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 10. COMMUNITY DEVELOPMENT PART I. Texas Department of Housing and Community Affairs CHAPTER 49. Low Income Tax Credit Rules - 1996 10 TAC sec.49.5 The Texas Department of Housing and Community Affairs adopts an amendment to sec.49.5, concerning Set-Asides, Commitments and Preferences of the 1996 Qualified Allocation Plan and Rules (the Rules), to add subsection (d) which will provide procedures for the Department to award credits to previously awarded applicants. The amendment is adopted without changes to the proposed text as published in the November 15, 1996, issue of the Texas Register (21 TexReg 11151). The purpose of the adoption will provide procedures for the Department to award credits to previously awarded applicants. No comments were received by the Department. The amendment is adopted pursuant to the authority of the Texas Government Code, Chapter 2306; Acts of the 73rd Legislature, Regular Senate Bill 45, Chapter 141, effective May 16, 1993; and Acts of the 73rd Legislature, Senate Bill 1356, Chapter 725, effective September 1, 1993; and the Internal Revenue Code of 1986, sec.42 as amended, which provides the Department with the authority to propose rules governing this administration of the Department and its programs and Executive Order AWR-91-4 (June 17, 1991), which provides this Department with the authority to make housing credit allocations in the State of Texas. The Texas Government Code, Chapter 2306 is affected by this adopted amendment. 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 February 18, 1997. TRD-9702313 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: March 11, 1997 Proposal publication date: November 15, 1996 For further information, please call: (512) 475-2884 TITLE 16. ECONOMIC REGULATION PART IX. Texas Lottery Commission CHAPTER 401.Administration of State Lottery Act 16 TAC sec.401.310 The Texas Lottery Commission adopts new sec.401.310, concerning the acceleration of prize payments in the event of the death of a prize winner, with changes to the proposed text as published in the December 13, 1996 issue of the Texas Register (21 TexReg 11927). The new section allows the estate of a deceased prize winner to petition the commission to accelerate the payment of remaining installments to the estate. The death of a prize winner, that is the death of an individual entitled to a prize winning which is paid in future installments, can have a devastating effect on that individual's estate. The federal estate tax burden imposed on the estate at the time of the winner's death can be so burdensome, that in some cases the estate does not have the necessary resources to pay the applicable taxes. Estates of Texas prize winners have raised these issues to the commission. Without new sec.401.310, the commission has not been able to respond to these situations. New sec.401.310 is designed to give the winner's estate present access to the value of future cash payments in order to satisfy estate taxes that come due. Other states, for example Ohio and Indiana, have recognized the need to accelerate payments of a prize to alleviate the estate tax burdens levied against the estate of a deceased prize winner. The new section requires certain language in the judicial order obtained by the estate before the commission will accelerate the payments. The requisite language is meant to balance the interests of the estate in its need for the accelerated payments to meet the estate tax burdens and the needs of the commission to be protected against liability and fraud. No comments were received regarding the adoption of the new section. However, based on statements made by the commissioners and staff during the public meetings when the rule was proposed and adopted, some changes have been made to the new section. The changes are minimal and do not require republication of the proposed rule. The new section is adopted under Texas Government Code, sec.466.015, which provides the Texas Lottery Commission with the authority necessary to administer the State Lottery Act, Texas Government Code, Chapter 466. sec.401.310. Acceleration of Prize Payments. (a) In the event of the death of a prize winner (an individual claimant who has a valid ticket) who is entitled to a prize which is paid in installments, the executive director, upon petition of the estate of the deceased prize winner to the Texas Lottery, will accelerate the payment of all the remaining installments to the estate. If the executive director accelerates the payment of all the remaining installments, then securities and/or cash held for the deceased prize winner, which represents the lesser of the Texas Lottery's book value (the daily recalculated amortized cost of investments under the interest method) or fair market value (the value of investments at any point in time as determined by the market place) of that portion of the future installment payments that are to be accelerated, less any applicable taxes and administrative costs incurred by the Texas Lottery associated with accelerating the remaining installment payments, shall be distributed to the estate. The valuation of the securities at the lower of the Texas Lottery's book value or fair market value and determination of the net present value of the accelerated payments shall be at the sole determination and discretion of the executive director. (b) The Texas Lottery shall require an appropriate judicial order from the proper Probate Court, in order to facilitate the acceleration of the remaining prize installment payments. The Texas Lottery shall require, as part of the appropriate judicial order, the following: (1) Language approving the form and substance of the order by all representatives of the estate of the deceased prize winner, whether such representatives are executors or administrators and by all beneficiaries and/or heirs known and existing at the time the order is signed by the Probate Judge; (2) Language indicating that an attorney ad litem was appointed by the court to represent the interests of any unknown heirs, beneficiaries or claimants to the estate, and a finding by the court, after considering the attorney ad litem's report, that the acceleration of the remaining prize installment payments is appropriate; (3) Language providing for indemnification and holding the Texas Lottery harmless by all representatives of the estate of the deceased prize winner from any and all liability of the estate of the deceased prize winner for federal and state estate taxes, or other tax liability, and from any claim known or unknown, existing now or arising in the future, that may be made by a third party as a result of the lump sum payment of the lesser of the Texas Lottery's book value or fair market value of the remaining installment payments; (4) Language providing that, upon lump sum payment of the lesser of the Texas Lottery's book value or fair market value of the remaining installment payments, the Texas Lottery has satisfied in full its obligations to the estate of the deceased prize winner and beneficiaries or heirs and shall be released from any further liability to either the estate of the deceased prize winner or to the beneficiaries or heirs; (5) Language requiring the Texas Lottery to pay the lump sum payment into the registry of the court within 30 days after the securities are liquidated, such liquidation being required by signed order of the Probate Court. In the event there is a delay of time between the sale of the securities and the payment into the registry of the court, any interest earned during this period of time shall be kept by the State of Texas; and, (6) Language indicating that the acceleration of the remaining prize installment payments is necessary to pay the estate tax burden imposed on the estate by federal and/or state taxing authorities. 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 February 18, 1997. TRD-9702279 Diane W. Morris Staff Attorney Texas Lottery Commission Effective date: March 11, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 323-3791 CHAPTER 402.Bingo Regulation and Tax 16 TAC sec.402.567 The Texas Lottery Commission adopts an amendment sec.402.567, concerning the Bingo Advisory Committee, without changes to the proposed text as published in the December 13, 1996 issue of the Texas Register (21TexReg 11928). The Bingo Advisory Committee reviewed the proposed amendment. Members of the committee suggested that the 2 representatives of the general public have some knowledge of charitable bingo or possibly a bingo player should be considered, however the person should not have direct links to any group. The members of the committee suggested that the proposed amendment should not limit the terms of a member to 2 years because, as they understood the purpose for having a Bingo Advisory Committee was to provide knowledgeable input, and it was difficult to become knowledgeable in the area when the committee meets only 4 to 6 times a year. The members voiced the opinion that to ensure knowledgeable input to the commission and continuity, there should be no limit to the terms. It was reasoned that to the extent the commission wanted to change the membership, the existing rule allowed for that exercise of discretion. The committee voted 6 to 0 that the amendment should not be adopted by the commission. Marc Garcia, Director of Charitable Bingo Operations, suggests that the amendment is appropriate and serves both the benefits of the committee and the commission. The amendment allows enough time for continuity and time for a new member to become knowledgeable, as well as ensuring that the membership remains current and is truly representative of the industry by allowing only two successive years of service. No other comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16 and sec.43, which provide the Texas Lottery Commission with the authority to adopt rules for the enforcement and administration of the Bingo Enabling Act and to govern the operations of the bingo advisory committee. 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 February 18, 1997. TRD-9702278 Diane W. Morris Staff Attorney Texas Lottery Commission Effective date: March 11, 1997 Proposal publication date: December 13, 1996 For further information, please call: (512) 323-3791 TITLE 22. EXAMINING BOARDS PART IV. Texas Cosmetology Commission CHAPTER 83. Sanitary Rulings 22 TAC sec.sec.83.1, 83.3, 83.13, 83.14, 83.16 The Texas Cosmetology Commission adopts amendments to sec.83.1, concerning enforcement, sec.83.3, concerning proper quarters, sec.83.13, concerning implements, sec.83.14, concerning definitions of disinfectant containers, and sec.83.16, concerning disinfecting manicure implements. Sections 83.1, 83.3, 83.13, and 83.14 are adopted with changes to the proposed text as published in the October 29, 1997, issue of the Texas Register (21 TexReg 10651). Section 83.16 is adopted without changes, and will not be published. The amendments to sections are adopted as a result of a comprehensive review of all the commission's rules as part of the commission's strategic plan to eliminate redundant and unnecessary language from its rule book so it is easily understandable for the licensees who come under the commission's jurisdiction, and for the general public. No comments were received regarding adoption of the amendment. The amendments and new section are adopted under sec.4(a), Article 8451a, Vernon's Texas Civil Statutes, which provides the commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and safety. Article 8451a, Vernon's Texas Civil Statutes, is affected by these adopted amendments. sec.83.1. Enforcement: (a) The holder or holders of an establishment license and/or certificate and the person in charge of any establishment shall be liable for implementing and maintaining the sanitary rules in such establishment individually and jointly with all persons engaged in, or employed by, or working in, or on the premises of such establishment. All licensees under this Act, and students attending school under this Act, shall be held liable individually and jointly for maintenance and implementation of the sanitary rules applicable to the performance of their profession as such licentiates. (b) Every cosmetology establishment, as defined by the Statutes to regulate the practice of cosmetology in the state of Texas, shall be given a sanitary rating covering the entire establishment according to the filed floor plan, and must meet the following requirements: (1) The rating given said establishment shall be posted in the reception desk area in public view. (2) An establishment operating in violation of these rules and regulations, or which operates with a sanitary rating of less than 80% shall be issued a notice of violation. If the violation is not corrected in 10 days, an informal hearing may be initiated by the executive director. (3) Violation of any of these rules and regulations, or operating a hairdressing establishment which fails to receive a sanitary rating of at least 80%, shall be issued a violation. If not corrected within 10 days, an informal hearing could be initiated by the executive director. sec.83.3. Proper Quarters: (a) Each establishment shall be well lighted, well ventilated, and kept in a clean, orderly, sanitary condition at all times. (b) Linoleum or tile fixtures must be tight with no broken areas or badly worn spots. Floors shall be constructed of smooth, hard-finished materials, such as quarry tile, terrazzo, ceramic tile, etc., or covered with washable composition materials such as rubber-base greaseless asphalt tile may be used. Hair cuttings must be immediately swept up and deposited in a disposal receptacle