ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART V. General Services Commission CHAPTER 125.Travel and Transportation Division Travel Management Services 1 TAC sec.sec.125.1, 125.3, 125.7, 125.9, 125.13, 125.15, 125.17, 125.19, 125.23, 125.25, 125.27 The General Services Commission adopts amendments to 1 TAC sec.sec.125.1, 125.3, 125.7, 125.9, 125.13, 125.15, 125.17, 125.19, 125.23, 125.25 and 125.27, concerning the State Travel Management Program, without changes to the proposed text as published in the November 19, 1996, issue of the Texas Register (21 TexReg 11220). The amendments are being adopted to delete obsolete language, update definitions, and change statutory citations to conform with the recodification under the Texas Government Code. The adopted amendments will clarify language regarding personal charge card use, group/meeting planning services, and the information required on travel agency applications. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, Title 10, Subtitle D, Chapter 2171 which provides the General Services Commission with authority to promulgate rules consistent with the Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700128 Judy Ponder General Counsel General Services Commission Effective date: January 7, 1997 Proposal publication date: November 19, 1996 For further information, please call: (512) 463-3960 TITLE 16. ECONOMIC REGULATION PART IV. Texas Department of Licensing and Regulation CHAPTER 75. Air Conditioning and Refrigeration Contractor License Law 16 TAC sec.sec.75.10, 75.20-75.23, 75.25, 75.30, 75.40, 75.60, 75.65, 75.70, 75.80, and 75.100 The Texas Department of Licensing and Regulation adopts amendments sec.sec.75.10, 75.20-75.23, 75.25, 75.30, 75.40, 75.60, 75.65, 75.70, 75.80, and 75.100, concerning licensing for air conditioning and refrigeration contractors. Sections 75.10, 75.20, 75.21, 75.25, 75.65, and 75.70 are adopted with changes to the proposed text as published in the September 3, 1996, issue of the Texas Register. Sections 75.22, 75.23, 75.30, 75.40, 75.60, 75.80, and 75.100 are adopted without changes and will not be republished. The changes in sec.75.10 redefine assumed name to match the definition in the Business and Commerce Code, show the revised location of the Texas Boiler Law in the Health and Safety Code, clarify the definition of a Permanent Office, and add definitions of "contracting" and of "proper installation". The changes in sec.75.20 make the language clearer and conform to changes in other statutes. The changes in sec.75.21 make the language clearer, changes the period that an exam grade provides eligibility for licensing from two years to six months, and changes the period within which a rescheduled or canceled exam must be taken from two years to one year. The changes in sec.75.22 make it unlawful to advertise or use a license number not assigned to the person or organization and delete grandfathering language made unnecessary by the passage of time. The changes in sec.75.23 clarify the language in rules on temporary licenses, and the change in sec.75.25 corrects wording and changes eligibility to reissue an expired license from two years to six months. Section 75.30 is changed by adding subsection (c) exempting certain persons holding appropriate certifications from work under the jurisdiction of the Texas Boiler Law and by clarifying language pertaining to exemption for property owners. The changes in sec.75.40 simplify the language and specify listing and acceptability of exclusions from coverage. The change in sec.75.60 makes language on reference books more understandable and the change in sec.75.65 changes the title of the person who transmits recommendations from the Advisory Board to the Commissioner. The changes in sec.75.70 clarify meanings and language and add subsections that explain responsibilities of subcontractors, the responsibility of a license holder to report to each municipality in which work will be performed, the responsibilities of license holders who are not owners or officers of companies, a requirement that the Department name, address and phone number be shown on every proposal and invoice given to consumers, and a requirement that license holders identify themselves by use of their identification card when requested by consumers or any governmental employee. The changes in sec.75.80 substitute the term "application" for the term "registration". The changes in sec.75.100 make the language in technical sections on boilers and duct cleaning more understandable. The justification for the added definitions is that municipalities, contractors, and employees and subcontractors will have a clearer understanding of the responsibilities and requirements of licensed contractors. The justification for the amendment to the period of eligibility for a license after passing an exam is that rapidly changing technology makes it less likely that an applicant will still be minimally qualified to have a contractors license two years after passing an exam, and the justification for requiring that those canceling or rescheduling exams take the exam within a year is that the Department has too long a period of liability for extra services under the present time frame. The justification for decreasing the time an expired license may be reissued is that the Department will be able to find those who are continuing to work illegally more quickly. The justification for making it clear that unauthorized use of a license not assigned to a person is that the Department needs a better tool to protect licensed contractors and the public from those who fraudulently claim to be licensed. The justification for the added exemption for companies holding certification for boiler work is that requirements under the Texas Boiler Law are stringent enough that cross-licensing is not considered necessary if work is performed solely on equipment within Texas Boiler Law jurisdiction. The justification for requiring a list of exclusions from insurance coverage and disallowing certain exclusions is that this will give better protection to the consumer. The justification for the changes and additions in requirements of the contractor is that these changes will make it easier for contractors, municipalities, and the consumer to understand who is responsible for work performed. The justification for all other changes proposed is to make them more readable and easier to understand. The amendments will function by increasing program integrity. One comment opposing the change in the definition of "Permanent Office" in sec.75.10 was received from a large corporation that is a general contractor as well as an air conditioning and heating contractor. The change as published, in conjunction with published changes in sec.75.70, subsections (e) and (f), would pose undue expenses for such corporations and other such companies. The Department has amended the language proposed in the definition of "Permanent Office" and withdrawn the proposed changes in 75.70, subsections (e) and (f) so that such corporations and companies are not penalized while other contractors' requirements are left intact. The Department learned after publication of the proposed rule sec.75.20 that changes in other statutes made the language obsolete, and the adopted rule section reflects current law. The Department received four comments opposing changes to sec.75.21 and sec.75.25 on the grounds that 90 days was too short a period to allow for obtaining a license after passing an examination and for renewing an expired license without retaking an examination and suggested changing the time period to one year or a more reasonable length of time. The Department, with a recommendation from the Air Conditioning and Refrigeration Contractors Advisory Board, is changing the proposed 90 day time period to six months. The Department received one comment on sec.75.70, subsections (d) and (i) which relate to the proposed change in the definition of "Permanent Office". The Department believes that the changed language in the definition also answers the opposition to the published proposed changes in these two subparagraphs. The Department received one comment in opposition to the proposed new subsection (o), now numbered (n), in sec.75.50. The opposition was based on undue expense to large companies operating as both a general contractor and an air conditioning and refrigeration contractor to show the name, address, and phone number of the Department on all proposals and invoices, since this would require the use of separate forms for services requiring a license under the Act. The Department is adding another way to comply for such companies. The amendments are adopted under Texas Civil Statutes, Article 8861 which authorizes the department to license and regulate air conditioning and refrigeration contractors. The Article that is affected by the amendment is Article 8861 as follows. Rule 75.10-Article 8861, Section 2 Rule 75.20-Article 8861, Section 4 Rule 75.21-Article 8861, Section 4 Rule 75.22-Article 8861, Section 4 Rule 75.23-Article 8861, Section 4D Rule 75.25-Article 8861, Section 4 Rule 75.30-Article 8861, Section 6 Rule 75.40-Article 8861, Section 3 Rule 75.60-Article 8861, Section 3 Rule 75.65-Article 8861, Section 3A Rule 75.70-Article 8861, Section 3 Rule 75.80-Article 9100, Section 12 Rule 75.100-Article 8861, Section 3 sec.75.10. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Assumed name-As defined in the Business and Commerce Code, Title 4, Chapter 36, Subchapter A, sec.6.02. Boiler- As defined in the Health and Safety Code, Title 9, Subtitle A, Chapter 755.Boilers. Contracting - Agreeing to perform work, either verbally or in writing, either personally or by having an employee or subcontractor perform the work. Permanent office - Any office, branch office, or location which is authorized to enter into contractual obligations to perform air conditioning and/or refrigeration contracting work and/or has control or supervisory responsibility over these contracts. A temporary construction site or field office from which a job is being supervised is exempt. A location at which employees of a licensed contractor work under contract to provide service, maintenance and repair work for a large facility is exempt. Proper installation - installing equipment in accordance with: (A) municipal ordinances, including pulling all required permits, complying with all codes adopted by a municipality; (B) current Uniform Mechanical Codes or Standard Mechanical and Standard Gas Codes in areas where no code has been adopted; (C) manufacturer's instructions; and (D) requirements for safety and the proper performance of the function for which it was designed. sec.75.20. Licensing Requirements - Applications. (a) An applicant who wishes to use credit for air conditioning and refrigeration courses to fulfill up to two years of the required 36 months of experience with the tools of the trade must furnish transcripts showing: (1) a degree in air conditioning engineering, refrigeration engineering, or mechanical engineering; (2) a certificate or diploma in a course emphasizing hands-on training with the tools of the trade; or (3) courses taken without earning a certificate or diploma emphasizing hands-on training with the tools of the trade. These transcripts must be from schools authorized or approved by the Texas Workforce Commission, the U.S. Department of Education, the Coordinating Board of the Texas College & University System, or other organizations recognized by the Department. Credit will be allowed at the rate of one month's credit for each two months of successfully completed training. Thirty semester hours per year is equivalent to six months credit for experience. (b) (No change.) (c) The application and examination fees must accompany the application. The application must be complete and meet all requirements and must be postmarked not less than 45 days prior to the examination date. Those received later will be scheduled for the next quarterly examination period. sec.75.21. Licensing Requirements - Examinations. (a) A passing grade on all exams shall be 70%. Eligibility for a license shall last not more than six months from the date of examination result notification. (b) An applicant who does not make a passing grade shall be eligible for re- examination without reapplying for no more than two years after the date of the exam, provided the applicant requests reexamination in writing and pays the reexamination fee. The notice and fees must be received by the department not less than 45 days prior to the date of the reexamination. (c) The department shall notify the applicant of the time and place the applicant is scheduled for examination(s) at least three weeks before the examination. Applicants who are scheduled for an examination but do not appear, and do not request rescheduling must reapply and pay the application and examination fees. (d) An applicant who wishes to be rescheduled must send a rescheduling fee and a written request to reschedule, postmarked no later than five days before the examination. An applicant may reschedule each exam only two times without paying the registration and exam fees. (e) An applicant may cancel an examination one time for an unforeseen emergency without paying reschedule, application, or exam fees without using a reschedule. The circumstances are subject to approval by the department. The reason for emergency cancellation must be submitted in writing no later than ten working days after the exam for which the applicant was scheduled. (f) Rescheduled and canceled exams must be used within one year after the date of the rescheduled or canceled exam. (g) An analysis of performance on an exam will consist of a statement of the number of questions missed, the general subject of questions missed, and may include references in each category. No actual questions will be sent to the applicant. (h)-(j) (No change) sec.75.25. Licensing Requirements - Reissuance. (a) A license that has expired for a period of less than six months may be reissued upon submission of: (1)-(4) (No change.) (b) A license that has expired for a period of more than six months may not be reissued. The former license holder may obtain a new license in the same manner as a new applicant, including taking the applicable exam and payment of all required fees. (c) If an applicant has violated the Act or rules, the department may deny the reissuance of the license in accordance with the Act, sec.5. sec.75.65. Advisory Boards. (a) (No change.) (b) Recommendations of the Board will be transmitted to the commissioner through the general counsel. (c)-(g) (No change.) sec.75.70. Responsibilities of the Licensee. (a) The license holder shall choose the business