ECONOMIC REGULATION PART VIII. Texas Racing Commission CHAPTER 303. General Provisions SUBCHAPTER D. Texas-Bred Incentive Programs Programs for Horses 16 TAC sec.sec.303.92-303.94, 303.97 The Texas Racing Commission adopts amendments to sec.sec.303.92- 303.94 and new section sec.303.97, concerning the rules for the Texas Bred Incentive Programs for horses, without changes to the proposed text published in the October 1, 1996 issue of the Texas Register (21 TexReg 9330). The amendments and new section are adopted to ensure that the Texas Bred Incentive Programs for the various breeds of horse will be administered fairly, efficiently, and effectively. The amendments and new section adopt by reference the rules of the official horse breed registries in Texas for administering the Texas Bred Incentive Program for their respective breed of horse. The amendments clarify the date of the rules that are being adopted by reference. The commission received written comment from one individual regarding the proposed amendment to sec.303.94. The commenter, who is a member of the Board of Directors of the Texas Arabian Breeders Association, disagreed with one of the provisions within the rules of the Texas Arabian Breeders Association and asked that the Commission not adopt the rules by reference until that provision was changed. The Commission disagreed with the comment on the grounds that the appropriate forum for such a discussion is within the Board of Directors of the breed registry. According to testimony from the President of the Texas Arabian Breeders Association, the Board of Directors of that Association unanimously adopted the rules that the Commission is adopting by reference. The amendments and new section are adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.08, which authorizes the commission to adopt rules relating to the accounting, audit, and distribution of all amounts set aside for the Texas-bred 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 November 4, 1996. TRD-9615997 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 1, 1996 Proposal publication date: October 1, 1996 For further information, please call: (512) 833-6699 Programs for Greyhounds 37 TAC sec.303.102 The Texas Racing Commission adopts an amendment to sec.303.102, concerning the Texas Bred Incentive Program for greyhounds, without changes to the proposed text published in the October 1, 1996 issue of the Texas Register (21 TexReg 9330). The amendment is adopted to ensure that the Texas Bred Incentive Programs for greyhounds will be administered fairly, efficiently, and effectively. The amendment adopts by reference the rules of the Texas Greyhound Association for administering the Texas Bred Incentive Program for greyhounds. The amendment clarifies the date of the rules that are being adopted by reference. No negative comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.09, which authorizes the commission to adopt rules relating to Texas-bred program for greyhounds. 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 November 4, 1996. TRD-9615998 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 1, 1996 Proposal publication date: October 1, 1996 For further information, please call: (512) 833-6699 CHAPTER 309. Operation of Racetracks SUBCHAPTER B. Horse Racetracks Operations 16 TAC sec.309.199 The Texas Racing Commission adopts an amendment to sec.309.199, concerning the horsemen's bookkeeper, without changes to the proposed text published in the September 24, 1996 issue of the Texas Register (21 TexReg 9133). The amendment is adopted to ensure that the racing industry will be encouraged by making purse money available for uses for which it was intended - an incentive for live racing and a reward to successful competitors. The amendment was presented to the commission as a rulemaking petition by the Texas Horsemen's Partnership, LLP, the officially recognized horsemen's organization in this state. According to the petition, the amendment will establish a procedure to govern the disposition of funds in horsemen's purse accounts if an association terminates a race meet prematurely before completing the race dates assigned by the commission for the race meet. No negative comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. The proposed amendment implements Texas Civil Statutes, Article 179e. 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 November 4, 1996. TRD-9615999 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 1, 1996 Proposal publication date: September 24, 1996 For further information, please call: (512) 833-6699 16 TAC sec.309.200 The Texas Racing Commission adopts an amendment to sec.309.200, concerning stakes and other prepayment races,, without changes to the proposed text published in the September 24, 1996 issue of the Texas Register (21 TexReg 9133). The amendment is adopted to ensure that the commission will remain appropriately informed of the stakes and prepayment races being conducted at Texas pari-mutuel racetracks without overly burdening the sponsors and coordinators of those races. The amendment modifies the requirements for submitting information on stakes and prepayment races to the commission. No negative comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks. 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 November 4, 1996. TRD-9616000 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 1, 1996 Proposal publication date: September 24, 1996 For further information, please call: (512) 833-6699 16 TAC sec.309.201 The Texas Racing Commission adopts an amendment to sec.309.201, concerning equitable stabling, without changes to the proposed text published in the September 24, 1996 issue of the Texas Register (21 TexReg 9134). The amendment is adopted to ensure that all breeds of race horse recognized in Texas will have access to pari-mutuel racetracks. The amendment clarifies the requirements for allocating stalls among various breeds of race horses during mixed meets. No negative comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.9.06, which requires on-track stalls to be provided to the various breeds participating in a mixed race meet. 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 November 4, 1996. TRD-9616001 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 1, 1996 Proposal publication date: September 24, 1996 For further information, please call: (512) 833-6699 CHAPTER 321. Pari-mutuel Wagering SUBCHAPTER B. Distribution of Pari-mutuel Pools 16 TAC sec.321.110, sec.321.116 The Texas Racing Commission adopts amendments to sec.321.110 and sec.321.116, concerning the trifecta and superfecta pari-mutuel pools, without changes to the proposed text published in the September 24, 1996 issue of the Texas Register (21 TexReg 9134). The amendments are adopted to ensure that pari-mutuel wagering will be strictly regulated and conducted with the utmost integrity. The amendments clarify the requirements for coupled entries and mutuel fields to participate in a race with trifecta or superfecta wagering. No negative comments were received regarding the proposal. The amendments are adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.11.01, which authorizes the commission to adopt rules regulating pari-mutuel wagering. 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 November 4, 1996. TRD-9616002 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: December 1, 1996 Proposal publication date: September 24, 1996 For further information, please call: (512) 833-6699 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 1.Texas Board of Health Requests for Providing Public Information 25 TAC sec.sec.1.251-1.255 The Texas Department of Health (department) adopts new sec.sec.1.251-1.255, concerning requests for providing public information with changes to the proposed text as published in the June 14, 1996, issue of the Texas Register (21 TexReg 5422). The sections define terms relating to charges for public information; set forth the charge schedule; outline procedures for providing access to information for public inspection; identify formats for copies of public information; and establish rules regarding calculation, disclosure of costs, collection of payments or waiver of charges. The new sections comply with Acts 1995, 74th Legislature, Chapter 1035 (House Bill 1718), which amended the Government Code, Chapter 552 by adding sec.sec.552.261-552.264 and sec.sec.552.266-552.273 relating to costs of copies when responding to requests for public information. The sections allow charging for costs of materials, labor, or overhead, in addition to photocopying costs if the request is for more than 50 pages of paper records. If the request is for 50 or less pages of paper records, charges can be made for photocopying only, unless the records must be retrieved from more than one building or from a remote storage facility. The sections comply with the General Services Commission's rules in determining costs and methods for computing charges for public information in paper, electronic, and other kinds of media. The sections also establish various types of costs to be charged when providing copies of public information. The sections allow the department to require a cash deposit when the anticipated costs for the preparation of the public information request exceeds $100. The sections prohibit charging for inspection of public information where the information exists in paper. The only exception is if a requested page contains confidential information. The confidential information must be edited from the record before the information can be made available. In this instance, only a photocopy charge may be made for the copy of the page from which information must be edited. The sections prohibit charging for inspection of public information existing in electronic format that is not available directly on-line to the requestor, except when programming and manipulation of data is required. Pursuant to the Government Code, sec.552.231, the sections set forth procedures to follow if manipulation of data or programming is required. The sections prohibit charging for copying the electronic form of public information from the department's computer if the information is directly accessible to the public. Confidential information must be separated out before making the electronic information available to the requestor. The department will strive to anticipate the public's need for public information kept in electronic form, and devise where possible a method to separate confidential information from public information so the public's charges can be kept to a minimum. No comments were received on the proposed rules. However, the department made changes in order to correspond with the General Services Commission rules which were adopted on August 27, 1996. Changes are as follows: Change: In sec.1.251 the department replaced the term "full" cost with the term "actual" cost; added the definitions for client/server system, mainframe computer, and mid-size computer; replaced "nonstandard-size" copy with "nonstandard" copy, and "standard-size" copy with "standard" copy; and included a definition of nonstandard copies to include paper copies larger than legal size. The department also added