when the haircut is finished. Those establishments that currently have carpeting in the shampoo and work areas are not required to remove said carpeting until such time as it can no longer be maintained in a sanitary condition. No carpet shall be permitted except in reception or offices. Walls and fixtures shall be of a sanitary nature. There must be evidence of routine cleaning and proper maintenance. Ceilings must be properly maintained. (c) The use of a cosmetology establishment as living, dining, or sleeping quarters shall be prohibited. Residential salons shall maintain a separate entrance which shall not open off from living, dining, or sleeping quarters. If a door leads into the residence, it shall be a solid door that remains locked during business hours. (d) Doors and windows shall be closed or properly screened. (e) Styling stations, working stations, and manicure tables must be cleaned and disinfected with a hospital grade EPA registered disinfectant prior to client services. All drawers and shelves of the above being used for the storage of rollers, brushes, combs, pins, nets, and equipment must be disinfected with a hospital grade EPA registered disinfectant solution, and shall not be used for storage of non-related cosmetology equipment or supplies. One drawer or cabinet may be designated for storage of personal items. (f) The premises shall be kept free of rodents, vermin, flies, or other similar insects. (g) Equipment such as dryer heads and filters must be kept clean at all times. sec.83.13. Implements, Combs, Brushes and Rollers: (a) Each cosmetologist is required to have implements and tools that have been cleaned and disinfected with a hospital grade EPA registered disinfectant solution before servicing each client. (b) Rollers, pins, clips, combs, brushes, and cold wave rods shall not be stained from rinses or hair spray, lacquer, or setting lotions. (c) At no time shall a cosmetology student, or a licensed cosmetologist, keep combs or brushes in their pocket. (d) When cold wave rods are not in use, they must be covered with a cover or towel, until ready for use. Cold wave rods must be free from any solution, hair end papers, clippies, hairpins, and any additives. (e) Scissors, razors, clipper blades, razor combs, tweezers, or other related equipment and supplies, must be disinfected with a hospital grade EPA registered disinfectant solution, must be clean to sight and touch, and stored in an closed container. Curling irons must be clean to sight and touch. (f) All types of brushes and combs, all types of rollers, clips, and other hair accessories which have become soiled in any manner shall be placed in a properly labeled receptacle provided for that purpose. (g) No other items are allowed in drawers or covered containers with clean, disinfected combs and brushes. Drawers and containers must be kept closed and clean at all times. sec.83.14. Definition of Wet Disinfectant Soaking Container and Dry Storage Container: (a) A wet disinfectant soaking container is a container large enough to hold a disinfectant solution in which the objects to be disinfected are immersed. A wet disinfectant soaking container must have a cover to prevent contamination of the solution. The disinfectant solution must be a hospital grade EPA registered disinfectant solution. Before immersing objects in a wet disinfectant soaking container containing a disinfectant solution, be sure to: (1) remove hair and all debris from the object; (2) pre-clean thoroughly with hot water and soap or disinfectant solution; (3) place tool and implements in the wet soaking container filled with disinfectant solution, completely immerse for 10 minutes, or according to the manufacturer's direction; and (4) remove tools and implements after 10 minutes, wipe dry with a clean towel, and store in a dry storage container. (b) The disinfected implements are kept clean by placing them in the dry storage container until ready for use. (c) Ultraviolet electrical sanitizers are permissible for use as a dry storage container. 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 February 14, 1997. TRD-9702146 Dick Strader Executive Director Texas Cosmetology Commission Effective date: March 6, 1997 Proposal publication date: October 29, 1996 For further information, please call: (512) 454-4674 CHAPTER 85. Public Records 22 TAC sec.85.1 The Texas Cosmetology Commission adopts an amendment to sec.85.1, concerning charges for public records, without changes to the proposed text as published in the October 29, 1996, issue of the Texas Register (21 TexReg 10652). The amendments to this section are adopted as a result of a comprehensive review of all the commission's rules as part of the commission's strategic plan to eliminate redundant and unnecessary language from its rule book so it is easily understandable for the licensees who come under the commission's jurisdiction, and for the general public. No comments were received regarding adoption of the amendment. The amendments and new section are adopted under the authority of Chapter 428, Acts of the 73rd Legislature, Regular Session, 1993 (H.B. 1009). Article 8451a, Vernon's Texas Civil Statutes, is affected by these proposed amendments. 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 February 14, 1997. TRD-9702145 Dick Strader Executive Director Texas Cosmetology Commission Effective date: March 6, 1997 Proposal publication date: October 29, 1996 For further information, please call: (512) 454-4674 CHAPTER 89. General Rules and Regulations 22 TAC sec.sec.89.1, 89.8, 89.21, 89.25, 89.27, 89.41, 89.45, 89.48, 89.52, 89.58-89.60, 89.62-89.68, 89.70 The Texas Cosmetology Commission adopts the repeal of sections sec.89.1, concerning Barbers and Cosmetologists Working in the Same Establishment, sec.89.8, concerning Student Registration, sec.89.21, concerning Student Loan Defaults, sec.89.25, concerning Health Certificate, sec.89.27, concerning Acknowledgment of Registration, sec.89.41, concerning Change of Location of a Salon or School, sec.89.45,concerning Practicing in an Unlicensed Place, sec.89.48, concerning Justice of the Peace, sec.89.52, concerning Definition of a Complaint, sec.89.58, concerning Administrative Procedure and Texas Register Act (APTRA), sec.89.59, concerning Notice of Hearing, sec.89.60, concerning Continuances, sec.89.61, concerning Record of Hearing, sec.89.62, concerning Rules of Evidence and Discovery Rules for Commission Hearings, sec.89.63, concerning Findings and Final Orders, sec.89.64, concerning Proceedings for Review, sec.89.65, concerning Transmission of Record to Reviewing Court, sec.89.66, concerning Informal Disposition, sec.89.67, concerning Enforcement, sec.89.68, concerning Proceedings, and sec.89.70, concerning New Private Cosmetology School Licenses, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11433). The repeal of these sections are adopted as a result of a comprehensive review of all the commission's rules as part of the commission's strategic plan to eliminate redundant and unnecessary language from its rule book so it is easily understandable for the licensees who come under the commission's jurisdiction, and for the general public. No comments were received regarding adoption of the repeals. The repeal of these sections is adopted under Section 4(a), Article 8451a, Vernon's Texas Civil Statutes, which provides the commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and safety. Article 8451a, Vernon's Texas Civil Statutes, is affected by these adopted amendments. 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 February 14, 1997. TRD-9702142 Dick Strader Executive Director Texas Cosmetology Commission Effective date: March 6, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 454-4674 22 TAC sec.sec.89.2-89.4, 89.7, 89.9- 89.11, 89.13-89.17, 89.19, 89.20, 89.24, 89.28, 89.29, 89.31, 89.33, 89.34, 89.39, 89.43, 89.47, 89.53-89.55, 89.57, 89.69, 89.71, 89.72, 89.75 The Texas Cosmetology Commission adopts amendments to sec.89.2, concerning public school cosmetology programs, sec.89.3, concerning license expirations, sec.89.4, concerning instructors on duty, sec.89.7, concerning student work, sec.89.9, concerning student permits, sec.89.10, concerning monthly hours reports, sec.89.11, concerning daily attendance, sec.89.13, concerning manipulating hours, sec.89.14, concerning concurrent/make-up hours, sec.89.15, concerning license definitions, sec.89.16, concerning license cancellation, sec.89.17, concerning instructor applicants, sec.89.19, concerning other services performed in salons, sec.89.20, concerning length of courses, sec.89.24, concerning transfer of hours, sec.89.28, concerning school withdrawal, sec.89.29, concerning practical applications, sec.89.31, concerning exams, sec.89.33, concerning instructor exams, sec.89.34, concerning reciprocity, sec.89.39, concerning new salons, sec.89.43, concerning items to be posted, sec.89.47, concerning definition of facial salons, sec.89.53, concerning minimum requirements for schools, sec.89.54, concerning booth rental licenses, sec.89.55, concerning refresher courses, sec.89.57, concerning disciplinary hearings, sec.89.69, concerning corporate ownership, sec.89.71, concerning new secondary/post-secondary schools, sec.89.72, concerning curriculum, and sec.89.75, concerning field trips. Sections 89.17, 89.20, 89.29, 89.31, 89.39, 89.53, and 89.75 are adopted with changes to the proposed text as published in the December 6, 1996, issue of the Texas Register (21 TexReg 11695). Sections 89.2-89.4, 89.7, 89.9-89.11, 89.13-89.16, 89.19, 89.24, 89.28, 89.33-89.34, 89.43, 89.7, 89.54-89.55, 89.57, 89.69, 89.71-89.72 are adopted without changes, and therefore will not be republished. The amendments to sections are adopted as a result of a comprehensive review of all the commission's rules as part of the commission's strategic plan to eliminate redundant and unnecessary language from its rule book so it is easily understandable for the licensees who come under the commission's jurisdiction, and for the general public. No comments were received regarding adoption of the amendments. The amendments are adopted under Section 4(a), Article 8451a, Vernon's Texas Civil Statutes, which provides the commission with the authority to "issue rules consistent with this Act after a public hearing", to protect the public's health and safety. Article 8451a, Vernon's Texas Civil Statutes, is affected by these adopted amendments. sec.89.17. Instructor Applicants. (a) Cosmetology Instructor Applicants. The student seeking an instructor license must have a valid operators license before re-entering a cosmetology school to complete 750 hours in methods of teaching the student, must provide a high school diploma, or a State of Texas recognized General Equivalency Diploma and a properly completed registration form prior to entering school. A person holding a current operator or specialty license from this state or any other state that can verify two years of working experience in a licensed beauty salon may also qualify for the instructor exam provided they complete 250 hours of student instructor training in an approved school and meet the other instructor requirements. (b) Manicure Instructor Applicant. The student seeking a Manicure Instructor Specialty License must have a valid Operator or Manicure license before re- entering a cosmetology school to complete 750 hours in methods of teaching the student. The student must provide a high school diploma, or a State of Texas recognized General Equivalency Diploma, and a properly completed registration form prior to entering school. A person holding a current Operator or Manicure license from this state or any other state that can verify two years of Manicure experience in a licensed beauty salon or Manicure specialty salon, may also qualify for the Manicure Instructor exam provided they complete 250 hours of student Instructor training in an approved school and meet the other Instructor requirements. (c) Facial Instructor Applicant. The student seeking a Facial Instructor Specialty License must have a valid Operator or Facial license before re- entering a cosmetology school to complete 750 hours in methods of teaching the student. The student must provide a high school diploma or a State of Texas recognized General Equivalency Diploma, and a properly completed registration form prior to entering school. A person holding a current Operator or Facial license from this state or any other state that can verify two years of facial experience in a licensed beauty salon or facial specialty salon, may also qualify for the Facial Instructor exam provided they complete 250 hours of student Instructor training in an approved school and meet the other Instructor requirements. sec.89.20. Length of Courses: (a) Wig Specialist. A wig specialist course shall be for 300 hours in an approved school in not less than eight weeks from date of enrollment. (b) Shampoo-Conditioning Specialist. The shampoo specialist course shall be for 150 hours in an approved school in not less than four weeks from date of enrollment. (c) Facial Specialist. A facial specialist course shall be for 600 hours in an approved school. (d) Hairweaving Specialist. A hairweaving specialist course shall be for 300 hours in an approved school in not less than eight weeks from date of enrollment. (e) Manicurist. The manicuring course shall be for 600 hours in an approved school. sec.89.29. Practical Applications of the Curriculum. (a) Each student in a school of cosmetology enrolling after January 1, 1994, must complete practical applications of the curriculum according to the school's published rules on minimum practical applications, or the following