affiliation that will use the license holder's license. The license can be used by only one business affiliation at one permanent office at a time. The license holder shall furnish the department with his or her permanent mailing address and the name, address, and phone number of the business affiliation. A physical address is required. If the business affiliation uses an assumed name(s), the name(s) must be legally registered as being owned by the business affiliation. The company name and assumed name(s) must be shown on the license and on the certificate of insurance. (b) If the license holder for the business, whether the owner or an employee, also works as an employee for another air conditioning or refrigeration contracting company, the license holder must work under the license of that other company. (c) (No change.) (d) A licensed contractor who works as a subcontractor for another air conditioning and refrigeration company must work under the license of the other air conditioning and refrigeration business. The work must be scheduled and billed by the other air conditioning and refrigeration company, and the license holder working as a subcontractor must be paid by the other company. The licensed contractor who is acting as contractor, not subcontractor, is responsible for all subcontracted work. (e) Each air conditioning and refrigeration company shall have a license holder employed full time in each permanent office operated in Texas. All work requiring a license under the Act shall be under the direct personal supervision of the license holder for that office. The license holder's license number shall appear in all proposals and invoices for that office. (f) Each license holder must register his/her license with the municipality in which work is to be performed in the manner prescribed by the municipality, including appearing in person if required by the municipality. (g) If a license holder is employed by a company as the license holder for the company or a permanent office of that company, the license holder is responsible for work done under his supervision. If the owners, officers, or managers of the company do not allow authority to supervise, train, or otherwise control compliance with the Act, the license holder is still responsible under the Act. (h) If an air conditioning and refrigeration company uses locations other than a permanent office, these locations shall only be used to receive instructions from the permanent office on scheduling of work, to store parts and supplies, and to park vehicles. These locations may not receive calls from customers or schedule work. The air conditioning and refrigeration company shall provide address(es) of these other locations to the department no later than 30 days after the locations are established. (i) A license holder may not permit any person or company to use his or her license for any purpose unless the person is a bona fide employee or subcontractor in accordance with subsections (b) and (c) of this section. (j) Each license shall be displayed at the contractor's place of business as listed with the department. (k) Each licensed contractor shall display the license number and company name in letters not less than two inches high on both sides of all vehicles used in conjunction with air conditioning and refrigeration contracting. Job sites not identified by a marked vehicle shall be identified by a posted sign visible and readable from the nearest public street, containing the Texas air conditioning and refrigeration license number and company name. (l) All advertising by contractors licensed under the Act designed to solicit business shall include the contractor's license number. Advertising which requires the license number shall include: (1) printed material; (2) television ads, except that in nationally placed television advertising, a statement indicating that license numbers are available upon request may be used in lieu of the contractor's license number; (3) newspaper ads; (4) yellow page ads, except that yellow page listings that contain only the name, address, and telephone number are not required to contain the license number; (5) business cards; (6) billboards; (7) telephone solicitations, except that the statement that the company is licensed by the state may be substituted unless the consumer requests the number; and (8) proposals, quotations, and invoices. (m) Items intended to attract business, other than promotional items of nominal value such as ball caps, tee shirts, and other gifts, must include the license number. Letterheads and printed forms for office use are not required to have the license number included. Signs located outside the contractor's permanent business location are not required to have the license number displayed. (n) A license holder must have the following information on all proposals and invoices given to consumers: Regulated by The Texas Department of Licensing and Regulation, P. O. Box 12157, Austin, Texas 78711, 1-800-803-9202, 512-463-6599 A licensed contractor that also acts as a general contractor may provide a one- time notice stating the information above to customers for whom they provide services requiring a license under the Act. (o) A license holder is required to notify the department in writing within 30 days of any change in permanent mailing address, business affiliation, change of business location, or business telephone number. A license revision is required for any change to information printed on the license. The permanent address shall be considered the license holder's permanent mailing address. All correspondence will be mailed to that address. (p) A license holder wishing to revise a license shall: (1) make the request in writing; (2) return the current original license; (3) pay the appropriate fee required in sec.75.80 of this title (relating to Fees); and (4) provide a revised insurance certificate if the business affiliation name or address has changed. (q) A license holder must identify him or herself by showing the identification card issued by the Department when requested by a consumer or any local, state, or federal employee. 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 December 20, 1996. TRD-9618536 Tommy V. Smith Executive Director Texas Department of Licensing and Regulation Effective date: January 10, 1997 Proposal publication date: September 3, 1996 For further information, please call: (512) 463-7348 TITLE 22. EXAMINING BOARDS PART XXV. Structural Pest Control Board CHAPTER 599. Treatment Standards 22 TAC sec.599.7 The Texas Structural Pest Control Board adopts an amendment to sec.599.7, concerning Posting Notice of Inspection, with changes to the proposed text as published in the July 19, 1996, issue of the Texas Register (21 TexReg 6764). The justification for the rule establishes the criteria for when and how notices of wood destroying insect inspections are to be posted. The rule will function in that the amendment will require a notice of inspection sticker any time the Texas Official Wood Destroying Insect Report is completed in conjunction with the inspection. No comments were received regarding adoption of the amendment. There were no groups or associations making comments for or against this rule. The Amendment is adopted under Article 135b-6, which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. sec.599.7. Posting Notice of Inspection. (a) Upon completion of an inspection for the purposes of completing the SPCB/T-2 Form, the inspector shall post a durable sign adjacent to the hot water heater or electric breaker box or beneath the kitchen sink giving the name and address of the licensee, the date of the inspection or treatment, and a statement that the notice should not be removed. (b) It will be a violation of this section for any licensee of the Board to remove or deface a posted inspection notice. 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 January 2, 1997. TRD-9700017 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: January 23, 1997 Proposal publication date: July 19, 1996 For further information, please call: (512) 451-7200 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid Certification SUBCHAPTER Y.Medical Review and Re-evaluation 40 TAC sec.19.2409 The Texas Department of Human Services (DHS) adopts an amendment to sec.19.2409 without changes to the proposed text published in the November 8, 1996, issue of the Texas Register (21 TexReg 10978). Justification for the amendment is to target individuals who may be at risk for institutionalization, ensuring proper allocation of resources to the neediest individuals. The amendment will function by ensuring proper allocation of resources to the neediest individuals by incorporating the nursing facility risk criteria specified in the Resident Assessment Instrument Home Care Assessment. The risk criteria include prior nursing facility placement, functional deficits in the activities of daily living, certain neurological diagnoses, urinary incontinence, recent falls, and significant functional decline. DHS is adopting similar policy changes in Chapters 15 and 48 of this title. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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 January 2, 1997. TRD-9700012 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 18, 1996 For further information, please call: (512) 438-3765 CHAPTER 48.Community Care for Aged and Disabled 1915(c) Medicaid Home and Community-based Waiver Services for Aged and Disable Adults Who Meet Criteria for Alternatives to Nursing Facility Care 40 TAC sec.48.6003 The Texas Department of Human Services (DHS) adopts an amendment to sec.48.6003 with changes to the proposed text published in the November 8, 1996, issue of the Texas Register (21 TexReg 10979). Justification of the amendment is to target individuals who may be at risk for institutionalization, ensuring proper allocation of resources to the neediest individuals. The amendment will function by ensuring proper allocation of resources to the neediest individuals by incorporating the nursing facility risk criteria specified in the Resident Assessment Instrument Home Care Assessment. The risk criteria include prior nursing facility placement, functional deficits in the activities of daily living, certain neurological diagnoses, urinary incontinence, recent falls, and significant functional decline. DHS is adopting similar policy changes in Chapters 15 and 19 of this title. The department received no comments regarding adoption of the amendments. However, in sec.48.6003(e) subsection (a)(9) was corrected to read subsection (a)(10). The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.48.6003.Client Eligibility Criteria. (a) To be determined eligible by the Texas Department of Human Services (DHS) for the 1915(c) Medicaid waiver program provided as an alternative to care in a nursing facility, an applicant must: (1)-(9) (No change.) (10) meet two or more of the criteria for nursing home risk, as specified in the Resident Assessment Instrument-Home Care Assessment for Nursing Home Risk as revised in April 1996 and summarized as follows: (A) needs assistance with one or more of the activities of dressing, personal hygiene, eating, toilet use, or bathing; (B) has a functional decline in the past 90 days; (C) has a history of a fall two or more times in past 180 days; (D) has a neurological diagnosis of Alzheimer's, Head Trauma, Multiple Sclerosis, Parkinsonism, or Dementia; (E) has a history of nursing facility placement within the last five years; (F) has multiple episodes of urine incontinence daily; and (G) goes out of one's residence one or fewer days a week. (b)-(c) (No change.) (d) The nursing facility risk criteria will be applied at the time of the first annual re- assessment for current Community Based Alternatives Program participants and at the time of initial enrollment for all new applicants. (e) Individuals transferring from a nursing facility or the Medically Dependent Children's Program are exempt from subsection (a)(10) of this section. 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 January 2, 1997. TRD-9700011 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 1, 1997 Proposal publication date: November 18, 1996 For further information, please call: (512) 438-3765 PART IV. Texas Commission for the Blind CHAPTER 159.Administrative Rules and Procedures The Texas Commission for the Blind adopts the repeal of sec.159.12 of Chapter 159 and concurrently adopts new sec.159.12, concerning charges for copies of public information, without changes to the proposed text published in the November 29, 1996, issue of the Texas Register (21 TexReg 11579). The new section will serve as the Commission's rules for responding to requests for public information and conform to updated rates adopted by the General Services Commission pursuant to House Bill 1718, 74th Legislature, Regular Session (1995) with respect to the charges for public information and procedures for filing complaints regarding overcharges or overpayment. The Commission received no comments regarding the proposed repeal and new section. Procedures of the Commission 40 TAC sec.159.12 The repeal is adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700042 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 The new section is adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700363 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 CHAPTER 164.Independent Living Program The Texas Commission for the Blind adopts new chapter 164, sec.sec.164.1-164.4, 164.10-164.15, 164.25, 164.26, 164.30-164.32, 164.40-164.46, and 164.55, concerning its Independent Living Program, without changes to the proposed text published in the November 29, 1996, issue of the Texas Register (21 TexReg 11579-11584). The chapter will serve as the Commission's rules for administering a program that provides independent living services to eligible persons who are blind or severely visually impaired. Sections 164.1-164.4 explain the purpose of the program, define terms used in the delivery of services; and set forth the procedures by which persons may appeal decisions made during the agency's administration of the program. Sections 164.10-164.15 describe application procedures, criteria used in determining eligibility and ineligibility, circumstances under which cases are closed, and plans of services. Sections 164.25-164.26 set forth the conditions under which the Commission purchases goods and services for eligible persons and reimburses transportation expenses. Sections 164.30-164.32 provide for an order of selection that may be used in times of limited funding. The order places first priority, when funds are inadequate to serve all eligible individuals, on