a definition of the Public Information Act. Change: In sec.1.252 the department changed the wording of the proposed rules to coincide with the General Services Commission's new rules; added prices for various sizes of magnetic tape, data cartridges, tape cartridges, oversize paper, Mylar, and other; used the Commission's language to clarify when to charge for personnel time, including programming personnel; added the basis for the rules; added language providing instructions if programs have no programming capability; defined what the overhead charge covers, and provided a formula for computing this charge; clarified how to charge when microforms are requested; and defined the basis for computer resource charges and lowered the applicable rates, providing examples of computing the charge. Change: In sec.1.253 the department clarified how to handle requests when the information contains both confidential and public information; and added language concerning charges for manipulation of data. Change: In sec.1.254 the department added a statement that provision of public information shall not violate the copyright law. Change: In sec.1.255 the department added references to the Public Information Act. The sections are adopted under the Public Information Act, Government Code, Chapter 552, relating to requests for public information and the Health and Safety Code, sec.12.001, which provides the Board of Health with authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. sec.1.251.Definitions. The following words and terms, when used in this undesignated head, shall have the following meaning, unless the context clearly indicates otherwise. Actual cost - The sum of all direct costs plus a proportional share of overhead, or indirect costs. Actual cost should be determined in accordance with generally accepted methodologies. To determine actual costs, the department may utilize the cost methodology adopted by the Council of Competitive Government. Client/server system - A combination of two or more computers that serve a particular application through sharing processing, data storage, and end-user interface presentation. Personal computers located in a local area network environment containing file servers fall into this category as do applications running in an X-window environment where the server is a UNIX based system. Department - The Texas Department of Health. Mainframe computer - A computer located in a controlled environment and serving large applications and/or large numbers of users. These machines usually serve an entire organization or some group of organizations. These machines usually require an operating staff. IBM and UNISYS mainframes, and large Digital VAX 9000 and VAX Clusters fall into this category. Mid-size computer - A computer smaller than a mainframe computer that is not necessarily located in a controlled environment. It usually serves a smaller organization or a sub-unit of an organization. IBM AS/400 and Digital VAX/VMS multi-user single-processor systems fall into this category. Nonstandard copy- A copy of public information that is made available to a requestor in any format other than a standard paper copy. Microfiche, microfilm, diskettes, magnetic tapes, and CD-ROM are examples of nonstandard copies. Paper copies larger than 8 1/2 x 14 inches (legal size) are also considered nonstandard copies. Public Information Act - Government Code, Chapter 552. Standard paper copy - A printed impression on one side of a piece of paper that measures up to 8 1/2 by 14 inches. Each side of a piece of paper on which an impression is made is counted as a single copy. A piece of paper that is printed on both sides is counted as two copies. sec.1.252.Charges for Providing Copies of Public Information. (a) General. In accordance with the Public Information Act, sec.552.262(a), the rates for providing copies of public information have been established by the General Services Commission and will be used by the department to determine charges for providing public information. With good reason, the department may request an exemption from the General Services Commission's rules relating to charging for public information requests, as outlined in the department's operating procedure, OP-1355. (b) Copy charge. (1) Standard paper copy. The charge for standard paper copies reproduced by means of an office machine copier or a computer printer is $.10 per page or part of a page. Each side that has a printed image is considered a page. (2) Nonstandard copy. The following charges for nonstandard copies cover the cost of materials onto which information is copied and do not reflect any additional charges that may be associated with a particular request: (A) diskette - $1.00 each; (B) magnetic tape - (i) 4mm - $13.50 each; (ii) 8mm - $12.00 each; and (iii) 9-track - $11.00 each; (C) data cartridge - (i) 2000 Series - $17.50 each; (ii) 3000 Series - $20.00 each; (iii) 6000 Series - $25.00 each; (iv) 9000 Series - $35.00 each; and (v) 600A - $20.00 each; (D) tape cartridge - (i) 250 MB - $38.00 each; and (ii) 525 MB - $45.00 each; (E) VHS videocassette - $2.50 each; (F) audio cassette - $1.00 each; (G) oversize paper copy (i.e.: 11" x 17", green bar, blue bar) - $.50 each; (H) Mylar (36", 42", and 48") - (i) 3 mil. - $.85/linear foot; (ii) 4 mil. - $1.10/linear foot; and (iii) 5 mil. - $1.35/linear foot; (I) blueline/blueprint paper (all widths)-$.20/linear foot; and (J) other - actual cost. (c) Personnel charge. (1) The charge for personnel costs, other than programming personnel, incurred in processing a request for public information is $15 per hour, including fringe benefits. Where applicable, the personnel charge may include the actual time to locate, compile, and reproduce the requested information. (2) A personnel charge may not be billed in connection with complying with requests that are for 50 or fewer pages of paper copies, unless the documents to be copied are located in more than one building or in a remote storage facility. (3) Personnel time may not be charged for any time spent by an attorney, legal assistant, or any other person who reviews the requested information to: (A) determine whether the governmental body will raise any exceptions to disclosure of the requested information under the Public Information Act, Subchapter C; or (B) research or prepare a request for a ruling by the Attorney General's Office pursuant to the Public Information Act, sec.552.301. (4) When confidential information is mixed with public information on the same page, personnel time may be charged for time spent to obliterate, blackout, or otherwise obscure confidential information in order to release the public information. (d) Programming personnel. If a particular request requires the services of a programmer in order to execute an existing program or to create a new program so that requested information may be accessed and copied, the department may charge for the programmer's time. (1) The hourly charge for a programmer is $26.00 an hour, including fringe benefits. Only programming services shall be charged at this hourly rate. (2) Department programs that do not have in-house programming capabilities shall comply with requests in accordance with the Public Information Act, sec.552.231. (e) Overhead charge. (1) Whenever any personnel charge is applicable to a request, the department may include in the charges direct and indirect costs, in addition to the specific personnel charge. This overhead charge would cover such costs as depreciation of capital assets, rent, maintenance and repair, utilities, and administrative overhead. This overhead charge is 20% of any personnel charges associated with a request. For example, if one hour of personnel time (programming, other personnel or a combination of both) is used for a particular request, the formula would be as follows: Figure 1. 25 TAC sec.1.252(e)(1) (2) An overhead charge may not be made for requests for copies of 50 pages or less of standard paper records unless the information must be retrieved from more than one building or a remote storage facility. (f) Microfiche and microfilm charge. (1) If the department already has information that exists on microfiche or microfilm and has copies available for sale or distribution, the charge for a copy must not exceed the cost of its reproduction. If no copies of the requested microfiche or microfilm are available and the information on the microfiche or microfilm can be released in its entirety, the department should make a copy of the microfiche or microfilm. The charge for a copy shall not exceed the cost of its reproduction. A microfiche reader/printer is available in the department library for production of hard copy from microfiche. The Texas State Library's Records Management Division (512-454-2705) has the capacity to reproduce microfiche and microfilm for state agencies. (2) If only a master copy of information in microform is maintained, the charge is $.10 per page for standard size paper copies, plus any applicable personnel and overhead charge for more than 50 copies. (g) Remote document retrieval charge. (1) If the requested information is stored in a remote storage facility and the facility charges the department for retrieval of the document(s), it is permissible to recover costs of such services. If this charge is assessed, no additional personnel charge shall be factored in for time spent locating documents at the storage location by the storage facility's personnel. If after delivery to the department, the boxes must still be searched for records that are responsive to the request, a personnel charge is allowed in accordance with subsection (c)(1) of this section. (2) If the information is stored at the Texas State Library, and the department is not charged for locating, retrieving, delivering, and returning the records to storage, then no retrieval charge may be made, but personnel and copy charges may be assessed. If after delivery to the department, the boxes must still be searched for records that are responsive to the request, a personnel charge is allowed in accordance with subsection (c)(1) of this section. (h) Computer resource charge. (1) The computer resource charge is a utilization charge for computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources, which might include, but is not limited to, some or all of the following: central processing units (CPUs), servers, disk drives, local area networks (LANs), printers, tape drives, other peripheral devices, communications devices, software, and system utilities. (2) These computer resource charges are not intended to substitute for cost recovery methodologies or charges, made for purposes other than responding to public information requests. (3) The charge made to recover the computer utilization cost is the actual time the computer takes to execute a particular program times the applicable rate. The CPU charge does not apply to programming or printing time; rather, it is solely to recover costs associated with the actual time required by the computer to execute a program. This time, called CPU time, can be read directly from the CPU clock, and most frequently will be a matter of seconds. If programming is required to comply with a particular