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 61.Crime Victims' Compensation 1 TAC sec.sec.61.2, 61.5-61.10, 61.13, 61.24, 61.25, 61.31, 61.32, 61.35, 61.38, 61.39 The Office of the Attorney General adopts the repeal of sec.61.5, amendments to sec.sec.61.2, 61.6 - 61.10, 61.13, 61.24, 61.25, 61.31, 61.32, 61.35, 61.38 and new sec.sec.61.5 and 61.39 concerning crime victims' compensation. sec.sec.61.2, 61.5-61.10, 61.13, 61.24, 61.25, 61.31, 61.32, 61.35, 61.38 and 61.39 are adopted without changes to the proposed text published in the November 21, 1997 issue of the Texas Register (22 TexReg 11189) and will not be republished. The repeal, amendments and new rules are necessary to clarify administrative procedures regarding both existing benefits and new benefits passed by recent legislation. Amendments are also adopted to maintain the integrity of the fund in accordance with legislative intent. The public will benefit from having more benefits available to them and to the providers who service them. The repeal, amendments and new rules are adopted under the Crime Victims' Compensation Act, Texas Code of Criminal Procedure, Article 56.33 which provides the Office of the Attorney General with the authority to promulgate and adopt rules relating to the method of filing claims and the proof of entitlement to compensation and the review of health care services subject to compensation under this chapter. sec.61.2 will function to clarify the terms used in the Act. It also provides that certain damaged or stolen property now constitutes a pecuniary loss under the Act. sec.61.5 establishes guidelines for determining unjust enrichment in cases where a lost support award is contemplated. sec.61.6 is amended to clarify the new three year deadline for filing the application. sec.61.7 functions to establish guidelines for the verification of lost wages and lost support. sec.61.8 establishes limits on payments for medical reports and copies. sec.61.9 gives the chief the authority to make awards in the best interest of the victim or claimant. sec.61.10 increases the maximum on lost wage and lost support awards to $500 per week and limits day care awards to services provided by properly licensed entities only. sec.61.13 functions to require only a written request instead of an affidavit when lump sum payments are made. sec.61.24 clarifies that donations are not considered collateral sources under the Act. sec.61.31concerns mental health expenses and contains no substantive changes from the previous rule. sec.61.32 establishes limits on inpatient and residential psychiatric care. sec.61.35 functions to clarify the administrative appeals process. sec.61.38 is amended to add adjudications of felonious crimes as a justification for denying awards during the time period of probation or parole. sec.61.39 functions to establish limits on the new travel benefits. The agency received no comments on the proposal. The new and amended sections are authorized under the Crime Victims' Compensation Act, Texas Code of Criminal Procedure, Subchapter 56B, Article 56.33 which provides the Office of the Attorney General with the authority to promulgate and adopt rules consistent with the Act governing its administration, including rules relating to the method of filing claims and the proof of entitlement to compensation. The new rule and amendments affect the following articles of the code: sec.sec.61.2, 61.5, 61.7, 61.8, 61.10, 61.13, 61.24, 61.31, 61.32 and 61.39 affect TEXAS CODE CRIMINAL PROCEDURE., Article 56.32(a)(9). sec.61.2 also affects TEXAS CODE CRIMINAL PROCEDURE 56.42(b). sec.61.5 also affects TEXAS CODE CRIMINAL PROCEDURE 56.37. sec.61.7 also affects TEXAS CODE CRIMINAL PROCEDURE 56.42(b). sec.61.9 affects TEXAS CODE CRIMINAL PROCEDURE Article 56.44(d). sec.61.13 also affects TEXAS CODE CRIMINAL PROCEDURE Articles 56.44(a)-(b). sec.61.25 affects TEXAS CODE CRIMINAL PROCEDURE Article 56.48. sec.61.35 affects TEXAS CODE CRIMINAL PROCEDURE 56.38, 56.40, 56.47 and 56.48. sec.61.38 affects TEXAS CODE CRIMINAL PROCEDURE Article 56.311. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9717012 Sarah Shirley Assistant Attorney General Office of the Attorney General Effective date: February 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 475-4499 1 TAC sec.61.5 The repeal is authorized under the Crime Victims' Compensation Act, Texas Code of Criminal Procedure, Subchapter 56B, Article 56.33 which provides the Office of the Attorney General with the authority to promulgate and adopt rules consistent with the Act governing its administration, including rules relating to the method of filing claims and the proof of entitlement to compensation. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9718000 Sarah Shirley Assistant Attorney General Office of the Attorney General Effective date: February 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 475-4499 TITLE 22. EXAMINING BOARDS PART XXI. Texas State Board of Examiners of Psychologists CHAPTER 467. Announcements and Listings 22 TAC sec.467.3 The Texas State Board of Examiners of Psychologists adopts new sec.467.3, concerning Misleading or Deceptive Advertising, without changes to the proposed text as published in the October 31, 1997, issue of the Texas Register (22 TexReg 10612). The rule is being adopted to protect the public from misleading or deceptive advertising by licensees of the Board. The new rule will ensure that the Board has the ability to discipline licensees who engage in misleading or deceptive advertising concerning the practice of psychology. No comments were received regarding the adoption of the new rule. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9717165 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: January 12, 1998 Proposal publication date: October 31, 1997 For further information, please call: (512) 305-7700 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 409. Medicaid Programs SUBCHAPTER E. Home and Community-based Waiver Services - OBRA 25 TAC sec.sec.409.153, 409.154, 409.158, 409.167, 409.169, 409.170, 409.172, 409.173 The Texas Department of Mental Health and Mental Retardation adopts amendments sec.sec.409.153, 409.154, 409.158, 409.167, 409.169, 409.170, 409.172, and 409.173, of Chapter 409, Subchapter E, concerning Home and Community-based Services - OBRA. Sections 409.153, 409.154 and 409.158 are adopted with changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8845). Sections 409.167, 409.169, 409.170, 409.172, and 409.173 are adopted without changes and will not be republished. The adopted amendments would require the transfer of initial ICF-MR level-of- care eligibility determinations for HCS-O applicants from the Texas Department of Human Services to TDMHMR and update sections of the rule to reflect current practices for correcting lapsed levels of care; revise language to more clearly delineate conditions under which program applicants/participants may request fair hearings; incorporate the HCS-O Consumer Principles for Evidentiary Certification affecting the rights of recipients and the certification procedures of providers; and update sections of the rule related to HCS program provider certification and TDMHMR contract administration to reflect current practice. Section 409.153(a)(3) has been revised upon adoption to indicate that an individual's legally authorized representative may, on behalf of the individual, choose between the home and community-based waiver services as an alternative to ICF-MR placement. Section 409.154 has been modified to clarify the process for correcting lapsed LOCs. Section 409.158 has been revised upon adoption to indicate that an individual's legally authorized representative may request a Fair Hearing on behalf of the individual. Sections 409.167, 409.169, 409.170, 409.172, and 409.173 are adopted as proposed. A public hearing regarding the proposed rules was held September 18, 1997, at which no oral or written comments were received. Written comments were received from the Parent Association for the Retarded of Texas, Austin and one private citizen. Two commenters questioned the accuracy of the fiscal impact of the proposed rule revisions and recommended that the impact be re-evaluated. The department responds that the fiscal impact is correct as published. The anticipated fiscal impact pertains only to the assumption by TDMHMR regarding initial level of care (LOC) determinations and not to other department functions related to the HCS-O Program enrollment process and annual LOC renewal process. Two commenters suggested that the term legally authorized representative be added to sec.409.153(a) pertaining to the HCS-O eligibility criteria. The department responds that sec.409.153(a) specifies the HCS-O program eligibility criteria for individuals who are applying for services through the HCS-O program. The department has modified sec.409.153(a)(3) to add that a consumer's legally authorized representative may make the choice for the consumer to receive services through the waiver program as an alternative to ICF-MR placement. Two commenters recommended that sec.409.154(i) be revised to require the department to notify the legally authorized representative in addition to the provider agency filing a payment claim, that a claim has been denied by the department. The department responds that notification of the denial of a provider's claim for payment is made under the contractual arrangement between the provider agency and the department. Two commenters suggested that reference be added in sec.409.158 (concerning Right to Appeal) to