persons in targeted service areas who are not presently receiving vocational rehabilitation services because of the severity of their disabilities. Sections 164.40-164.46 establish consumer participation in certain service costs and set forth the procedures for determining the amount of required participation. Section 164.55 specifies that the Commission sets a maximum on the amount it pays for certain services. The agency received no comments regarding the proposed new sections. SUBCHAPTER A.General Information 40 TAC sec.sec.164.1-164.4 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700048 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 SUBCHAPTER B. Basic Program Requirements 40 TAC sec.sec.164.10-164.15 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700047 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 SUBCHAPTER C. Independent Living Services 40 TAC sec.164.25, sec.164.26 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700051 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 SUBCHAPTER D. Order of Selection for Independent Living Services 40 TAC sec.sec.164.30-164.32 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700046 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 SUBCHAPTER E. Consumer Participation in Cost of Services 40 TAC sec.sec.164.40-164.46 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700045 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 SUBCHAPTER F. Maximum Affordable Payment 40 TAC sec.164.55 The new section is adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700050 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 CHAPTER 172.Advisory Committees and Councils 40 TAC sec.172.2, sec.172.3 The Texas Commission for the Blind adopts amendments to sec.172.2, concerning mandated advisory committees and sec.172.3, concerning committees and councils established by the agency's board, without changes to the proposed text published in the November 29, 1996, issue of the Texas Register (21 TexReg 11585). The amendments are adopted to amend the composition of the Consumer Advisory Committee and to create Regional Advisory Committees to assure that the Commission considers the views of a wider group of consumers in policy formulation and program innovation. The Commission received no comments regarding the proposed amendments. The amendments are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 2, 1997. TRD-9700049 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: January 23, 1997 Proposal publication date: November 29, 1996 For further information, please call: (512) 459-2611 PART IX. Texas Department on Aging CHAPTER 260. Area Agency on Aging Administrative Requirements 40 TAC sec.260.1, sec.260.2 The Texas Department on Aging adopts amendments sec.260.1 and sec.260.2, concerning the administrative and fiscal responsibilities of area agencies on aging. Section 260.1 is adopted without changes to the proposed text as published in the July 26, 1996, issue of the Texas Register (21 TexReg 7027) and will not be republished. Section 260.2 is adopted with non-substantive changes to the proposed text as published in the September 17, 1996, issue of the Texas Register (21 TexReg 8920). The amendments were adopted in order to allow the department to establish guidelines relating to the administrative and fiscal responsibilities of area agencies on aging when contracting for services and goods to be purchased for participants in Older Americans Act Programs. The amended sections provide new procedures and policies for contractors/area agencies to better document and demonstrate accountability and compliance for the administration and management of Older Americans Act programs in the State of Texas and implement reimbursement methodologies which will enhance contract management and the level of services which may be delivered. Non-substantive changes to sec.260.2 were made throughout the rule to clarify language and terminology and in response to comments received from the Office of the Attorney General, the Area Agency on Aging of East Texas, Houston/Harris County Area Agency on Aging, department staff and the Texas Board on Aging. No comments were received regarding the adoption of sec.260.1. A summary of the comments relating to sec.260.2, the department's responses, and the location of the changes are as follows: Comment: A recommendation was received to delete the words "service provider" wherever they appear after the word "subcontractor" to improve clarity and provide consistency throughout the rule. Agency Response: The Department concurs and has made the appropriate changes under subsections (a)(1)(C), (b)(4) and (f)(2)(B)(i)(I)&(II). Comment: One commentor asked if subsection (a)(2)(C), relating to purchases should require compliance with criteria in subparagraph (A) as well as with subparagraph (B). Agency Response: The Department agrees and has modified the text to reflect compliance with subparagraph (A). Comment: Comments were received suggesting that new subparagraphs be added after subparagraph (3)(D) of subsection (a) to establish guidelines for the recapture of payments for disallowed costs or for funds received in excess of those actually earned and for the procedures for area agency contractor to appeal a disallowance issued by the Department. Agency Response: The Department has reviewed and accepts the recommendation and has added new subparagraphs (E), (F) and (G) in subsection (a) relating to the recapture of payments and the appeal procedures for area agency on aging contractors. Comment: One commenter expressed concern that this rule imposes a 30-day deadline to issue a letter of disallowance and unnecessarily places time limits on the Department. Agency Response: The Department agrees and has modified the text of subsection (a)(3)(D) to allow 60 days for the Department to issue a notification of disallowance. Comment: One commenter expressed concern that the language in subsection (b)(4) of this rule is conflicting regarding the rule's applicability to "for-profit" service providers. Agency Response: The Department concurs and has modified the text to improve the clarity. Comment: One commenter suggested that subsection (b)(5) seems to be repetitive of subsection (a)(3)(D). Agency Response: The Department does not concur but has modified the text to allow 60 calendar days following the failure to resolve of all questioned costs for the Department to issue a Letter of Notification of Disallowance with Intent to Recover Costs. Comment: In subsection (b)(6), a commenter suggested the need for clarification on whether this rule applies to the failure of the Area Agency Contractor or the failure of the Subcontractor to provide an acceptable independent audit. In addition, reference in the rule to "receipt of an audit subsequent to that limitation," the commenter suggested that a more appropriate term would be "expiration of the time frame," "the deadline," or some other more specific word. Agency Response: The Department has modified the text for improved clarification and to correctly reference paragraph (5) of this subsection, relating to the recovery of questioned costs. Comment: One commenter asked what is the definition of "reasonably prudent judgement?" in subsection (c) and suggested that a more universally accepted term is either "acting in good faith" or "a good faith effort." Agency Response: The term "reasonable prudent judgement" is used in the federal assurance and would already generally be interpreted to mean "a good faith effort." However, the text has been modified to read as " ...knowlingly deal with any person. . ." for improved understanding. Comment: Comments were received recommending that the words "area agency" be added before the word "contractor" throughout the rule for improved clarity and consistency. Agency Response: The Department concurs and has amended the text accordingly in rule to specify that the term "contractor" is referring to the area agency's contractor in subsections (a)(B)(C), (b)(1) , (c)(1)(2) (3), (d)(3)(B)and (e)(1)(A)(B). Comment: One commenter noted that in (c)(1) the cite to 48 CFR Part 942 concerns contract rules of the Department of Energy. Agency Response: The Department concurs and has modified the text to correctly cite 45 CFR, Part 1229, concerning Government wide Debarment and Suspension (Non-procurement) and Government wide Requirements for Drug-Free Workplace (Grants). Comment: A commenter asked for clarification regarding when a contractor is required to submit its Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts and Grants. In addition, the commenter wanted to know if there would be consequences for failure to submit a timely certification. Agency Response: The Department concurs and has modified the text of subsection (c)(3) to allow any Certification to be submitted as part of the area plan amendment. Comment: Another commentor questioned regarding the debarment statement in subsection (c)(3), if contractors will be provided a list/roster of debarred entities, persons, etc and will they have to read the Federal Register to ascertain this information? Agency Response: The contractor has no obligation to review lists or the Federal Register. The Contractor's obligation is to obtain the certification. No further action is necessary unless the contractor has knowledge that would create doubt as to its validity. No change to the text is necessary. Comment: One commenter asked for more definite guidelines for an amendment based on the funding level for a service. The same commenter expressed concern about whether it is feasible to do a budget amendment on a contract of $5,000 or less. Agency Response: The Department concurs that it is reasonable to allow some threshold for requiring a budget amendment. The text has been modified in subsection (d)(2)(A) and a new subparagraph (d)(2)(D) has been added to allow for an amended budget to be submitted when contracting for a previously unbudgeted and unapproved service if the amount of funds provided through the Department for the contract is greater than $5,000 or when contracting for multiple, previously unbudgeted and unapproved services the contracts exceed $15,000 in the aggregate. Comment: The same commenter noted that if the requirement for an amended budget in subsection (d)(2)(A) relative to "contracting for a previously unbudgeted and unapproved service," that this circumstance may create a further delay in the required Area Agency on Aging contracting process in order to expedite the expenditure of funds. Will the Department be able to timely review and approve budget amendments from all Area Agencies on an "as needed" basis? When amendments are submitted to TDoA, contractors should have some assurance from TDoA that a review and approval of the amendment will be within at least ten working days. Agency Response: In the event that a budget amendment is required because of a change in scope, the Department will work diligently to complete the approval process in an expeditious manner. Under normal circumstances this should be within ten working days. There is no applicable change to the text as published. Comment: In addition, the same commenter asked for clarification regarding the submission requirements for a budget amendment in subparagraphs (A)&(B) of subsection (d)(3). Agency Response: In the event that a budget amendment is required because of a discontinuance of a services or a change in scope, the Department will work diligently to complete the approval process in an expeditious manner. Under normal circumstances this should be within ten working days. There is no applicable change to the text as published relative to this comment. Comment: A suggestion to add the word "fiscal" to subsection (e)(1)(A)and (B) was received to clarify what type of reports and submissions the rule is referring to. Agency Response: The Department concurs and has modified the text accordingly. Comment: A commenter suggested that in certain instances, such as when a subcontractor is providing one of those services and another related service for which cost reimbursement is the most satisfactory choice or when there may be a situation with one provider which would demand special oversight, or a pilot program involving coordination of multiple funding sources, there should be an option to provide the service cost reimbursement with justification and with controls and comparability to the approved unit rates. Agency Response: The Department concurs and has modified the text in subsection (f)(2)(B) to indicate that the procurement methodologies are for all services not covered under subsection (f)(2)(A), relating to specified rates. Comment: A commenter recommended that the text be modified to correct a mistake in wording in subsection (f)(2)(B)(i) to read as "The subcontractor agrees to deliver . . ." Agency Response: The Department concurs and has modified the text accordingly. Comment: A commenter suggested that language in subsection (g)(2) should be clarified to indicate that it is the area agency contractor who shall not make a deduction to the amount paid to the subcontractor. Agency Response: The Department concurs and has modified the text for clarification. Comment: Comments were received recommending that the new proposed paragraph (6) under subsection (h) be made a section by itself with some additional modifications to the text. Agency Response: The Department concurs and paragraph (6) under the previous subsection (h) is now subsection (i). The text has been modified to correct numbering, references to other subsections, and to replace references to FY1991 with the term "base year." The amended sections are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department. The Human Resources Code, Chapter 101, relating to the operation of the Texas Department on Aging, is affected by this adopted action. sec.260.1. Area Agency on Aging Administrative Responsibilities. (a) Background. The area agency on aging contractor shall develop and maintain an organized and efficient administrative system which can document and demonstrate accountability and compliance. (b) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Definitions relating to targeted populations are as outlined in the Older Americans Act, as amended, and the Americans with Disabilities Act of 1990, as amended, or as defined below. (1) Access--All methods used to make information and assistance available to potential inquirers and accessible to specialized populations. (2) Accessible--Without physical, cultural, language, geographical, financial, or psychological barriers. (3) Activities of Daily Living (ADLs)--Tasks that are essential to independent living such as bathing, dressing/undressing, eating, toileting, continence, transfer