ADOPTED RULES
An agency may take final action on a section 30 days after a proposal has been 
published in the Texas Register. The section becomes effective 20 days after the 
agency files the correct document with the Texas Register, unless a later date 
is specified or unless a federal statute or regulation requires implementation 
of the action on shorter notice.
If an agency adopts the section without any changes to the proposed text, only 
the preamble of the notice and statement of legal authority will be published. 
If an agency adopts the section with changes to the proposed text, the proposal 
will be republished with the changes.

TITLE 1. ADMINISTRATION
PART III. Office of the Attorney General
CHAPTER 55.Child Support Enforcement
SUBCHAPTER H.License Suspension
1 TAC sec.sec.55.216-55.217 
The Office of the Attorney General adopts new sec.55.216, providing for the 
dismissal of cases for want of prosecution, and new sec.55.217 authorizing the 
IV-D Agency to assess the cost of preparing the record of an agency proceeding 
against the appealing party pursuant to Texas Government Code, sec.2001.177, 
without changes to the proposed text as published in the May 2, 1997, issue of 
the Texas Register (22 TexReg 3867). The text will not be republished. 
These rules clarify the ability of the Office of the Administrative Law Judge to 
control its docket, and allow the agency to collect the cost of providing an 
agency record from the individual requesting the record be prepared. 
These rules provide authority to, and define procedures for, the Office of the 
Administrative Law Judge to dismiss cases for want of prosecution, and provide 
authority to the IV-D Agency to assess the cost of preparing the record of an 
agency proceeding against the party appealing the agency's decision to the 
reviewing court. These rules affect the Family Code, Chapter 232. 
No comments were received regarding the adopted new sections. 
The new sections are adopted under the Family Code, Chapter 232, Suspension of 
License for Failure to Pay Child Support, sec.232.016, which provides the Office 
of the Attorney General with the authority to prescribe forms and procedures for 
the implementation of Chapter 232, and furthermore, the new sec.55.217 is also 
adopted under the Government Code, Title 10 sec.2001.177, Cost of Preparing 
Agency Record, which provides the Office of the Attorney General with the 
authority, by rule, to require a party who appeals a final decision in a 
contested case to pay all or part of the cost of preparation of the original or 
a certified copy of the record of the agency proceeding that is required to be 
sent to the reviewing court. 
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 June 6, 1997.
TRD-9707322
Suzanne Marshall
Special Assistant Attorney General
Office of the Attorney General
Effective date: June 26, 1997
Proposal publication date: April 21, 1997
For further information, please call: (512) 475-4291

TITLE 22. EXAMINING BOARDS
PART X. Texas Funeral Service Commission
CHAPTER 203.Licensing and Enforcement-Specific Substantive Rules
22 TAC sec.sec.203.6, 203.16, 203.22 
The Texas Funeral Service Commission adopts amendments to sec.203.6, concerning 
Provisional Licensees, sec.203.16, concerning Embalming Standards, and 
sec.203.22, concerning Embalming Documentation, without changes to the proposed 
text as published in the April 11, 1997, issue of the Texas Register (22 TexReg 
3364) 
The amendments are being adopted to change the time when a provisional licensee 
may be tested, require signed authorization for embalming/transport by mortuary 
students, and require that embalming instructors prepare affidavits documenting 
their actions. 
No comments were received regarding the adopted amendments. 
The amendments are adopted pursuant to Texas Civil Statutes, Article 4582b, 
sec.5, which authorizes the Texas Funeral Service Commission to adopt rules to 
administer the statute. 
The adopted amendments affect Texas Civil Statutes, Article 4582b. 
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 June 5, 1997.
TRD-9707265
David W. Ashmore
General Counsel
Texas Funeral Service Commission
Effective date: June 25, 1997
Proposal publication date: April 11, 1997
For further information, please call: (512) 479-7222