schedule, whichever is greater. Figure 1: 22 TAC 89.29(a) (b) The above practical applications may be performed on a mannequin, a student or a patron and mock applications may be used where appropriate and necessary. It shall be the responsibility of the student to keep a record of the number of practical applications performed, but shall be verified by an instructor signature. (c) When a student graduates the school must certify that the student has completed the 1500 hour course and that all practical applications have been completed. sec.89.31. Examination. (a) The evaluation of an applicant's performance on any examination by the examining staff of the commission shall be final. No requests for re-evaluation will be acted upon by the staff or the commission. (b) The operator, facial, manicure, wig, hairweaving/braiding, and shampoo examinations are scored on a 2/3 practical and 1/3 written grade. The examinee must make a composite score of 75% to pass the examination. sec.89.39. New Salon. (a) License requirements: Before a beauty or specialty salon may open for business, the facility must obtain a license. The application and fees must be submitted to the Texas Cosmetology Commission at least 45 days in advance of the anticipated opening date. The facility must be inspected for approval as near to the opening date as possible. If the facility is licensed, pending the inspection the salon may be open until the final approval is granted. The facility will be given ten work days to correct any deficiencies. No salon may advertise, practice, or attempt to practice under the name or trade of another licensee under this Act. (b) Beauty salon requirements: (1) required floor space shall be a minimum of 180 square feet for the first operator and not less than 110 square feet of working, dispensary, and reception area for each additional operator, exclusive of restrooms, utility, heating and/or cooling facilities and retail area. (2) Required equipment as follows: (A) one working station for each operator; (B) one styling chair for each operator; (C) one shampoo bowl and shampoo chair for each three operators, at a minimum; (D) one dryer for each operator; (E) one wet disinfectant soaking container; and (F) one dry storage container. (c) Additional requirements for all salons. (1) Carpeting is not allowed except in reception or offices. (2) A sink with hot and cold running water is required. (3) A restroom must be directly connected to the salon with a sink or a public restroom available for the use of clients. (4) An identifiable sign with the salon's name must be displayed. (5) Closed cabinet(s) for clean linen and closed container(s) for soiled linen are required. (6) Closed containers for clippies, hair nets, and permanent wave equipment are required. (7) Sufficient combs and brushes are required. (8) Floors, walls, and equipment must be clean and sanitary. (9) The salon must be properly ventilated with an exhaust fan or air filtering device extracting fumes and gases out of the facility. (d) Rules and regulations for all salons. (1) A salon shall not be operated in conjunction with any establishment selling food or drink, and shall be separated by a solid wall and have a separate entrance if located in the same building. (2) A person holding a beauty or specialty salon license shall be responsible for all the people working in that salon, unless they are independent contractors. (e) Facial salon requirements: (1) Required floor space shall be approximately 150 square feet of working space for the first operator, and 50 square feet of working, dispensary, and reception area for each additional operator, exclusive of rest room, utility, heating and/or cooling facilities and retail area. (2) required equipment is as follows: (A) one facial couch or facial chair for each facialist; (B) one wet disinfectant soaking container; (C) one dry storage container; (D) one mirror, wall hung, or one hand mirror for each facialist; and (E) two large covered trash containers. (f) Manicurist salon requirements. (1) Required floor space shall be approximately 150 square feet of working space for the first operator and 50 feet of working, dispensary and reception area for each additional operator, exclusive of rest room, utility, heating and/or cooling facilities and retail area. (2) required equipment is as follows: (A) one manicure table with light for each manicurist; (B) one manicure stool for each manicurist; (C) two professional type chairs for clients; (D) one wet disinfectant soaking container and one dry storage container at each table; and (E) a sufficient number of covered trash cans. (g) Manicure/Facial specialty salon requirements. (1) Required floor space shall be approximately 150 square feet of working space for the first operator and 50 square feet of working, dispensary and reception area for each additional operator, exclusive of rest room, utility, heating and/or cooling facilities and retail area. (2) Required facial equipment is as follows: (A) one facial couch or facial chair for each facialist; (B) one wet disinfectant soaking container; (C) one dry storage container; and (D) one mirror, wall hung, or one hand mirror for each facialist. (3) Required manicure equipment is as follows: (A) one manicure table with light for each manicurist; (B) one manicure stool for each manicurist; (C) two professional-type chairs for clients; (D) one wet disinfectant soaking container and one dry storage container; and (E) a sufficient number of covered trash cans. (h) Wig salon requirements. (1) required floor space shall be a minimum of 180 square feet for the first operator and not less than an additional 110 square feet of working, dispensary, and reception area for each operator, exclusive of rest rooms, utility, heating and/or cooling facilities and retail area. (2) Required equipment as follows: (A) mannequin table(s), styling stations, or styling bar to accommodate a minimum of 10 hairpieces; (B) one large sink with hot and cold running water; (C) one wig dryer large enough to dry 6 hairpieces; (D) one dry storage container; (E) one wet disinfectant soaking container, and (F) two large covered trash containers. (i) Licensed cosmetologists or specialists who are practicing as independent contractors must obtain the appropriate booth rental license. (j) Salon licenses will be issued as a specialty salon with the notation which specialties are being practiced. (k) No cosmetology establishment shall, in any manner, represent or permit a representation to be made in its behalf that it is a barber shop, whether made by use of a display or device similar to a barber pole or otherwise. It may, however, advertise that services for males are available, with the exception of trimming and/or shaving beards or mustaches. sec.89.53.Minimum Requirements For Both Private and Public Cosmetology Schools. (a) A building to house a cosmetology school must be fireproof and of permanent type of construction, and contain a minimum of 3,500 square feet of floor space, with separate restrooms for male and female students. The building must be divided into two separate areas: one for classroom instruction and one clinic work area. (b) A public school cosmetology department is required to have an area of not less than 2,200 square feet, including office dispensing, locker room, restrooms, and with an adjacent classroom. At least 1,200 square feet of the above shall be laboratory space. (c) The classroom must be separated from the laboratory area by walls extending to the ceiling and equipped with the following: (1) 1 chalkboard; (2) desks and chairs or table space for a minimum of 10 students (plus one desk or chair or table space for additional students enrolled and in attendance per theory class); (3) textbook for each student enrolled; (4) charts covering, bones, muscles, nerves, skin, and nails; (5) medical dictionary; (6) visual aid equipment: (A) Dispensary of not less than 50 contiguous square feet with a double sink with hot and cold running water and space for storage and dispensing of supplies and equipment (applicable for schools approved after 8-21-85). (B) Lockers and dressing rooms are to be provided. (C) The school equipment list shall contain: (i) 6 shampoo bowls and 6 shampoo chairs; (ii) 8 hair dryers with chairs; (iii) 1 heat cap or therapeutic light; (iv) 8 dozen cold wave rods; (v) 3 electric irons, or marcel stoves and irons; (vi) 16 styling stations covered with Formica or similar material, with mirror, and 16 styling chairs (swivel or hydraulic); (vii) 12 mannequins with sufficient hair with table or attached to styling stations; (viii) 1 day/date formatted computer time clock; (ix) 1 pair of professional hand clippers; (x) 3 professional hand held dryers; (xi) 4 manicure tables and four stools; (xii) 1 closed cabinet for clean towels; (xiii) 1 closed container for soiled towels; (xiv) 4 covered trash cans in lab area; (xv) one large wet disinfectant soaking container; (xvi) one dry storage container for disinfected implements. (7) As enrollment increases, required equipment is subject to increase; all equipment must be in good and sanitary condition. (8) Equipment requirements for the facialist course are as follows: (A) Facial chair (B) magnifying lamp (C) Woods lamp (D) dry sanitizer (E) steamer (F) brush machine for cleaning (G) vacuum machine that includes spray device (H) high frequency for disinfection, product penetration, stimulation (I) galvanic for desincrustation, product penetration (J) paraffin bathe and paraffin wax (9) The salon must be properly ventilated with an exhaust fan or air filtering device extracting fumes and gases out of the facility. sec.89.75. Field Trips. Field trips are permitted under the following conditions for students enrolled in the following courses. The following guidelines are to be strictly adhered to. (1) A maximum of 40 hours out of the 1,500 hours permitted per student: (A) a maximum of 20 hours for the manicure course; (B) a maximum of 20 hours for the facial course; (C) a maximum of 20 hours for students taking the 750 hour student instructor course; (D) a maximum of 8 hours for students taking the 250 hour student instructor course; (E) field trips will not be allowed for other speciality courses. (2) Students must be under the supervision of a licensed instructor from the school where the student is enrolled at all times during the field trip. The instructor-student ratio required in a school is required on a field trip. (3) Complete documentation is required, including student names, instructor names, activity, place of activity, date, and time frame. (4) No hours are allowed for travel. (5) Prior approval from the commission is not required. The report of hours earned and the documentation will be attached to the monthly hour report for the inspector to audit. 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 February 14, 1997. TRD-9702147 Dick Strader Executive Director Texas Cosmetology Commission Effective date: March 6, 1997 Proposal publication date: December 6, 1996 For further information, please call: (512) 454-4674 PART XIII. Texas Board of Nursing Facility Administrators CHAPTER 241.Nursing Facility Administrators 22 TAC sec.241.19, sec.241.20 The Texas Board of Nursing Facility Administrators Board (board) adopts new sec.241.19 and sec.241.20, concerning nursing facility administration, with changes to the proposed text as published in the October 29, 1996 issue of the Texas Register (21 TexReg 10645). In compliance with the Texas Nursing Facility Administrators Licensure Act (Act), Texas Civil Statutes, Article 4512q, sec.8, new sec.241.19 establishes standards of conduct for nursing home administrators as a code of ethics; and new sec.241.20 provides the board with the administrative procedure and ability to sanction an administrator for improper conduct, i.e. administrative penalties for failure to comply with the Act, a rule, or order adopted by the board. The board had not previously established a code of ethics. Due to numerous complaints and inquiries relating to administrators and serious concerns raised to or by the board about the health, safety, and welfare of residents of nursing facilities in the State of Texas, the board believes that it is necessary to define specific parameters for the conduct, regulation and licensure of persons in the profession of nursing home administration. The standards of conduct in new sec.241.19 will help to ensure that the health, safety, and welfare of nursing facility residents are better protected by defining the expected conduct of an administrator. The standards will assist administrators, residents, families of residents, or other interested parties to know what is required of the administrator. Establishment of the standards will also assist the board in imposing appropriate sanctions against administrators for conduct which is not appropriate, acceptable, or proper. Sanctions may be imposed pursuant to Sections 20, 21, and 22 of the Act. Section 20 of the Act allows sanctions of revocation, suspension, or non-renewal of a license; administrative penalties; written reprimand; continuing education participation; or probation. Section 21 of the Act addresses the sanctions of written reprimands and continuing education. Section 22 of the Act addresses administrative penalties. New sec.241.20 provides guidance on the amount of administrative penalties to be assessed by the Complaints Committee and the board; and an explanation of the board's interpretation of some of the procedural requirements for imposing administrative penalties. These rules were adopted on an emergency basis effective October 18, 1996. The emergency rules expire on the effective date of