in/out of bed or chair, and indoor mobility. (4) Advocacy--Actions by or on the behalf of individuals and/or groups to ensure that they receive the benefits and services to which they may be entitled, and to ensure that their rights guaranteed by law are protected and enforced. (5) American Indian or Alaskan Native--A person having origins in any of the original peoples of North America, and who maintain cultural identification through tribal affiliation or community recognition. (6) Asian American/Pacific Islander--A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands, Samoa and the Hawaiian Islands. (7) Alzheimer's Disease--A progressive, degenerative disease that attacks the brain and results in impaired memory, thinking, and behavior. (8) Benefits Counseling--Legal awareness or legal assistance services that assist seniors in claiming the various kinds of benefits to which they may be entitled. Activities may include legal or other assistance in completion of insurance or application documents, and assistance with problems with Social Security, Medicaid, pensions or other benefits. (9) Black--A person of African-American, not of Hispanic origin. (10) Broker--Arranger of services. (11) Case Management--An ongoing process (also known as service management), which includes assessment, service plan development, arranging of comprehensive and unified services, follow-up, ongoing monitoring of an individual's or family's status and the services delivered, and periodic review, with any necessary revision of the service plan. (12) Case management unit of service--One unit of service equals one hour. A unit is defined as that time which is spent by the caseworker, or qualified designee, engaged in working on an eligible client case. A unit does not include travel time, staff training, program publicity, or direct client services other than case management. Travel time, staff training and program publicity are allowable and reimbursable expenses. (13) Certified volunteer--An individual who has been selected by a regional program to serve as an advocate for long-term care facility residents and participate in the ombudsman program. Certified volunteers shall successfully complete an internship, or equivalent experience, as determined by the office, and complete required training prior to being certified and prior to engaging in independent complaint resolution. A certified volunteer shall be a representative of the office. (14) Classification system--A system which is used to categorize available human services in a standard manner to simplify retrieval of service information, increase the reliability of planning data, make evaluation processes consistent, and facilitate comparisons of data. (15) Clients or recipients of services--Persons who reside in settings defined as a long-term care facility in this subsection, and their families. (16) Contractor--The performing agency in a contract with the department. The word contractor when used in department rules, procedures, or governing documents specified in sec.245.3 of this title (relating to governing documents) is synonymous with grantee. (17) Current board member-A person presently a member of the governing board of a contractor sponsoring an area agency on aging. (18) Current aging advisory committee member--A person presently a member of the advisory committee for an area agency on aging. (19) Current employee--A person presently employed by a contractor sponsoring an area agency on Aging. (20) Department--The Texas Department on Aging, the single state agency for Older Americans Act programs. (21) Developmental disability--A severe, chronic disability attributable to a mental or physical impairment, or combination of both that: (A) is manifested before age 22; (B) is likely to continue indefinitely; (C) results in substantial limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self- sufficiency; and (D) results in the need for individually planned and coordinated services lifelong or over an extended period of time. (22) Education and training--Providing the experience and/or knowledge for clients to acquire skills, in a formal or informal, individual or group, setting. In the Options program, this service is directed to older persons and their care givers to help them improve their abilities in responding to their health care needs and limitations in overall functioning capacity. (23) Emergency Response System (ERS)--Services provided to the homebound, frail elderly using an automatic monitoring system to link them to emergency medical services when life and/or safety are in jeopardy. These ERS services include the installation of the individual monitoring unit, training associated with the use of the system, periodic checking to assure that the unit is functioning properly, equipment maintenance calls, response to an emergency call by a medical professional, paraprofessional or volunteer, and follow-up with the client. (24) Follow up--Contacting by telephone, correspondence or in person the inquirers and/or the agency to which referred, to verify that linkage has been established between the inquirer and the agency to which referred. (25) Former board member--A former member of the governing board of a contractor sponsoring an area agency on aging whose last date of service was within the immediately preceding two years. (26) Former aging advisory committee member--A former member of an aging advisory committee whose last date of service was within the immediately preceding two years. (27) Former employee--A former contractor or area agency on aging employee whose last date of service was within the immediately preceding two years. (28) Frail--An older person who: (A) is unable to perform at least two activities of daily living without substantial human assistance, including verbal reminding, physical cuing, or supervision; or (B) requires substantial supervision due to a cognitive or other mental impairment and behaves in a manner that poses a serious health or safety hazard to himself or others. (29) Friendly visitor--A volunteer who does not participate in complaint resolution. Friendly visitors receive orientation and may receive local training but do not receive certification. (30) Grantee--The performing agency in a contract with the Department. The word grantee when used in Department rules, procedures, or governing documents specified in sec.245.3, of this title (relating to governing documents) is synonymous with contractor. (31) Hispanic--A person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race. (32) Home delivered meals-Hot, cold, frozen, dried, canned or supplemental food (with a satisfactory storage life) which provides a minimum of one-third of the daily recommended dietary allowances (RDAs) as established by the Food and Nutrition Board of the National Academy of Sciences-National Research Council, and which is delivered to an eligible person in his/her place of residence. (33) Homemaker services--Those tasks provided by trained and supervised homemakers involving the performance of housekeeping/home management, meal preparation and/or escort tasks, provided to individuals who need assistance with these activities in their place of residence. The objective is to help the recipient sustain independent living in a safe and healthful environment. (34) Indirect--Having to do with a relative when considering conflicts-of interest. (35) Information and assistance--Services which inform, guide, direct and link individuals to appropriate human service resources. This may include individual client screening and/or assessment, which is a process of gathering and analyzing all pertinent information to identify an individual's strengths and needs for the purpose of determining a plan to assist the individual in the achievement of objectives and goals. (Used interchangeably with the term information and referral). (36) Information giving--The process of providing basic or detailed information about resources to an inquirer by a staff person. (37) Information and referral service--See information and assistance. (38) Instrumental activities of daily living (IADLs)--Tasks which may not need to be done every day (like ADLs), but which are nevertheless important for living independently: meal preparation, housework, laundry, shopping, taking medicines, getting around outside, transportation, money management, and telephone use. (39) Inquirer--Any person or organization seeking assistance from the system. (40) In service--A planned educational effort conducted or coordinated by professional staff or certified volunteers. (41) Legal assistance--Advice and representation by an attorney (including assistance by a paralegal or law student under the supervision of an attorney), or counseling or representation by a non-lawyer where permitted by law, to older individuals with economic and social needs. Legal assistance activities include the following: (A) Advice/Counseling--a recommendation made to a client regarding a course of conduct, or how to proceed in a matter, given either on a brief or one-time basis, or on an ongoing basis, and given either in person or by telephone. (B) Document preparation--personal assistance given to a client which helps him in the preparation of necessary documents relating to public entitlements, health care/long-term care, individual rights, planning/protection options, and housing and consumer issues. (C) Representation--advocacy on behalf of a client in protesting or complaining against a procedure, or seeking special considerations, appealing an administrative decision, or representation by an attorney of a client or class of clients in either the state or federal court systems. (42) Legal awareness--The dissemination of accurate, timely and relevant information, eligibility criteria, requirements and procedures, to older Texans about public entitlements, health/long-term are, individual rights, planning/protection options, and housing and consumer issues. (43) Long-term care facility--A facility that is licensed or regulated or that is required to be licensed or regulated by the Texas Department of Human Services. (44) Low income--A level of income (as defined by the federal Office of Management and Budget), below which a person or persons is considered to be living in poverty. (45) Major life activities-functions such as: (A) Self care--daily activities which enable a person to meet basic life needs for food, hygiene and appearance; (B) Receptive and expressive language-communication involving verbal and/or non- verbal behavior enabling the individual to both understand others and to express ideas/information to others; (C) Learning--ability to acquire new behaviors, perceptions and information, and to apply experiences in new situations; (D) Mobility--ability to use fine and gross motor skills. Ability to move one's person from one place to another with or without mechanical aids; (E) Self direction-management and taking control over one's social and personal life. Ability to make decisions affecting and protecting one's own interests; (F) Capacity for independent living--ability to live without extraordinary assistance from other persons, especially to maintain normal societal roles; (G) Economic self sufficiency--absence of dependence on family or public assistance for financial support; (H) Cognitive functioning-general cognitive competence; and (I) Emotional adjustment--self-esteem, self-confidence, and emotionally stability. (46) Minority--A person in one or more of the following four racial/ethnic groups: Black (African American, not of Hispanic origin), Hispanic, Asian/Pacific Islander, and Native American. (47) Office--The Office of the State Long-Term Care Ombudsman, a division of the Texas Department on Aging. (48) Ombudsman intern--A volunteer who has been admitted to the regional training program as a potential certified volunteer ombudsman. (49) Outreach--Methods that seek to increase the availability and utilization of services by ensuring that a particular individual or group is aware of available services and encouraged to participate. (50) Personal assistance--Assisting another person with tasks which that individual would typically do if they were able. This covers hands-on assistance in all activities of daily living. (51) Professional--Refers to an individual who has obtained a four year bachelors degree in aging related areas or human services, but may include an individual who does not have a four year degree, but who has qualifying experience as a substitute for a degree. Such substitution shall be consistent with the employing entity's personnel policies. (52) Referral giving--Active participation in linking the inquirer with needed services after assessing the inquirer's needs and suggesting appropriate resources. (53) Regional program--A provider and its implementation of these standards on a sub-state level. Regional programs are area agencies on aging or other entities, as defined by the Board on Aging, Texas Department on Aging. (54) Related disorders (dementia)--The loss of intellectual functions (such as thinking, remembering, and reasoning), not caused by Alzheimer's Disease, of sufficient severity to interfere with an older person's daily functioning, including as listed in definition for Major life activities. (55) Relative--A current or former board member's or current or former advisory committee member's or current or former employee's spouse, father, mother, sister, brother, son or stepson, daughter or stepdaughter, mother-in-law, father-in-law, sister-in-law, brother-in-law, son-in-law, or daughter-in-law. (56) Residential repair--Services consist of repairs or modifications of client occupied dwellings which are essential for the health and safety of the occupants. This also includes providing limited housing counseling and moving expenses where repairs or modifications will not attain reasonable standards of health and safety. (57) Resource file--An organized, cross-indexed file of information on services and programs in the area covered by the information and assistance service. (58) Respite care- (A) In home respite care-an array of services provided to dependent older persons who need supervision. Services are provided in the client's home environment on a short-term, temporary basis while the primary care giver is unavailable or needs relief. In addition to supervision, services may include meal preparation, housekeeping, assistance with personal care and/or social and recreational activities. (B) Institutional/facility based respite care--an array of services provided in a congregate or residential setting (hospital, nursing home, adult day care center) to dependent older persons who need supervision. Services are