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 29.Purchased Health Services
SUBCHAPTER D.Medicaid Home Health Services
On behalf of the State Medicaid Director, the Texas Department of Health 
(department) submits for adoption the repeal of sec.sec.29.301-29.312 and 
adoption of new sec.sec.29.301-29.307, concerning Title XIX Home Health services 
provided to Medicaid recipients. New sec.sec.29.301, 29.305, and 29.306 are 
adopted with changes to the proposed text as published in the December 13, 1996, 
issue of the Texas Register (21 TexReg 11928). New sec.sec.29.302, 29.303, 
29.304, and 29.307 are adopted without changes to the proposed text, and 
therefore the sections will not be republished. The repeal is adopted without 
changes and therefore the repeal will not be republished. 
The repeal of sec.sec.29.301-29.312 allows for the adoption of new sections 
which clarify and update the department's policies regarding home health 
services. The new sections list the benefits and limitations for covered Title 
XIX home health services, establish the eligibility requirements and establish 
the reimbursement methodology for home health services including expendable 
medical supplies and durable medical equipment (DME) for Medicaid recipients. 
The purpose of these rule changes for the mandated Title XIX Home Health 
services is to make the home health services rules more flexible and up-to-date 
to reflect current technology and accepted practice. 
The following comments were received concerning the proposed rules. Following 
each comment is the department's response and any resulting change(s).
Comment: Concerning sec.29.301(b)(7), a commenter states that the definition of 
"homebound" does not exclude children or specifically indicate that children can 
be homebound even though parent/care givers can carry them out of the home. The 
phrase "or is medically contraindicated" may address this issue; but it would be 
helpful if it received more emphasis, such as underlining or boldface. 
Response: The department disagrees with the commenter. Section 29.303, of this 
title (relating to Recipient Qualifications for Home Health Services) addresses 
eligibility for home health services. The recipient must be either homebound 
according to the definition set forth in the rules, or qualify for participation 
in the Texas Health Steps. Recipients under the age of 21 are eligible for the 
Texas Health Steps program. 
Comment: Concerning sec.29.302(b)(1), a commenter suggested that standards for 
durable medical equipment and medical supplies providers is unclear. To our 
knowledge, only Joint Commission on Accreditation of Health Care Organizations 
(JCAHO) and Community Health Accreditation Program (CHAP) have standards, which 
we would support. Perhaps the proposed regulations should name those two set of 
standards specifically. 
Response: There are currently no state licensure requirements or standards for 
durable medical equipment or supply providers. The rules were written to 
accommodate any future rules adopted by the department, the state, or federal 
regulations adopted for the Medicaid or Medicare programs. Monitoring and 
maintenance standards are outside the scope of these rules. 
Comment: Concerning sec.29.302(b)(1), a commenter asked, "What standards are 
referred to in sec.29.302? Will the DME industry have any input on establishing 
these standards? Who will monitor and maintain these standards? Will the 
Standards be the same as required for Medicare?" 
Response: There are currently no state licensure requirements or standards for 
durable medical equipment or supply providers. The rules were written to 
accommodate any future rules adopted by the department, the state, or federal 
regulations adopted for the Medicaid or Medicare programs. Monitoring and 
maintenance standards are outside the scope of these rules. 
Comment: Concerning sec.29.303, a commenter suggested that the proposed rules do 
not reflect the broad and flexible program envisioned by the task force. The 
maintenance of the requirement that eligible persons be "homebound" clearly 
imposes an enormous restriction on access. Even though the services and benefits 
are expanded, the barrier of the homebound requirement renders this expansion 
far less significant. 
Response: The states are given broad discretion to limit the amount, duration 
and scope of services it offers to eligible recipients under the Medicaid 
program. The state must also operate the program in a fiscally sound manner. The 
department must balance the desire to provide services to those who need them 
and the ability to pay for the services offered. The department has determined 
that limiting the services available under the home health program to those who 
meet the definition of homebound allows the department to provide the services 
to those most in need of the services and operate within the fiscal constraints 
imposed by lawmakers and taxpayers of the United States and Texas. 
Comment: Concerning sec.29.303, a commenter asked who actually makes the 
determination on behalf of Texas Medicaid that a person is homebound?
Response: The initial determination of whether a recipient is homebound is made 
by the physician who prepares the plan of care and the home health agency's 
registered nurse after assessing the recipient. After a request for home health 
services is received, the department or the department's contractor will 
determine that the recipient meets the criteria for homebound and that the 
services requested meet the needs of the recipient. The department's contractor 
and the department have qualified medical professionals to assist the department 
and the department's contractor in reviewing requests for services. 
Comment: Concerning sec.29.303, a commenter asked if the homebound requirement 
apply to individuals who only require medical equipment or supplies as part of 
the home health benefit. 
Response: Yes. The homebound requirement applies to all Title XIX home health 
services. The proposed rules eliminate this requirement for those recipients 
that are eligible for the Texas Health Steps (EPSDT) program. Federal law and 
regulations contained at 42 CFR sec.441.57, allow states to provide 
discretionary services to EPSDT recipients even if the state does not offer the 
service to other recipients or provides them in a lesser amount, duration and 
scope. 
Comment: Concerning sec.29.303, a commenter asked at what point in time is the 
homebound status of the beneficiary measured prior to the provision of 
equipment, after the provision of equipment or both. For example, if an 
individual who requires a walker may be homebound without one, but once it is 
provided, that individual may be able to leave the home on a regular basis. If 
the provision of the equipment means that the beneficiary is no longer 
homebound, will he/she still be able to access the equipment on an ongoing 
basis? 
Response: The homebound status is based upon the assessment made by the home 
health agency's registered nurse and the physician preparing the plan of care, 
before equipment, services or supplies are furnished. If the condition due to 
illness or injury which previously restricted the recipient's ability to leave 
home, or which made leaving the home taxing or required considerable effort, or 
was medically contraindicated, is removed or relieved as a result of receiving 
services, the recipient may lose continuing eligibility for home health 
services, because they would no longer meet the homebound requirements. If the 
condition or illness continues to restrict the recipient's ability to leave 
home, even after equipment and supplies are provided, the recipient would not 
automatically lose eligibility simply because it is easier for the recipient to 
leave the home, if leaving the home continues to be taxing, requires 
considerable effort or is medically contraindicated. The definition of homebound 
does not require the recipient be completely bedridden or debilitated, it does 
require that the recipient cannot leave the home without considerable effort or 
whose leaving the home is discouraged or contraindicated by the recipient's 
physician. If the recipient is no longer homebound, they would no longer qualify 
for home health services under their current plan of care. After equipment is 
provided it belongs to the recipient, and will not be reclaimed by the program. 
If the recipient meets the homebound requirements in the future they could again 
eligible for services and equipment under a new plan of care reflecting the 
current needs of the recipient. Each request is considered based on the 
recipient's eligibility at the time the services, equipment or supplies are 
requested. 
Comment: Concerning sec.29.303(1), a commenter expressed concern about the 
homebound requirement for the provision of DME and supplies. That this is the 
single most overwhelming barrier to access DME and supplies for people living in 
the community. 
Response: The states are given broad discretion to limit the amount, duration 
and scope of services they offer to eligible recipients under the Medicaid 
program. The states must also operate the program in a fiscally sound manner. 
The department must balance the desire to provide services to those who need 
them and the ability to pay for the services offered. The department has 
determined that limiting the services available under the home health program to 
those who meet the definition of homebound contained in the rules allows the 
department to provide the services to those most in need of the services and 
operate within the fiscal constraints imposed by the lawmakers and taxpayers of 
the United States and Texas. 
Comment: Concerning sec.29.304, a commenter asked, when a home health provider 
signs the section of the plan of care that certifies that a client is homebound, 
what criteria are used to make that determination? 
Response: The definition of homebound in the rules contains the essential 
criteria to determine whether a recipient qualifies as homebound. The physician 
preparing and approving the plan of care and home health agency staff must 
assess whether the recipient is homebound using their medical judgement and 
assessment of whether the recipient has a condition which restricts the 
recipient's ability to leave the home. 
Comment: Concerning sec.29.305(a)(2)(B), a commenter expressed concern about a 
possible conflict with rules promulgated by the Texas Board of Physical Therapy 
Examiners (TBPTE). The TBPTE rules state that a physical therapist must be on 
site, providing direct supervision, when a physical therapy aide is being 
utilized. The department's proposed sec.29.305(a)(2)(B) home health services 
rules state that the home health aide's duties may, "include the performance of 
simple procedures as an extension of therapy services." Therefore, is an aide 
functioning as a "physical therapy aide" or a "home health aide"?
Response: The department agrees with the commenter and the words "as an 
extension of therapy services" have been deleted from sec.29.305 (a)(2)(B).
Comment: Concerning sec.29.305(a)(2)(B), a commenter is opposed to any 
reimbursement position that allows for payment of physical therapy services that 
are not provided by a physical therapist, a physical therapist assistant, or a 
physical therapy aide under the direct, on site supervision of a physical 
therapist. 
Response: The department agrees with the commenter. Medicaid regulations require 
that home health agencies meet the requirements for participation in Medicare. 
See 42 CFR sec.440.70(d). Physical therapy services must be provided by a 
licensed physical therapist or physical therapist assistant under the direction 
of a licensed physical therapist. The use of a physical therapist "aide" is not 
authorized by the federal regulations relating to conditions for participation 
for therapy services found at 42 CFR sec.484.32.
Comment: Concerning sec.29.305(a)(2)(B), commenters indicate potential problems 
with interpretations and definitions concerning "extension of therapy services" 
and "completion of appropriate records". 
Response: The department has deleted the words "extension of therapy services" 
from sec.29.305(a)(2)(B) to avoid any confusion. All home health service 
providers are expected to provide only services for which they are licensed or 
certified and/or qualified, and document all services provided as required by 42 
CFR sec.484.48, according to the generally accepted standards for medical or 
clinical record keeping. 
Comment: Concerning sec.29.305(a)(2)(B), a commenter states, "We do not concur 
with the Executive Council's concerns that "extension of therapy services" could 
be interpreted as the performance of physical or occupational therapy or that 
the " completion of appropriate records" could be construed to mean the writing 
of therapy records." 
Response: The department has deleted the words "extension of therapy services" 
from sec.29.305(a)(2)(B) to avoid any confusion. All home health service 
providers are expected to provide only services for which they are licensed or 
certified and/or qualified, and document all services provided as required by 42 
CFR sec.484.48, according to the generally accepted standards for medical or 
clinical record keeping. 
Comment: Concerning sec.29.305(a)(2)(D)(iii), a commenter asks if a therapist 
makes the supervisory visit as stated in sec.29.305(a)(2)(D)(iii), is it billed 
as therapy, skilled nursing care, or home health aide services?" 
Response: Supervisory visits are billed as skilled professional visits.
Comment: If a home health aide should injure the patient, where would the 
liability fall? 
Response: This comment is outside the scope of these rules. 
Comment: Concerning sec.29.305(a)(2)(B) and sec.29.305(a)(2)(D)(iii), commenters 
state they are currently developing policies which will define the supervisory 
relationship between their therapists and aides, that will result in rules 
reflecting their deliberations. They would ask that the department modify its 
rules which define the supervisory roles of physical and occupational therapists 
until they complete their deliberations. As currently written and defined, the 
boards do not want to place their licensees in a position to supervise home 
health aides in a setting that may or may not involve their performing therapy 
services. 
Response: The department disagrees with the commenter. The rules reflect that 
physical and occupational therapists will supervise home health aides for 
personal care services only. The federal regulations relating to the conditions 
for participation for therapy services found at 42 CFR sec.484.32 state that 
therapy services can only be provided by qualified therapists or qualified 
therapist assistant under the supervision of a qualified therapist.
Comment: Concerning sec.29.305(a)(4)(B)(iii), a commenter asked if rental for 
replacement equipment while repairs are taking place would be provided.
Response: Yes. If the DME needing repair is medically necessary and part of the 
approved plan of care, either rental or replacement of the DME would be 
appropriate. 
Comment: Concerning sec.29.305(a)(4)(B)(iii)(I), the Health and Human Services 
Commission commented that the existing language does not state that rental 
equipment would be provided while equipment was being repaired. 
Response: The department agrees with the commenter and the rule was changed to 
specifically add a provision that rental equipment may be provided to replace 
purchased medical equipment or appliances for the period of time it will take to 
make necessary repairs to purchased medical equipment or appliances. 
Comment: Concerning sec.29.305(a)(4)(B)(iii)(III), a commenter suggested adding 
"for rental equipment only". Routine maintenance is the responsibility of the 
provider." Provisions for maintenance of purchased items should be in accordance 
with manufacturers warranty. 
Response: The department agrees with the commenter and the provision has been 
added to the rules. 
Concerning sec.29.305(a)(3), a commenter expressed concern about how the 
homebound requirement pertains to those who need supplies only. 
Response: The homebound requirement applies to all recipients who do not qualify 
for the Texas Health Steps program, regardless of the benefit the recipient 
seeks to access. The proposed homebound definition allows for flexibility to 
provide supplies to those who could not leave their residence without the 
supply. 
Comment: Concerning sec.29.305(a)(4)(C)(I), a commenter stated a concern about 
the limitation of wheelchairs to manual or non-customized battery powered 
electric. There are some individuals who can be mobile only with the assistance 
of a customized wheelchair. This expense may save the State in labor costs of 
additional services. We recognize that exceptions may be allowed and are 
addressed in sec.29.305(a)(4)(D). Will this section address our concern about 
customized wheelchairs for those who need them? 
Response: Requests for tailored, individualized or customized wheelchairs will 
be addressed on a case by case basis, giving consideration to the individual 
needs of the recipient. 
Comment: Concerning sec.29.305(a)(7), a commenter suggested that work of speech-
language pathologists with patients who have swallowing disorders needs to be 
addressed. 
Response: The department has deleted speech therapy from the rules pending a 
decision from the United States Court of Appeals for the Fifth Circuit, which 
may impact the department's ability to offer speech and language benefits under 
Medicaid home health services. 
Comment: Concerning sec.29.305(b)(2), a commenter asked, at what point in the 
prior authorization process is a determination made by the department or 
National Heritage Insurance Company (NHIC) regarding a beneficiary's "homebound" 
status? 
Response: The department and NHIC (the department's contractor) must rely on the 
home health agency's registered nurse's assessment and the physician who 
establishes the recipient's plan of care to make a determination regarding the 
recipient's homebound status. After the assessment is made and the plan of care 
established, the home health agency makes a request for the home health services 
to the department. This request will be evaluated by the department or the 
department's contractor. If the information received supports the request for 
services, the services will be approved. If the information does not support the 
request for services, or if the condition of the recipient does not meet the 
definition for homebound contained in these rules, the request will be denied by 
the department or the department's contractor. If the information submitted is 
incomplete or does not reflect that the recipient is homebound, the department 
or the department's contractor may contact the home health agency and request 
additional information, or deny the request.
Comment: Concerning sec.29.305(b)(2), a commenter asked, under the new system of 
notice to beneficiaries when prior authorization for Medicaid services is 
denied, are beneficiaries told that failure to meet the homebound requirement is 
the reason for the denial and that this decision can be appealed? 
Response: Recipients will be notified of any action taken by the department 
which affects the recipient's benefits or request for benefits. The notice will 
be provided as required by the department's notice and fair hearing rules 
contained in 25 TAC sec.sec.36.1 et seq. 
Comment: Concerning sec.29.305(b)(2), a commenter asked how many requests for 
equipment or supplies were denied during FY 1996 because the beneficiary did not 
meet the homebound requirement? 
Response: The department does not track this information so it is not available.
Comment: Concerning sec.29.305(a)(4)(C)(I), a commenter suggested that the 
proposed language will lead to provision of wheelchairs which do not allow 
proper seating and positioning and which cannot be operated effectively due to 
the nature of an individual's disability. 
Response: The department disagrees with the commenter's conclusion regarding the 
consequences of the proposed language. Requests for customized, tailored, or 
individualized wheelchairs will be evaluated based upon the recommendations made 
in the plan of care and the individual needs of the recipient. 
Comment: Concerning sec.29.305(a)(4)(C)(I), a commenter suggested that instead 
of the term "wheelchair" the term "mobility aid" be used. That the term mobility 
aid takes into account the diversity of mobility needs among persons with 
disabilities. This modified statement is necessary to assure that persons with 
severe and complex disabilities will have equal access to the benefits provided 
under these proposed regulations. 
Response: The department disagrees with the commenter. Mobility aid is too broad 
a term and could include equipment outside the scope of the benefits available. 
Comment: Concerning sec.29.305(a)(4)(C)(I), a commenter asked how the department 
will interpret/define the term "non-customized" as it applies to power 
wheelchairs. 
Response: It is the department's intent to supply battery powered, standard 
equipped wheelchairs with removable and/or adjustable supports. This includes 
seating and supports required by the individual recipient to be upright and 
mobile. The department will establish a maximum allowable reimbursement amount 
for customized wheelchairs. Amounts which exceed the maximum allowable 
reimbursement amount would be the responsibility of the recipient. 
Comment: Concerning sec.29.305(a)(3)(C), a commenter noted that the new list of 
durable medical equipment (DME) under the proposed rules specifically refers to 
pumps for feeding tubes; however, the medical supply section did not include the 
necessary supplies such as tubes, feeding bags, formulas, etc. Are these covered 
under the current and/or proposed rules? 
Response: Pumps are not a covered home health benefit under the current rules, 
but supplies are a covered benefit. The new rules include pumps and supplies 
included in the physician's approved plan of care as covered benefits. Feeding 
supplies have been added to sec.29.305 (a)(3)(C)(xiv) for clarification. 
Formulas are not a home health benefit. 
Comment: Concerning sec.29.307(c), commenters stated that dealer's invoices and 
certain dealer's discounts are proprietary. 
Response: The department disagrees with the commenters. All information coming 
into the hands of an agency of the state is presumed to be a public record, 
subject to disclosure upon request, unless an exception to the disclosure 
applies. Whether information is confidential or proprietary, and exempted from 
the disclosure requirements of sec.552 of the Government Code, relating to Open 
Records, is a determination that is made by the attorney general, upon request 
by the person seeking protection from disclosure or any other interested person. 
Comment: Concerning sec.29.307(c), a commenter stated that the amount over 
invoice is unsatisfactory because of the potential for fraud. 
Response: The department disagrees with the commenter. The department actively 
investigates and refers suspected fraud and abuse to the provider sanctions 
section of the Health and Human Services Commission and the Medicaid Fraud Unit 
of the Attorney General's office. No alternative suggestion for pricing was 
suggested. 
Comment: Concerning sec.29.307(c)(2)(B), a commenter suggested that 18% discount 
from Manufacturer Suggested Retail Price (MSRP) is too high. 
Response: The department disagrees with the commenter. Recent audit results 
indicate that this discount may actually be too low. No alternative pricing and 
discounting suggestions were provided. 
Comment: Concerning sec.29.307(c), a commenter stated that it is unsatisfactory 
to base payments on dealer's cost. 
Response: The department disagrees with the commenter. Payment based upon dealer 
cost is only used when there is no MSRP information available. These payment 
provisions are usually used when repair parts are provided by manufacturers and 
the only amount included on the invoice to the dealer is the cost of the 
product. This would be the only information available to the department to 
establish a payment amount. This invoice would serve as supporting documentation 
for audit purposes and should contain all discount information applicable at the 
time of the sale. No alternative pricing and discounting suggestions were 
provided. 
Oral and written comments were received from: the Texas Physical Therapy 
Association (TPTA); the Executive Council of Physical Therapy and Occupational 
Therapy Examiners (ECPT and OTE); the Texas Association for Home Care (TAHC); 
the Visiting Nurse Association in Dallas (VNA); the Texas Pharmacy Association 
(TPA); the Advocacy Incorporated (AI); the Texas Assistive Technology 
Partnership (TATP); the Texas Association of Medical Equipment Dealers (TAMED), 
Health and Human Services Commission, and two private individuals. Positive 
comments were received from the TAHC, the VNA of Dallas, the AI, and the TPA 
concerning the proposed rules. 