request, the appropriate charge that may be recovered for programming time is set forth in subsection (d) of this section. No charge should be made for computer print-out time. (4) The applicable rates are as follows: (A) mainframe system - $10.00 per minute; (B) mid-size - $1.50 per minute; (C) client/server - $2.20 per hour; and (D) PC or LAN - $1.00 per hour. (5) An example is if a mainframe computer is used, and the processing time is 20 seconds, the charges would be as follows: (A) $10.00 / 3 = $3.33; or (B) $10.00 / 60 x 20 = $3.33. (i) Programming time. (1) If a particular request requires a programmer to enter data in order to execute an existing program or to create a new program so that requested information may be accessed, the department may charge for the programmer's time as outlined in subsection (d) of this section. (2) The public must have access to public information maintained on superseded software and computer equipment. The department must maintain such software and equipment and documentation on the use of the software and equipment for the full retention period as indicated on the department's approved retention period, or the department must maintain the same information in a converted updated version to enable the public to be able to access and read it. However, the department is not required to convert data in one format to another format it has never maintained unless the requestor is notified and pays the cost in advance in accordance with the Public Information Act, sec.552.231. The department is not required to maintain hardware or software it no longer uses after the data has been converted. (j) Miscellaneous supplies. The actual cost of miscellaneous supplies, such as labels, boxes, and other supplies used to produce the requested information may be added to the total charge for public information. (k) Postal and shipping charges. The department will add any related postal or shipping expenses which are necessary to transmit the reproduced information to the requesting party. (l) Fax charge. The charge for a fax transmitted locally is $.10 per page. The charge for long distance transmission is $.50 per page for a fax sent within the sender's area code and $1.00 per page for a fax transmitted to a different area code. (m) Sales tax. Sales tax may not be added on charges for public information. sec.1.253.Access to Information Where Copies are Not Requested. (a) Access to information in standard paper form. The department may not charge for making available for inspection information maintained in standard paper form. Charges are permitted only where the department is asked to provide, for inspection, information that contains both confidential information and public information. When such is the case, the department may charge to make a copy of the page from which information must be edited. No other charges are allowed. (b) Access to information in other than standard form. In response to requests for access, for purposes of inspection only, to information that is maintained in other than standard form, the department may not charge the requesting party the cost of preparing and making available such information, unless complying with the request will require programming or manipulation of data. Manipulation of data applies only to information stored in electronic format. (c) Access to information in electronic form. In response to a request to inspect information that is maintained in electronic form, the department may not charge the requesting party if the information is available online and no confidential information is displayed. (1) Charges for inspection of public information existing in electronic form that is not available directly on-line to the requestor shall not be made unless programming and manipulation of data is required. If such manipulation is required, the department shall notify the requestor within 20 days of the receipt of the request and before assembling the information and shall provide the requestor with an estimate of charges that will be imposed to make the information available in accordance with the Public Information Act, sec.552.231. (2) If public information exists in an electronic form on a computer owned or leased by the department and if the public has direct access to that computer through a computer network or other means, the electronic form of the information may be electronically copied from that computer without charge if accessing the information does not require processing, programming, or manipulation on the government-owned or government-leased computer before the information is copied. (3) If public information exists in an electronic form on a computer owned or leased by the department and if the public has direct access to that computer through a computer network or other means and the information requires processing, programming, or manipulation before it can be electronically copied, the department may impose charges for programming and overhead. (4) If information is created or kept in an electronic form, each program within the department is encouraged to explore options to separate out confidential information and to make public information available to the public by electronic access through a computer network or by other means. sec.1.254.Format for Copies of Public Information. (a) The department requires that all public information requests be in writing unless there are special circumstances. (b) To the extent possible the department will attempt to accommodate a requestor by providing information in the format requested. For example, if a requestor asks that information be provided on a diskette and the requested information is electronically stored, the department should provide the information on diskette. The department is not required to acquire software, hardware, or programming capabilities that it does not already possess to accommodate a particular kind of request except in accordance with the Public Information Act, sec.552.231. (c) Provision of a copy of public information in the requested medium shall not violate the terms of any copyright agreement between the department and a third party. sec.1.255.Estimates and Waivers of Public Information Charges. (a) If the program handling the request for public information cannot produce the public information for inspection or duplication within ten calendar days after the date the department received the request, the program shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication. (1) Prior to the end of the ten calendar days or the set date and hour, if applicable, the department shall notify the requestor of the estimated costs if the costs will be over $100. (2) A 50% cash deposit of the total estimated charge is required before the department prepares for inspection or duplicates the public information requested if the total estimated charge will exceed $100. A 75% cash deposit of the total estimated charge is required before the department prepares for inspection or duplicates the public information requested if the total estimated charge will exceed $500. (3) All efforts should be made to process requests as efficiently as possible so that requested information will be provided at the lowest possible charge. (4) Full disclosure must be made to the requesting party as to how the charges were calculated. (5) All charges for public information must be paid to the department before the public information is actually provided to the requestor by inspection or duplication. (6) If a request for information requires programming or manipulation of data pursuant to the Public Information Act, sec.552.231 and the department's policy established under that section, the time frame in this subsection shall not apply until the requestor files the written statement described in the Public Information Act, sec.552.231 (d)(1) or (2). Once the written statement is filed, the program handling the request shall comply with this subsection. (b) The costs for each public information request must be calculated carefully so that the public is billed accurately. If a member of the public is overcharged due to the department not acting in good faith in computing the charges, the requestor having been overcharged may recover an amount of up to three times the amount they overpaid. (c) The department will furnish public records without charge or at a reduced charge if the waiver or reduction of the fees is in the public interest or if the cost for the collection of a charge will exceed the amount of the charge. (d) The department may set the price for publications it publishes for public dissemination or it may disseminate them free of charge. This rule does not limit the costs of departmental publications. (e) One copy of public information requested from the department by a member of the legislature in the performance of the member's duties shall be provided without charge. 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 November 4, 1996. TRD-9616024 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 25, 1996 Proposal publication date: June 14, 1996 For further information, please call: (512) 458-7236 PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 409. Medicaid Programs SUBCHAPTER D. Home and Community-based Services 25 TAC sec.409.101, sec.409.102 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to sec.409.101 and new sec.409.102, relating to home and community- based services (HCS). Existing sec.409.102 is contemporaneously repealed in this issue of the Texas Register. Section 409.101 and sec.409.102 are adopted with changes to the proposed text as published in the July 23, 1996, edition of the Texas Register (21 TexReg 6870). The amendments to sec.409.101 would incorporate the appeal rights of applicants or clients who are denied eligibility for HCS, previously located in existing sec.409.102. Proposed new sec.409.102 would delineate a standardized process for applicants to access HCS through the local mental retardation authority (MRA). The applicant referral process designates the local MRA as responsible for receiving applicants request for enrollment into these services, evaluating applicants' current service and support needs, assisting applicants in selecting and enrolling with an eligible service provider, and maintaining a referral list of applicants seeking these services. Section 409.101 has been revised on adoption to include a reference to the department rule related to the determination of ICF-MR levels of care and to clarify that the initial individual plan of care for HCS participants will be based upon the community support analysis. Section 409.101(e) has been revised to specify that HCS enrollment is denied by TDMHMR and that applicant appeals should be sent to the TDMHMR Office of Medicaid Administration. The effective date of provisions in sec.409.102 has been changed from September 1, 1996, to November 1, 1996. Language in sec.409.102 has been revised to refer to individuals applying for HCS enrollment as "applicants" and to recognize the involvement of individuals' legal representatives in the enrollment and provider selection process. Section 409.102(a) has been revised to clarify the responsibilities of the MRA in assisting applicants