offered on a short-term, temporary basis while the primary care giver is unavailable or needs relief. In addition to supervision, services may include, when appropriate, meals, social/recreational activities, personal care, monitoring of health status, medical procedures, and/or transportation. (59) Rural--Any county outside an identified metropolitan statistical area (MSA). (60) Service authorization--A process which includes determining eligibility for service(s), and using direct purchase of service (DPS) procedures to obtain and initiate one or more services. (61) Staff ombudsman--The professional staff person at the regional level who directs ombudsman program activities. The staff ombudsman shall be appointed by the regional program and so designated by the Executive Director, Texas Department on Aging, and under state law shall be granted access to long term care facility resident records. The staff ombudsman shall be a representative of the office. (62) State ombudsman--The person designated by the Executive Director, Texas Department on Aging, as Chief Administrator of the Office of the State Long-Term Care Ombudsman. The state ombudsman is accountable to the Executive Director, Texas Department on Aging, for program and personnel matters. (63) Subcontractor--the performing agency in a contract with the contractor/area agency. The word subrecipient when used in department rules, procedures, or governing documents specified in sec.254.3, relating to governing documents, is synonymous with subcontractor. (64) Substantial financial interest--Ownership or control by a former employee (or relative) or a former board member (or relative) or former advisory committee member (or relative) of 10% or more of the contracting firm or its stock or an investment of $2,500 or more in the organization, whichever is less; or receipt of a 25% or more increase in overall annual benefits, including salary or wages, upon employment by a contractor who receives 25% of its funds from aging contracts of a former employee who held one of the positions listed under the definition of "substantial involvement in the development of the contract," as compared to the employee's contractor salary and benefits. (65) Substantial involvement in the development of the contract--Direct or indirect participation by a former employee or a former board member of former advisory committee member in the development of program policy which influenced the type of services provided by the contracting organization. The following positions are assumed to have had such participation: board member, executive director, aging division director, and aging contract specialists. (66) Targeting--The focusing of service provision efforts on those populations identified in the Older Americans Act of 1965, sec.306(a)(5)(B)(i), as amended. (67) Units of service for legal assistance and legal awareness--One unit of legal assistance shall equal one hour. One unit of legal awareness shall equal one contact. (c) Structure. (1) Area agencies shall develop and maintain an organizational structure which shall effectively administer Older Americans Act Programs and responsibilities and achieve those outcomes prescribed in the Older Americans Act, sec.306. (2) The organizational structure shall be reflected through job descriptions, staffing plans, and organizational charts and be included in the area plan submitted in accordance with submission requirements established by the Department. (d) Titles. Each individual selected to perform the duties of the full time director shall be identified on the staffing pattern and in job descriptions as either director, area agency on aging, or as manager, area agency on aging. (e) Compensation. Area Agency on Aging Directors and Managers shall be budgeted based on time spent performing the duties of administration and management, and the time spent in direct service delivery as indicated in the approved area plan, and will be subject to approval on an individual basis by the Department. (f) Records. The area agency contractor's provisions for development and maintenance of records shall include the following: (1) The area agency contractor shall establish written procedures to adequately assure proper development, maintenance and retention of all financial records, supporting documents, statistical records, and all other records relating to its performance. (2) All of the records identified in subsection (f)(1) of this section shall be kept at the area agency site and shall be maintained for a minimum period of five years following the end of the contractor's fiscal year and until any pending litigation, claim or audit findings, issuance of proposed disallowed costs, or other disputes have been resolved. Multi-site area agencies may maintain all records at a designated central location. (3) The area agency contractor shall require that subcontractor/service providers adhere to subsection (f)(1) and (2) of this section, as applicable. It is not required that subcontractor service provider's records be kept at the area agency on aging. (4) The area agency contractor shall give the Department, the Comptroller General of the United States, and the State of Texas through any authorized representatives, the access to and right to examine all records, books, papers, contracts, client records, unless specifically prohibited by law, or other documents related to this contract. Such examination may require access to papers, billings, vouchers, or other documents not directly related to the area agency if the purpose of such access is to review charges to any indirect costs pool which distributes any amount of common costs to various contractor programs. Such right of access shall continue as long as such records, or any of them, are in existence. (5) The area agency contractor shall require that all service providers adhere to subsection (f)(4) of this section. (g) Area Agency on Aging Accountability. To demonstrate area agency contractor accountability: (1) area agency contractors shall meet programmatic and financial performance targets (units, persons, unit costs) as outlined in its approved area plan and the requirements established by the department within the five percent variance allowed; (2) all reports, budgets, budget amendments, and other required submissions to the Department shall be complete and accurate and have sufficient documentation to verify such accuracy upon review by the Department during any review, whether conducted at the site of the area agency contractor or through desk review, when such documentation is required to be submitted; (3) an area agency contractor shall require that subcontractor service providers meet service requirements established by the department and shall monitor for such compliance. The area agency contractor shall maintain documentation to demonstrate such compliance; (4) an area agency contractor shall maintain a timely reporting rate, on an annual basis, of 100% for financial status reports, program performance reports, Ombudsman, the Area Plan Performance Report, and all other required reporting obligations as prescribed by the department, unless it has received written extension, in accordance with subsection (g)(6) of this section, for a period not to exceed three working days following due date. (5) area agency contractors shall file their area plan and any required amendments, all monitoring responses, budget and budget amendments on time, unless it has received written extension, in accordance with subsection (g)(6) of this section, for a period not to exceed ten working days following due date; (6) all requests for extension shall be received by the Department in writing not less than two working days prior to the due date of the reports, as identified in subsection (g)(4) and (5) of this section. (A) All requests shall provide the following information: (i) identification of the report for which extension is being requested; (ii) justification for the need for extension; (iii) the proposed date of receipt by the department of the submission, in accordance with the limitations set forth in subsection (g)(4) and (5) of this section. (B) each report identified shall be considered a separate request for purposes of this section; No more than two report extensions shall be approved during any federal fiscal year. (h) Monitoring. (1) Area agency contractors shall conduct not less than one annual on-site fiscal and program monitoring of service providers Fiscal and program monitoring shall be conducted concurrently if possible. (2) Prior to conducting monitoring of service providers, area agency contractors will conduct risk assessments of both direct and contracted services using the process furnished by the department. (3) Desk reviews of subcontractors shall be conducted by the area agency on aging contractor on all service providers monthly during the fiscal year (4) Monitoring shall be accomplished by area agency on aging contractors using programmatic and fiscal monitoring work papers developed and furnished by the Texas Department on Aging. Area agencies may expand these work papers to provide for special or unique monitoring requirements of specific programs. (5) An annual customer satisfaction survey of program participants/clients shall be conducted by all service providers using the standard survey instrument furnished by the Department. The results of this survey will be a part of the area agency's annual monitoring by the Department. (i) Targeting Service Delivery. (1) Purpose. These rules set policies for targeting Older Americans Act services to ensure that those most in need receive services and to reduce individual and social barriers to economic and personal independence for older persons. (2) Scope. These rules shall apply to all area agency on aging contractors. (A) All area agency on aging contractors shall comply with the provisions on targeting contained in the Older Americans Act, as amended. (B) All area agency on aging contractors shall comply with the provisions of the Americans with Disabilities Act of 1990, as amended. (C) All area agency on aging contractors shall comply with the provisions of sec.504, Rehabilitation Act of 1973, as amended. (3) Administrative requirements. (A) Each area agency contractor shall identify the targeted populations and the extent of their need for in-home services or services available in senior centers and develop outreach strategies in its area plan for meeting those needs. (B) Each area agency contractor shall include its specific strategies for meeting the needs of the targeted population in its request for proposals for services and its provider contracts must include those strategies as a provision of the contract. (C) When funding is insufficient to serve everyone seeking services, greatest unmet needs in the targeted populations shall be the principle criteria for prioritization. (D) Each area agency contractor shall include a strategy in its area plan which outlines how language translation services (including sign language translators) will be made available to older persons with limited English speaking ability when needed in order to obtain services. (E) The effectiveness of the area agency contractor's outreach efforts to targeted populations shall be evaluated in accordance with the Department's procedures as specified in this section. (j) Responsibilities for Imposing Penalties and Sanctions. It is the responsibility of the area agency contractor to develop and follow policies and procedures for imposing penalties and/or sanctions upon contractors/subcontractors for non-performance of the contract agreement or non- compliance with service delivery requirements. (k) Uniform logo for area agency on aging contractors. Each area agency on aging contractor shall use the logo designed by the Department to assure a uniform, statewide symbol for area agencies on aging designation for public information purposes. The following logo shall be used. Figure 1-40 TAC sec.260.1(k) (1) The logo shall be used for at least the following: (A) public service announcements; (B) pamphlets; (C) brochures; (D) signs; (E) newsletters; (F) business cards; (G) stationery; (H) displays; (I) reports; (J) other means of public communication media whenever possible. (2) Failure to physically demonstrate adherence to this policy shall be considered non-compliance with this rule. (l) Uniform telephone listings. The telephone number of each area agency on aging contractor, the area agency on aging's information and assistance toll- free or collect number, and the area agency on aging's nursing home ombudsman toll-free or collect umber shall appear in each telephone directory that is published by the provider of local telephone service for residents in any geographical area that lies in whole or in part in the planning and service area served by the area agency on aging. (1) The listings shall appear in the unclassified sections and government sections under the listing "SENIOR CITIZENS SERVICES," "AGING," "SOCIAL SERVICES," or other appropriate sections of the phone book if these listings are not available. (2) The listings shall appear in the classified section of the telephone directories of the major metropolitan area of the area agency on aging, and to the extent possible, in other areas of the area agency on aging's service area. (3) The listing in the unclassified section and classified section shall begin with the words "Area Agency on Aging" to position it at or near the top of each heading. The listing shall appear in boldface type, as follows: Area Agency on Aging of (name of area): (A) Business Office-area code and telephone number; (B) Information and Assistance-toll-free or collect number; (C) Nursing Home Ombudsman-toll-free or collect number. (4) These listings shall be completed by no later than the next printing cycle of the telephone directory of each provider of local telephone service. (5) These listings shall be used in all other service directories, public service announcements, pamphlets, brochures, reports, newsletters, stationery, and other means of public communication media whenever possible. (m) Listing of the Texas Department on Aging as primary funding source by Area Agency on Aging Contractors. All area agency on aging contractors designated under Title III of the Older Americans Act, as amended, shall cite the Texas Department on Aging as its primary funding source. (1) The phrase "Funded by the Texas Department on Aging" shall appear in all news releases, public service announcements, pamphlets, displays, signs, brochures, reports, stationery, and other means of public communication media. (2) Use of this phrase in all public communication media is effective upon adoption of this