indicate that a consumer's legally authorized representative may also request a fair hearing. The department responds that sec.409.158 has been revised to indicate that a consumer's legally authorized representative may request a fair hearing on behalf of that consumer. Two commenters indicated the need to add the term legally authorized representative (LAR) in at least 35 places in the proposal. The department responds that it is unable to determine from this comment the specific locations where the term LAR is suggested to be added. The continuing role and authority of the LAR is presented in HCS-O Consumer Principles 5.39 and 49. Principle 5.39 requires the LAR to be informed of all rights of the HCS-O Program; to have the opportunity to participate in the planning for HCS-O services; and to have the opportunity to advocate for all rights of the individual. Principle 49 requires the LAR to be a member of the individual's Interdisciplinary Team which is responsible for developing and overseeing the services delivered by the HCS-O Provider. Finally, under applicable state law the LAR is the designated person responsible for all decisions involving his/her ward. HCS-O Providers are required to comply with state law. Regarding Principle 5.18, two commenters suggested that the individual (consumer) should also live near family and/or the LAR. The department responds that requirement for the consumer to maintain involvement with the family and to live near the family and/or the LAR is contained in Principles 14 and 46. Principle 14 requires the HCS-O Provider to encourage and assist families to remain involved in the individual's life. Principle 46 requires the HCS-O Provider to facilitate the opportunity for the individual to live near family and friends unless justified by the Interdisciplinary Team (IDT) based on the informed consent of the individual or, if applicable, the LAR. Two commenters expressed concern regarding Principle 15, which indicates that the HCS-O program provider shall have evidence that when a child is unable to reside or live with the child's natural family members, then the child must be supported in a family environment such as an adoptive family or a foster family. The commenters indicated that this principle suggests that whenever a natural family can not keep the child at home they are not a supportive family and should let an adoptive or foster family take over. The department responds that the intent of this principle is to ensure that a consumer who is under age 18 has the opportunity to live in as permanent a family environment as possible. The department makes no judgement on the supportiveness of a family who is unable to keep an individual in the home. This principle is also intended to address situations where parental rights have been terminated through legal processes. The rights of the LAR to choose placement, regardless of the age of the consumer, is not effected by this principle. It is the expectation of the HCS-O Program that the LAR be involved in all decisions regarding a consumer's program and living arrangements. Two commenters stated, regarding Principles 30, 85, 87, 89 and 90, that the LAR should be added to the language or the interdisciplinary team (IDT) can contraindicate, document and justify exceptions to the requirements of the principle. Further the commenters indicated that severely or profoundly retarded consumers must not be allowed the acquisition of skills for sex, driving a car or wandering off alone even though this is age appropriate behavior. The department responds that the HCS-O provider is expected to protect the health and safety of all individuals in its program. This protection is mandated through the HCS-O Consumer Principles and by the federal government. A requirement of the HCS-O Program, illustrated throughout the HCS-O Consumer Principles, includes IDT (including the LAR) development of all services based upon the needs, abilities and strengths of the individual, as determined through assessment information. This principle addresses consumer integration and opportunities for meaningful age-appropriate activities which promote growth and learning. These activities are expected to be consistent with the functional abilities and comprehension of the individual and do not include opportunities which could result in danger to the individual or others. Regarding Principle 58, two commenters questioned what happens to the individual during the 10 working days the HCS program provider has to submit evidence to TDMHMR regarding approval of temporary or permanent service termination. The department responds that TDMHMR is the only authority which may authorize temporary or permanent discharge. This principle is included to assure that providers notify TDMHMR of those potential