25 TAC sec.sec.29.301-29.312
The repeals are adopted under the Human Resources Code, sec.32.021 and 
Government Code, sec.531.021, which provide the Health and Human Services 
Commission with the authority to adopt rules to administer the state's medical 
assistance program and are submitted by the Texas Department of Health under its 
agreement with the Health and Human Services Commission to operate the purchased 
health services program and as authorized under Chapter 15, sec.1.07, Acts of 
the 72nd Legislature, First Called Session (1991). 
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 June 6, 1997.
TRD-9707384
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: June 26, 1997
Proposal publication date: December 13, 1996
For further information, please call: (512) 458-7236

25 TAC sec.sec.29.301-29.307
The new sections are adopted under the Human Resources Code, sec.32.021 and 
Government Code, sec.531.021, which provides the Health and Human Services 
Commission with the authority to adopt rules to administer the state's medical 
assistance program and are submitted by the Texas Department of Health under its 
agreement with the Health and Human Services Commission to operate the purchased 
health services program and as authorized under Chapter 15, sec.1.07, Acts of 
the 72nd Legislature, First Called Session (1991). 

sec.29.301.General.
(a) Purpose. The purpose of this subchapter is to establish rules for the Title 
XIX (Medicaid) home health benefits. 
(b) Definitions. The following words and terms when used in this subchapter, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
(1) Home health services-Covered services, equipment, appliances and supplies 
which are provided to qualified Medicaid recipients at their place of residence 
by home health agency staff, providers of durable medical equipment, or 
expendable medical supplies under federal regulations 42 CFR sec.440.70 and 
sec.29.304 of this title (relating to Written Plan of Care) and sec.29.305 of 
this title (relating to Home Health Benefits and Limitations). 
(2) Home health agency-A public or private agency or organization, licensed by 
the state to provide home health services and qualified to participate as a 
Medicare home health agency under 42 CFR, Part 484, sec.sec.484.1-484.52 
(relating to Conditions for Participation of Home Health Agencies). 
(3) Plan of care-A written regimen established and periodically reviewed by a 
physician in consultation with home health agency staff, which meets the plan of 
care standards at 42 CFR sec.484.18 and sec.29.304 of this title. 
(4) Home health aide-An individual who meets the Medicare home health agency 
personnel qualifications and training requirements established for home health 
aides at 42 CFR sec.484.4 and sec.484.36. 
(5) Home health aide services-Services which can be provided by a qualified home 
health aide, including those listed at 42 CFR sec.484.36.
(6) Department-The Texas Department of Health and or its designee. 
(7) Homebound-A condition due to illness or injury which restricts a recipient's 
ability to leave home, or which makes leaving the home taxing or requires 
considerable effort, or is medically contraindicated.
(8) Part-time-Home health aide or skilled nursing services provided any number 
of days per week less than eight hours per day. 
(9) Intermittent-Home health aide or skilled nursing services provided less than 
on a daily basis less than eight hours per day. 
(10) Medicare fee schedule-The fee schedule established by the Medicare program 
for expendable medical supplies and durable medical equipment. 
(11) Expendable medical supply acquisition fee-The fee determined by the 
department or its designee by periodic sampling of suppliers or from information 
provided in manufacturer's publications, whichever is lesser. 
(12) Expendable medical supplies-Medical supplies which meet one or both of the 
following criteria: 
(A) the typical term of use is within one year of purchase; or 
(B) reimbursement is made at a cost of $1,000 or less. 
(13) Durable medical equipment-Machinery and/or equipment which meets one or 
both of the following criteria: 
(A) the projected term of use is more than one year; or 
(B) reimbursement is made at a cost more than $1,000.