rule. Existing stocks of information items may be expended, and once expended, reorders will fall under this requirement. (n) Identification of Area Agency on Aging Facilities. Language will be prominently displayed on a sign outside the location utilized as an area agency on aging indicating the name of the area agency on aging to assure clearly visible access to persons wishing to visit the physical location of the area agency on aging. (1) This sign will adhere to local ordinances concerning signs. (2) The sign will also conform to the uniform logo requirements for Area Agencies on Aging prescribed in subsection (k) of this section, relating to use of logos. (3) The sign will also conform to the citation requirements of the Texas Department on Aging as the primary funding source as prescribed in subsection (m) of this section, relating to identification of funding sources. (4) Failure to demonstrate the adherence to this policy with physical evidence will be considered noncompliance with this rule. (o) Compliance with Interagency Agreements. The area agency contractor shall comply with the terms of all applicable interagency agreements, including, but not limited to, those agreements that are legislatively mandated, or entered in to by the Department on behalf of area agency contractors for the purpose of expanding and/or enhancing service delivery. (p) Emergency Management. (1) Area agency contractors shall consult with the Texas Department on Aging, Office of Emergency Management, Department of Public Safety, the Federal Emergency Management Agency (FEMA), the Administration on Aging, contractors, state, county and local government entities, service providers and other activities which have an interest or role in meeting the needs of the elderly in planning for, during, and after natural, civil defense, and/or man-made disasters. To accomplish this, area agencies shall: (A) appoint an emergency management coordinator; (B) participate in planning activities with district disaster committees, other human service agencies and other entities and organizations which are charged to meet the needs of disaster victims in emergency situations; (C) identify the "at risk" elderly in the planning and service area; (D) require by contract stipulation that service providers develop plans for emergency management; (E) review annually service providers' policies, procedures and capabilities to meet the needs of the elderly in their service areas prior to, during and after emergencies; (F) provide training to subcontractor staff regarding emergency management activities; (G) provide information to the Department regarding the impact of emergencies on the elderly population in their PSA; (H) provide authorized services to the elderly victims of the disaster; (I) collect pertinent data necessary to submit reimbursement requests for services provided during emergencies as relating to services authorized during emergencies; (J) participate in initial meetings of the FEMA on- site teams to assist in establishing recovery operations. (2) Emergency management services. Administration on Aging Regional Office VI, Identical Memorandum Number 47-85, Disaster Response System-Region VI, dated July 30, 1985, authorizes the following services to manage emergency needs of the elderly: (A) expansion of information and assistance services on a 24-hour emergency basis, including escort; (B) special outreach in order to encourage elderly disaster victims to make application at FEMA disaster application centers (DACs) as soon as they are established; (C) special transportation for elderly victims to DACs, doctors, clinics, shopping and such essential travel in the event vehicles are not available. Since FEMA funds may be available to fund this service, the area agency should consult with the on-site federal coordinating officer prior to expending OAA funds for this service; (D) assistance by case managers acting as disaster assistance advocates to older persons in the disaster application centers in the benefits application process, including follow up to assure older victims receive approved grants and services and are protected from unscrupulous repair contractors; (E) licensed appraiser services to assist elderly disaster victims in arriving at realistic estimates of losses incurred in the disaster; (F) handyman and chore services, including clean-up, since FEMA may not be able to provide these services in sufficient volume through voluntary agencies or religious organizations; (G) legal services only when the regular legal service program must be expanded for insurance and disaster assistance grant settlement; (H) assistance to move elderly disaster victims from temporary housing back to their own places of residence; (I) other Older Americans Act services when assessments indicate that disaster related needs are unresolved by federal, state or voluntary disaster assistance programs. (3) Reimbursement procedures. Reimbursement for the services specified in paragraph (2) of this subsection (relating to services which may be provided during disaster recovery) are authorized by the Older Americans Act, sec.310. Requests for reimbursement shall be forwarded to the Department within 30 working days of the date that disaster recovery operations are completed. Reimbursement requests will be developed as follows. (A) Services to be documented for reimbursement will be sorted into the categories listed in paragraph (2)(A)-(I) of this subsection (relating to services which may be reimbursed). (B) A narrative of each of the services, which details the number of units provided and the number of elderly served, will be written as a cover page to each set of reimbursement documentation material. (C) Billing documentation, such as paid bills and invoices, will be attached to the narrative of each category of service provided. (D) Other information which details the cause and the scope of the disaster shall be attached. (E) If available from the FEMA on-site office, the certificate of non- duplication of services shall be attached. (F) Upon receipt by the Department, the request for reimbursement will be reviewed. Areas requiring additional information or clarification will be identified and resolved with the AAA and service providers. (q) Conflicts-of-interest Requirements. Area agency on aging contractors and their governing boards shall seek to avoid conflicts-of-interest, in fact and perception, and provide proper notification when potential conflicts-of-interest do occur. (1) An area agency on aging contractor shall ensure that neither a current employee, nor any current board member, nor any aging advisory committee member, nor any representative of the office of the state long-term care ombudsman, paid or volunteer, holds a substantial financial interest, directly or indirectly, in the profits of any entity from which services or goods are contracted or otherwise procured by the area agency contractor, nor any long-term care facility, nor derives personal profit, directly or indirectly, from any entity which would conflict in any manner or degree with the performance of responsibilities of the employee, board member, or advisory committee member, or any representative of the office of state long-term care ombudsman, paid or volunteer. (A) No current employee, current board member, or advisory committee member who exercises any functions or responsibilities in the review or award of any contract or the procurement of services or goods on behalf of the area agency contractor, shall: (i) participate in any decision relating to the contract or procurement of services or goods in which he has a direct or indirect substantial personal financial interest; (ii) have a substantial financial interest, directly or indirectly, in the contract or procurement of services or goods or the proceeds thereof. Nothing in this subsection shall prohibit public officials of units of local government from serving on a contractor's board or aging advisory committee, notwithstanding the fact that such unit of local government is receiving or may receive funds for the provision of services or goods under the terms of the contract or procurement. (B) No representative of the office of the state long-term care ombudsman, paid or volunteer, directly or indirectly, shall: (i) have direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service; (ii) have a family member residing in a long-term care facility which the representative is assigned or provides advocacy; (iii) have ownership or direct investment interest in a long-term care service; (iv) be employed by or participate in the management of a long-term care facility; (v) receive or have the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long-term care facility. (C) For a period of two years from the date a person ceases his employment, board member duties, or committee member duties with an area agency on aging or its contractor, the contractor will not award a contract to a private entity in which any former board member's former committee member's or former employee's relative is an officer, director, employee, or owner, in part or whole, if the former employee, former board or committee member, or former board or committee member's or former employee's relative has a substantial financial interest in the contract or had a substantial involvement in the development of the contract. (2) Board members and area agency on aging advisory committee members who may have conflicts-of-interest, in fact or perception, on any agenda item of a meeting shall refrain from comment on the item. (A) The member shall announce the potential conflicts-of-interest and shall abstain from voting on any such agenda item. (B) The actions of conflicts-of-interest notice and voting abstention shall be recorded in the minutes of the meeting. (3) Area agencies on aging shall include a requirement in all Requests for Proposal (RFP) for services to the elderly and requests for vendor enrollment that any potential conflicts-of-interest be identified in the RFP response. (A) The notification of potential conflict-of-interest shall include: (i) the person for which a potential conflict-of-interest exists, (ii) the relationship to any current or former board member, current or former aging advisory committee member, or current or former employee, and (iii) the nature of the potential conflict-of-interest. (B) The person for which the potential conflict(s)-of-interest exists shall certify that he will abide by all rules established in this subsection. sec.260.2. Area Agency on Aging Fiscal Responsibilities. (a) Area agency contractor fiscal integrity. Area agency contractors shall demonstrate and maintain fiscal integrity in order to comply with the requirements of the Governing Documents as listed in sec.254.3 of this title (relating to Governing Documents); all Texas Department on Aging Rules as published in the Texas Administrative Code (TAC); the Department's policies related to the Cash Management Improvement Act, a Treasury-State agreement (CMIA, 31 Code of Federal Regulations Part 205); and with all state and local laws as pertains to the financial operation of an area agency. Policies, procedures, standards, and technical assistance memorandums shall be promulgated by the Department, as necessary, in order to support and interpret these rules and laws. The Department shall be the final authority in determining how these interpretations shall pertain to programs for older persons. The area agency on aging contractor shall comply with the following financial criteria. (1) The area agency contractor's provisions for maintenance of records shall include the following. (A) The area agency contractor shall establish written procedures to adequately assure proper maintenance, retention, and access to financial records, supporting documents, statistical records, as specified in sec.260.1 of this title (relating to Area Agency on Aging Administrative Requirements). (B) All of the records identified in subparagraph (A) of this paragraph shall be kept at the area agency site and shall be maintained for a minimum period of five years following the end of the area agency contractor's fiscal year and until any pending litigation, claim or audit findings, issuance of proposed disallowed costs, or other disputes have been resolved. Multi-site area agencies may maintain all records at a designated central location. (C) The area agency contractor shall require that subcontractors adhere to subparagraphs (A) and (B) of this paragraph, as applicable, relating to the requirements for proper maintenance of records. It is not required that the subcontractor's records be kept at the area agency on aging. (2) All purchases of service, materials, equipment, and goods made with grant funds shall follow the criteria of allowability as prescribed in OMB Circular A- 87 or A-122, as applicable, and the following. (A) All purchases shall have been made by actual receipt of the service or merchandise or issuance of a purchase contract, voucher, or other legal document that binds both parties to the transaction, not later than the last day of the grant period for which funds have been budgeted and encumbered. (B) Actual receipt of the service or merchandise and payment shall be made not later than 15 calendar days prior to the due date of the closeout report for the grant period for which funds have been budgeted and encumbered. (C) Any service or merchandise placed on order in a fiscal program year, in accordance with subparagraph (A) of this paragraph and not meeting the criteria in subparagraph (B) of this paragraph, shall be paid for with funds awarded for the fiscal program year in which the service or merchandise was actually received and/or payment made. (3) Disallowance of costs shall occur as follows. (A) In accordance with OMB Circular A-128 and A-133, determination shall be made by independent audit and/or subcontractor monitoring by the Department relating to the allowable use of federal, state, and matching credit funds, in accordance with OMB Circulars A-87, A-122, and other applicable laws, regulations, and circulars promulgated by recognized authoritative bodies. (B) Costs found to be unallowable, in accordance with those references in subparagraph (A) of this paragraph, relating to the allowable use of funds, shall be designated as questioned costs. (C) Notification of disallowance resulting from questioned costs revealed during independent audit shall be issued, in accordance with subsection (b) of this section relating to the requirements for an independent audit, following the failure to resolve all such questioned costs within the six months allowed for resolution in accordance with OMB Circular A-128,sec.14 and OMB Circular