with HCS enrollment and to redefine the content of the community support analysis to be completed by the MRAs. New sec.409.102(b) has been added to indicate the selected HCS provider's responsibilities for completing the HCS enrollment request. Subsection 409.102(c) has been revised to clarify that MRAs will maintain a referral list of individuals living in the MRA's local service area and will assign placement on the referral list based only on the chronological order in which application requests are received. New sec.409.102(c)(2), was added to indicate the MRA's responsibility for informing HCS providers of the process for referring applicants to the MRA for placement on the HCS referral list. New sec.409.102(c)(4) has been added to provide applicants who are listed on a referral list and who move to the local service area of a different MRA the opportunity to transfer their names and current application date to that MRA's referral list. Don Green, chief financial officer, has revised the fiscal impact statement for new sec.409.102 to indicate that there will be for fiscal year (FY) 1997 a total impact of $3,278,640, of which $1,639,320 is federal and $1,639,320 is state. For FY 1998 there will be a total impact of $1,105,650, of which $552,825 is federal and $552,825 is state. For FY 1999 there will be a total impact of $1,214,580, of which $607,290 is federal and $607,290 is state. For FY 2000 there will be a total impact of $1,323,371, of which $661,686 is federal and $661,686 is state. For FY 2001 there will be a total impact of $1.438,661, of which $719,331 is federal and $719,331 is state. There is no anticipated fiscal impact for the proposed amended section. There is no anticipated local economic impact. A public hearing regarding the proposed rule was held on August 1, 1996, at which written and oral testimony was received from a representative of Concept Six, Austin, Texas; Educare, Austin; the Private Providers Association of Texas, Austin; and The ARC of Texas, Austin. Written comment was received from the Texas Department of Mental Health and Mental Retardation facilities; state-operated community services, and community mental health and mental retardation centers as follows: Mental Health Mental Retardation Authority of Brazos Valley, Bryan; Austin/Travis County Mental Health Mental Retardation Center, Collin County MHMR Center, McKinney; Gulf Bend MHMR Center, Victoria; and Central Gulf State- Operated Community MHMR Services, Richmond. Written comments were also received from The Texas Council of Community Mental Health and Mental Retardation Centers, Inc., Austin; the Parent Association for the Retarded of Texas, Inc., Austin; Advocacy, Inc., Austin; the Private Providers Association of Texas, Austin; and The Midland Association for Citizens with Retardation, Midland. All commenters made recommendations for changes to the proposed amendments and/or the new sec.409.102. Several commenters also posed questions regarding the implementation of the revised rule. Seven commenters requested clarification of the fiscal impact of the additional responsibilities which would be assumed by the MRAs as proposed in new sec.409.102 related to the process for applicant referral to HCS program providers. Commenters questioned how these additional services would be financed including those functions that would not be reimbursable through the Case Management Program or other Medicaid sources. Commenters also questioned if the proposed fiscal impact accurately reflected the resources that would be required to support these services. The department has reviewed the proposed fiscal impact in relation to the proposed revision. On adoption, the department has revised the projections to more accurately reflect the anticipated fiscal impact of sec.409.102. The department anticipates that the costs for all activities associated with the referral of applicants to HCS Program providers can be matched with federal Medicaid funds through either the Medicaid Administrative Claiming Program or the Medicaid Targeted Case Management Program. One commenter asked why there could be "no fiscal impact" noting that a total fiscal impact in excess of $670,000 was determined for the first five-year period the "proposed new section is in effect." The department responds that the determination of "no fiscal impact" refers only to the proposed amendment to Section 409.101, relating to the applicants' right to appeal the denial of enrollment into HCS services. This appeal process is currently in place and presents no new fiscal impact for the state. Three commenters noted a discrepancy in the proposed fiscal impact for fiscal year 1997. The department acknowledges this error in the published proposal. A revised fiscal impact statement is included in the preamble to the adoption. One commenter recommended that the financial eligibility criteria for HCS for children under 18 years of age be extended to include children who reside with members of their extended families. The department responds that the intent of the current rule revisions was not to amend the financial eligibility criteria. The department will consider revisions to this subsection at a future date. One commenter recommended including the ICF-MR level of care (LOC) assessment form, instructions for completing the form, and the criteria for determining LOCs to more fully explain the eligibility requirements for HCS participation. The department responds that it is appropriate to reference the departmental rule governing the determination of ICF-MR LOC and has inserted the appropriate reference in sec.409.101(b)(1). LOC assessment forms and instructions for completing the forms are available through the department upon request and in various program provider manuals published by this department and the Texas Department of Human Services. One commenter recommended that a more complete reference be added to direct program providers in the appropriate process to follow when reimbursement is sought for program services which have been provided to an individual who does not have a current LOC determination. The department responds that the current reference of "sec.409.119 of this title" as contained in sec.409.101(b)(1)(C) provides adequate direction to provider agencies seeking reimbursement for services provided to individuals whose LOC determinations have lapsed. One commenter recommended that a definitions section be added in which the interdisciplinary team (IDT) referred to in sec.409.101(b)(4) would be defined in accordance with the definition currently contained in the Persons with Mental Retardation Act (PMRA). The commenter believed including this definition would more accurately define the role of applicants or participants (or their representatives) as one of decision-makers about recommendations made by IDTs which are comprised of professionals and/or paraprofessionals. The department appreciates the commenter's recommendation to add a definition section to the rule. Such a section was not proposed for public review with the current rule change and, therefore, cannot be added on adoption. The department will clarify in future revisions its intent to recognize the definition of IDT included in the PMRA as well as the integral role played by applicants/participants and their representatives in determining the type, amount, frequency and method by which services under this waiver program are provided. Two commenters questioned how HCS Program provider agencies could continue to comply with program certification requirements related to the development and updating of individual plans of care in light of the proposed requirement at sec.409.101(b)(4)(B). The department responds that sec.409.101(b)(4)(B) has been clarified to indicate that the initial individual plan of care (IPC) must be based upon the community support analysis developed by the MRA. Revisions to the proposed content of the community support analysis are described below. With the revisions to the proposed rule, the department does not anticipate any change in the HCS Program provider's responsibility for assuring that an IPC be based on assessed needs of the individual or that the IPC is revised in response to an individual's changing circumstances or service needs. One commenter recommended specifying in sec.409.101(b)(4)(B) that the applicant or participant or that individual's legal representative sign and date the individual plan of care. The department responds that this requirement is appropriately specified in sec.409.101(b)(4)(B) of the rule. One commenter recommended that references to the applicant or participant's legal representative be added in sections requiring approval by the applicant or participant. The department has made the recommended revisions in sec.409.102. A commenter recommended that the entity or entities who make the decision to deny enrollment into HCS be specified. The department has revised sec.409.101(e) to specify that the decision to deny HCS enrollment is made by TDMHMR. Several commenters questioned the selection of September 1, 1996, as the effective date of proposed new sec.409.102. One commenter suggested that the inclusion of an effective date was unnecessary. The department has chosen to include a beginning date for the provisions of sec.409.102 to clearly designate the implementation date of the new rule relating to maintenance of waiting lists for the HCS Program. The department has revised this date to November 1, 1996. One commenter recommended that the implementation date of the proposed rule be delayed to coincide with the implementation of a current pilot project to test the separation of the "authority" function of MRAs from the "service provider" function. The department responds that adoption of the proposed rule furthers the department's goal of separating the "authority/provider" functions now fulfilled by the MRAs and will not diminish the value of pilot project outcomes gained from the tests planned by the department. Several commenters expressed support for designating the local mental retardation authorities (MRAs) as the point of entry to the Home and Community- Based Services (HCS) Program if the department established controls to prevent a conflict of interest on the part of the MRA in performing its function as the referral point for HCS services while continuing its function as a direct provider of HCS Program services. The department understands the importance of removing or preventing potential conflicts of interest for MRAs that operate HCS Programs while serving as the referral point for all HCS applicants. The department has revised sec.409.102(a)(2) of the proposal to emphasize the MRAs' responsibility to advise applicants of all available HCS providers in the local service area. The department will require each MRA to limit the enrollment capacity of the HCS programs it operates to the number of persons enrolled as of November 1, 1996. Three commenters opposed the statewide designation of MRAs as the single point of entry to the HCS Program until pilot tests of this new role have been completed under the conditions recommended by the department's board-appointed Ad Hoc Committee on Mental Retardation Services and Managed Care. The