sec.29.305.Home Health Services Benefits and Limitations.
(a) Home health service benefits include the following. 
(1) Skilled nursing. Nursing services provided by a registered nurse (RN) who is 
currently licensed by the Board of Nurse Examiners for the State of Texas and/or 
a licensed vocational nurse (LVN) licensed by the Texas Board of Vocational 
Nurse Examiners provided on a part-time or intermittent basis and furnished 
through an enrolled home health agency are covered benefits. Billable nursing 
visits may also include: 
(A) nursing visits required to teach the recipient, the primary caregiver, a 
family member and/or neighbor how to administer or assist in a service or 
activity which is necessary to the care and/or treatment of the recipient in a 
home setting; 
(B) RN visits for skilled nursing observation, assessment, and evaluation, 
provided a physician specifically requests that a nurse visit the recipient for 
this purpose. 
(i) The physician's request must reflect the need for the assessment visit. 
(ii) Nursing visits for the primary purpose of assessing a recipient's care 
needs to develop a plan of care are considered administrative and are not 
billable; and 
(C) RN visits for general supervision of nursing care provided by a home health 
aide and/or others over whom the RN is administratively or professionally 
responsible. 
(2) Home health aide services. Home health aide services to provide personal 
care under the supervision of a RN, licensed physical therapist (PT), or 
occupational therapist (OT) employed by the home health agency are covered 
benefits. 
(A) The primary purpose of a home health aide visit must be to provide personal 
care services. 
(B) Duties of a home health aide include the performance of simple procedures 
such as personal care, ambulation, exercise, range of motion, safe transfer, 
positioning, and household services essential to health care at home, assistance 
with medications that are ordinarily self-administered, reporting changes in the 
patient's condition and needs, and completing appropriate records. 
(C) Written instructions for home health aide services must be prepared by an RN 
or therapist as appropriate. 
(D) The requirements for home health aide supervision are as follows. 
(i) When only home health aide services are being furnished to a recipient, an 
RN must make a supervisory visit to the recipient's residence at least once 
every 60 days. These supervisory visits must occur when the aide is furnishing 
patient care. 
(ii) When skilled nursing care, PT, or OT are also being furnished to a 
recipient, an RN must make a supervisory visit to the recipient's residence at 
least every two weeks. 
(iii) When only PT, or OT is furnished in addition to the home health aide 
services, the appropriate skilled therapist may make the supervisory visits in 
place of an RN. 
(E) Visits made primarily for performing housekeeping services are not covered 
services. 
(3) Medical supplies. Medical supplies are covered benefits if they meet the 
following criteria. 
(A) Medical supplies must be: 
(i) documented in the recipient's plan of care as medically necessary and used 
for medical or therapeutic purposes; 
(ii) supplied through an enrolled home health agency in compliance with the 
recipient's plan of care; or 
(iii) supplied by an enrolled medical supplier under written, signed, and dated 
physician's prescription; and 
(iv) prior authorized by the department. 
(B) Items which are not listed in subparagraph (C) of this paragraph may be 
medically necessary for the treatment or therapy of qualified recipients. If a 
prior authorization request is received for these items consideration will be 
given to the request. Approval for reasonable amounts of the requested items may 
be given if circumstances justify the exception and the need is documented. 
(C) Covered items include, but are not limited to: 
(i) colostomy and ileostomy care supplies; 
(ii) urinary catheters, appliances and related supplies; 
(iii) pressure pads including elbow and heel protectors; 
(iv) incontinent supplies to include incontinent pads or diapers for clients 
over the age of four for medical necessity as determined by the physician; 
(v) crutch and cane tips; 
(vi) irrigation sets; 
(vii) supports and abdominal binders (not to include braces, orthotics, or 
prosthetics); 
(viii) medicine chest supplies not requiring a prescription (not to include 
vitamins or personal care items such as soap or shampoos);
(ix) syringes, needles, IV tubing and/or IV administration setups including IV 
solutions generally used for hydration or prescriptive additives; 
(x) dressing supplies; 
(xi) thermometers; 
(xii) suction catheters; 
(xiii) oxygen and related respiratory care supplies; or 
(xiv) feeding related supplies. 
(4) Durable medical equipment (DME). DME must meet the following requirements to 
qualify for reimbursement under Medicaid home health services. 
(A) DME must: 
(i) be medically necessary due to illness or injury or to improve the 
functioning of a body member, as documented in the recipient's plan of care; 
(ii) be prior authorized by the department; 
(iii) meet the recipient's existing medical and treatment needs;
(iv) be considered safe for use in the home; 
(v) be provided through an enrolled home health agency under a current 
physician's plan of care; or 
(vi) be provided through an enrolled DME supplier under a written, signed and 
dated physician's prescription. 
(B) The department will determine whether DME will be rented, purchased, or 
repaired based upon the duration and use needs of the recipient.
(i) Periodic rental payments are made only for the lesser of:
(I) the period of time the equipment is medically necessary; or 
(II) when the total monthly rental payments equal the reasonable purchase cost 
for the equipment. 
(ii) Purchase is justified when the estimated duration of need multiplied by the 
rental payments would exceed the reasonable purchase cost of the equipment or it 
is otherwise more practical to purchase the equipment.
(iii) Repair of durable medical equipment and appliances will be considered 
based on the age of the item and the cost to repair the item.
(I) A request for repair of durable medical equipment or appliances must include 
a statement or medical information from the attending physician substantiating 
that the medical appliance or equipment continues to serve a specific medical 
purpose and an itemized estimated cost list of the repairs. Rental equipment may 
be provided to replace purchased medical equipment or appliances for the period 
of time it will take to make necessary repairs to purchased medical equipment or 
appliances. 
(II) Repairs will not be authorized in situations where the equipment has been 
abused or neglected by the patient, patient's family, or caregiver. 
(III) Routine maintenance of rental equipment is the responsibility of the 
provider. 
(C) Covered medical appliances and equipment (rental, purchase, or repairs) 
include, but are not limited to: 
(i) manual or powered wheelchairs; 
(I) non-customized including medically justified seating, supports and 
equipment; or 
(II) customized, specifically tailored or individualized, powered wheelchairs 
including appropriate medically justified seating, supports and equipment not to 
exceed an amount specified by the department. 
(ii) canes, crutches, walkers, and trapeze bars; 
(iii) bed pans, urinals, bedside commode chairs, elevated commode seats, bath 
chairs/benches/seats; 
(iv) electric and non-electric hospital beds and mattresses;
(v) air flotation or air pressure mattresses and cushions;
(vi) bed side rails and bed trays; 
(vii) reasonable and appropriate appliances for measuring blood pressure and 
blood glucose suitable to the recipient's medical situation to include 
replacement parts and supplies; 
(viii) lifts for assisting recipient to ambulate within residence;
(ix) pumps for feeding tubes and IV administration; and 
(x) respiratory or oxygen related equipment. 
(D) Medical equipment or appliances not listed in subparagraph (C) of this 
paragraph may, in exceptional circumstances, be considered for payment when it 
can be medically substantiated as a part of the treatment plan that such service 
would serve a specific medical purpose on an individual case basis. 
(5) Physical therapy. To be payable as a home health benefit, physical therapy 
services must: 
(A) be provided by a physical therapist who is currently licensed by the Texas 
Board of Physical Therapy Examiners, or physical therapist assistant who is 
licensed by the Texas Board of Physical Therapy Examiners who assists and is 
supervised by a licensed physical therapist; 
(B) be for the treatment of an acute musculoskeletal or neuromuscular condition 
or an acute exacerbation of a chronic musculoskeletal or neuromuscular 
condition; 
(C) be expected to improve the patient's condition in a reasonable and generally 
predictable period of time, based on the physician's assessment of the patient's 
restorative potential after any needed consultation with the therapist; and 
(D) not be provided when the patient has reached the maximum level of 
improvement. Repetitive services designed to maintain function once the maximum 
level of improvement has been reached are not a benefit. Services related to 
activities for the general good and welfare of patients such as general 
exercises to promote overall fitness and flexibility and activities to provide 
diversion or general motivation are not reimbursable. 
(6) Occupational therapy. To be payable as a home health benefit, occupational 
therapy services must be: 
(A) provided by one who is currently registered and licensed by the Texas Board 
of Occupational Therapy Examiners or by an occupational therapist assistant who 
is licensed to assist in the practice of occupational therapy and is supervised 
by an occupational therapist; 
(B) for the evaluation and function-oriented treatment of individuals whose 
ability to function in life roles is impaired by recent or current physical 
illness, injury or condition; and 
(C) specific goal directed activities to achieve a functional level of mobility 
and communication and to prevent further dysfunction within a reasonable length 
of time based on the therapist's evaluation and physician's assessment and plan 
of care. 
(7) Insulin syringes and needles. Insulin syringes and needles must meet the 
following requirements to qualify for reimbursement under Medicaid home health 
services. 
(A) Pharmacies enrolled in the Medicaid Vendor Drug Program may dispense insulin 
syringes and needles to eligible Medicaid recipients with a physician's 
prescription. 
(B) Prior authorization is not required for an eligible recipient to obtain 
insulin syringes and needles. 
(C) Insulin syringes and needles obtained in accordance with this section will 
be reimbursed through the Medicaid Vendor Drug Program.
(D) An eligible recipient is not required to be homebound to obtain insulin 
syringes and needles under this section. 
(E) A physician's plan of care is not required for an eligible recipient to 
obtain insulin syringes and needles under this section. 
(b) Home health service limitations include the following.
(1) Patient supervision. 
(A) Patients must be seen by their physician within 30 days prior to the start 
of home health services. This physician visit may be waived when a diagnosis has 
already been established by the attending physician and the patient is currently 
undergoing active medical care and treatment. Such a waiver is based on the 
physician's statement that an additional evaluation visit is not medically 
necessary. 
(B) Patients receiving home health care services must remain under the care and 
supervision of a physician who reviews and revises the plan of care at least 
every 60 days or more frequently as the physician determines necessary. 
(2) Time limited prior authorizations. 
(A) Prior authorizations for payment of home health services may be issued by 
the department for a service period not to exceed 60 days on any given 
authorization. Specific authorizations may be limited to a time period less than 
the established maximum. When the need for home health services exceeds 60 days, 
or when there is a change in the service plan, the provider must obtain prior 
approval and retain the physician's signed and dated orders with the revised 
plan of care. 
(B) The provider shall be notified by the department in writing of the 
authorization (or denial) of requested services. 
(C) Prior authorization requests for covered Medicaid home health services must 
include the following information: 
(i) The Medicaid identification form with the following information:
(I) full name, age, and address; 
(II) Medical Assistance Program Identification number; 
(III) health insurance claim number (where applicable); 
(IV) Medicare number; 
(ii) the physician's written, signed and dated plan of care (submitted by the 
provider if requested); 
(iii) the clinical record data (completed and submitted by provider if 
requested); 
(iv) a description of the home or living environment; 
(v) a composition of the family/caregiver; 
(vi) observations pertinent to the overall plan of care in the home; and 
(vii) the type of service the patient is receiving from other community or state 
agencies. 
(D) If inadequate or incomplete information is provided, the provider will be 
requested to furnish additional documentation as required to make a decision on 
the request. 
(3) Medication administration. Nursing visits for the purpose of administering 
medications are not covered if: 
(A) the medication is not considered medically necessary to the treatment of the 
individual's illness; 
(B) the administration of medication exceeds the therapeutic frequency or 
duration by accepted standards of medical practice; 
(C) there is not a medical reason prohibiting the administration of the 
medication by mouth; or 
(D) the patient, a primary caregiver, a family member and/or neighbor has been 
taught or can be taught to administer intramuscular (IM) and intravenous (IV) 
injections. 
(4) Prior approval. Services or supplies furnished without prior approval by the 
department are not benefits. 
(5) Recipient residence. Services, equipment, or supplies furnished to a 
recipient who is a resident or patient in a hospital, skilled nursing facility, 
or intermediate care facility are not benefits.

sec.29.306.Benefits for Medicare/Medicaid Recipients.
For recipients who are eligible for both Medicare and Medicaid (dual eligible), 
Medicare is the primary payor.
(1) Medicaid will pay the Medicare deductible for qualified recipients of home 
health services. 
(2) Eligible recipients who have exhausted their home health benefits under 
Medicare are not entitled to receive all home health services under the Medicaid 
program. Home health aide services, DME, supplies, or appliances may be a 
covered service if: 
(A) an eligible Medicaid recipient enrolled in Medicare does not qualify for 
home health services under Medicare because skilled nursing care, physical 
therapy, speech therapy or occupational therapy is not an essential element of 
the recipient's treatment plan; and/or 
(B) the medical supplies, equipment, or appliances for use in the eligible 
recipient's place of residence are not otherwise available as a Medicare Part B 
benefit. 
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 June 6, 1997.
TRD-9707385
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: June 26, 1997
Proposal publication date: December 13, 1996
For further information, please call: (512) 458-7236