these final rules. A summary of the comments received and the board's responses are as follows. COMMENT: Concerning the preamble, two commenters stated that the preamble assumes that all additional costs to state government will be made up from fees and penalties. Knowing that all revenues must be deposited in the state general funds would preclude any budget benefit. RESPONSE: The board agrees. Fees are used as stated in sec.11(b) of the Act; and sec.22(q) of the Act as it relates to the use of penalties. COMMENT: Concerning the preamble, a commenter stated that "A clarifying preamble to any regulations such as the following, should be included: Notwithstanding these regulations, nothing herein shall be interpreted as creating a cause of action or standard of liability in civil suits for damages or administrative proceedings, separate and apart from the standard under current statutory and common law in the state of Texas." RESPONSE: The board disagrees. The Administrative Procedure Act (APA) does not provide for comments related to liability and lawsuits. COMMENT: Concerning the preamble, a commenter stated that paragraph three states that new regulations will "protect the health, safety, and welfare of the citizens of Texas from harmful effects." This must mean that the citizens of Texas are currently not protected from harmful actions of administrators and nothing is being done about these actions. RESPONSE: The board disagrees. The rules do not imply nothing is being done, but that these rules will continue to further protect the nursing home residents in Texas. COMMENT: Concerning the preamble, a commenter stated that the Texas Penal Code provides for many actions which may be taken against administrators. RESPONSE: The board disagrees as the board operates under authority of the Act and not the Texas Penal Code. COMMENT: Concerning the preamble, a commenter stated that the rules entitled "Standards of Conduct" are proposed under sec.8(b)(1) of the Act. This section does not contain rule making authority. RESPONSE: The board disagrees. Section 8(b)(1) clarifies rule making authority under sec.8(a) of the Act. COMMENT: Concerning the preamble, a commenter stated that the rules entitled "Administrative Penalties" are proposed under sec.sec.20(a) and 22(a) of the Act. These sections do not contain rule making authority. RESPONSE: The board disagrees. The board may assess administrative penalties under sec.20(a) and sec.22(a) of the Act. The board has general rule making authority under sec.8(a) of the Act. COMMENT: Concerning sec.241.19(a), a commenter asked that the language be changed to read "A nursing facility administrator (licensee) who wilfully or repeatedly fails to comply...". RESPONSE: The board disagrees and notes that the Act already contains this language specifically in sec.20 of the Act. COMMENT: Concerning sec.241.19(a), a commenter stated that the use of words like "ensure" or "assure" creates a type of guarantee or warranty which could bring the Deceptive Trade Practices Act into play. This could lead to suits being filed based upon allegations of negligence of other personnel besides the administrator. RESPONSE: The board disagrees. This language is being used only for purposes of the regulation of nursing facility administrators (NFAs). COMMENT: Concerning sec.241.19(a), a commenter suggested adding the following language "In applying the standards in sec.241.19 (relating to Standards of Conduct), the Board may not make a finding that a licensee has violated a standard if the licensee demonstrates that the violation was caused by factors beyond the licensee's authority or control." RESPONSE: The board agrees; however this issue is sufficiently covered by sec.241.19(b). Therefore, the board will not add any additional language. COMMENT: Concerning sec.241.19(a)(1), a commenter stated that "These proposed rules do not define either "ability" or "personnel". These comments assume, for clarity, that "personnel" means all persons who perform some function in the home for the benefit of residents who are actual employees of the nursing home and not independent contractors such as pharmacists and dietitians. Further, "ability" is assumed to mean the actual competence a person has to perform his or her job function within the standard of care." RESPONSE: The board disagrees and feels that further clarification of these terms is not necessary. COMMENT: Concerning sec.241.19(a)(1) and (2), a commenter suggested that all terms implying a guarantee such as "ensure" or "assure" be removed from the regulations. RESPONSE: The board disagrees. This language is being used only for purposes of the regulation of NFAs. COMMENT: Concerning sec.241.19(a)(1), a commenter recommended that the board "remember "sufficient" is an abstract word and who will decide what number makes up a sufficient staff. Also I cannot assure that each and every staff member will have the abilities to assure the health and safety of each resident. I will hope that all staff members will have these abilities, but since I do not do all of the interviewing, evaluating, and hiring of personnel, I do have to depend on the hiring capabilities of my department head staff." RESPONSE: The board disagrees. The intent of this rule is that there are systems in place to provide for staffing and the subsequent training of staff. There is no standard expectation that the administrator does all of the hiring, evaluation, and firing of staff. COMMENT: Concerning sec.241.19(a)(1), a commenter suggested that the language be changed to read "a licensee should staff and schedule sufficient personnel in number and ability in order to maintain the health and safety of a resident." RESPONSE: The board disagrees and feels that the commenter's concern has been clarified by adding the additional language "determined by care outcomes". COMMENT: Concerning sec.241.19(a)(1), a commenter suggested that the language be changed to read "...in number and ability to promote the health and safety of a resident." RESPONSE: The board disagrees and feels that the commenter's concern has been addressed by adding the language "determined by care outcomes" in sec.241.19(a)(1). COMMENT: Concerning sec.241.19(a)(1), two commenters stated that "We strongly recommend that the wording "shall ensure that" be left in the standards of conduct." RESPONSE: The board agrees. The existing language demonstrates the responsibility of the administrator. COMMENT: Concerning sec.241.19(a)(1), a commenter asked that the language be reworded to read "The licensee shall take all reasonable and necessary management and administrative actions within the licensee's control that could reasonably be expected to provide the facility with personnel sufficient to meet licensing and certification requirements for staffing." RESPONSE: The board disagrees. The intent is that there are systems in place to provide for staffing and the training of staff. There is no expectation that the administrator does all of the hiring, evaluation, and firing of staff. COMMENT: Concerning sec.241.19(a)(1), a commenter asked that the language be changed to read "A licensed administrator shall take all prudent and diligent management and administrative actions within the licensee's control that could reasonably be expected to ensure at any given time that personnel are present in number and ability to meet licensing and certification requirements for staffing to assure health and safety of a resident." RESPONSE: The board disagrees. The intent is that there are systems in place to provide for staffing and the training of staff. There is no expectation that the administrator does all of the hiring, evaluation and firing of staff. COMMENT: Concerning sec.241.19(a)(1), a commenter asked that the language be changed to read "A licensee shall ensure that sufficient personnel be present to promote the health and safety of a resident." RESPONSE: The board disagrees. The intent is that there are systems in place to provide for staffing and the training of staff. There is no expectation that the administrator does all of the hiring, evaluation and firing of staff. COMMENT: Concerning sec.241.19(a)(1) and (2), two commenters stated that "The language makes an administrator an insurer of the adequacy of personnel and resources". This is unreasonable because many licensees do not have final authority to determine the resources devoted to services. Section 241.19(a)(1) and (2) should be amended to require a willing failure to ensure before a violation can be found. RESPONSE: The board disagrees. The intent is that there are systems in place to provide for staffing and the training of staff. There is no expectation that the administrator does all of the hiring, evaluation, and firing of staff. COMMENT: Concerning sec.241.19(a)(1), a commenter stated that "Homes do not receive adequate reimbursement to meet many of the requirements of the regulations. At the same time, homes must pay personnel increasing amounts to have qualified and responsible personnel. I do not know of any facility which does not have staffing problems." RESPONSE: The board disagrees and notes that the issue is not under the board's jurisdiction. COMMENT: Concerning sec.241.19(a)(1) and (2), three commenters asked how is "sufficient" going to be defined? The commenters further stated that the board should retain the power to define "sufficient" and this power should be spelled out so there will be no misunderstanding; or that "sufficient" should be more comprehensively defined. RESPONSE: The board disagrees. The intent is that there are systems in place to provide for staffing and the training of staff. There is no expectation that the administrator does all of the hiring, evaluation, and firing of staff. COMMENT: Concerning sec.241.19(a)(1), a commenter stated that "It is inappropriate to take action against administrators of facilities for doing everything within their means to hire, train and schedule enough staff to get the job done, and then people don't show up for work." RESPONSE: The board disagrees. The intent is that there are systems in place to provide for staffing and the training of staff. There is no expectation that the administrator does all of the hiring, evaluation and firing of staff. Extenuating circumstances are addressed in sec.241.19(b). COMMENT: Concerning sec.241.19(a)(2), a commenter stated that "Regarding resources such as pharmacy and dietitian services, administrators again do not generally have the credentials, expertise, or experience to assure that these professionals perform services in accordance with physician orders. These professionals are independent contractors and an administrator cannot guarantee the performance of persons they cannot control." RESPONSE: The board disagrees and feels that there must be systems in place to monitor professionals and independent contractors in fulfilling their responsibilities. COMMENT: Concerning sec.241.19(a)(2), a commenter stated "Again the subjective word, "sufficient", appears in this rule. Who will decide what is sufficient?" RESPONSE: The board has added language as noted in sec.241.19(a)(1) as follows: "determined by care outcomes" to address the commenters concern. COMMENT: Concerning sec.241.19(a)(2), a commenter asked that the wording be changed to read "The licensee shall take all reasonable and necessary management and administrative actions within the licensee's control that could reasonably be expected to provide the facility with sufficient resources to assure health and safety of the residents." RESPONSE: The board disagrees and states that the intent is that there are systems in place that will respond to this rule. COMMENT: Concerning sec.241.19(a)(2), a commenter asked that the wording be changed to read "... sufficient resources are present to provide nutrition, medications, and treatments, including restraints, in accordance with physician orders." RESPONSE: The board disagrees and states that the intent is that there are systems in place that will respond to this rule. COMMENT: Concerning sec.241.19(a)(2), a commenter asked that the wording be changed to read "A licensee shall take all prudent, and diligent management and administrative actions within the administrator's control that could reasonably be expected to ensure presence of resources necessary for assurance that nutrition, medications, and treatments, including restraints, are available and in accordance with physician orders." RESPONSE: The board disagrees. The intent is that there are systems in place that will respond to this rule, along with sec.241.19(b) regarding extenuating circumstances. COMMENT: Concerning sec.241.19(a)(2), a commenter asked that the wording be changed to read "A licensee shall ensure that sufficient resources are present to assure that care is provided in accordance with physician orders and the care plan." RESPONSE: The board disagrees and feels that the commenter's concern is clearly defined as stated in sec.241.19(a)(3). COMMENT: Concerning sec.241.19(a)(3), two commenters stated that "The portion of this language creating liability for negligence fails to define the term negligence." RESPONSE: The board disagrees and notes that the use of the term is one that is commonly used in day to day language. COMMENT: Concerning sec.241.19(a)(3), a commenter asked that the language be changed to read "A licensee either knowingly or through negligence, shall not personally commit nor allow direct actions by employees, contractors, or volunteers that result in failure to protect and promote the rights of each resident." RESPONSE: The board disagrees and states that the intent of this rule is to avoid significant harm to a resident of