department responds that the proposed rule will allow a statewide HCS enrollment process which is more consistent with the process now used for the enrollment of individuals leaving state facilities. The department does not believe that establishing such a process diminishes the importance of the ad hoc committee's recommendations for the planned pilot projects related to separation of the "authority functions" from the "provider functions" now performed by MRAs. Several commenters questioned whether an applicant's right to a free choice of available HCS Program providers would be compromised if MRA-operated programs were required to limit the enrollment capacity. The department responds that an HCS applicant can not receive services from a provider that is at its operational capacity. There are at least two privately operated HCS Program agencies in each local service area. Several commenters posed implementation questions related to the department's request to increase the number of program placements available to community residents. Specific questions were raised regarding the method the department will use to allocate the additional placements and if the proposed rule revisions applied only to the additional placements. The department has requested Health Care Financing Administration approval to add 861 placements to the HCS Program. These placements will be reserved for individuals living in the community in 10 areas of the state. The method for allocating these 861 placements was based upon the recommendations of the Equity of Access Committee as adopted by the TDMHMR Board. The proposed rule will apply to all future enrollments of community residents into the HCS Program. The enrollment process for individuals leaving state facilities will continue to be governed by 25 TAC Chapter 402, Subchapter I, related to the movement of individuals with mental retardation from department facilities. One commenter expressed concern that the proposed rule lacked a process for resolving problems related to the MRAs' performance as the single point of entry for the HCS Program. The department responds that the MRAs' responsibilities for performance of this role will be included in amendments to the performance contracts/memoranda between the department and each MRA. Several commenters indicated that the proposed rule did not sufficiently describe an MRA's responsibilities for facilitating the enrollment process and for maintaining and managing the referral list for its local service area. Two of these commenters expressed concern that program providers would not be able to comply with current certification principles related to the development of individual plans of care (IPC) or maintenance of waiting lists. Another stated that completion of the proposed community support analysis would duplicate the effort of the provider agency in developing an IPC. Another commenter stated that the rule should not require the MRA to determine the services to be provided by the selected HCS Program provider as the program provider is a separate contractor with the department. The department has revised sec.409.102 to clarify that the MRA must complete a community support analysis at the time HCS Program services are chosen by the applicant or the applicant's legal representative. The department agrees that IPCs must be based upon an individual's current assessed needs and circumstances and must be revised as these needs and circumstances change. The department has revised sec.409.101(b)(4)(B) to specify that the initial IPC must be based upon the community support analysis. The department has further revised the content of the community support analysis to remove requirements which would duplicate the program provider's effort in developing initial IPCs. A model format for the community support analysis will be available with copies of the rule. Several commenters encouraged the department to continue to prioritize enrollments on the basis of "first come, first served." Some commenters objected to allowing MRAs to prioritize individuals' placement on the referral list based on an individual's loss or imminent loss of natural supports. Commenters argued that a standardized and valid needs assessment should be developed and tested in order for a prioritization system to be administered fairly. One commenter asked if certification standards related to program provider's responsibilities for maintaining waiting lists would continue to be applied if MRAs assumed responsibility for maintaining a referral list for the local service area. The department agrees to continue enrolling applicants into the HCS Program on the "first come, first served" basis pending the development of a valid standardized method for prioritizing access to services. Subsections 409.102(a) and 409.102(b) have been revised to indicate that individuals' names will be placed on the referral list in chronological order by date of application and proposed sec.409.102(b)(2), relating to the MRA's authority to give priority to individuals who have lost or are at imminent risk of losing their natural supports, has been deleted. The HCS Consumer Principles for Evidentiary Certification related to program provider responsibilities for waiting list maintenance and management will be revised to remove requirements for maintenance of waiting lists and to reflect the providers' responsibility to refer applicants to the appropriate MRA. One commenter recommended that the MRA be allowed to reserve a number of placements for individuals who have lost or are at genuine risk of losing their natural supports. The department responds that such a practice would conflict with offering services on the "first come, first served" basis and would deny otherwise eligible applicants access to program services. One commenter believed the proposed rule would encourage "deals" to be made between providers and MRAs to shift the placement of an individual on the referral list. As described above, the department has clarified that referral lists will be maintained in chronological order by date of application and that the MRA will offer placement vacancies to the first individual listed. Two commenters questioned what effect the proposed regional waiting list and enrollment process would have when a program vacancy occurs due to the discharge of an individual from program services. One commenter questioned if the proposed system would create a higher "vacancy" factor in established HCS alternate living units, with corresponding higher costs, in the event the next applicant on the referral list did not prefer services in an alternate living unit or did not select a provider who had a vacancy in an alternate living unit. A second commenter expressed concern that an applicant seeking services in his family home would be unduly influenced to accept a group living arrangement if the selected provider had a vacancy in an existing alternate living unit. The second commenter believed the proposed system could create an unstable "consumer base" for privately operated programs. The current HCS Program principles and provider agreements require that certified program providers be capable of providing all services covered under the waiver program at all times in the living setting elected by the participant or the participant's representative. The rule revisions provide applicants with the support and assistance of the MRA in planning services and choosing from all available service providers, the provider that best fulfills the participant's choices. The department also responds that, as all HCS Program participants will continue to have the option of transferring their services to a different program provider, provider agencies are at no greater risk of an unstable consumer base than is true under the current system. One commenter recommended that MRAs be required to submit referral lists for their local service areas to the department. The department responds that the amendments to the MRAs' performance contracts/memoranda will stipulate that MRAs use the statewide CARE system to report and maintain the status of individuals on the HCS referral lists. One commenter believed the proposed rule ignored those individuals who have placed their names on existing HCS Program provider waiting lists. The department will specify in its implementation procedures that the department, with the cooperation of the HCS Program providers, will compile referral lists for each MRA containing the names of all individuals registered on the waiting lists of individual program providers within the MRA's local service area, the date each individual was originally registered on the provider's waiting list, and the name of the provider with whom the individual was originally registered. The department will provide each MRA with this initial list of applicants in its local service area. One commenter stated that the requirement for an applicant to live within the MRA's local service area in order to be registered on the referral list conflicted with the Social Security Act prohibition against imposing residency requirements to be eligible for services covered under a State Medicaid Plan. The department responds that the provisions included in this rule do not restrict or change the eligibility requirements for people who may receive services through the HCS Program. Two commenters questioned the required participation of an MRA representative in the IDT meeting which develops the initial individual plan of care, stating that this may cause undue delays in an individual's enrollment and that MRAs do not have a contractual obligation to participate in such meetings. The department has revised the proposed rule to indicate that the selected HCS Program provider must invite the participation of an MRA representative and must provide a copy of the initial IPC as it is submitted to the department for enrollment approval. Several commenters stated that the rule did not clearly indicate the specific responsibilities of the MRA in facilitating an individual's enrollment into HCS. The department has revised sec.409.102 to clarify that the MRA will be responsible for the following activities: offering the first individual on the referral list HCS Program services when a placement vacancy occurs in the local service area; informing the applicant/applicant's representative of services available through the ICF-MR Program and through the HCS Program and document the applicant's/representative's choice of HCS Program services or ICF-MR services; completing a community support analysis for the applicant choosing HCS services; identifying eligibility determinations necessary to submit an HCS enrollment request to the department and initiating processes to secure needed determinations, if necessary; informing the applicant/applicant's representative of all available service providers in the local service area; assisting the applicant/applicant's representative in meeting with potential service providers; completing a community support analysis and providing copies to potential providers as authorized by the applicant/ applicant's representative; documenting the applicant's/applicant representative's choice of a specific HCS provider; providing available