CHAPTER 37.Maternal and Child Health Services
Midwives
25 TAC sec.sec.37.175, 37.178, 37.180
The Texas Department of Health (department) adopts the repeal of sec.sec.37.175, 
37.178, and 37.180, and adopts new sec.sec.37.175, 37.178, and 37.180, 
concerning annual documentation requirements, complaint procedures, and 
education requirements for midwives. New sec.sec.37.175, 37.178, and 37.180 are 
adopted with changes to the proposed text as published in the December 10, 1996, 
issue of the Texas Register (21 TexReg 11789). The repeal of sec.sec.37.175, 
37.178, and 37.180 are adopted without changes, and therefore the repeal will 
not be republished. The sections update and clarify the procedures for 
documenting by reciprocity; change the documentation period; improve procedures 
for filing, processing, categorizing, investigating, and resolving complaints; 
and authorizes additional sources of approval for continuing midwifery education 
courses. 
New sec.37.175 establishes procedures for initial documentation by reciprocity; 
changes the documentation period; and changes the educational requirements for 
redocumentation. 
New sec.37.178 provides an improved procedure for filing, processing, 
categorizing, investigating, and resolving complaints relating to the practice 
of midwifery in Texas. 
New sec.37.180 requires that both the didactic curriculum and the preceptorship 
components of mandatory basic midwifery education courses shall adequately 
prepare the student to become certified by the North American Registry of 
Midwives (NARM) or the American College of Nurse Midwives (ACNM); authorizes the 
Midwifery Board to continue to approve, deny, or revoke approval of mandatory 
basic education courses; and provides that the Midwifery Board shall accept 
continuing education hours in midwifery, obstetrics, or pediatrics claimed by 
midwives seeking annual redocumentation when the courses have been accredited by 
other entities. 
Changes made to the proposed text result from comments received during the 
comment period. The details of the changes are described in the summary of 
comments that follows. Other minor editorial changes were made for clarification 
purposes. 
The following comments were received concerning the proposed sections. Following 
each comment is the department's response and any resulting change(s).
Comment: Concerning sec.37.175(d)(1), one commenter stated that the requirements 
for initial documentation should include "place of birth" and 
"citizenship/residency status". 
Response: The department agrees and has amended the section accordingly.
Comment: Concerning sec.37.175(d)(2), several commenters stated that 
certification by the North American Registry of Midwives (NARM) should become 
the only documentation of basic midwifery education acceptable for initial 
documentation. Some of the commenters added that approval of mandatory basic 
midwifery education courses by the Midwifery Program and Education Committee 
would then no longer be required, and sec.37.175(d)(3) would also be 
unnecessary.
Response: Although the department agrees that NARM certification is an excellent 
criteria for assessing completion of basic education requirements, the 
department believes that applicants for documentation should have additional 
options. After discussion with the Midwifery Board, the section will not be 
amended. 
Comment: Concerning sec.37.175(d)(2), two commenters stated that NARM 
certification should be deleted as a criteria for demonstrating compliance with 
basic midwifery education requirements because the NARM certification 
examination contains questions which require Texas midwives to perform skills or 
functions prohibited by Texas law and/or rules. 
Response: The department disagrees. NARM certification is an indication of 
competency in basic skills. An applicant for documentation as a midwife in Texas 
who is NARM-certified is certainly not required by NARM to utilize all the 
skills and training on which certification is based, and may refrain from 
performance of any functions that are prohibited in Texas. Additionally, 
midwives may omit questions on the NARM examination concerning skills or tasks 
prohibited in a particular state without penalty. 
Comment: Concerning sec.37.175(d)(2), one commenter recommended that NARM 
certification should be eliminated as a Texas documentation requirement until 
NARM as an organization reflects more long-term stability. 
Response: The department disagrees. NARM has demonstrated stability and 
consistency over time. The department believes NARM certification will provide 
an additional, reliable mechanism for initial documentation of midwives in 
Texas. 
Comment: Concerning sec.37.175(d)(4) and sec.37.175(e)(4), four commenters 
stated that certification for neonatal resuscitation should be deleted as a 
documentation requirement because the American Academy of Pediatrics course and 
certification may be interpreted as requiring midwives to engage in diagnosis or 
to administer oxygen, which are prohibited under Texas law. The commenters also 
expressed concerns about the expense and availability of the certification exam. 
Response: The department disagrees. Sections one through four of the American 
Academy of Pediatrics neonatal resuscitation course do not require midwives to 
diagnose or to use oxygen in their practices. Midwives certified in neonatal 
resuscitation will have learned the appropriate indications for use of oxygen, 
which could be valuable information to individuals who provide newborn care. 
House Bill 2088, which is pending in the Legislature, will allow the use of 
oxygen by midwives. The requirement for certification in neonatal resuscitation 
in sec.37.175(d)(4) and sec.37.175(e)(4) has not been changed. 
Comment: Concerning sec.37.175(d)(4) and sec.37.175(e)(4), one commenter stated 
that both sections should become effective on the same date. 
Response: The department agrees. The department has also learned that the 
neonatal courses are currently available in Spanish. Both sections have been 
amended to make the requirement effective March 1, 1999. 
Comment: Concerning sec.37.175(d)(6), one commenter stated that the initial 
documentation fee for individuals who apply during the latter part of the 
documentation period should be prorated. 
Response: The department agrees and has amended the section accordingly.
Comment: Concerning sec.37.175(g) and sec.37.175(h), one commenter stated that 
since the statutory authority for a midwife to obtain documentation without 
completion of a mandatory basic midwifery education course expired on September 
1, 1993, both sections should be amended to delete the language "... has passed 
the department's voluntary basic midwifery education course examination prior to 
September, 1993 or the voluntary examination of the mandatory midwifery 
education course prior to December, 1993, or who has taken an approved basic 
education course and ...". 
Response: The department agrees and has amended both sections accordingly.
Comment: Concerning sec.37.178(b)(5), one commenter stated that since sec.37.178 
contains no other provisions relating to complaint confidentiality, 
sec.37.178(b)(5) should be deleted. 
Response: The department agrees and has made the suggested change. 
Comment: Concerning sec.37.180(b)(4), several commenters stated that midwives 
should seek accreditation for mandatory basic or continuing education courses 
through their professional organizations or national accreditation 
organizations, such as the Midwifery Education Accreditation Council (MEAC), 
rather than through the Midwifery Program or the Midwifery Board's Education 
Committee. 
Response: The department agrees in part with the commenters. However, the 
department also believes that additional sources of accreditation for mandatory 
basic and continuing education courses are desirable. The Midwifery Board and 
the department will continue to accredit education courses, which should expand 
options and flexibility for midwives seeking education courses. The section has 
not been changed. 
Comment: Concerning sec.37.180(b)(4), several commenters stated that if 
Midwifery Program staff members review each application submitted for approval, 
the staff's job descriptions should be revised to include this function. The 
commenters also stated that if the Midwifery Program denies approval of a 
course, a re-evaluation fee should be charged. 
Response: The department disagrees with the commenters. Department staff within 
the Midwifery Program have job descriptions appropriate for their activities, 
including review and approval of education courses. Addition of a re-evaluation 
fee will be considered at a later date. The section has not been amended. 
Comment: Concerning sec.37.180(e) and sec.37.180(f), two commenters stated that 
required teaching of mandatory basic education and continuing education courses 
in both English and Spanish is not necessary if only one language is needed. 
Response: The department agrees and has deleted the requirement from both 
sections. 
Comment: Concerning sec.37.180(e)(1)(C), three commenters stated that the 
component of the didactic curriculum for mandatory basic midwifery education 
courses which requires a minimum of 250 hours of classroom attendance should be 
modified to allow credit for assignments completed outside the classroom, such 
as reading in addition to that required by sec.37.180(e)(1)(B). 
Response: The department disagrees with the commenters concerning retention of 
the minimum 250 hours of classroom experience, and the section has not been 
changed. However, sec.37.180(e)(1)(B) has been amended to require only that the 
didactic curriculum for a basic mandatory midwifery education course shall 
"adequately prepare the student to become certified by NARM or ACNM." 
Comment: Concerning sec.37.180(e)(14) and sec.37.180(f)(10), department staff 
suggested that the references in both sections to the department's Informal 
Hearing Procedures should be changed to "Fair Hearing Procedures" to reflect 
recent amendments to the department's rules. 
Response: The department agrees and has amended both sections accordingly.
Comment: Concerning sec.37.180(f)(1) and sec.37.180(f)(4)(A), department staff 
suggested that the curricula for mandatory continuing midwifery education 
courses should cover new developments or established knowledge in only 
midwifery, obstetrics, or pediatrics. If other organizations and agencies will 
be able to accredit courses, which will be designed to serve the interests of 
their own members or constituents, or the public at large, some courses may be 
only tangentially related to the practice of midwifery. The language "and/or 
related disciplines" should be deleted to assure a focus on midwifery issues.
Response: The department agrees and has amended the sections accordingly. The 
comments on the proposed rules received by the department during the comment 
period were submitted by interested midwives. The commenters were neither for 
nor against the rules in their entirety; however, they raised questions, offered 
comments for clarification purposes, and suggested clarifying language 
concerning specific provisions in the rules. 
The repeals are adopted under Texas Civil Statutes, Article 4512i, sec.8A, which 
provide that the Texas Board of Health (board) may approve rules submitted by 
the Midwifery Board; and under sec.12.001(b), which provides the board with the 
authority to adopt rules for the performance of every duty imposed by law on the 
board, the department, and the commissioner of health. 
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 June 5, 1997.
TRD-9707298
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: June 25, 1997
Proposal publication date: December 10, 1996
For further information, please call: (512) 458-7236

The new sections are adopted under Texas Civil Statutes, Article 4512i, sec.8A, 
which provide that the Texas Board of Health (board) may approve rules submitted 
by the Midwifery Board; and under sec.12.001(b), which provides the board with 
the authority to adopt rules for the performance of every duty imposed by law on 
the board, the department, and the commissioner of health.

sec.37.175.Annual Documentation. 
(a) Purpose. This section details requirements for the annual documentation of 
midwives in Texas. 
(b) Provisions. This section establishes: 
(1) requirements and procedures for initial documentation;
(2) requirements and procedures for annual redocumentation; and 
(3) a state midwifery roster. 
(c) Applicability. In order for an individual to legally practice midwifery in 
Texas, she/he must be currently documented with the Midwifery Program. 
Documentation shall be valid for a period of one year, except for initial 
documentation. A midwife's initial documentation shall be valid from the date 
issued until March 1 of the current or following year, whichever occurs first. 
(d) Initial documentation. An individual may apply for documentation as a 
midwife at any time during the year by submitting the following to the Midwifery 
Program: 
(1) a completed documentation application form that includes:
(A) name of midwife; 
(B) social security and/or federal employer's identification number; 
(C) date of birth; 
(D) place of birth; 
(E) citizenship or immigration status, and immigration file number; 
(F) mailing address; 
(G) home address; 
(H) work telephone number, fax numbers, and e-mail address, if any; 
(I) home telephone number; 
(J) preferred language; 
(K) county/counties of practice; and 
(L) signature of midwife. 
(2) documentation of satisfactory completion of an approved mandatory basic 
midwifery education course or certification by the North American Registry of 
Midwives (NARM) or the American College of Nurse Midwives (ACNM) as specified in 
sec.37.180 of this title (relating to Education); 
(3) documentation of current cardiopulmonary resuscitation (CPR) certification 
for health care providers by the American Heart Association (formerly a C 
certificate) or equivalent certification for the professional rescuer from the 
Red Cross; 
(4) documentation of current certification for neonatal resuscitation, sections 
one through four, from the American Academy of Pediatrics. This requirement 
shall become effective March 1, 1999; 
(5) documentation of satisfactory completion of training in the collection of 
newborn screening specimens or an established relationship with another 
qualified and appropriately credentialed health care provider who has agreed to 
collect newborn screening specimens on behalf of the applicant; and 
(6) a nonrefundable $200 application fee (cashiers check or money order only). 
The fee for any application for initial documentation received after September 1 
shall be $100 plus $10 per month or part thereof remaining in the documentation 
period. 
(e) Annual redocumentation. Documented midwives must apply for redocumentation 
after January 1 and prior to March 1 of each year. As a courtesy, the Midwifery 
Program will send renewal applications to all documented midwives in January of 
each year. However, each midwife is solely responsible for compliance with the 
requirements for redocumentation, and nonreceipt of the renewal application 
mailed by the Midwifery Program shall not constitute an acceptable excuse for 
failure to comply. A midwife's application for redocumentation must include the 
following: 
(1) a completed redocumentation application form with the same information 
required by subsections (d)(1)(A)-(d)(1)(L)of this section; 
(2) documentation of completion of at least ten hours of approved continuing 
midwifery education course(s) during the preceding 12 months; 
(3) documentation of current cardiopulmonary resuscitation (CPR) certification 
for health care providers by the American Heart Association (formerly a C 
certificate) or equivalent certification for the professional rescuer from the 
Red Cross; and 
(4) documentation of current certification for neonatal resuscitation, sections 
one through four, from the American Academy of Pediatrics, effective March 1, 
1999; and 
(5) a nonrefundable $200 application fee (cashiers check or money order only). 
(f) Late redocumentation. A midwife who fails to apply for redocumentation by 
March 1 of a year in which she/he is currently documented, as evidenced by a 
valid U.S. Postal Service or recognized commercial carrier postmark, may apply 
for late redocumentation during a grace period which shall extend through April 
30 of that year. Applications for late redocumentation must include the 
following: 
(1) each of the items listed in subsection (e) of this section; and 
(2) an additional nonrefundable $75 late filing fee (cashiers check or money 
order only). 
(g) Redocumentation after interim of less than four years. A midwife documented 
in Texas on or after January 1, 1994, who has not been documented for a period 
of less than four years may redocument by: 
(1) providing proof of having completed 20 hours of approved midwifery 
continuing education during the 12 months preceding the application for 
redocumentation; 
(2) paying the annual documentation fee plus a processing fee of $100; and 
(3) meeting the initial documentation requirements in subsections (d)(1)(A)-
(d)(1)(L) and (d)(3)-(d)(5) of this section. 
(h) Redocumentation after interim of more than four years. A midwife documented 
in Texas on or after January 1, 1994, who has not been documented for a period 
of more than four years may redocument by: 
(1) providing proof of having completed not less than 40 hours of approved 
continuing midwifery education within the year preceding the application, which 
must include: 
(A) the Texas Midwifery Basic Information Manual; and 
(B) the most current Midwives Alliance of North America (MANA) or ACNM Core 
Competencies and Standards of Practice; 
(2) paying the annual documentation fee plus a processing fee of $100; and 
(3) meeting the initial documentation requirements in subsections (d)(1)(A)-
(d)(1)(L) and (d)(3)-(d)(5) of this section. 
(i) Midwifery roster. The Midwifery Program shall maintain a roster of all 
individuals currently documented to practice midwifery in the state. A copy of 
the roster will be provided annually to each county clerk and local registrar of 
births on an annual basis. The Midwifery Program shall provide information on 
new and/or late documentees to individual county clerks and local registrars of 
births during the course of a year on an as needed basis.