A-133, sec.5. Disallowance resulting from non-receipt of required subcontractor audits shall be resolved in the same manner as if revealed by independent audit, in accordance with subsection (b) of this section, relating to the requirements for an independent audit. (D) Notification of disallowance resulting from questioned costs established during monitoring by the Department shall be issued by a letter of notification of disallowance with intent to recover funds, which will be sent by certified or registered mail, return receipt requested, within 60 calendar days following the failure to resolve all such questioned costs within the time frame established by the Department. (E) The contractor shall be liable to the Department for any costs disallowed as a result of unresolved questioned costs revealed during an audit or monitoring relating to aging programs and/or expenditures. Such funds will be recovered by recapture as specified in (F) of this subsection. (F) Recapture of payments. (i) Recapture of payment may occur when costs have been disallowed by the Department, or if the area agency contractor has received funds in excess of those actually earned. The Department may take appropriate action including requiring the repayment of and/or withholding of funds in such cases that overpayment has occurred. (ii) Any area agency contractor having funds recaptured because of a disallowance, in accordance with paragraph (3) of this subsection relating to disallowance, shall waive all rights to such funds and shall not receive any of the funds upon reallocation. (G) In accordance with sec.254.15 of this title (relating to Appeal Procedures for Area Agency on Aging Contractors) an area agency contractor shall have the right to appeal the disallowance to the Department's dispute resolution committee. (b) Independent audit. The area agency contractor shall provide an independent audit as follows. (1) The area agency contractor shall provide and furnish the Department an annual audit by an independent certified public accounting firm within 30 calendar days following receipt of such audit, but in no case more than 13 months following the end of the area agency contractor's fiscal year. (2) The audit shall cover the entire organization and be conducted in accordance with generally accepted auditing standards. Additionally, audits shall be conducted in accordance with audit guidelines promulgated by the Department, or the Single Audit Manager's Forum (SAMF), or other authoritative source with prior written approval from the Department. (3) An area agency contractor receiving more than $25,000 in federal funding from all sources shall provide an audit in accordance with the standards for financial and compliance audits contained in the Standards for Audit of Governmental Organizations, Programs, Activities and Functions, issued by the U.S. General Accounting Office; the Single Audit Act of 1984, including all updates and revisions; and the provisions of OMB Circular A-128, Audits of State and Local Governments, or OMB Circular A-133, Audits of Institutions of Higher Education, and other Nonprofit Organizations, as applicable. (4) An area agency contractor shall require all subcontractors to adhere to paragraphs (2) and (3) of this subsection, relating to the requirements for an independent audit. This requirement shall not apply to for-profit service providers. This requirement shall not apply to service vendors receiving funds only through the direct purchase of services funding methodology and not acting in the capacity of a subcontractor. (5) To recover unresolved questioned costs revealed in an audit, the Department will send a Letter of Notification of Disallowance with Intent to Recover Costs by certified or registered mail, return receipt requested within 60 calendar days following the failure to resolve all such questioned costs. The 60 calendar day period shall begin the next day following the six months allowed for resolution in accordance with OMB Circular A-128, sec.14 and OMB Circular A-133, sec.5. (6) Failure of the area agency contractor to secure an acceptable independent audit of the subcontractor within the timeframe established in paragraph (5) of this subsection, relating to the recovery of questioned costs shall be deemed non-resolution. Non-resolution under this subsection shall be considered a violation under sec.254.13(f)(11) of this title (relating to Compliance with Contractor Responsibilities, Rewards and Penalties). (c) Debarment and Suspension. Conducting business with entities under debarment or suspension shall be prohibited as follows. (1) The area agency contractor shall not knowingly deal with any person, business, or other entity which has been suspended or debarred from receiving federal funds under 45 Code of Federal Regulations sec.76.200, concerning non- procurement, or 45 Code of Federal Regulations, Part 1229, Government wide Debarment and Suspension (Non-procurement) and Government wide Requirements for Drug-Free Workplace (Grants). (2) The area agency contractor shall secure a Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts and Grants from any potential subcontractor, of any tier, for which such certification is required, prior to issuing any award, grant or contract. (3) The area agency contractor shall submit for each federal fiscal year, as part of the area plan amendment, a Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Covered Contracts and Grants, to certify that all service providers adhere to paragraph (1) of this subsection, relating to the requirements regarding debarment and suspension. (d) Budget submissions. All budget and budget amendment submissions shall meet the following requirements. (1) For all original budget and subsequent budget amendment submissions the following shall apply. (A) All area agency contractors shall submit an original budget as part of its area plan prior to the beginning of each federal fiscal year. Budget amendments shall be submitted as directed by the Department or when there is a change of scope which affects the area agency contractor's ability to implement its approved area plan. The budget, whether original or amended, shall quantify the persons and units to be served, the expenses to provide services, and the resources available to fully fund such expenses to assure compliance with the goals and objectives detailed in the area plan narrative in order to produce the desired outcomes of the area agency and fulfillment of its mission and strategies as stated in the area plan. (B) All budget and budget amendment submissions shall be received by the due date as prescribed by the Department. (C) The original budget shall use the planning figures provided by the Department and must allocate all funds provided by the Department. (D) All budget amendments shall use actual allocations of all funds awarded by the Department, including any carryover funds awarded. (E) The area agency contractor shall meet adequate proportion (unless a written waiver is obtained), match, and maintenance of effort requirements. (F) When an area agency contractor provides services through Case Management and budgets resources under the DPS pool, verification of intent to meet the requirements regarding adequate proportion, match requirements, and maintenance of effort shall be submitted in a format to be prescribed by the Department, unless the resources are budgeted under individual services direct purchase of services pools. (G) The area agency contractor shall complete all supporting documentation, as prescribed by the Department, for inclusion in all budget submissions. (2) An amended budget must be submitted and approved prior to the following: (A) contracting for a previously unbudgeted and unapproved service if the amount of funds provided through the Department for the contract is greater than $5,000; or (B) the area agency contractor conducting a service directly, when waiver is required, which was not identified and approved in the area plan and budget; or (C) the expenditure of unbudgeted funds resulting from an increase in the approved administrative budget, regardless of the amount; or (D) contracting for multiple previously unbudgeted and unapproved services when the amount of funds provided through the Department for the contracts exceed $15,000 in the aggregate. (3) An amended budget must be submitted for approval within 20 workdays following: (A) discontinuance of a service which was identified and approved in the area plan and budget; or (B) change of scope which affects the area agency contractor's ability to implement its approved area plan. (e) Area agency contractor accountability. To demonstrate area agency on aging accountability, area agency contractors shall meet programmatic and financial performance targets as outlined in its approved area plan and the requirements established by the Department. (1) Area agency contractors shall meet the following performance requirements. (A) All fiscal reports, budgets, budget amendments, and other required fiscal submissions to the Department shall be complete and accurate and have sufficient documentation to verify such accuracy upon review by the Department during any review, whether conducted at the site of the area agency contractor or through desk review, when such documentation is required to be submitted. (B) An area agency contractor shall maintain a timely reporting rate, on an annual basis, of 100% for financial status reports, and all other required fiscal reporting obligations as prescribed by the Department, unless it has received written extension, in accordance with subparagraphs (D) and (E) of this paragraph, relating to requests for extension, for a period not to exceed three working days following due date. (C) Area agency contractors shall file their budget and budget amendments on time, unless it has received written extension, in accordance with subparagraph (D) of this paragraph, relating to requests for extension, for a period not to exceed ten working days following due date. (D) All requests for extension shall be received by the Department in writing not less than two working days prior to the due date of the reports, as identified in subparagraphs (B) and (C) of this paragraph. (i) All requests shall provide the following information: (I) identify the report for which extension is being requested; (II) provide justification for the need for extension; and (III) indicate the proposed date of receipt by the Department of the submission, in accordance with the limitations set forth in subparagraphs (B) and (C) of this paragraph. (ii) each report identified shall be considered a separate request for purposes of this section; no more than two report extensions shall be approved during any federal fiscal year. (E) The area agency contractor shall meet, unless written waiver is obtained, the following: (i) all requirements for adequate proportion with regard to access services, in- home services, and legal services unless written waiver is obtained; and (ii) all requirements for maintenance of effort with regard to Ombudsman Activities. (2) Failure to meet the requirements in paragraph (1) of this subsection, relating to area agency performance requirements, shall result in actions being taken by the Department unless failure was due to an act of God or action by the Department, in accordance with sec.254.13 of this title (relating to Compliance with Contractor Responsibilities, Rewards, and Penalties). (f) Contracting. Area agency contractors shall apply prudent business judgment in areas of contracting for services and goods to be purchased and the reimbursement methodologies to be used in funding such contracts. (1) The authority for area agency contractors to contract is based on the Older Americans Act of 1965, as amended, and its regulations; HHS regulations on Administration of Grants; Title 45 Code of Federal Regulations (CFR), Part 74; Title 45 CFR, Part 92; Title 45 CFR, Part 1321, et seq.; Title 45 CFR, Part 91; and all policies and rules established by the Department; and with all state and local laws as they pertain to contracting and reimbursement methodologies. (2) When purchasing services the area agency contractors shall: (A) use the specified rate for those services with a rate set by the Department. The Department will set unit rates of payment by action of the Texas Board On Aging which will be based on cost analysis, i.e., the collection of cost reports, and analysis of data, or unit rates for similar services set by other state agencies; or (B) purchase goods and services using any of the following procurement methodologies for all services not covered under subparagraph (A) relating to specified rates. These procurement methodologies are known as cost reimbursement, performance based unit rate, direct purchase of services and sole source procurement. (i) In cost reimbursement contracts, the area agency contractor pays the subcontractor on a reimbursement basis for services rendered. The subcontractor agrees to deliver specific services and the area agency contractor makes payment of actual expenses based on a pro rata share that federal and/or state funds represent of the total funds budgeted in the approved budget for each specific service. Reimbursement shall not be adjusted to offset poor management planning. Any adjustment to a reimbursement rate shall be judged on its own merits. It is the responsibility of the subcontractor requesting an increase in the share of expenses that federal and/or state funds will pay to document to the area agency contractor that the increase is warranted due to circumstances beyond their control. It is the responsibility of the area agency contractor requesting a decrease in the share of expenses that federal and/or state funds will pay to assure that the decrease is warranted. Adjustments to the share of expenses that federal and/or state funds will pay will be considered only in instances where: (I) a subcontractor experiences significant operating losses due to events over which they have no control or reasonably could not have anticipated; or (II) a subcontractor experiences excess revenues over operational costs due to unanticipated, and/or unbudgeted additional resources; or (III) reductions in expenses due to a change in cost allocation methodology. (ii) In using the unit rate performance based contracting method, the area agency contractor agrees to pay the subcontractor in the amounts and upon the terms, provisions and budgets as set forth in the contract as a result of negotiation of a suitable unit rate. The area agency contractor pays the subcontractor on a unit rate reimbursement basis for services rendered. The subcontractor agrees to deliver specific services on