discharges. The status of the consumer during the 10 day period is dependent upon the individual situation of the consumer and whether he/she is still available to be served by the provider. Within this principle, it is expected that, as possible, the provider will develop a discharge plan to assure alternate service linkages and continuity of services. It is also expected that, within the ability of the provider, the consumer's health and safety be protected at all times. The amendments are adopted under the Health and Safety Code, sec.532.015(a), which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; and under the provisions of Texas Government Code, which provides the Texas Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.409.153. Eligibility Criteria. (a) To be determined eligible by the Texas Department of Mental Health and Mental Retardation (TDMHMR) for the Home and Community-based Waiver Services - OBRA Program (HCS-O), an applicant must: (1) be determined by TDMHMR to have mental retardation and/or a related condition, need active treatment, and have been previously or be currently inappropriately placed in a Medicaid certified nursing facility based on a resident review in accordance with the requirements of OBRA-87; (2) meet the level of care criteria for intermediate care facilities for the mentally retarded (ICF-MR) as determined by TDMHMR in accordance with Chapter 406, Subchapter E of this title (concerning ICF/MR Program: Eligibility and Review) and with sec.409.154 of this title (relating to Level of Care Criteria.); (3) choose, or the applicant's legally authorized representative must choose, HCS-O services as an alternative to ICF-MR placement based on an informed choice; (4) have an individual plan of care for waiver services as specified in sec.409.155 of this title (relating to Individual Plan of Care for Waiver Services) which does not exceed 125% of the estimated average annualized expenditure for ICF/MR services approved by Health Care Financing Administration (HCFA) in the formula calculations; (5) meet the financial eligibility criteria for waiver services as specified in sec.409.156 of this title (relating to Financial Eligibility Criteria); (6) be directly discharged from a Medicaid certified nursing facility; and (7) receive waiver services. (b) Enrollment in this waiver program is limited to the number of participants approved by HCFA. (c) Individuals may be enrolled in only one waiver program at a time. sec.409.154. Level of Care Criteria. (a) Individuals must meet the level of care (LOC) criteria for Intermediate Care Facilities for the Mentally Retarded (ICF-MR I, V, VI, or VIII) as determined by the TDMHMR or the Texas Department of Human Services (TDHS) according to applicable state and federal regulations, and as verified by a current LOC assessment form. (b) An LOC assessment (or reassessment) form signed by TDMHMR or TDHS is considered valid for enrollment purposes by the department for 364 days from the date of issuance. (c) LOC assessments must be performed annually for all individuals. (d) To request payment for days that an individual was receiving HCS-O services but did not have a current LOC determination in effect, the provider must: (1) electronically transmit to the department a new LOC assessment form, purpose code "E," for each period of time for which there was a lapsed LOC; (2) retain in the individual's record a LOC assessment form which: (A) contains information identical to the form transmitted electronically to the department; (B) indicates in the "Comments" section the beginning and ending dates of the time period for which no valid LOC existed; and (C) is signed by a physician certifying that the individual required an ICF/MR LOC during that time period; and (3) retain in the individual's record a completed verification statement signed by the chief executive officer of the provider. Figure 1: 25 TAC sec.409.154(d)(3) (e) The request for payment for a period of lapsed LOC must be submitted as described in sec.409.161 of this title (relating to Rejected Claims.) (f) There must have been a current individual plan of care in effect for the period of time for which payment is sought. The individual plan of care cannot be retroactive. (g) A request for payment will not be approved for periods of time that a LOC has been denied by TDMHMR or TDHS. (h) Purpose code "E" LOCs may not be used to establish initial HCS-O eligibility or to enroll an individual into HCS-O. (i) TDMHMR shall notify the provider in writing that the request for payment is approved or denied within 45 days of receipt of the request. The provider may appeal the denial of payment in accordance with the procedure described in sec.409.162 of this title (relating to Provider's Right to Appeal.) sec.409.158. Right To Appeal. Any individual, or the individual's legally authorized representative, whose request for eligibility for the HCS-O Program is denied or is not acted upon with reasonable promptness, or whose HCS-O Program services have been terminated, suspended, or reduced by TDMHMR is entitled to a fair hearing, conducted by TDHS, in accordance with 40 TAC sec.79.1101 et seq., except that a request for a fair hearing must be submitted to the TDMHMR Office of Medicaid Administration and received within 90 days from the date of the notice of denial of eligibility for the HCS-O Program or notice of termination, suspension, or reduction of HCS-O Program services. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9716979 Ann Utley Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: January 8, 1998 Proposal publication date: September 5, 1997 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 9.Title Insurance SUBCHAPTER A.Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas 28 TAC sec.9.1 The Commissioner of Insurance adopts an amendment to sec.9.1, concerning the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas. Section 9.1 is adopted without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11231). The amendment concerns the adoption by reference of certain amendments to the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas (the Basic Manual). The amendments to the Basic Manual are necessary to facilitate the administration and regulation of title insurance in this state by adopting new rules and forms, which clarify and standardize the rules and forms which regulate title insurance. The effective date of the amended section is January 12, 1998. The new procedural rules in the Basic Manual facilitate the issuing of mortgagee title policies insuring home equity liens and reverse mortgages on homestead property. Procedural Rule P-44, relating to the Equity Loan Mortgage Endorsement (T-42); Procedural Rule P-45, relating to the Texas Reverse Mortgage Endorsement (T-43); Equity Loan Mortgage Endorsement T-42; and Texas Reverse Mortgage Endorsement T-43 will enable title insurance companies to properly issue mortgagee policies for home equity and reverse mortgage loans on Texas homestead property. A typographical error in the Equity Loan Mortgage Endorsement T-42 was noted at the public hearing on December 17, 1997, and has been corrected. Amended sec.9.1 incorporates by reference certain amendments to the Basic Manual, which facilitate the issuance of mortgagee title policies insuring home equity liens and reverse mortgages on homestead property. The section adopts by reference and amends the Basic Manual, Section IV, Procedural Rules to add new Procedural Rule P-44, relating to the Equity Loan Mortgage Endorsement (T-42); and amends the Basic Manual, Section II to add a new Equity Loan Mortgage Endorsement T-42. The Endorsement T-42 includes a definition of "consumer credit protection law." The promulgated Mortgagee Title Policy does not insure against consumer credit protection laws. However, the endorsement acknowledges that the requirements for "equity" mortgages include consumer credit protection laws. The endorsement provides additional insurance relating to the requirements and conditions for equity mortgages that can be underwritten by title companies from an examination of the record title or of the insured mortgage. The endorsement provides insurance relating to the requirement that the mortgage be executed by all owners and their spouses. The endorsement provides insurance relating to the prohibition against the mortgage of a homestead designated for agricultural use as provided by statutes governing property taxes (unless used primarily for production of milk). The endorsement provides insurance relating to the prohibition against a new "equity" mortgage that closes before the first anniversary of a prior "equity" mortgage. The endorsement provides insurance relating to the requirement that the mortgage disclose that the loan is an "equity" mortgage. The endorsement may provide insurance relating to the requirement that the extension of credit close at the office of the lender, an attorney at law, or a title company if the closing is at the title company. The section also adopts by reference and amends the Basic Manual, Section IV, Procedural Rules, to add new Procedural Rule P-45, relating to the Texas Reverse Mortgage Endorsement (T-43) and amends the Basic Manual, Section II to add a new Texas Reverse Mortgage Endorsement T-43. The Endorsement T-43 ensures that the policy liability will include subsequent proceeds of the loan actually disbursed plus accrued interest, not exceeding the amount of insurance. The endorsement insures the priority of future disbursements and accrued interest. The endorsement