sec.37.178.Complaint Procedure, Investigation, and Disposition.
(a) Purpose. This section details the procedures to be utilized by the Midwifery 
Program and the Midwifery Board in processing, investigating, and resolving 
complaints against midwives practicing in Texas. 
(b) Provisions. This section establishes: 
(1) a Grievance Committee; 
(2) complaint filing procedures; 
(3) complaint investigation procedures; and 
(4) complaint disposition and appeal procedures. 
(c) Grievance committee. A grievance committee shall be appointed by the 
Chairperson of the Midwifery Board to consider complaints against documented 
midwives and to make recommendations to the Midwifery Board. 
(1) The committee shall consist of the following members: 
(A) two midwives, one of whom shall serve as chairperson;
(B) the certified nurse midwife or a physician; and 
(C) a public interest member. 
(2) The Midwifery Board chairperson shall determine the duration of appointments 
to the committee. 
(3) All meetings and proceedings of the Grievance Committee are open to the 
public. At any time during the investigation or consideration of a complaint, 
the Grievance Committee and/or Midwifery Board may schedule an informal 
conference on its own motion or at the request of the complainant or the accused 
midwife to discuss the investigation and any proposed action. At no time shall 
the Grievance Committee or the Midwifery Board disclose the identity of the 
client or the complainant. 
(d) Initiation of a complaint. Any person may file a complaint with the 
Midwifery Program alleging that a midwife has violated the Texas Midwifery Act, 
any rules adopted pursuant to the Act, or any other law or rule relating to the 
practice of midwifery in Texas. 
(e) Processing a complaint. Upon the initial receipt of any oral or written 
complaint, the Midwifery Program shall acknowledge receipt of the complaint in 
writing and shall provide the complainant with a description of the Midwifery 
Board's complaint resolution procedures, timelines, and authority and a 
standardized form to be executed as a sworn affidavit which shall include at 
least the following information: 
(1) name, address, and telephone number of complainant; 
(2) name, address, and telephone number of midwife against whom the complaint is 
directed; 
(3) brief but complete statement of complaint, including date(s), time(s), and 
location(s) of event(s); 
(4) name, address, and telephone number of any witnesses; and 
(5) description of any other reporting, filing, or attempted resolution of 
complaint. 
(f) Investigation of a complaint. 
(1) Within ten working days of receipt of a completed and notarized complaint 
form, the Midwifery Program Coordinator and Grievance Committee Chairperson 
shall determine whether the complaint warrants an investigation by the Midwifery 
Board and/or any other pertinent authority. 
(2) If the complaint alleges acts or omissions which constitute not a violation 
of the Midwifery Act or other applicable law(s) or rule(s), but rather appear to 
arise from a misunderstanding of midwifery practice by the complainant, the 
Midwifery Program Coordinator, with the concurrence of the Grievance Committee 
Chairperson, may attempt to resolve the complaint by providing appropriate 
information to the complainant. 
(3) If the complaint alleges acts or omissions which, if substantiated, would 
constitute a violation of the Texas Midwifery Act and/or applicable rule(s), the 
Midwifery Program Coordinator shall notify the midwife who is the subject of the 
complaint by certified mail within 15 working days of receipt of the completed 
and notarized complaint form. The notice shall inform the midwife of the general 
nature of the complaint, identify the client or case in question, and describe 
the midwife's rights and responsibilities in the complaint resolution process. 
The notice shall request a written response from the midwife, including copies 
of pertinent client records, within 30 days. 
(4) If the complaint alleges acts or omissions which, if substantiated, would 
constitute a violation of law(s) and/or rule(s) other than the Texas Midwifery 
Act, the Midwifery Program Coordinator, with the concurrence of the Grievance 
Committee Chairperson, shall refer the complaint to the appropriate authority 
and shall so notify the complainant. 
(5) With the concurrence of the Grievance Committee Chairperson, the Midwifery 
Program Coordinator may also solicit pertinent written testimony from other 
individuals or witnesses and/or request copies of other relevant client records. 
(6) The complaint and investigation file shall be reviewed by the Grievance 
Committee at its next scheduled meeting following the date the midwife's 
response is due, whether or not her/his response has been received. Both the 
complainant and the midwife will be invited to appear before the committee to 
discuss the complaint. 
(7) Each complaint shall be categorized as one of the following: 
(A) an alleged violation of the Midwifery Act and/or applicable rules of the 
board which poses an immediate threat to the health and safety of the public; 
(B) an alleged violation of the Midwifery Act and/or applicable rules of the 
board which does not pose an immediate threat to the health and safety of the 
public; or 
(C) any other complaint. 
(8) After considering all of the information and testimony available concerning 
a complaint, the Grievance Committee shall determine by vote that: 
(A) there is sufficient evidence to support the complaint;
(B) there is insufficient evidence to support the complaint; or 
(C) additional investigation is warranted. 
(9) The Grievance Committee may direct the Midwifery Program Coordinator and/or 
other appropriate department staff to attempt to obtain additional information 
relevant to the complaint and shall defer any recommendation to the Midwifery 
Board concerning disposition of the complaint until the additional information 
is obtained, or until the committee determines that the information is 
unavailable. Once the Grievance Committee has determined whether there is 
sufficient evidence to support the complaint, the committee shall report its 
findings to the Midwifery Board along with a recommendation concerning 
disposition of the complaint. 
(g) Complaint disposition. The Midwifery Board shall consider each complaint 
report and associated recommendation it receives from the Grievance Committee 
and then shall either: 
(1) close the complaint file because of insufficient evidence to support the 
alleged violation; or 
(2) resolve the complaint, based on its finding that sufficient evidence of a 
violation to support the complaint does exist, by either; 
(A) issuance of an order voluntarily agreed to by the midwife and the Midwifery 
Board under which the complaint file shall be closed, but may be reopened if the 
Midwifery Board has any reason to suspect that the midwife is failing to comply 
with the order; or 
(B) a recommendation that the Commissioner of Health forward the complaint to 
the appropriate city, county, or district attorney, or to the Attorney General 
of Texas with a request for appropriate injunctive relief or criminal 
prosecution. 
(h) Disposition summary statement. The Midwifery Board's final disposition of 
each complaint shall be recorded in a complaint summary statement to be placed 
in the midwife's permanent documentation file. A copy of the summary statement 
shall be sent to the complainant and midwife in each case within ten working 
days after the Midwifery Board's decision. 
(i) Appeal of complaint disposition. A complainant or midwife may appeal a 
decision by the Midwifery Board by submitting a written appeal to the 
Chairperson of the Midwifery Board within ten working days of receipt of the 
written notification of the decision. The appeal must document the appellant's 
reason(s) for disagreeing with the decision. The appellant may present his/her 
appeal at the next scheduled meeting of the Midwifery Board, at which the board 
will make a final decision in the case.