a facility. COMMENT: Concerning sec.241.19(a)(3), a commenter asked that the language be changed to read "A licensee shall protect and promote the rights of each resident." RESPONSE: The board disagrees and states that sec.241.19 significantly clarifies resident rights because it is more comprehensive by the listing of various entities of concentration. COMMENT: Concerning sec.241.19(a)(3), a commenter asked that the language be changed to read "A licensee, knowingly or through negligence, shall not personally commit actions or allow or direct by others which result in failure to protect and promote the rights of each resident." RESPONSE: The board agrees and has amended the wording of the rule to substitute the word "others" in place of the word "volunteers" in sec.241.19(a)(3) and (5). COMMENT: Concerning sec.241.19(a)(3), a commenter stated "I would hope that no contractor or volunteer would do anything that could result in a failure to protect resident's rights nor will I direct actions by the people that would result in a failure to protect the residents' rights. I feel uncomfortable with the word "allow" because again I will not have total control of the actions of these persons." RESPONSE: The board disagrees and states that the intent of this rule is to not allow a situation to exist of which you are aware. COMMENT: Concerning sec.241.19(a)(3), a commenter asked that the language be changed to read "A licensee shall not knowingly nor personally commit, allow, nor direct actions by employees, contractors, or volunteers which result or could result in failure to protect and promote the rights of each resident." RESPONSE: The board disagrees and feels that the language as stated in sec.241.19(a)(3) sufficiently addresses the commenter's concern. COMMENT: Concerning sec.241.19(a)(3) and (5), a commenter asked that the two paragraphs be combined as follows "A licensee either knowingly or through negligence, shall not personally commit or allow or direct actions by employees, contractors, or volunteers which result in the failure to protect and promote the rights of each resident, or which result in inadequate care, harm, or injury to the resident." RESPONSE: The board disagrees and feels that the proposed language stated in sec.241.19(a)(3) and (5) are sufficiently stated. COMMENT: Concerning sec.241.19(a)(3), (4), (5), and (6), a commenter stated that "The board should authorize the determination of a violation "through negligence". Negligence is not defined. Assessing a penalty on the basis of this vague standard creates an unacceptable burden on the part of the administrator. The phrase "or through negligence" should be deleted." RESPONSE: The board disagrees and states that the use of this term is the one that is commonly used in day to day language. COMMENT: Concerning sec.241.19(a)(4), a commenter asked that the language be changed to read "A licensee shall not knowingly allow or direct actions which result or could result in failure to protect residents from harmful actions of the nursing facility employees, including but not limited to coercion, threat, incrimination, solicitation, harassment, cruelty or indifference to the welfare of the residents." RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(4) is sufficient. COMMENT: Concerning sec.241.19(a)(4), a commenter asked that the language be changed to read "A licensee shall use reasonable care to protect residents from harmful actions, including but not limited to, coercion, threat, intimidation, solicitation, harassment, cruelty, or indifference." RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(4) is sufficient. COMMENT: Concerning sec.241.19(a)(4), a commenter recommended that the term "residents rights" be included after the term, "...including but not limited to..." RESPONSE: The board disagrees and feels that the proposed language reflects resident rights issues, but has amended the language to specifically include the term "resident rights". COMMENT: Concerning sec.241.19(a)(4), a commenter stated that "This standard is a duplicate of proposed paragraph (7) and should be omitted based on wording suggested by the Texas Association of Licensed Facility Administrators (TALFA)." RESPONSE: The board disagrees. Section 241.19(a)(7) references a specific circumstance of abuse and neglect as stated in 40 TAC sec.19.101, whereas sec.241.19(a)(4) is broader. COMMENT: Concerning sec.241.19(a)(4), a commenter asked that the language be changed to read "A licensee, knowingly or through negligence, shall not allow or direct actions which result in failure to protect residents from harm. Such actions include but are not limited to coercion, threat, intimidation, solicitation, harassment, cruelty or indifference." RESPONSE: The board disagrees and feels that the proposed language sufficiently addresses the commenter's concern. COMMENT: Concerning sec.241.19(a)(4), a commenter stated that "Problems can occur from family members going into other resident's rooms without invitation." RESPONSE: The board agrees and states that this particular issue is addressed in the amended language for sec.241.19(a)(3). COMMENT: Concerning sec.241.19(a)(5), a commenter stated that "I again feel uncomfortable with the word "allow" because I do not have total control over another person's actions." RESPONSE: The board disagrees and feels that adequate procedural systems need to be in place in order to address this particular issue. COMMENT: Concerning sec.241.19(a)(5), a commenter indicated that this standard is adequately addressed in sec.241.19(a)(3), (with changes proposed by TALFA) and should therefore be omitted. RESPONSE: The board disagrees and feels that adequate procedural systems need to be in place in order to address this particular issue. COMMENT: Concerning sec.241.19(a)(5), a commenter asked that the language be changed to read "A licensee shall not, knowingly or through negligence, personally commit or allow or direct actions by employees, contractors, or volunteers which result in inadequate care, harm, or injury to any resident." RESPONSE: The board disagrees and feels that adequate procedural systems need to be in place in order to address this particular issue. COMMENT: Concerning sec.241.19(a)(5), a commenter asked that the language be changed to read "... shall use reasonable care to protect residents from inadequate care, harm, or injury." RESPONSE: The board disagrees and feels that the commenter's proposed wording is vague. COMMENT: Concerning sec.241.19(a)(6), a commenter stated that " I again feel uncomfortable with the word "allow" because I do not have total control over another person's actions." RESPONSE: The board disagrees and states that procedural systems need to be in place in order to address the commenter's concern. COMMENT: Concerning sec.241.19(a)(6), a commenter asked that the language be changed to read "A licensee should not knowingly allow or direct actions by employees, contractors, or volunteers which result or could result in failure to follow a physician's order or the altering in any way of a physician's order for any resident's medical or therapeutic care." RESPONSE: The board disagrees and states that the proposed language as stated in sec.241.19(a)(6) is sufficiently stated. COMMENT: Concerning sec.241.19(a)(6), a commenter asked that the language be changed to read "... shall use reasonable care to implement measures to prevent employees, contractors, or volunteers from failing to follow a physician order or altering a physician's order." RESPONSE: The board disagrees and feels that the commenter's proposed wording is vague. COMMENT: Concerning sec.241.19(a)(6), a commenter asked "What happens when a physician alters another physician's order?" RESPONSE: The board responds that this is beyond the board's jurisdiction and feels that the proposed language is sufficient. There are systems in place to monitor professionals, even if independent contractors. COMMENT: Concerning sec.241.19(a)(6), a commenter stated that "The language is overly broad." RESPONSE: The board disagrees and feels that the intent of this language is sufficiently stated in the proposed language. COMMENT: Concerning sec.241.19(a)(6), a commenter asked to delete the term "or could result" after the term "which result". RESPONSE: The board disagrees and feels that the intent of this language is sufficiently stated in the proposed language. COMMENT: Concerning sec.241.19(a)(7), a commenter asked that the language be changed to read "A licensee either knowingly or through negligence, shall not allow or direct actions which result in failure to protect residents from harmful actions of the nursing facility employees, including but not limited to, coercion, threats, intimidation, solicitation, harassment, cruelty, or indifference to the welfare of the residents." RESPONSE: The board disagrees and feels that these issues should remain separate and that the statute is specific. COMMENT: Concerning sec.241.19(a)(7), a commenter stated that "This standard is overly broad. The phrase "another" is not defined and is therefore overly broad. The provisions of this standard are adequately addressed by other standards (as modified by TALFA) and therefore should be omitted." RESPONSE: The board disagrees and feels these issues should remain separate. Additionally, the statute is specific. COMMENT: Concerning sec.241.19(a)(8) and (9), a commenter asked to insert the words "knowingly" between the words "not" and "fail" and between the words "not" and "permit" to clarify intent. RESPONSE: The board disagrees. The language will remain as written in both references and notes that sec.241.19(b) allows for the licensee to explain extenuating circumstances. COMMENT: Concerning sec.241.19(a)(7), a commenter asked that the language be changed to read "A licensee, knowingly or through negligence, shall not allow or direct actions that result in the failure to ensure that the medical care of each resident is supervised by a physician and shall ensure that another physician supervise the medical care of residents when their attending physician is unavailable." RESPONSE: The board disagrees and feels that the commenter's concerns are sufficiently covered in sec.241.19(a)(6) and sec.241.19(a)(2). COMMENT: Concerning sec.241.19(a)(7), a commenter asked that a new standard be added to read "A licensee shall not commit or knowingly or through negligence allow another to commit any act of abuse or neglect of a resident, as defined by 40 TAC sec.19.101." RESPONSE: The board disagrees that a new standard be added. However, the board will incorporated the term "or through negligence" into sec.241.19(a)(7). COMMENT: Concerning sec.241.19(a)(8), a commenter asked that the language be changed to insert the word "knowingly" prior to the word "allow". RESPONSE: The board disagrees and feels that the commenter's concerns are sufficiently covered in sec.241.19(a)(8). COMMENT: Concerning sec.241.19(a)(8), a commenter asked that the language be changed to read "... shall notify or implement measures for others to notify an appropriate governmental agency of any suspected abuse or neglect as defined by 40 TAC sec.19.101." RESPONSE: The board disagrees and stated that the intent of these rules is to have procedures, systems, or mechanisms in place to allow for resident safety. COMMENT: Concerning sec.241.19(a)(9), a commenter asked that the language be changed to read "A licensee shall not knowingly or through negligence permit his or her license to be used by another person." RESPONSE: The board disagrees and feels that the proposed language clearly states the responsibility of the NFA. COMMENT: Concerning sec.241.19(a)(10), a commenter asked that the language be changed to read "A licensee shall report to the Board any violations of the Act or rules promulgated thereunder by another person licensed under the Act whom the licensee has personally observed to expose a resident of the licensee's facility to risk of harm." RESPONSE: The board disagrees and feels that the board rules sufficiently address the commenter's concern with the use of the term "knowingly". COMMENT: Concerning sec.241.19(a)(10), a commenter asked that the language be changed to read "A licensee shall report to the Board any violations of the Act or rules promulgated thereunder of which the licensee has personal knowledge which have been committed by another person licensed under this Act and which have exposed a resident of the facility to risk of harm." RESPONSE: The board disagrees and feels that the language sufficiently addresses the commenter's concern with the use of the term "knowingly". COMMENT: Concerning sec.241.19(a)(10), a commenter asked that the language be changed to read "A licensee shall report to the board a violation of the Act or this chapter by another licensed nursing facility administrator." RESPONSE: The board disagrees. The board rules sufficiently address the commenter's concern with the use of the term "knowingly". COMMENT: Concerning sec.241.19(a)(11), a commenter asked that the language be changed to read "A licensee shall not wantonly or wilfully advertise or participate in the advertising of nursing home services in a manner which is fraudulent, false, deceptive or misleading in form or content." RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(11) is sufficient. COMMENT: Concerning sec.241.19(a)(11), a commenter asked that the language be changed to read "A licensee shall not wantonly or wilfully advertise or participate in the advertisement of nursing home services in a manner which is fraudulent, false, deceptive or misleading in form or content." RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(11) is sufficient. COMMENT: Concerning sec.241.19(a)(11), a commenter stated " This rule offers some problem because upon whose judgment will advertising be judged. Whereas, I would never advertise or knowingly participate in advertisement that would be perceived as fraudulent false, deceptive, or misleading in the form or content, I can see where other persons could take exception to some advertising and could classify such as fraudulent false, deceptive, or misleading in the form or content? Who will judge advertising?" RESPONSE: The board disagrees and stated that the intent of this rule is subject to review in sec.241.19(b) which addresses the concerns presented by the commenter. COMMENT: Concerning sec.241.19(a)(11), a commenter asked that the language be changed to read "A licensee should not make or allow another person to formally make misrepresentations or fraudulent statements about the operation of the nursing home." RESPONSE: The board disagrees and feels that the proposed language adequately covers the area of responsibility. COMMENT: Concerning sec.241.19(a)(12), a commenter stated that "This language is overly broad and vague. The language in paragraph (12) as proposed is adequately addressed in paragraph (11) and should therefore be omitted." RESPONSE: The board disagrees and feels that sec.241.19(a)(12) is specific and adequately covers advertising. Section 241.19(a)(11) includes statements made by word of mouth. COMMENT: Concerning sec.241.19(a)(12), a commenter stated that "This standard attempts to impose subjective standards which are not defined in the rules. The terms "misrepresentations" and "fraudulent" are not defined in the rules. As such neither board investigators nor administrators can know with any reasonable degree of certainty what will constitute a violation of this standard. Additionally, the standard as proposed contains no "intent" language meaning that administrators could be found to have violated this standard without any showing of intent." RESPONSE: The board disagrees and feels that although there is some subjectivity, each case will be reviewed under a common definition of these terms. COMMENT: Concerning sec.241.19(a)(12), two commenters asked that the language be changed to read "... shall not make or knowingly allow another person to make misrepresentations or fraudulent statements about the operation of the nursing home." RESPONSE: The board disagrees and feels that the intent is clearly stated in the proposed language in sec.241.19(a)(12). COMMENT: Concerning sec.241.19(a)(12), a commenter asked that the language be changed to read "A licensee shall not knowingly make or knowingly allow employees, contractors, or volunteers to make misrepresentations or fraudulent statements about the operation of the nursing facility." RESPONSE: The board disagrees and feels that the intent is clearly stated in the proposed language in sec.241.19(a)(12). COMMENT: Concerning sec.241.19(a)(13), a commenter stated that "This standard is overly broad and confusing. This proposal is beyond the Board's authority to adopt. The board is not authorized or qualified to determine what is or is not bribery. In addition, there is no intent language in this standard, so administrators could be held "strictly liable" for violations without any showing of intent. Additionally, the actions addressed in this standard are covered by state and federal fraud and anti-kickback statutes. As a result, this standard should be omitted." RESPONSE: The board agrees and has omitted the word "bribery". COMMENT: Concerning 241.19(a)(13), a commenter asked that the language be changed to read "A licensee shall not bribe or threaten or knowingly allow others to bribe or threaten a person to cause that person to use the services or equipment of any particular health agency or facility." RESPONSE: The board disagrees and feels that the proposed language is sufficient, but has omitted the word "bribery" in response to a previous comment. COMMENT: Concerning sec.241.19(a)(13), two commenters asked that the language be changed to read "... shall not knowingly allow or direct ...". RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(13) is sufficient. COMMENT: Concerning sec.241.19(a)(14), a commenter asked to add the term "or through negligence" after the term "shall not bill or knowingly". RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(14) is sufficient. COMMENT: Concerning sec.241.19(a)(14), a commenter stated that "This standard as proposed is covered in state and federal fraud statutes and could be omitted. In addition the term "another person" is overly broad and is not defined in the rules." RESPONSE: The board disagrees and feels that this is an area of responsibility of an administrator. The intent is to have procedures in place to prevent this situation. COMMENT: Concerning sec.241.19(a)(14), a commenter asked that the language be changed to read "A licensee shall not bill or knowingly allow another person to bill for services pertaining to the operation of the nursing facility other than those actually rendered." RESPONSE: The board disagrees and feels that the proposed language adequately addresses the billing within a facility. COMMENT: Concerning sec.241.19(a)(15), a commenter asked to add the term "knowingly or through negligence" after the term "shall not make or file or". RESPONSE: The board disagrees and feels that this responsibility pertains to the NFA and is clearly stated in the rule. COMMENT: Concerning sec.241.19(a)(15), three commenters suggested the word "knowingly" should be inserted before the word "allow". While a licensee may know a certain report is false, he or she may not know that such a report has been filed. RESPONSE: The board disagrees and feels that this responsibility pertains to the NFA and is clearly defined by the rule. COMMENT: Concerning sec.241.19(a)(15), a commenter asked that the language be changed to read "A licensee shall not knowingly or through negligence make or file or allow an employee, volunteer, or contractor to make or file a report or record which the licensee knows to be false." RESPONSE: The board disagrees and stated that this responsibility pertains to the NFA and is clearly stated in the rule. COMMENT: Concerning sec.241.19(a)(15), a commenter asked that the language be changed to read "... shall notify or use reasonable care to ensure that all reports ...". RESPONSE: The board disagrees and feels that the language is clearly defined in sec.241.19(a)(15). COMMENT: Concerning sec.241.19(a)(16), a commenter stated that "The purpose of this standard is to insure that a licensee files all reports and records required by state or federal law. Once again; however, the use of undefined, subjective terms such as "impede" and "obstruct" provide no meaningful guidance to administrators on how to comply with this standard. RESPONSE: The board disagrees and feels that the common definition of these terms as used in the proposed language is sufficient. COMMENT: Concerning sec.241.19(a)(16), a commenter asked that the language be changed to read "A licensee shall not knowingly or intentionally: (i) fail to file a report or record required by state or federal law; (ii) prevent a facility employee from filing such a report or record; or (iii) induce another person to prevent a facility employee from filing such a report or record. RESPONSE: The board disagrees and feels that the proposed wording is sufficiently written. COMMENT: Concerning sec.241.19(a)(16), a commenter asked that the language be changed to read "... shall use reasonable care to ensure that all reports RESPONSE: The board disagrees and feels that the proposed language in sec.241.19(a)(16) is more specific. COMMENT: Concerning sec.241.19(a)(17), a commenter stated that "The language is excessively vague and excessively broad. Criminal activity as defined by State and Federal laws encompasses an enormous range of activity. Furthermore, knowledge on the part of the licensee is not a prerequisite to finding a violation." RESPONSE: The board disagrees and feels that the proposed language is sufficiently clear as written. The intent is that if an administrator suspects criminal activity, it should be reported. COMMENT: Concerning sec.241.19(a)(17), a commenter stated that the word "intentionally" should be added as in paragraph (16). RESPONSE: The board disagrees and feels that the proposed language as stated in sec.241.19(a)(17) is sufficient. COMMENT: Concerning sec.241.19(a)(17), a commenter asked to eliminate the phrase "as defined by state and federal laws". Administrators are not lawyers and should not be responsible for failing to report all criminal activity as defined by state and federal law. Instead, administrators should simply be required to report all activity that they know or reasonably believe may be criminal in nature. RESPONSE: The board disagrees and feels that a licensee should report any suspected activity. COMMENT: Concerning sec.241.19(a)(17), a commenter asked to add a new paragraph (18)which says: "A licensee shall take all prudent and diligent management and administrative actions within the administrator's control that could reasonably be expected to assure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency) as required by 42 CFR sec.483.13." RESPONSE: The board disagrees that the language is needed and states that procedures or measures should be in place for the administrator to be aware of these situations. Extenuating circumstances will be reviewed as defined in sec.241.19(b). COMMENT: Concerning sec.241.19(a)(17), two commenters asked that it be changed to read "A licensee shall not knowingly or through negligence allow or direct actions that result in failure to notify an appropriate governmental agency of any suspected criminal activity as defined by state and federal laws." RESPONSE: The board disagrees and feels that if an administrator suspects something they should report it. COMMENT: Concerning sec.241.19(a)(17), a commenter asked that the language be changed to read "...shall notify or use reasonable care to ensure that all reports...". RESPONSE: The board disagrees and feels that the proposed language sufficiently addresses the commenters concern. COMMENT: Concerning sec.241.19(a)(18), a commenter asked "What happens when an administrator is discharged and does not find other employment? They should notify, but give the home address as preferred." RESPONSE: The board disagrees; however the board feels that this is more of a licensing issue and not a standard of conduct, therefore, proposed sec.241.19(a)(18) was deleted. COMMENT: Concerning sec.241.19(a)(18), a commenter stated that "This is a violation of my privacy, unless it directly affects the administration of a facility." RESPONSE: The board disagrees; however the board feels that this is more of a licensing issue and not a standard of conduct, and therefore as previously stated, proposed sec.241.19(a)(18) was deleted. COMMENT: Concerning sec.241.19(a)(18), a commenter stated that the language be changed to read "A licensee shall notify the board of changes in the licensee's name and preferred mailing address within 30 days of such a change. RESPONSE: The board disagrees; however the board feels that this is more of a licensing issue and not a standard of conduct, and therefore as previously mentioned proposed sec.241.19(a)(18) was deleted. COMMENT: Concerning sec.241.19(a)(19), a commenter stated that "This standard is overly broad as it requires administrators to be responsible for all "other persons". While this term is not defined in the standards, use of the phrase "other person's duties" in this proposed standard indicates that the Board properly intended this standard to apply only to employees of the facility. This is reasonable as administrators should only be responsible for the actions of those persons over whom the administrator has control or authority." RESPONSE: The board disagrees and feels that the proposed language is sufficient. Proposed paragraph (19) has been renumbered and is now paragraph (18) in the final rules. COMMENT: Concerning sec.241.19(a)(19), a commenter asked that the language be changed to read "A licensee shall not use or knowingly allow an employee to use alcohol or drugs in a manner which interferes with his or her nursing facility job performance." RESPONSE: The board disagrees and feels that the proposed language is sufficient. Proposed paragraph (19) has been renumbered and is now paragraph (18) in the final rules. COMMENT: Concerning sec.241.19(a)(19), a commenter asked that the language be changed to read "A licensee shall not use or knowingly allow an employee or another person to use alcohol or other drugs in a manner which may interfere with the performance of duties." RESPONSE: The board disagrees and feels that the proposed language is sufficient. Proposed paragraph (19) has been renumbered and is now paragraph (18) in the final rules. COMMENT: Concerning sec.241.19(a)(20), a commenter stated that "Anyone having had disciplinary action towards their license even 10 to 15 years ago would be subject to more disciplinary action. Also, anyone from another state with any disciplinary action may not work in this state without additional disciplinary action." RESPONSE: The board disagrees; however, since this issue falls under the auspices of the initial licensure application process, paragraph (20) was deleted from the rules and this topic will be referred to the Policy and Procedures Committee of the board. COMMENT: Concerning sec.241.19(a)(20), a commenter asked that the language be changed to read "A licensee whose nursing facility administrator's license has been subject to disciplinary action in another state, is