an at-risk basis. Adjustment to unit rates shall be considered using the criteria described in subparagraph (B)(i) of this subsection. (iii) Direct purchase of service contracting is an alternative contracting methodology for the purchase of services. It allows for the purchase of service on a client-by-client basis instead of contracting annually by either the performance based or cost reimbursement methods. The area agency contractor sets aside a sum of money, known as a direct purchase pool, to be used by Access and Assistance staff when developing an individual's care plan. Direct purchase of services match requirements are established in sec.260.19 of this title (relating to Direct Purchase of Services). (iv) The sole source procurement method may be used only when the award of a contract is not feasible under the other procurement methods. In this event, area agency contractors shall comply with the procedures established in 45 Code of Federal Regulations Part 92.36(d)(4), relating to procurement by noncompetitive proposals. (3) Area agency contractors using the unit rate performance based or cost reimbursement methods shall issue a request for proposal for each service to be contracted prior to the beginning of each area planning cycle and additionally, if the need arises during the area planning cycle. Area agency contractors shall comply with competitive bidding procedures for any available funds in excess of $25,000 in the aggregate. Funds in excess of $25,000 shall not be subdivided to circumvent the intent of this policy. Area agency contractors shall require specific information on which to judge the qualifications of applicants and their potential to be successful service providers. Notice of the availability of a request for proposal shall be disseminated throughout the area to be served in such a way as to promote fair and open competition in the procurement process. Documentation shall be maintained by the area agency contractor to demonstrate all such efforts. Information provided in the notice of the availability of a request for proposal shall be sufficient to allow a person of prudent judgment the facts necessary to determine reasonable interest in the request for proposal. Complete request for proposal packets issued by area agency contractors shall be in accordance with Department procedures. (4) Regardless of the type of procurement processes used, the area agency contractor shall document that the subcontractor conforms to the specified subcontractor service requirements in providing all services and vendor service providers meet the specified service criteria set forth in their request for bid. In the absence of adopted service requirements for any specific service, the area agency contractor shall identify the performance requirements which the subcontractor shall follow until such time as service requirements are promulgated by the Department. (5) In order to establish and track service costs accurately, each subcontractor shall have an accounting system which identifies all costs for each specific service being purchased. The area agency contractor shall require, by contract stipulation, that the subcontractor service provider has complete and accurate accounting records to review and manage service costs. (6) Service contracts shall contain specific requirements for reporting, regardless of the procurement method used. Area agency contractors shall include a provision for complete and accurate reporting and documentation of units of service and unduplicated persons who receive the services. Payments for service shall be based on the service units provided and the agreed upon method for service payment. (7) Area agency contractors providing direct services which require authority and waiver from the Department shall complete the appropriate sections of the area plan or area plan amendments. The area plan budget document shall specify the unit rate identified for applicable direct services of the area agency. Area agency contractors shall enter into a direct service agreement with the Department which states the service performance expectation during a specified period. The direct service agreement shall become part of the approved area plan. All requirements regarding performance, accounting and reporting shall apply to area agencies in direct service provision. (8) Area agency contractors shall not purchase services, regardless of the contracting methodology used as described in paragraph (2)(B) of this subsection or the nature of the entity, from any subcontractor not in compliance with the provisions of the Americans with Disabilities Act. Expenditures in violation of this requirement shall be disallowed and recapture of the disallowed payments shall be pursued by the Department in accordance with subsection (a)(3) of this section. (g) Program income. Program income contributions shall be administered in accordance with the Act; 45 Code of Federal Regulations, Part 1321; and 45 Code of Federal Regulations, Part 92.25. In addition the following shall apply: (1) When an area agency contractor uses the cost reimbursement methodology, as described in subsection (f)(2)(B)(i) of this section, relating to cost reimbursement contracting, for funding subcontractors, reimbursement shall not be made in excess of actual allowable expenses less program income received during the reimbursement period in accordance with 45 Code of Federal Regulations, Part 92.25, relating to program income. (2) When an area agency contractor uses the unit rate performance based contracting methodology, as described in subsection (f)(2)(B)(ii) of this section, relating to unit rate performance contracting for funding subcontractors, no deduction shall be made by the area agency contractor to the amount paid to the subcontractor based on units served for program income received, since the subcontractor is deemed to be at-risk. (3) When an area agency contractor or other designated case management or benefits counseling service provider purchases services using the direct purchase of service methodology, it shall: (A) be the responsible entity for collection of program income from program clients; (B) account for the program income receipt and expense on all required financial reports; and (C) expend all program income collected for such services prior to billing for units of service from federal or state funds. (4) In the event that program income is physically collected by the vendor, all program income shall be remitted to the area agency or entity providing the case management or benefits counseling activities as appropriate. Program income collected by vendors shall not be retained by the vendor to offset or enhance the purchase price of the service provided. (h) Expenditure of adequate proportion of funding for support services categories. Each area agency contractor shall establish an adequate proportion of the funding they receive under Title III, Part B, of the Older Americans Act, as amended, for support services, to be expended to comply with the Act, sec.306(a)(2) (Public Law 89-73), and shall include such levels and justification for setting these levels in the area plan or area plan amendment, as appropriate. (1) Adequate proportion of funding for support services shall include each of the following support services categories and their designated services: (A) services associated with access to services (transportation, outreach, information and assistance, and case management services); (B) in-home services (homemaker and home health aides, visiting and telephone reassurance, chore maintenance, and supportive services for families of older individuals who are victims of Alzheimer's disease and related disorders with neurological and organic brain dysfunction); and (C) legal assistance. (2) In determining the adequate proportion of funding for each of these categories, the area agency contractor shall: (A) analyze information obtained through the local needs assessment conducted for the area plan or area plan amendment; (B) analyze the availability and accessibility of non-Older Americans Act resources in the region to meet those needs; (C) take into consideration the views of the elderly and their caregivers concerning the need and accessibility of available resources; and (D) include information and discussion of the proposed levels for expending an adequate proportion of support service funds in a public hearing held for the area plan or area plan amendment, as appropriate. (3) The area plan shall indicate the level of adequate proportion for each of the support service categories as a percentage of the Title III, Part B funding and include a narrative description of each criteria listed in sec.260.2(h)(2), of this title (relating to determining adequate proportion of funding). (4) An area agency contractor may propose a change in the local adequate proportion funding level for any of the support service categories at the beginning of the fiscal year; but not during the course of the fiscal year of an approved area plan or area plan amendment. Appropriate justification to change the level of funding shall be submitted using either: (A) criteria listed in sec.260.2(h)(2), relating to determining adequate proportion of funding, shall describe and document changes in the conditions of the service delivery system in the region which resulted in the need for such change; or (B) evidence that a change in funds received from the state or other funding sources due to a new funding formula, which was a result of a revision in the census information from which allocations are determined. (5) Area agency contractors may seek a waiver from setting and expending an adequate proportion of Title III, Part B funds for these support service categories. (A) Such a waiver shall be submitted with the area plan or area plan amendment prior to the effective fiscal year. Waivers will not be reviewed or approved during the fiscal year for which the area agency contractor has an approved area plan or area plan amendment. (B) The burden of proof that an adequate supply of support services in these categories is available in the region is the responsibility of the area agency contractor when applying for such a waiver. (C) Separate waiver requests shall be submitted for each category of support services for which a waiver is sought and must include appropriate justification using the criteria listed in sec.260.2 (h)(2), relating to determining adequate proportion of funding. (D) At least one public hearing shall be held on the area plan or area plan amendment containing a request for waiver of this requirement. The area agency grantee shall notify all interested parties in the area of the public hearing and provide them with an opportunity to testify. (i) Ombudsman maintenance-of-effort. Area agency on aging contractors shall expend, in each fiscal year, a percentage of Title III-B funds for Ombudsman activities which shall represent the equivalent percentage of Title III funds expended in the base year as established in the Older American Act of 1965, as amended for such activities. (1) The base year percentage shall be calculated under the following methodology. (A) Determine the total Title III Ombudsman expenditures as reported on the final Form 269 for the base year. (B) Subtract from the amount obtained in clause (i)(1)(A) the amount of Title III-G funds expended in Ombudsman activities. (C) Add to the amount obtained in clause (i)(1)(B) the amount of funds expended from the Ombudsman Training grant and the OBRA grant, if applicable, as reported to the Department. (D) Divide the amount obtained in clause (i)(1)(C) by the Title III-B allocation for the base year. (2) the percentage calculated in accordance with the methodology established in paragraph (1) of this subsection shall be multiplied, each year, by the amount of Title III-B funding allocated to each area agency to determine each area's Ombudsman Maintenance-of Effort requirement. (3) the Department shall issue a listing of the Ombudsman Maintenance-of-Effort requirements within 45 days following receipt of each year's federal funding allocation. (4) The Ombudsman Maintenance-of-Effort requirement shall not be increased or decreased due to categorical fund transfers. 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 January 2, 1997. TRD-9618791 Mary Sapp Executive Director Texas Department on Aging Effective date: January 23, 1997 Proposal publication date: July 26, and September 17, 1996 For further information, please call: (512) 424-6840 CHAPTER 270. General Service Requirements 40 TAC sec.270.2, sec.270.5 The Texas Department on Aging adopts amendments sec.270.2, concerning to Service Definitions and sec.270.5, concerning to Nutrition Service Requirements, with changes to the proposed text as published in August 27, 1996, issue of the Texas Register (21 TexReg 8092). These rules have been adopted in order to complement the promulgation of sec.270.6, Participant Assessment and sec.270.8, Data Management. The adopted amendments will clarify the language and the services which will be delivered under the proposed new services of Participant Assessment and Data Management. Non-substantive changes were made in response to written and oral comments received to sec.270.2, relating to Service Definitions and sec.270.5, relating to Nutrition Service Requirements. The comments regarding the adoption of the proposed amendments were received from the Office of the Attorney General, the North Texas Area Agency on Aging, department staff, and the Texas Board on Aging. A summary of the written and oral comments received to sec.270.2, relating to Service Definitions and the location of changes to the rule are as follows: Comment: The definition for Participant Assessment should coincide with the specifications under the scope, objective and service activities in the proposed amendments to sec.270.6, relating to Participant Assessment. Agency Response: The Department concurs and has modified the definition. Comment: References to the Department's Client Information System in the definition of Data Management should be removed because of the anticipated name change of the system in 1998. Agency Response: The Department concurs. A summary of the written and oral comments received to sec.270.5, relating to Nutrition Service Requirements and the location of changes to the rule are as follows: Comment: One commenter noted that the provisions for the negotiation of contracts in subsection (f)(7) should be consistent with federal requirements, if any, about the method of establishing meal costs and rates. Agency Response: There are no standard federal guidelines for establishing meal costs and rates. Comment: A commenter suggested that the r