sec.37.180.Education.
(a) Purpose. This section details requirements for mandatory basic midwifery 
education and continuing midwifery education. 
(b) Provisions. This section establishes: 
(1) an education committee; 
(2) standards for mandatory basic midwifery education;
(3) standards for mandatory continuing midwifery education;
(4) procedures for midwifery education course approval, denial, and revocation 
of approval; and 
(5) appellate procedures for denials of course approval applications and 
revocations of approval. 
(c) Applicability. All persons subject to the Texas Midwifery Act must comply 
with sec.37.175 of this title (relating to Annual Documentation), including the 
educational requirements for both initial documentation and redocumentation. 
(d) Education committee. 
(1) The Chairperson of the Midwifery Board shall appoint an education committee 
to consider all issues related to mandatory basic and continuing midwifery 
education. The committee shall review all applications submitted for approval of 
mandatory basic midwifery education courses. The committee will consist of the 
following Midwifery Board members: 
(A) two midwives, one of whom shall serve as chairperson,
(B) a physician or the certified nurse midwife, and 
(C) a public interest member. 
(2) The Midwifery Board chairperson shall determine the duration of appointments 
to the committee. 
(3) The chairperson may convene ad hoc working groups consisting of committee 
members, documented midwives, and other interested individuals, as necessary. 
(4) All meetings and proceedings of the committee shall be open to the public. 
(e) Standards for mandatory basic midwifery education and procedures for 
approval, denial, and revocation of approval. Mandatory basic midwifery 
education courses shall be offered to ensure that only appropriately trained 
individuals practice midwifery in Texas. Such education courses may be offered 
by any individual or organization meeting the requirements for course approval 
established by this subsection. Courses shall include a didactic component and a 
preceptorship, and shall be supervised and conducted by individuals with 
adequate training and experience. 
(1) Didactic curriculum. The didactic curriculum shall: 
(A) be based upon and completely cover the most current Core Competencies and 
Standards of Practice of the Midwives Alliance of North America (MANA) or the 
American College of Nurse Midwives (ACNM) and the Texas Midwifery Basic 
Information Manual; 
(B) adequately prepare the student to become certified by NARM or ACNM; and 
(C) include appropriate classroom experience with a minimum of 250 hours of 
attendance. 
(2) Preceptorship. The preceptorship shall provide clinical experience which 
adequately prepares the midwife to become certified by NARM or ACNM, including 
successful completion of at least the following activities: 
(A) serving as an active participant in attending 20 births;
(B) serving as the primary midwife, under supervision, in attending 20 
additional births; 
(C) serving as the primary midwife, under supervision, in performing: 
(i) 75 prenatal exams, including at least 20 initial history and physical exams; 
(ii) 20 newborn exams; and 
(iii) 40 postpartum exams. 
(3) Course supervision and instruction. The didactic and preceptorship portions 
of the course shall be supervised by a documented midwife who is NARM certified, 
a Certified Professional Midwife credentialed in another state, a certified 
nurse midwife, or a licensed physician who has at least two years of experience 
in the independent practice of midwifery or obstetrics. The course supervisor 
shall have performed at least 75 births including provision of prenatal, 
intrapartum, and postpartum care. The course supervisor shall be responsible for 
all aspects of the course. 
(4) Instructor training. Didactic curriculum instructors shall demonstrate 
training and credentials appropriate for the course material they will teach. 
Preceptors shall be documented midwives, Certified Professional Midwives 
credentialed in other states, certified nurse midwives, and/or licensed 
physicians actively engaged in the practice of midwifery or obstetrics. The 
course supervisor may also serve as a didactic instructor and/or preceptor.
(5) Student midwife requirements. Individuals enrolled as students in an 
approved midwifery course must possess: 
(A) at least a high school diploma or the equivalent; and
(B) a current cardiopulmonary resuscitation (CPR) certificate for health care 
providers from the American Heart Association (formerly a C certificate) or an 
equivalent CPR certificate for the professional rescuer from the Red Cross. 
(6) Course approval. 
(A) The course supervisor shall submit an application form to the Midwifery 
Program along with the following supporting documentation:
(i) roster of course instructors and preceptors including their credentials; 
(ii) course outline; 
(iii) course curriculum; 
(iv) description of didactic and preceptorship teaching sites; and 
(v) any other relevant information required by the Midwifery Board. 
(B) The Midwifery Program staff will review each application submitted for 
approval. If an application meets all of the requirements specified in this 
paragraph, an on-site evaluation of each applicant's course will be scheduled. 
The evaluation will be conducted by appropriate departmental staff and a midwife 
member of the Midwifery Board. The midwife member of the evaluation team shall 
be appointed by the Chairperson of the Midwifery Board and shall not be the 
supervisor, didactic instructor, or preceptor of another basic midwifery 
education course in the same geographic area. The evaluation will include the 
following: 
(i) an inspection of the course's facility(s); 
(ii) a review of its teaching plan, protocols, library, and midwifery records; 
(iii) observation of didactic and preceptorship instruction; and 
(iv) interviews with staff and students. 
(C) A nonrefundable fee of $300 will be assessed for each evaluation. 
(D) The review team's written report shall conclude with a recommendation to the 
Education Committee for approval or denial of the course.
(E) The Education Committee shall evaluate the application and the on-site 
review team's report and recommend either approval or denial of the application 
to the Midwifery Board. 
(F) The Midwifery Board shall consider the application and the recommendations 
of the Education Committee and shall render a final decision concerning the 
application. The decisions of the Education Committee and Midwifery Board shall 
be based upon the criteria specified in this subsection.
(G) The Midwifery Board shall approve or deny each course application within 180 
days of submission. Each applicant shall be notified of the Midwifery Board's 
decision in writing within ten working days. If an application is denied, the 
notification shall specify the reason(s) for denial. 
(7) Appeal of course denial. An appeal of a notification of a denial must be 
submitted in writing to the Chairperson of the Midwifery Board within ten 
working days of the applicant's receipt of the notice. The appeal must describe 
specifically the ways in which the Midwifery Program and/or the Midwifery Board 
allegedly failed to follow the approval process set forth in this section. The 
appellant may appear at the next scheduled meeting of the Midwifery Board, at 
which the Board shall render a decision on the appeal. 
(8) Course reciprocity. A basic midwifery education course which is currently 
accredited by the Midwifery Education Accreditation Council (MEAC) shall be 
deemed approved under this subsection upon submission of evidence of such 
accreditation. 
(9) Duration of course approval. The Midwifery Board shall approve courses for 
three-year periods, and course supervisors may reapply for approval after 
expiration of the initial term. A reapplication form which details any changes 
in the content of the course or the composition of the instructor/preceptor 
staff shall be submitted to the Midwifery Program along with all required 
supporting documentation. The Midwifery Program Coordinator shall forward the 
reapplication to the Education Committee which will recommend reapproval of the 
course based upon the supplied information or reevaluation of the application 
according to paragraph (7) of this subsection. 
(10) Board approval. The Midwifery Board shall approve or deny each course 
reapplication for approval within 180 days of submission. Each applicant shall 
be notified of the Midwifery Board's decision in writing within ten working 
days. If a reapplication is denied, the notification shall specify the reason(s) 
for denial. 
(11) Student registration. The course supervisor shall submit to the Midwifery 
Program the names of all students who successfully complete the course within 
ten working days of their completion. 
(12) Course changes. The course supervisor or her/his successor shall notify the 
Midwifery Program of a change in course supervisor or any substantive change in 
the course's content or the composition of its instructor/preceptor staff. Such 
notification shall occur within 10 working days of the effective date of the 
change. 
(13) Revocation of course approval. After notification to the course supervisor 
and the opportunity for an appeal, the Midwifery Board may revoke the approval 
of a course if the Midwifery Board determines that: 
(A) the course no longer meets the standards established by this subsection; or 
(B) the course supervisor, instructor(s), or preceptor(s) do not have the 
qualifications required by this subsection; or 
(C) course approval was originally obtained by fraud or deceit; or 
(D) the course supervisor has falsified course registration, attendance, and/or 
completion records. 
(14) Informal hearing rules. Notice and hearings required under this subsection 
will be conducted according to and will be governed by sec.sec.1.51-1.55 of this 
title (relating to Fair Hearing Procedures). 
(f) Standards for mandatory continuing midwifery education and procedures for 
course approval, denial, and revocation of approval. Mandatory continuing 
midwifery education courses shall be offered to support the need for midwives 
practicing in Texas to maintain current knowledge and skills in midwifery, 
obstetrics, and pediatrics. Courses may be offered by any individual or 
organization that meets the requirements for course approval established by this 
subsection. 
(1) Course curriculum. Courses must provide an educational experience which 
covers new developments or reviews established knowledge in the fields of 
midwifery, obstetrics, or pediatrics. The curriculum must be presented in 
standard contact hour increments for continuing health education.
(2) Course administration. Courses must have a coordinator who is responsible 
for obtaining course approval and for registering and certifying participant 
attendance. The coordinator shall be responsible for recording participant 
attendance on each day of a given offering and for providing attendance 
certificates to participants following the course. 
(3) Course instruction. Course instructors shall demonstrate training and 
credentials appropriate for the course material they will teach.
(4) Course approval. 
(A) Continuing education courses attended to fulfill annual documentation 
requirements shall be accepted when the courses: 
(i) satisfy the requirements of subsection (f)(1) of this section; and 
(ii) are accredited by one of the following accrediting bodies:
(I) association of midwifery, nursing, social work, or medicine;
(II) college or university; 
(III) nursing, medical, or health care organization; 
(IV) state board of nursing or medicine; 
(V) department of health; or 
(VI) hospital. 
(B) Other courses may be approved upon submission by the course coordinator, or 
by a documented midwife requesting approval of a course on her/his own behalf, 
of an application form to the Midwifery Program along with all required 
supporting documentation, including the following: 
(i) a roster of course instructors detailing their credentials;
(ii) a course outline; 
(iii) course objectives; 
(iv) proposed contact hours; and 
(v) any other relevant information required by the Midwifery Board. 
(C) The Midwifery Program Coordinator will review each application submitted for 
approval and, if it satisfies the requirements of this subsection and proposes 
to award a reasonable number of contact hours for the objectives detailed, shall 
approve them. Otherwise, the Midwifery Program Coordinator shall deny the 
application. 
(D) All applications for course approval submitted to the Midwifery Program will 
be approved or denied within 30 days of submission. Each applicant will be 
notified in writing of the Midwifery Program Coordinator's decision within ten 
working days. If an application is denied, the notification shall specify the 
reason(s) therefor. 
(5) Course catalog. The Midwifery Program shall maintain a list of all currently 
approved courses which will be available to the public on request. 
(6) Appeals of course denial. A course coordinator or midwife desiring to appeal 
a denial decision by the Midwifery Program Coordinator must submit a written 
appeal to the Chairperson of the Midwifery Board within 10 working days of 
his/her receipt of the notification. The appeal shall describe the Midwifery 
Program Coordinator's alleged failure to comply with the approval process 
detailed in this subsection. The appellant shall be offered the opportunity to 
appear at the next scheduled meeting of the Midwifery Board, which shall render 
a final decision on the appeal. 
(7) Duration of course approval. The Midwifery Board shall approve courses for 
three-year periods, and course supervisors may reapply for approval after 
expiration of the initial term. 
(8) Course changes. The coordinator of each approved course shall notify the 
Midwifery Program of any change in the course instructor(s) or any substantive 
change in the content of the course within 10 working days of the effective date 
of the change. 
(9) Revocation of course approval. After notification to the course coordinator 
of its intended action and the opportunity for an appeal, the Midwifery Board 
may revoke the approval of a course if the Midwifery Board determines that: 
(A) the course does no longer meets the standards established by this 
subsection; 
(B) the course instructor(s) does not have the qualifications required by this 
subsection; 
(C) course approval was originally obtained by fraud or deceit; or 
(D) the course coordinator has falsified course attendance records. 
(10) Informal hearing rules. Notice and hearings required under this subsection 
will be conducted according to and will be governed by sec.sec.1.51-1.55 of this 
title (relating to Fair Hearing Procedures). 
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 June 5, 1997.
TRD-9707299
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: June 25, 1997
Proposal publication date: December 10, 1996
For further information, please call: (512) 458-7236

TITLE 34. PUBLIC FINANCE
PART II. Comptroller of Public Accounts
CHAPTER 3. Tax Administration
SUBCHAPTER F. Motor Vehicle Sales Tax
34 TAC sec.3.86
The Comptroller of Public Accounts adopts new sec.3.86, concerning destroyed and 
repaired motor vehicles without changes to the proposed text as published in the 
December 24, 1996, issue of the Texas Register (21 TexReg 12394). 
Senate Bill 1445, 74th Legislature, 1995, amended the Tax Code, sec.152.001, 
effective January 1, 1996, to exclude from the definition of a motor vehicle a 
destroyed or salvage unit. The new section defines a motor vehicle and the 
taxability of a repaired motor vehicle. 
No comments were received regarding adoption of the new section. 
Minor changes were made to subsection (a)(2)(E) and (F) to make the wording more 
uniform with other subparagraphs and clauses. 
This new section is adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The new section implements the Tax Code, sec.152.001. 

sec.3.86. Destroyed and Repaired Motor Vehicles.
(a) Motor vehicle: 
(1) includes a self-propelled unit designed to transport persons or property on 
a public highway and includes trailers, semitrailers, house trailers, and 
motorcycles; 
(2) does not include: 
(A) a device moved only by human power; 
(B) a device used exclusively on stationary rails or tracks;
(C) a mobile office; 
(D) a unit that has been declared a total loss by an insurance company 
registered to transact business in this or another state; 
(E) a unit where the certificate of title has been or is being surrendered for: 
(i) a salvage certificate issued pursuant to the Certificate of Title Act, Texas 
Civil Statutes, Article 6687-1; 
(ii) a certificate of authority issued pursuant to the Litter Abatement Act, 
Texas Civil Statutes, Article 4477-9a; 
(iii) a nonrepairable motor vehicle certificate of title issued pursuant to the 
Certificate of Title Act, Texas Civil Statutes, Article 6687-1; or 
(iv) an ownership document issued by another state if the document is comparable 
to a document issued pursuant to clauses (i), (ii), or (iii) of this 
subparagraph; and 
(F) a road-building machine. 
(b) The sale or use of a motor vehicle described in subsection (a)(1) of this 
section is subject to the provisions of the Tax Code, Chapter 152, Taxes on 
Sale, Rental, and Use of Motor Vehicles. 
(c) The sale or use of a unit described in subsection (a)(2) of this section is 
subject to the provisions of the Tax Code, Chapter 151, Limited Sales, Excise 
and Use Tax. Sellers and purchasers should refer to sec.3.285 of this title 
(relating to Resale Certificate; Sales for Resale) and sec.3.286 of this title 
(relating to Seller's and Purchaser's Responsibilities).
(d) The sale or use of a unit that had previously met the description in 
subsection (a)(2) of this section but that has been repaired and is now eligible 
to be issued a regular certificate of title pursuant to the Certificate of Title 
Act, Texas Civil Statutes, Article 6687-1, is subject to the provisions of the 
Tax Code, Chapter 152, Taxes on Sale, Rental, and Use of Motor Vehicles.
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 June 6, 1997.
TRD-9707330
Martin Cherry
Chief, General Law
Martin Cherry
Effective date: June 26, 1997
Proposal publication date: December 24, 1996
For further information, please call: (512) 463-4062