includes a definition of "interest" to include compound interest, interest on interest and interest contingent on appreciation. Comment: A commenter expressed support for the amendment, but suggested future consideration of the following additional coverages to ensure that: owners receive copies of all documents signed at closing; all fees imposed or collected by the title company are shown on the settlement statement approved by the lender; no blanks are left to be filled in when the owner signs the documents at closing; the closing does not take place before the lender's stated closing date; no document evidencing an election not to rescind under a three-day right of rescission is executed by the owner/spouse before the expiration of the rescission period; no loan proceeds are disbursed prior to expiration of the right of rescission; the owner and lender sign a written acknowledgment of the "fair market value" of the homestead property; and any part of the land described in Schedule A of the policy which is not the homestead of the owner of the land is noted. Agency Response: The department agrees that the current amendment is an appropriate interim step, and the department will consider the suggested additional coverages in future proposed rules. The department notes, however, that many of the suggested coverages may fall outside the realm of title insurance, and may not be able to be included in proposed rules. For: Fannie Mae (formerly known as Federal National Mortgage Association). The amendment is adopted pursuant to the Insurance Code, Articles 9.07, 9.21, and 1.03A and Section 50, Article XVI, Texas Constitution. Article 9.07 authorizes and requires the commissioner to hold a biennial hearing to promulgate or approve rules and policy forms of title insurance and otherwise to provide for the regulation of the business of title insurance. Article 9.21 authorizes the commissioner to promulgate and enforce rules and regulations prescribing underwriting standards and practices, and to promulgate and enforce all other rules and regulations necessary to accomplish the purposes of Chapter 9, concerning regulation of title insurance. Article 1.03A authorizes the commissioner to adopt rules and regulations for the conduct and execution of the duties and functions of the department as authorized by statute. By voter approval on November 4, 1997, Section 50, Article XVI, Texas Constitution was amended to permit an encumbrance against homestead property for certain extensions of equity credit. The Government Code, sec.sec.2001.004-2001.038 et seq. (Administrative Procedures Act), authorizes and requires each state agency to adopt rules of practice stating the nature and requirements of available procedures and to prescribe the procedures for adoption of rules by a state administrative agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 23, 1997. TRD-9717139 Carloline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: January 12, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 7.Memoranda of Understanding 30 TAC sec.7.105 The Texas Natural Resource Conservation Commission (commission) adopts new sec.7.105, concerning Memoranda of Understanding (MOU) between the commission and the Texas General Land Office (GLO), with changes to the proposed text as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9851). EXPLANATION OF ADOPTED RULE The MOU is adopted in response to House Bill 1, Article VI, Rider 11 from the 75th Legislature (1997). Texas Water Code, sec.5.104 requires the commission to adopt by rule any MOU between the commission and any other state agency. The MOU sets forth the coordination of program responsibility and procedural mechanisms relating to the rider which renewed the funding mechanism for the Galveston Bay Estuary Program (GBEP) by providing funds in the amount of $750,000 per year for two years to be transferred from the GLO to the commission and that supervision of the GBEP be through the commission. The MOU also clarifies that the term "jointly administer" requires that the GLO and the commission, in consultation with the Galveston Bay Council, an advisory council, shall not agree to any program, policy, or expenditure of resources without determining that the program, policy, or expenditure is cost-effective and an appropriate method for ensuring the restoration, maintenance, or enhancement of the natural resources in and around Galveston Bay. A typographical error to sec.7.105(a) was corrected. In sec.7.105(b)(1), the name of the advisory council has been corrected to match the resolution that created the body. In sec.7.105(b)(2), a comma was added, and a typographical error was corrected. Section 7.105(b)(3) was modified to clarify that the person designated by each agency will represent only that