eligibility documentation necessary for the selected provider to complete an HCS enrollment request. The department clarifies that it does not delegate authority to approve or deny enrollment in the HCS Program to MRAs through this rule revision. Implementation procedures issued by the department will delineate standardized processes for MRAs to follow to ensure applicants are offered a fair choice of available HCS Program providers. One commenter urged the department to specify in the rule the time line for the department to ensure training was provided to MRAs in assuming this role. Although the department will provide necessary support to MRAs in assuming the responsibilities specified in the adopted rule, it is not appropriate to include in the rule specifications for training to implement the rule amendment. A commenter recommended adding the criteria by which the department would deny an individual enrollment into the HCS Program. The department responds that approval or denial of enrollment in the HCS program would be based upon the eligibility criteria specified in sec.409.101 and need not be restated elsewhere in the rule. One commenter requested the department's assurance that the placement assistance given by MRAs to applicants is sanctioned by the department and that MRAs would not be placed at risk of legal action taken by program providers who feel slighted. The department responds that the board's adoption of this rule authorizes and requires the MRAs to assist applicants in the HCS enrollment process. Two commenters expressed concern that the department's criteria for enrolling HCS Program providers is not stringent enough to assure that available providers are stable and competent to provide quality services. The commenters urged the department to revise its criteria for the enrollment of HCS program providers. The department will review the current requirements and processes for HCS Program provider enrollment. The sections are adopted under the Health and Safety Code, sec.532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; and under the provisions of Texas Government Code, Chapter 531, sec.531.021, which provides the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. The adopted section affects Texas Human Resources Code, sec.sec.32.001-322.040, and Texas Government Code, Chapter 531, sec.531.021. sec.409.101. Client Eligibility Criteria. (a) To be determined eligible by the Texas Department of Mental Health and Mental Retardation (TDMHMR) for Home and Community-based Services (HCS), an applicant must: (1) be categorically eligible for Supplemental Security Income (SSI) benefits; or (2) have once been eligible for and received SSI benefits and continue to be eligible for Medicaid as a result of protective coverage mandated by federal law; or (3) be under age 18 and reside with parents or spouse. Clients under 18 must satisfy all of the following: (A) be eligible for Medicaid benefits only if institutionalized; (B) meet the SSI criteria for disability as documented on the appropriate Texas Department of Human Services (TDHS) forms; (C) meet the SSI criteria for institutional deeming; and (D) have income and resources which meet the requirements of the SSI program; or (4) be an individual under 19 years of age for whom the Texas Department of Protective and Regulatory Services (TDPRS) assumes financial responsibility, in whole or in part (not to exceed Level II foster care payment), and who is being cared for in: (A) a family foster home which is licensed or certified and supervised by TDPRS, or (B) a family foster home which is licensed or certified and supervised by a licensed public or private nonprofit child placing agency; or (5) be a member of a family who receives full Medicaid benefits as a result of qualifying for Aid to Families with Dependent Children; or (6) be eligible for SSI benefits in the community, except on the basis of income, and meet the special institutional income limit for Medicaid benefits in Texas without regard to spousal income. (b) To be determined eligible by TDMHMR for HCS services, clients must also: (1) meet the ICF-MR I, V, or VI level of care criteria as determined by the TDHS according to 25 TAC Chapter 406, Subchapter E and applicable federal regulations and as verified by a current Level of Care (LOC) Assessment form. (A) An admission Level of Care Assessment (or reassessment) form signed by TDHS is considered valid for enrollment purposes by TDMHMR for 364 days from the date of issuance. (B) Reevaluations of ICF-MR level-of-care criteria are performed annually by the TDMHMR. An initial reevaluation of level of care must be performed no later than 364 calendar days from the date of enrollment. Subsequent level-of-care reevaluations must be performed no later than 364 calendar days from the effective date of the prior level of care assignment. (C) In order for payment to be considered for days that a client was receiving HCS services but did not have a current LOC assessment form in place, the provider must follow the process described in sec.409.119 of this title (relating to Gaps in Level- of-Care Coverage); (2) live in the contracted provider's geographic catchment area. If an applicant has been removed from his home and community because of ICF-MR institutional placement, he may be considered for placement in the HCS program even though his original county of residence is outside the provider's geographic catchment area; (3) have had a determination of mental retardation performed according to state law prior to enrollment into the HCS program; and (4) have an Individual Plan of Care for Home and Community-based Services form developed by the providers' interdisciplinary team; the team must be composed of a case manager and nurse who meet the qualifications specified in the waiver, and the individual or legally authorized representative. (A) The Individual Plan of Care for Home and Community-based Services form must specify the type of waiver services required to keep an individual in the community, the units of waiver services, and their frequency and duration. (B) The Individual Plan of Care for Home and Community-based Services form must be signed and dated by the interdisciplinary team prior to implementation. The interdisciplinary team must certify in writing that the waiver services authorized on the Individual Plan of Care form are necessary to avoid ICF-MR institutional placement and are appropriate to meet the applicant's needs in the community, as recommended. The initial individual plan of care must be based upon the community support analysis developed by the MRA according to sec.409.102 of this title (relating to Process for Applicant Referral to Contracted HCS Provider Agencies). (C) The initial Individual Plan of Care for Home and Community-based Services form must be approved by TDMHMR. The Individual Plan of Care form must be updated by the provider at least annually. Revisions and updates to the Individual Plan of Care form are subject to review and approval during annual on-site certification and other reviews conducted by TDMHMR. Any gaps in the coverage periods of the individual plans of care result in loss of payment to the provider. (c) The estimated annual cost of providing the services listed on the applicant's Individual Plan of Care for Home and Community-based Services form must not exceed 125% of the estimated annualized expenditure for ICF/MR services approved by the Health Care Financing Administration (HCFA) in the waiver formula calculations. (d) Enrollment into the HCS Program is limited to the number of individuals in specified target groups approved by (HCFA). (e) Any applicant or client who is denied Home and Community-based Services by TDMHMR is entitled to a fair hearing conducted by TDHS according to applicable TDHS rules. Requests for hearings should be submitted to TDMHMR, Office of Medicaid Administration. sec.409.102. Process for Applicant Referral to Contracted HCS Provider Agencies. (a) Beginning November 1, 1996, the local Mental Retardation Authority designated by the TDMHMR for the geographic area in which the applicant resides will receive all requests from applicants seeking enrollment into the HCS program. The MRA will: (1) register the applicant on the MRA's referral list as specified in (c) (1) of this section; (2) notify the first applicant on the referral list when a placement vacancy occurs in the MRA's local service area and begin the referral process by informing the applicant and/or the applicant's legal representative of his/her choice between participation in the ICF-MR Program or the HCS Program and documenting the applicant's or the representative's choice of services. If the applicant or representative chooses participation in the HCS Program, the MRA will develop, in accordance with departmental guidelines, a community support analysis for the applicant. For purposes of illustration, a model community support analysis will be distributed with copies of the rule. At minimum, the community support analysis will include the following: (A) a determination of the services and supports the individual requires to continue living in the community; (B) an evaluation of the individual's current services and supports, identifying those that would continue to be available if the individual enrolled in the HCS program; (C) identification of determinations needed to establish the applicant's eligibility for SSI or Medicaid benefits and for an ICF-MR Level of Care. If the applicant's financial eligibility for the HCS Program must be established, the MRA will initiate application processes necessary to obtain a financial eligibility determination. If necessary, the MRA will determine or validate a determination that the applicant has mental retardation in accordance with 25 TAC Chapter 405, Subchapter D. (3) Inform the applicant or the applicant's legal representative of all available HCS providers in the local service area and facilitate the applicant's enrollment in HCS. The MRA will: (A) assist the applicant or the applicant's legal representative in selecting potential HCS provider agencies within the local service area (B) with the consent of the applicant or the applicant's legal representative, distribute to potential HCS provider agencies as selected by the applicant or the applicant's legal representative the most current community support analysis; (C) arrange for preselection meetings/visits with potential providers as desired by the applicant or the applicant's legal representative; (D) assure that the applicant's or representative's choice of a specific HCS Provider Program is documented and that the original signed form is retained by the MRA in the individual's record and a copy of the original form is sent to the selected HCS Provider; and (E) provide a copy of the statement signed by the applicant or the applicant's legal representative indicating the choice to participate in the HCS Program according to paragraph (2) of this subsection to the selected provider and all available documentation necessary for the selected provider to complete an HCS enrollment request. (b) The provider will invite the involved MRA representative to the interdisciplinary team meeting which develops