subject to appropriate disciplinary action under this Act and the rules promulgated thereunder." RESPONSE: The board agrees; however, the board decided that this issue falls under the auspices of the initial licensure application process, and deleted paragraph (20) from the rules and this topic will be referred to the Policy and Procedures Committee of the board. COMMENT: Concerning sec.241.19(a)(21), a commenter asked that the language be changed to read "A licensee shall not knowingly violate or through negligence allow or direct actions that result in violation of any confidentiality provisions as prescribed by state or federal law concerning a resident." RESPONSE: The board agrees and has incorporated "through negligence" into this rule. Proposed paragraph (21) has been renumbered and is now paragraph (19) in the final rules. COMMENT: Concerning sec.241.19(a)(22), a commenter asked that the language be changed to read "... within the facility where he is administrator, and in clearly legible type ...". RESPONSE: The board disagrees. However, the board clarified that the intent of the language is that the license to be posted is to be that of the administrator of record. Proposed paragraph (22) is now paragraph (20) in the final rules. COMMENT: Concerning sec.241.19(a)(22), a commenter asked that the language be changed to read "A licensee shall post in the nursing facility where the administrator is employed in a conspicuous place in clearly legible type information by the board giving the name, address, and telephone number of the board and stating that complaints about the administrator may be made to the board." RESPONSE: The board disagrees and feels that the proposed language in sec.241.19(a)(22) is adequately stated. (Now sec.241.19(a)(20) in the final rules.) COMMENT: Concerning sec.241.19(a)(23), a commenter asked that the language be changed to read "A licensee shall not interfere with a board investigation by knowingly misrepresenting facts to the board or its authorized representative, or by using threats or harassment against any person involved or participating in the investigation." RESPONSE: The board disagrees. This is a fact question that will be determined at the time of the investigation. COMMENT: Concerning sec.241.19(a)(23), a commenter recommended adding the language "and/or making the complaint, especially if the person making the complaint is the resident or the resident's family member or friend." RESPONSE: The board disagrees and states that proposed wording would include a resident, resident's family member, or friend. Proposed paragraph (23) is now paragraph (21). COMMENT: Concerning sec.241.19(a)(23), a commenter recommended adding the word "withholding" after the term "a board investigation by" and the word "or" after the term "to the board,". RESPONSE: The board agrees partially. This paragraph has been amended to add "withholding" to the paragraph as recommended. Proposed paragraph (23) is now paragraph (21) in the final rules. COMMENT: Concerning sec.241.19(a)(24), a commenter recommended adding the words "unless the board fails to provide the licensee with a new license in a timely manner." RESPONSE: The board disagrees and feels that the proposed language is sufficient. Proposed paragraph (24) has been renumbered and is now paragraph (22) in the final rules. COMMENT: Concerning sec.241.19(a)(25), a commenter asked that the language be changed to read "A licensee shall not mismanage or knowingly or through negligence allow other individuals to mismanage the personal funds of residents deposited with the facility and shall take all prudent and diligent management and administrative actions within the administrator's control that could reasonably be expected to establish and maintain a system to hold, safeguard, manage, and account for the personal funds of the resident deposited with the facilities requires by 42 CFR Section 483.10." RESPONSE: The board agrees and has amended the rule to include the term "or through negligence" and further responded that the rule implies that the administrator should have systems in place to safeguard personal funds. Proposed paragraph (25) is now paragraph (23) in the final rules. COMMENT: Concerning sec.241.19(a)(26), a commenter asked, "What does "shall monitor the effectiveness of the policies" really mean?" RESPONSE: The board agrees that clarification is needed. The attempt was to protect the property of the resident. Proposed paragraph (26) was deleted, but the subject matter (theft of property) was added to sec.241.19(a)(4). COMMENT: Concerning sec.241.19(a)(26), a commenter stated that "this language is duplicative of language in paragraphs (3) and (5) and should be omitted." RESPONSE: The board agrees. The attempt was to protect the property of the resident. As stated previously, paragraph (26) was deleted, but the subject matter was added to sec.241.19(a)(4). COMMENT: Concerning sec.241.19(a)(27), a commenter stated that "Under current law the facility has a duty to warn against dangers of which it had reasonable notice. This proposed language removes common law notice and warning requirement and makes the administrator strictly/per se liable for all dangerous occurrences on the property even if there is no notice or a proper warning provided. As illustration, an employee mops the floor in a resident hall and places a large yellow warning sign which states "Be Careful -- Wet Floor." Nevertheless, a family member of a resident who is visiting slips on the wet floor. This regulation makes the administrator liable under his license and possibly in a civil or DTPA suit regardless of the sufficient warning." RESPONSE: The board disagrees and states that these rules do not add to common law or statutory authority of another law, they apply only to licensees. Proposed paragraph (27) is now paragraph (24) in the final rules. COMMENT: Concerning sec.241.19(a)(27), a commenter stated that "This standard requires a licensee to become an insurer. Furthermore, the standard "physically maintained in a way that protects the health and safety of residents and the public" is so broad and vague as to provide no notice to a licensee regarding what is demanded. This standard should be changed to require a willful failure. Furthermore, the requirements for maintenance should be defined." RESPONSE: The board disagrees and feels that the language is clearly defined as stated in proposed sec.241.19(a)(27). As stated previously, proposed paragraph (27) is now paragraph (24) in the final rules. COMMENT: Concerning sec.241.19(a)(27), a commenter asked that the language be changed to read "... shall use reasonable care in implementing care measures to ensure that a nursing facility ...". RESPONSE: The board disagrees and feels that the language is clearly defined as stated in sec.241.19(a)(27), (now sec.241.19(a)(24) in the final rules.). COMMENT: Concerning sec.241.19(a)(27), a commenter asked that the language be changed to read "A licensee shall not knowingly or through negligence fail to ensure that the nursing facility is physically maintained in order to protect the health and safety of residents and the public." RESPONSE: The board disagrees and feels that the language is clearly defined as stated in sec.241.19(a)(27), (now sec.241.19(a)(24) in the final rules.). COMMENT: Concerning sec.241.19(a)(27), a commenter asked that the language be changed to read "A licensee shall take all prudent and diligent management and administrative actions under the control of the licensee that could reasonably be expected to ensure that the nursing facility is maintained in a way that protects the health and safety of residents and the public." RESPONSE: The board disagrees and feels that the language is clearly defined as stated in sec.241.19(a)(27), (now sec.241.19(a)(24) in the final rules.). COMMENT: Concerning sec.241.19(b), a commenter asked that the language be changed to read "(b) In determining whether formal disciplinary action is appropriate under this section, the board shall consider: (1) response of the licensee prior to, during and after the occurrence, including efforts of the licensee to correct the violation(s); (2) history and nature of complaints before the board against a licensee; (3) severity of harm to residents; (4) whether the violation was caused by factors beyond the licensee's authority or control; (5) responsibility and involvement of other persons, including employees, contractors or volunteers; (6) any other extenuating circumstances or mitigating factors." RESPONSE: The board disagrees. These issues are clearly covered by sec.241.19(b)(2) under extenuating circumstances. COMMENT: Concerning sec.241.19(b), a commenter asked to add a new paragraph (5) to read "degree of responsibility attributable to ownership or other factors beyond the administrator's control." RESPONSE: The board disagrees. These issues are clearly covered by sec.241.19(b)(2) relating to extenuating circumstances. COMMENT: Concerning sec.241.20, a commenter stated that "The administrative penalties provision is objectionable because the level of fines which can be imposed on an administrator is clearly excessive. This is particularly so because non-compliance with an extremely vague standard, as previously discussed, could be determined to have been in existence for days or even weeks prior to being called to the administrator's attention. This could subject him to thousands of dollars in fines for "violations that have no or only minor health or safety significance"." RESPONSE: The board disagrees. The penalty provisions allow for due process to enable the licensee to present their case prior to penalties being assessed. COMMENT: Concerning sec.241.20, a commenter stated that "This area definitely seems to impose double jeopardy on the nursing facility and the administrator. Will this section open up both the facility and the administrator to another survey process? I also do not see an appeals process or any type of dispute resolution in this area of the emergency rules. Will there be an avenue for appeal?" RESPONSE: The board disagrees and states that the board regulates/disciplines the administrator. The board has the authority to investigate any complaint files on or referred against an NFA. The Act clearly states the appeal process and sec.241.17 of this title relates to formal hearing procedures. COMMENT: Concerning sec.241.20, a commenter asked that the language be changed to read "The purpose of this section is to provide for monetary penalties for a nursing facility administrator who wilfully or repeatedly fails to comply...". RESPONSE: The board disagrees. This wording is clarified in the standards of conduct in sec.241.19(a). COMMENT: Concerning sec.241.20, a commenter asked that the language be changed to read "The purpose of this section is to provide for the imposition of administrative penalties for a licensee who fails to comply with the standards of conduct as set forth in sec.241.19 of this title (relating to Standards of Conduct)." RESPONSE: The board disagrees and feels that the proposed language is sufficient. COMMENT: Concerning sec.241.20(1), a commenter asked that the language be changed to read "(1) The assessment of administrative penalties against a licensee is governed by the Texas Nursing Facility Administration Act (Act), sec.20 and sec.22, and rules promulgated thereunder." RESPONSE: The board disagrees and feels that the proposed language is sufficient. COMMENT: Concerning sec.241.20(4), a commenter asked that the language be changed to read "(4) If the executive secretary of the board determines that a violation of the Act, this chapter, or an order adopted by the board under the Act has occurred, the executive secretary may issue a report that states the facts on which the determination is based and the executive secretary's recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty in accordance with sec.22(d) of the Act, to the Complaints Committee of the board. The report shall not be considered to be issued under the Act, sec.22(e) until and unless the Complaints Committee decides to recommend the imposition of an administrative penalty. The issuance of a report shall be governed by the procedures set forth in sec.22 of the Act." RESPONSE: The board disagrees. The board is statutorily required to give notice within 14 days as stated in the Act, sec.22(d) and (e). COMMENT: Concerning sec.241.20(5), a commenter asked that the language be changed to read "(5) If the person accepts the determination and recommended penalty of the executive secretary, the board by order shall approve the determination and impose the recommended penalty. If the person requests a hearing or fails to respond timely to the notice of the report, the chairman of the board or his designee shall promptly appoint a hearings examiner from the Texas Department of Health to preside over the case." RESPONSE: The board agrees and changed the language to be consistent with the Act. COMMENT: Concerning sec.241.20(6), a commenter stated that "It is unclear what the phrase "except where the section is in conflict with Act." is referring to. This phrase may refer to the procedures of sec.22 of the Act. However, this is not clear. This should be clarified in the final version of the rule." RESPONSE: The board agrees and has amended language of sec.241.20(6) to read "A hearing to assess administrative penalties shall be governed by sec.241.17 of this title (relating to Formal Hearings Procedures)". COMMENT: Concerning sec.241.20(7), a commenter stated that "It is not clear what factors, if any, the Board will use to determine whether to assess an administrative penalty (rather than one of the other sanctions