CHAPTER 11. Cigarette and Tobacco Products Tax
SUBCHAPTER A. Practice and Procedure
34 TAC sec.sec.11.1-11.32
The Comptroller of Public Accounts adopts the repeal of sec.sec.11.1-11.32, 
concerning practice and procedure for the conduct of hearings in contested cases 
before the state treasurer, without changes to the proposed text as published in 
the February 14, 1997, issue of the Texas Register (22 TexReg 1710). 
The provisions are no longer needed since the duties of the treasurer have been 
transferred to the Comptroller of Public Accounts, and virtually identical 
provisions for such cases are already in place in the comptroller's office. No 
comments were received regarding adoption of the repeals. 
These repeals are adopted under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The repeals implement Senate Bill 20, 74th Legislature, 1995, which transferred 
the duties of the former state treasurer to the office of the comptroller.
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 June 6, 1997.
TRD-9707317
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: June 26, 1997
Proposal publication date: February 14, 1997
For further information, please call: (512) 463-3699

TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART V. Texas Board of Pardons and Paroles
CHAPTER 141.General Provisions
Definition of Terms
37 TAC sec.141.111
The Texas Board of Pardons and Paroles adopts an amendment to sec.141.111, 
concerning definition of terms without changes to the proposed text as published 
in the April 1, 1997, issue of the Texas Register (22 TexReg 3207). 
The Board adopts an amendment to sec.141.111 for the purpose of defining new 
terms cited in the rules. 
No comments were received regarding adoption of the amendment. 
The amendment is adopted under the Code of Criminal Procedure, Article 42.18, 
sec.7 and sec.8 (a) - (g), which provide a parole panel with the authority to 
release inmates eligible for parole and mandatory supervision. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority. 
Issued in Austin, Texas, on June 9, 1997.
TRD-9707393
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: June 30, 1997
Proposal publication date: April 1, 1997
For further information, please call: (512) 463-1883

CHAPTER 145.Parole
Parole Process
37 TAC sec.145.12
The Texas Board of Pardons and Paroles adopts an amendment to sec.145.12, 
concerning action upon review, without changes to the proposed text as published 
in the April 1, 1997, issue of the Texas Register (22 TexReg 3208). 
The Board adopts an amendment to sec.145.12 in order to clarify that all 
conditions of parole or release to mandatory supervision required by law are 
imposed. 
No comments were received regarding adoption of the amendment. 
The amendment is adopted under the Code of Criminal Procedure, Article 42.18, 
sec.7 and sec.8 (a) - (g), which provide a parole panel with the authority to 
release inmates eligible for parole.
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 June 9, 1997.
TRD-9707394
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: June 30, 1997
Proposal publication date: April 1, 1997
For further information, please call: (512) 463-1883

37 TAC sec.145.13
The Texas Board of Pardons and Paroles adopts new sec.145.13, concerning action 
upon review, consecutive (cumulative) felony sentencing; without changes to the 
proposed text as published in the April 1, 1997, issue of the Texas Register (22 
TexReg 3208). 
The Board adopts new sec.145.13 in order to clarify the procedure under which a 
Board panel is to review for parole consideration consecutive felony sentencing 
cases. 
No comments were received regarding adoption of the new rule. 
The new rule is adopted under the Code of Criminal Procedure, Article 42.18, 
sec.7 and sec.8 (a) - (g), which provide a parole panel with the authority to 
release inmates eligible for parole.
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 June 9, 1997.
TRD-9707395
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: June 30, 1997
Proposal publication date: April 1, 1997
For further information, please call: (512) 463-1883

37 TAC sec.145.14
The Texas Board of Pardons and Paroles adopts new sec.145.14, concerning action 
upon review, release to mandatory supervision, without changes to the proposed 
text as published in the April 1, 1997, issue of the Texas Register (22 TexReg 
3209). 
The Board adopts new sec.145.14 in order to clarify the procedure under which a 
Board panel shall consider for release inmates eligible for mandatory 
supervision under Article 42.18, sec.8(c)-(1). 
No comments were received regarding adoption of the new rule. 
The new rule is adopted under the Code of Criminal Procedure, Article 42.18, 
sec.7 and sec.8 (a) - (g), which provide a parole panel with the authority to 
release inmates eligible for parole and mandatory supervision. 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority. 
Issued in Austin, Texas, on June 9, 1997.
TRD-9707396
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: June 30, 1997
Proposal publication date: April 1, 1997
For further information, please call: (512) 463-1883

Revocation of Administrative Release (Parole, Mandatory Supervision, and 
Executive Clemency)
37 TAC sec.145.51
The Texas Board of Pardons and Paroles adopts an amendment to sec.145.51, 
concerning administrative release revocation hearings, with changes to the 
proposed text as published in the April 1, 1997, issue of the Texas Register (22 
TexReg 3209). 
The Board adopts an amendment to sec.145.51 in order to clarify procedures for 
processing documentation after a parole revocation hearing held pursuant to the 
Interstate Compact Agreement. 
The Board received two comments on the proposed amendment. One commenter 
suggested the repeal of subsection (d) which contains obsolete language 
regarding warrants. No changes were made, as the Board had already proposed the 
repeal of subsection (d). The second commenter sought assurances that the Board 
would continue to make revocation decisions based on the finding of at least one 
parole violation. No changes were made, as the Board's intent in amending the 
rule is to clarify that the final determination of revocation matters is 
reserved to the Board. Technical corrections were made to the published version 
by reformatting information placing the text of subsection (c)(2)(A) under 
subsection (c)(2); and changing subsection (c)(2)(B) to subsection (d). 
Capitalization errors were also corrected. There were no substantive changes 
made. 
The amendment is adopted under the Code of Criminal Procedure, Article 42.18, 
sec.14 (a) - (c), which vests the Board with authority to promulgate rules under 
which releasees are to be heard on revocations of parole and mandatory 
supervision, and Article 42.11, the Uniform Act for Out-of-State Probationer and 
Parolee Supervision.

sec.145.51.Administrative Release Revocation Hearing. 
(a)-(b) (No change.) 
(c) At the close of the hearing or within a reasonable time thereafter, the 
hearing officer shall collect, prepare and forward to the board, or to the 
Director of Paroles, Hearings, and Clemency, if the hearing was held pursuant to 
the Interstate Compact Agreement, 
(1) all documents and exhibits offered or admitted into evidence at the hearing; 
(2) a summary report of the hearing separately setting out findings of fact 
relative to the alleged violations of the conditions and rules of parole or 
mandatory supervision, based on a preponderance of the credible evidence, which 
includes statements of the evidence relied upon in reaching said finding; and 
(3) the tape recording of the hearing. 
(d) No later than the 30th day after the date of the hearing is concluded, the 
hearing officer may recommend to continue, revoke, or modify the parole or 
mandatory supervision in any manner warranted by the evidence.
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 June 9, 1997.
TRD-9707397
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: June 30, 1997
Proposal publication date: April 1, 1997
For further information, please call: (512) 463-1883

37 TAC sec.145.53
The Texas Board of Pardons and Paroles adopts an amendment to sec.145.53, 
concerning final board disposition following a revocation hearing, with changes 
to the proposed text as published in the April 1, 1997, issue of the Texas 
Register (22 TexReg 3210). The Board adopts an amendment to sec.145.53 in order 
to clarify the options available to the Board on final disposition of a case 
following a parole revocation hearing. 
The Board received two comments on the proposed amendment. One commenter 
suggests deletion of the language in proposed subsection (b)(3) which requires a 
mitigation hearing before the Board votes to revoke parole or mandatory 
supervision, based on the argument that there is no requirement in the court 
decisions to offer a mitigation hearing before revocation. No changes were made, 
because, to the contrary, the courts do require the Board to offer the 
opportunity for a mitigation hearing before revoking a parolee, even where the 
parolee has pleaded guilty to a felony and received a term of incarceration. One 
technical change was made in the wording of proposed subsection (b)(3), to 
substitute the word "mitigation" for "adjustment" in describing the type of 
hearing required before a revocation decision is made. The terms are used 
interchangeably; however, "mitigation" is the term used by the courts and more 
nearly describes the purpose of the hearing. 
The second commenter seeks assurances regarding proposed subsection (b)(3) that 
the Board does not intend to abrogate the evidentiary rule which requires a 
finding of at least one parole violation on which to base revocation action. 
There were no changes, as the Board's intent in amending the rule is to clarify 
that the final determination of revocation matters is reserved to the Board. A 
technical correction was made to correct a publishing error, to delete an extra 
closing bracket in the April 1, 1997, issue of the Texas Register (22 TexReg 
3210). 
The amendment is adopted under the Code of Criminal Procedure, Article 42.18, 
sec.14, which vests the Board with authority to promulgate rules under which 
releasees are to be heard on revocations of parole and mandatory supervision.

sec.145.53.Final Board Disposition.
(a) (No change.) 
(b) After reviewing the report of the hearing and the advisory recommendations 
of the hearing officer and of the staff, the board or board panel may dispose of 
the case by taking one of the following actions: 
(1) continue the parole or mandatory supervision, in any manner warranted by the 
evidence; 
(2) recommend to the governor that the conditional pardon be continued, revoked, 
or modified; or 
(3) revoke or modify the parole or mandatory supervision, in any manner 
warranted by the evidence, provided that all revocation decisions be preceded by 
a mitigation hearing; 
(4) at the discretion of the board or board panel, refer the case to the hearing 
officer, with or without reopening the hearing for further development of 
factual or legal issues as specified by the board or board panel. 
(c)-(f) (No change.) 
This agency hereby certifies that the adoption has been reviewed by legal 
counsel and found to be a valid exercise of the agency's legal authority. 
Issued in Austin, Texas, on June 9, 1997.
TRD-9707398
Laura McElroy
General Counsel
Texas Board of Pardons and Paroles
Effective date: June 30, 1997
Proposal publication date: April 1, 1997
For further information, please call: (512) 463-1883

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 79. Legal Services
SUBCHAPTER T. Administrative Fraud Disqualification Hearings 
40 TAC sec.79.1917
The Texas Department of Human Services (DHS) adopts an amendment to sec.79.1917, 
without changes to the proposed text as published in the April 29, 1997, issue 
of the Texas Register (22 TexReg 3775). The text will not be republished. 
The amendment is justified to increase the disqualification penalties when a 
household member commits an intentional program violation and to implement a 
federally mandated penalty of ten years when a person is convicted of making a 
fraudulent statement regarding his residency. 
The amendment will function by ensuring that DHS will be in compliance with 
federal guidelines. 
During the public comment period, no comments were received regarding adoption 
of the amendment. 
The amendment is adopted under the Human Resources Code, Title 2, Chapters 22, 
31, and 33, which authorizes the department to administer financial assistance 
programs. 
The amendment implements the Human Resources Code, sec.22.018, sec.31.034, and 
sec.sec.33.001-33.025. 
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 June 6, 1997.
TRD-9707310
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Effective date: July 1, 1997
Proposal publication date: April 29, 1997
For further information, please call: (512) 438-3765