the initial individual plan of care. The provider will submit the enrollment request to TDMHMR and will provide a copy of the initial individual plan of care to the responsible MRA. TDMHMR will send notification of the applicant's approval or denial of HCS enrollment to the applicant, the provider, and the responsible MRA. (c) The MRA will maintain an up-to-date list of individuals living in and waiting for HCS services in the MRA's local service area. (1) The MRA will assign the individual's placement on the referral list, chronologically by date of application. (2) The MRA will notify HCS program providers in its local service area of the process providers should use to refer applicants who wish to be placed on the referral list. (3) The MRA may disregard an applicant on the referral list only when the following documentation exists: (A) written permission of the applicant or the applicant's legal representative to remove the applicant's name from the referral list, (B) that the applicant is deceased, (C) that the applicant moved out of the local service area; or (D) that TDMHMR has denied the applicant's enrollment and the applicant or the applicant's legal representative has had an opportunity to exercise the applicant's right to appeal the decision according to sec.409.101(e) of this title (relating to Client Eligibility Criteria). (4) At the written request of an applicant or the legal representative of an applicant who moves to the local service area of a different MRA, the original MRA will assist in transferring the applicant's name and current application date to the MRA having jurisdiction in the local service area where the applicant has moved. The MRA receiving the referral transfer will add the individual's name to its referral list maintaining the current application date assigned by the transferring MRA. 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 November 5, 1996. TRD-9616034 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: November 26, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 206-4516 25 TAC sec.409.102 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.409.102, relating to home and community-base services. The repeal accommodates the contemporaneous adoption of new sec.409.102 in this issue of the type-name="italic">Texas Register. The repeal of sec.409.102 is adopted as published in the July 23, 1996, edition of the Texas Register (21 TexReg 6870). The adopted repeal would enable the adoption of a new section to Chapter 409, Subchapter D. A public hearing was held on August 1, 1996, with no oral or written testimony given concerning the repeal. The repeal is adopted under the Health and Safety Code, sec.532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; and under the provisions of Texas Government Code, Chapter 531, sec.531.021, which provides the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. The section affects Texas Human Resources Code, sec.32.001- 322.040, and Texas Government Code, Chapter 531, sec.531.021. This agency hereby certifies that the repeal has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 5, 1996. TRD-9616035 Ann Utley Chairman, Texas MHMR Board Texas Department Mental Health and Mental Retardation Effective date: November 26, 1996 Proposal publication date: July 23, 1996 For further information, please call: (512) 206-4516 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART XIII. Texas Commission on Fire Protection CHAPTER 423.Fire Suppression SUBCHAPTER A.Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.423.1 The Texas Commission on Fire Protection adopts an amendment to sec.423.1, concerning minimum standards for basic structural fire protection personnel, without changes to the text published in the September 3, 1996, issue of the Texas Register (21 TexReg 8436). The justification for this section is that the new requirement will ensure that out-of-state applicants meet the same requirements for fire fighters trained in Texas. The amendment changes the requirements for IFSAC certificate holders from another jurisdiction who wish to challenge the commission examination for basic structural fire protection personnel to hold certification as Driver Operator in addition to Fire Fighter II. There were no comments received on the proposed amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel positions; and sec.419.032(d), which provides the commission with authority to adopt rules relating to presentation of evidence of equivalent training in another jurisdiction. 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 31, 1996. TRD-9616064 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 26, 1996 Proposal publication date: September 3, 1996 For further information, please call: (512) 918-7189 37 TAC sec.423.7 The Texas Commission on Fire Protection adopts the repeal of sec.423.7, concerning minimum standards for master structure fire protection personnel certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8569). The justification for this repeal is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section that replaces the repealed section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed repeal has an effective date of January 1, 1997. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616065 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection adopts new sec.423.7, concerning minimum standards for master structure fire protection personnel certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8569). The justification for this section is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed new section has an effective date of January 1, 1997. There were no comments received on the proposed new section. The new section is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616066 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 SUBCHAPTER B.Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.423.209 The Texas Commission on Fire Protection adopts the repeal of sec.423.209, concerning minimum standards for master aircraft rescue and fire protection personnel, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8570). The justification for this repeal is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section that replaces the repealed section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed repeal has an effective date of January 1, 1997. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616067 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection adopts new sec.423.209, concerning minimum standards for master aircraft rescue and fire protection personnel, with changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8570). The change to sec.423.209(a)(2) changes the word "hours" to "years" to correct a clerical mistake. The justification for this section is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed new section has an effective date of January 1, 1997. There were no comments received on the proposed new section. The new section is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. sec.423.209. Minimum Standards for Master Aircraft Rescue and Fire Protection Personnel Certification. (a) Applicants for Master Aircraft Rescue and Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Aircraft Rescue and Fire Protection Personnel Certification as defined in sec.423.207 of this title (relating to Minimum Standards for Advanced Aircraft Rescue and Fire Protection Personnel Certification); and (2) acquire a minimum of twelve years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Aircraft Rescue and Fire Protection Personnel Certification. 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 31, 1996. TRD-9616068 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 SUBCHAPTER C.Minimum Standards for Marine Fire Protection Personnel 37 TAC sec.423.309 The Texas Commission on Fire Protection adopts the repeal of sec.423.309, concerning minimum standards for master marine fire protection personnel certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8571). The justification for this repeal is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section that replaces the repealed section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed repeal has an effective date of January 1, 1997. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616069 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection adopts new sec.423.309, concerning minimum standards for master marine fire protection personnel certification, with changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8572). The change to sec.423.309(a)(2) changes the word "hours" to "years" to correct a clerical mistake. The justification for this section is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed new section has an effective date of January 1, 1997. There were no comments received on the proposed new section. The new section is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. sec.423.309. Minimum Standards for Master Marine Fire Protection Personnel Certification. (a) Applicants for Master Marine Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite an Advanced Marine Fire Protection Personnel Certification as defined in sec.423.307 of this title (relating to Minimum Standards for Advanced Marine Fire Protection Personnel Certification); and (2) acquire a minimum of twelve years of fire protection experience, and 60 college semester hours or an associate degree, which includes at least 18 college semester hours in fire science subjects. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Marine Fire Protection Personnel Certification. 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 31, 1996. TRD-9616070 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 CHAPTER 429.Minimum Standards for Fire Inspectors 37 TAC sec.429.9 The Texas Commission on Fire Protection adopts the repeal of sec.429.9, concerning minimum standards for master fire inspector certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8572). The justification for this repeal is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section that replaces the repealed section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed repeal has an effective date of January 1, 1997. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616071 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection adopts new sec.429.9, concerning minimum standards for master fire inspector certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8573). The justification for this section is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed new section has an effective date of January 1, 1997. There were no comments received on the proposed new section. The new section is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616072 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 CHAPTER 431.Minimum Standards for Fire and Arson Investigator 37 TAC sec.431.9 The Texas Commission on Fire Protection adopts the repeal of sec.431.9, concerning minimum standards for master fire and arson investigator certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8573). The justification for this repeal is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section that replaces the repealed section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed repeal has an effective date of January 1, 1997. There were no comments received on the proposed repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616073 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection adopts new sec.431.9, concerning minimum standards for master fire and arson investigator certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8574). The justification for this section is that the recognition of higher levels of certification with appropriate levels of training and experience and the alternative of an associate degree encourages fire protection personnel to pursue higher education and enables them to better serve and protect their communities. The new section increases the years of experience for the master level of certification from nine years to twelve. It also adds language to accept an associate degree as well as the current requirement of 60 college semester hours. In addition, the college semester hours in fire science subjects have been increased from fifteen hours to eighteen. The proposed new section has an effective date of January 1, 1997. There were no comments received on the proposed new section. The new section is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 31, 1996. TRD-9616074 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 CHAPTER 439.Examinations for Certification 37 TAC sec.sec.439.5, 439.7, 439.9, 439.11, 439.13, 439.15, 439.17 The Texas Commission on Fire Protection adopts the repeal of sec.sec.439.5, 439.7, 439.9, 439.11, 439.13, 439.15, and 439.17, concerning examinations for certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8575). The justification for these repeals is that the new program will promote uniform performance skills testing and training and ensures that 100% of the performance skills will be tested over time. The repealed language is being replaced by new language that deals with the same subject matter. The repeals have a proposed effective date of January 1, 1997. There were no comments received on the proposed repeals. The repeals are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.032(b), concerning basic certification examinations. 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 31, 1996. TRD-9616075 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 The Texas Commission on Fire Protection adopts new sec.sec.439.5, 439.7, 439.9, 439.11, 439.13, 439.15, and 439.17, concerning examinations for certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8575). The justification for these sections is that the new program will promote uniform performance skills testing and training and ensures that 100% of the performance skills will be tested over time. The changes to sec.439.5 concerning definitions clarify that tests may be written only, or include both a written portion and a performance skills portion. The change to sec.439.7 concerning procedures requires that a second attempt to pass the commission examination must be exercised within 180 days of the first failure or the examinee must requalify by repeating an approved curriculum applicable to the examination. The changes to sec.439.9 clarify prohibitions on communication of the contents of examinations to persons preparing to take the examination. Specifically, it prohibits any person, not just examinees, from disclosing examination contents. Changes to sec.439.11 concerning grading require the examinee to demonstrate performance skill objectives that are consistent with performance evaluation forms provided by the commission. The changes to sec.439.13 concerning performance skill evaluation require at least three performance skill objectives be evaluated by staff examiners or field examiners under the supervision of a staff examiner. It also requires performance skill objectives to consist of one skill relating to self- contained breathing apparatus and at least two other skills identified as critical skills in Section I of the Performance Evaluation Forms booklet. The changes provide for remedial training in the failed skill(s) after the initial retest before the final retest can be conducted. The changes also allow for at least seven performance skill objectives selected by the commission to be evaluated by an approved field examiner at a certified training facility. Finally, it allows the instructor of the particular subject to evaluate the performance skill, provided the instructor is an approved field examiner. Changes to sec.439.15 concerning testing for proof of proficiency rename the section, amend the continuing education exemption for the skills test to require twenty hours of continuing education for each year the person's certificate has been inactive, not just the last three years, require at least half of the continuing education hours be hands-on performance skills and clarifies in subsection (b)(3)(C) that "another jurisdiction" means "a state other than Texas or a military jurisdiction". Finally, sec.439.17 is renamed and amended to allow the continuing education exemption from the skills portion of the test for persons who have not been certified in a particular discipline only if it has been less than four years since an individual passed the performance skills portion of the examination for that discipline. It also requires that the continuing education be in subjects contained in the basic curriculum for the discipline. Finally, the section is also amended to delete reference to experience requirements for out-of-state or military applicants. The new sections have a proposed effective date of January 1, 1997. There were no comments received on the proposed new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.032(b), concerning basic certification examinations. 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 31, 1996. TRD-9616077 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 CHAPTER 473.Volunteer Fire Fighter 37 TAC sec.473.1 The Texas Commission on Fire Protection adopts an amendment to sec.473.1, concerning basic volunteer fire fighter certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8580). The justification for this section is that the new requirement will ensure that out-of-state applicants meet the same requirements for fire fighters trained in Texas. The amendment adds new language to allow IFSAC certificate holders from another jurisdiction who wish to challenge the commission examination for volunteer basic structural fire protection personnel if the person holds certification as Driver Operator in addition to Fire Fighter II. There were no comments received on the proposed amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. 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 31, 1996. TRD-9616078 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 37 TAC sec.sec.473.3, 473.5, 473.7 The Texas Commission on Fire Protection adopts amendments to sec.sec.473.3, 473.5, 473.7, concerning minimum standards for intermediate, advanced, and master volunteer fire fighter certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8580). The justification for these amendments is that recognition of higher levels of certification with appropriate levels of training and experience will enable those persons holding such certifications to better serve local communities. The amendments also conform these rules to training and experience requirements for paid fire protection personnel. The changes increase the years of experience for intermediate, advanced and master levels of certification from three, six, and nine years to four, eight, and twelve years, respectively. In addition, the National Fire Academy course requirements for intermediate and advanced levels are increased from 80 hours to 96 for Option #2, and from 40 hours to 48 hours for Option #3 to more closely align the classroom hours of NFA courses with college courses. The amendments will have a January 1, 1997, effective date. There were no comments received on the proposed amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. 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 31, 1996. TRD-9616079 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 CHAPTER 476.Volunteer Fire Investigator 37 TAC sec.sec.476.5, 476.7, 476.9 The Texas Commission on Fire Protection adopts amendments to sec.sec.476.5, 476.7, 476.9, concerning standards for intermediate, advanced, and master volunteer fire investigator certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8582). The justification for these amendments is that recognition of higher levels of certification with appropriate levels of training and experience will enable those persons holding such certifications to better serve local communities. The amendments also conform these rules to training and experience requirements for paid fire protection personnel. The changes increase the years of experience for intermediate, advanced and master levels of certification from three, six, and nine years to four, eight, and twelve years, respectively. In addition, the National Fire Academy course requirements for intermediate and advanced levels are increased from 80 hours to 96 for Option #2, and from 40 hours to 48 hours for Option #3 to more closely align the classroom hours of NFA courses with college courses. The amendments will have a January 1, 1997, effective date. There were no comments received on the proposed amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. 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 31, 1996. TRD-9616080 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189 CHAPTER 478.Volunteer Fire Inspector 37 TAC sec.sec.478.5, 478.7, 478.9 The Texas Commission on Fire Protection adopts amendments to sec.sec.478.5, 478.7, 478.9, concerning standards for intermediate, advanced, and master volunteer fire inspector certification, without changes to the text published in the September 6, 1996, issue of the Texas Register (21 TexReg 8583). The justification for these amendments is that recognition of higher levels of certification with appropriate levels of training and experience will enable those persons holding such certifications to better serve local communities. The amendments also conform these rules to training and experience requirements for paid fire protection personnel. The changes increase the years of experience for intermediate, advanced and master levels of certification from three, six, and nine years to four, eight, and twelve years, respectively. In addition, the National Fire Academy course requirements for intermediate and advanced levels are increased from 80 hours to 96 for Option #2, and from 40 hours to 48 hours for Option #3 to more closely align the classroom hours of NFA courses with college courses. The amendments will have a January 1, 1997, effective date. There were no comments received on the proposed amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.071, which provides the commission with authority to establish voluntary certification standards for volunteer fire fighters. 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 31, 1996. TRD-9616076 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1997 Proposal publication date: September 6, 1996 For further information, please call: (512) 918-7189