available under the Act). At a minimum the Board is statutorily obligated to consider the criteria listed in sec.22(c) of the Act in determining the level of any administrative penalty. To insure fair and consistent enforcement, however, the Board should consider adopting additional, objective standards for determining the level of administrative penalties." RESPONSE: The board agrees. The board has statutory authority and has promulgated rules to assess administrative penalties and is working on a broad schedule of sanctions for violations as required by the Act. COMMENT: Concerning sec.241.20(8), a commenter stated that "The $1,000 penalty, adopted at severity Level I, for adverse impact to include "serious harm, permanent injury of death," is hardly an amount useful to address deterrence. As a temporary measure, establishing for each of the three severity levels an across the board penalty at the maximum $1,000 amount now permitted by the Act, would get attention." RESPONSE: The board disagrees. The law does allow for a maximum penalty, but these are for varying degrees of severity and it is a per-day penalty assessment. COMMENT: The staff noted a minor error in the statutory authority language in the proposed preamble wherein it cites Article 4512q as part of the Health and Safety Code which is incorrect. RESPONSE: The board agrees that an error was made and has corrected it in the final preamble. The following groups and associations provided comments on the proposed rules: The American Jewish Congress, Southwest Region; American Association of Retired Persons; Senior Citizens of Greater Dallas; Texas Silver Haired Legislature; Texas Advocates for Nursing Home Residents; Advocates for Nursing Home Reform; American College of Health Care Administrators, Texas Chapter; Texas Health Care Association; Friend and Associates, L.L.P.; Liddell, Sapp, Zivley, Hill & Laboon, L.L.P.; Edwards, Terry, Baiamonte & Edwards; Texas Association of Homes and Services to the Aged, Texas Association of Licensed Facility Administrators. The commenters were neither for nor against the rules in their entirety; however they made suggestions, asked for clarification and voiced concerns as discussed in the summary of comments. The new sections are adopted under the Texas Nursing Facility Administrators Licensure Act, Texas Civil Statutes, Article 4512q, sec.8(a) and (b)(1), which provides the board with the authority to adopt rules consistent with the Act and to adopt a code of ethics (standards of conduct); sec.20(a), which authorizes the board to assess administrative penalties; and sec.22(a), which authorizes the board to impose administrative penalties. sec.241.19. Standards of Conduct. (a) A nursing facility administrator (licensee) who fails to comply with the provisions of the Texas Nursing Facility Administrators Licensing Act (Act), Texas Civil Statutes, (TCS), Article 4512q, sec.8, or this chapter, may be disciplined by the board in accordance with sec.sec.20, 21, or 22 of the Act or sec.241.11 of this title (relating to Adverse Licensure Actions) and sec.241.20 of this title (relating to Administrative Penalties). (1) A licensee shall ensure that sufficient personnel are present in number and ability to assure the health and safety of a resident as determined by care outcomes. (2) A licensee shall ensure that sufficient resources are present to assure nutrition, medications and treatments, including restraints, are in accordance with physician orders as determined by care outcomes. (3) A licensee, either knowingly or through negligence, shall not personally commit or allow or direct actions by employees, contractors, or others which result or could result in failure to protect and promote the rights of each resident. (4) A licensee, either knowingly or through negligence, shall not allow or direct actions which result or could result in failure to protect residents from harmful actions of the nursing facility employees, including but not limited to coercion, threat, intimidation, solicitation, harassment, theft of personal property, cruelty or indifference to the welfare and rights of the residents. (5) A licensee, either knowingly or through negligence, shall not personally commit or allow or direct actions by employees, contractors or others which result or could result in inadequate care, harm, or injury to the resident. (6) A licensee, either knowingly or through negligence, shall not allow or direct actions which result or could result in failure to follow a physician's order or the altering in any way of a physician's order for any resident's medical or therapeutic care. (7) A licensee shall not commit or knowingly or through negligence allow another to commit any act of abuse or neglect of a resident, as defined by 40 TAC sec.19.101. (8) A licensee shall not fail to notify, allow or direct actions which result in failure to notify an appropriate governmental agency of any suspected cases of abuse or neglect as defined by 40 TAC sec.19.101. (9) A licensee shall not permit his or her license to be used by another person. (10) A licensee shall not knowingly allow, aid, abet, sanction, or condone a violation of the Act or this chapter by another licensed nursing facility administrator and shall report such violations to the board. (11) A licensee shall not advertise or knowingly participate in the advertisement of nursing home services in a manner which is fraudulent, false, deceptive, or misleading in form or content. (12) A licensee shall not make or allow employees, contractors, or volunteers to make misrepresentations or fraudulent statements about the operation of the nursing facility. (13) A licensee shall not allow or direct actions which result in harassment or intimidation of any person designed to cause that person to use the services or equipment of any particular health agency or facility. (14) A licensee shall not bill or knowingly allow another person to bill for services other than those actually rendered. (15) A licensee shall not make or file or allow employees, contractors or volunteers to make or file a report or record which the licensee knows to be false. (16) A licensee shall not intentionally fail to file a report or record required by state or federal law; impede or obstruct such filing; or induce another person to impede or obstruct such filing. (17) A licensee shall not fail to notify, allow, or direct actions which result in failure to notify an appropriate governmental agency of any suspected cases of criminal activity as defined by state and federal laws. (18) A licensee shall not use or knowingly allow an employee or another person to use alcohol, narcotics or other drugs in a manner which interferes with the performance of the administrator or other person's duties. (19) A licensee shall not knowingly or through negligence violate any confidentiality provisions as prescribed by state or federal law concerning a resident. (20) A licensee shall post in the nursing facility where the administrator is employed as administrator of record in a conspicuous place and in clearly legible type the notice provided by the board giving the name, address, and telephone number of the board and stating that complaints about the administrator may be made to the board. (21) A licensee shall not interfere with a board investigation by withholding or misrepresenting facts to the board or its authorized representative, or by using threats or harassment against any person involved or participating in the investigation. (22) A licensee shall not display a license issued by the board which has been reproduced, altered, expired, suspended, or revoked. (23) A licensee shall not knowingly or through negligence allow other individuals to mismanage the personal funds of residents deposited with the facility. (24) A licensee shall ensure that the nursing facility is physically maintained in a way that protects the health and safety of residents and the public. (25) A licensee shall not bribe or attempt to bribe, harass or intimidate a governmental agency, its employees, or its agents in regard to the administration of the nursing facility. (b) In determining disciplinary action the board may consider: (1) responsibility and response of the licensee prior to, during, and after the occurrence; (2) extenuating circumstances; (3) repeat complaints against a licensee; and (4) severity of harm to residents. sec.241.20. Administrative Penalties. The purpose of this section is to provide for monetary penalties for a nursing facility administrator who fails to comply the Texas Nursing Facility Administration Act, Texas Civil Statutes, Article 4512q, sec.8 and sec.22 (Act), rules, or order adopted by the board under the Act. (1) The assessment of an administrative penalty is governed by the Act, sec.8, sec.21, and sec.22. In compliance with the Act, this section provides the board with the administrative procedure and ability to sanction an administrator for improper conduct, i.e. administrative penalties for failure to comply with the Act, rules, or an order by the board. (2) The board may impose an administrative penalty against a person licensed or regulated under the Act who violates the Act or this chapter or an order adopted by the board under the Act. (3) The penalty for a violation may be in an amount not to exceed $1,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (4) The executive secretary may issue a report that states the facts in which the determination is based and the executive secretary's recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty as required by the Act, sec.22(d) to the Complaints Committee of the board. The report shall not be considered to be issued under the Act, sec.22(e) until and unless the Complaints Committee decides to recommend the imposition of an administrative penalty based on the Act sec.22(c). (5) The chairman of the board shall appoint a hearing examiner from the Texas Department of Health (TDH). (6) A hearing to assess administrative penalties shall be governed by sec.241.17 of this title (relating to Formal Hearings Procedures). (7) The seriousness of a violation shall be categorized by one of the following severity levels: (A) Level I - violations that have or had an adverse impact on the health or safety of a resident to include serious harm, permanent injury or death to a resident; (B) Level II - violations which have or have had a potential or adverse impact on the health and safety of a resident, but less than Level I; or (C) Level III - violations that have no or minor health or safety significance. (8) The range of administrative penalties by severity levels are as follows: (A) Level I - $500 - $1,000; (B) Level II - $250 - $500; and (C) Level III - no more than $250. 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 February 14, 1997. TRD-9702245 Michael O. Sims Chair Texas Board of Nursing Facility Administrators Effective date: March 7, 1997 Proposal publication date: October 29, 1996 For further information, please call: (512) 458-7236 TITLE 25. HEALTH SERVICES PART XI. Texas Cancer Council CHAPTER 701.Policies and Procedures 25 TAC sec.701.8 The Texas Cancer Council adopts an amendment to sec.701.8, concerning charges for copies of public records, without changes to the proposed text as published in the November 26, 1996, issue of the Texas Register (21 TexReg 11435). The rule is being amended to reflect the effective date of September 18, 1996 for the General Services Commission's 1 TAC sec.sec.111.61-111.70. The rule defines the charges for copies of public records. No comments were received regarding adoption of the amendment. The amendment is adopted under the Health and Safety Code, Chapters 102.002 and 102.009, which provides the Texas Cancer Council with the authority to develop and implement the Texas Cancer Plan, and the Texas Government Code Annotated, sec.2001.004 (Vernon 1996 Pamphlet). This amendment is also proposed under the Texas Government Code Annotated, sec. 552.2611 (b), which directs state agencies to specify, by rule, the charges they will make for copies of public information. 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 February 14, 1997. TRD-9702208 Emily F. Untermeyer Executive Director Texas Cancer Council Effective date: March 7, 1997 Proposal publication date: November 26, 1996 For further information, please call: (512) 463-3190 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART XV. Texas Low-level Radioactive Waste Disposal Authority CHAPTER 450. Planning and Implementation Fees SUBCHAPTER A. Assessment of Fees 31 TAC sec.sec.450.1-450.4 The Texas Low-Level Radioactive Waste Disposal Authority adopts amendments to sec.sec.450.1-450.4, concerning planning and implementation fees for low-level radioactive waste generators for the state's fiscal year 1997, without changes to the proposed text as published in the December 24, 1996, issue of the Texas Register (21 TexReg 12394). The amendments are necessary to comply with the Health and Safety Code, sec. 402.2721 that authorizes the adoption by rule of planning and implementation fees for each fiscal year. Fees collected in 1997 will be applied to the Authority's costs as set out in the Authority's appropriation bill for 1997. No comments were received regarding adoption of the amended sections. The Texas Health and Safety Code, sec.sec.402.054 and 402.2721 are affected by the amended sections. 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 February 18, 1997. TRD-9702289 Lee H. Mathews Deputy General Manager and General Counsel Texas Low-level Radioactive Waste Disposal Authority Effective date: March 11, 1997 Proposal publication date: December 24, 1996 For further information, please call: (512) 451-5292