agency. Section 7.105(c)(1) was deleted because this section applied specifically to disputes relating to expenditures from appropriated funds. Section 7.105(c)(2) was renumbered and changed to make it applicable to all disputes, including disputes relating to expenditures from appropriated funds. Section 7.105(d)(4) was deleted and the text combined with sec.7.105(d)(2). The last paragraph was renumbered to accommodate this deletion. REGULATORY IMPACT ANALYSIS A Regulatory Impact Analysis under sec.2001.0225 of the Texas Government Code is not required for this rule because this rule is not a major environmental rule. A major environmental rule is defined in sec.2001.0225 of the Government Code as a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state of a sector of the state. The rule creates a framework for communications between the commission and the GLO for issues that arise relating to the management of the Galveston Bay Estuary Program and is a prerequisite for the transfer of funds from the GLO to the commission for implementation of the Galveston Bay Plan. These rules do not in a material way relate to risks to human health from environmental exposure, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. Additionally, full regulatory impact analysis is not applicable to these rules because these amendments do not exceed a standard set by federal law, do not exceed an express requirement of state law, do not exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program, and are not adopted solely under the general powers of the agency instead of under a specific state law. This rule implements state law and is specifically required by state law in sec.5.104 of the Texas Water Code and House Bill 1, Article VI, Rider 11 of the General Appropriations Act of the 75th Texas Legislature. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to adopt an MOU between the commission and the GLO. This MOU will define the roles of both agencies and will provide for procedural mechanisms for jointly administering the GBEP. The MOU will not burden private real property as it does not propose any substantive regulations impacting private real property. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has reviewed the proposed rulemaking and determined that it is not an action that may adversely affect a coastal natural resource area that is subject to the Coastal Management Program. The proposed rule does not govern any of the actions that must be subject to the goals and policies of the Program, pursuant to 31 TAC sec.505.11. COMMENTS The proposed rule was published in the October 3, 1997, issue of the Texas Register (22 TexReg 9851), with a 30-day comment period which closed on November 3, 1997. No comments were received; however, contract negotiations between the commission and the GLO resulted in several typographical or text changes described previously. LEGAL AUTHORITY The new section is adopted under the Water Code, sec.5.103, which authorizes the commission to adopt rules as necessary for the performance of its functions, and Water Code, sec.5.104, which requires the commission to adopt by rule any MOU between the commission and any other state agency. sec.7.105.Adoption of Memoranda of Understanding between the Texas General Land Office and the Texas Natural Resource Conservation Commission. (a) This rule contains the memorandum of understanding (MOU) between the Texas General Land Office (GLO) and the Texas Natural Resource Conservation Commission (commission), which sets forth the coordination of program responsibility and procedural mechanisms for the Galveston Bay Estuary Program (GBEP). (1) Whereas, sec.5.104 of the Texas Water Code authorizes the commission to enter into a memorandum of understanding with any other state agency; (2) Whereas, the 75th Legislature passed the Texas General Appropriations Act for 1998-99 and in Rider 11 directed an appropriation from the Coastal Protection Fund to implement the GBEP; (3) Whereas, the commissioner of the GLO, pursuant to Texas Natural Resource Code, Chapter 40, is responsible for expenditures from the Coastal Protection Fund; (4) Whereas, the Water Quality Act of 1987, sec.320, established the Galveston Bay National Estuary Program, now being implemented through the GBEP, a division of the commission; (5) Whereas, the GBEP was established to develop a Comprehensive Conservation and Management Plan for Galveston Bay which is known as the Galveston Bay Plan; (6) Whereas, the purposes of the Galveston Bay Plan are addressing threats to Galveston Bay arising from pollution, development, and overuse, and enhancing ecosystem-based management of Galveston Bay; (7) Whereas, the Galveston Bay Plan's initiatives and implementation goals, and other Water Quality Act programs are generally within the existing jurisdiction of the commission, and the Texas Legislature has authorized the commission to broadly exercise its role in the management of aquatic and marine ecosystems, consistent with the comprehensive approach of the Galveston Bay Plan; (8) Whereas, the 75th Legislature specifically directed that the GLO and the commission enter into a MOU to implement and to jointly administer the GBEP; (9) Therefore, the GLO and the commission agree to the following provisions. (b) Administration. (1) The GLO and the commission, in consultation with the Galveston Bay Council, shall jointly administer the GBEP. (2) For the purpose of this MOU, "jointly administer" means that the GLO and the commission, in consultation with the Galveston Bay Council, an advisory council, shall not agree to any program, policy or expenditure of resources without determining that the program, policy or expenditure is cost effective and an appropriate method for ensuring the restoration, maintenance or enhancement of the natural resources in and around Galveston Bay. (3) Each agency shall designate one person to represent the designating agency for the purpose of interagency coordination and decision-making related to the GBEP. (4) The GLO and the commission shall make good faith efforts to achieve consensus regarding the programs, policies and expenditures related to the implementation and administration of the GBEP. (c) Dispute Resolution. The GLO and the commission shall submit to mediation or any other agreed form of alternative and appropriate dispute resolution after a matter has been referred to senior policy personnel in each agency without reaching agreement. (d) Term of Agreement. (1) This MOU shall be effective on the date of the last person signing the MOU. (2) The term of this MOU shall be from the effective date until termination. This MOU may be terminated by either agency upon at least 30 days written notice. (3) This MOU may be amended at any time by written concurrence of the signatories. (4) Nothing in this MOU shall be construed to require either the GLO or the commission to perform any act in excess of its statutory authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 22, 1997. TRD-9717016 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 16, 1998 Proposal publication date: October 3, 1997 For further information, please call: (512) 239-4640 CHAPTER 305.Consolidated Permits SUBCHAPTER N.Adoption of Memoranda of Understanding by Reference 30 TAC sec.305.521 The Texas Natural Resource Conservation Commission (commission) adopts the amendment of sec.305.521 relating to adoption of Memoranda of Understanding by Reference between the commission and the Texas General Land Office (GLO). Section 305.521 is adopted without changes as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9853). EXPLANATION OF ADOPTED RULE Amendments to sec.305.521(a)(4) are being done, in part, to relocate the MOU agreement between the commission and GLO to sec.7.105 in concurrent rulemaking. Chapter 7 of the commission rules is where all MOUs are to be eventually contained. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to adopt an MOU between the commission and the GLO. This MOU will define the roles of both agencies and will provide for procedural mechanisms for jointly administering the GBEP. The MOU will not burden private real property as it does not propose any substantive regulations impacting private real property. COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW The commission has reviewed the proposed rulemaking and determined that it is not an action that may adversely affect a coastal natural resource area that is subject to the Coastal Management Program (CMP). The proposed rule does not govern any of the actions that must be subject to the goals and policies of the CMP, pursuant to 31 TAC sec.505.11. COMMENTS No comments were received regarding adoption of the proposed amendment. LEGAL AUTHORITY The amendment is adopted under the Water Code, sec.5.103, which authorizes the commission to adopt rules as necessary for the performance of its functions, and Water Code, sec.5.104 which requires the commission to adopt by rule any MOU between the commission and any other state agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 22, 1997. TRD-9717017 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 16, 1998 Proposal publication date: October 3, 1997 For further information, please call: (512) 239-4640 CHAPTER 344.Landscape Irrigators Texas Natural Resource Conservation Commission (commission) adopts amendments to sec.sec.344.2, 344.43, 344.56, 344.73, and 344.75, concerning Landscape Irrigators without changes as published in the October 17, 1997, issue of the Texas Register (22 TexReg 10245). EXPLANATION OF ADOPTED RULE The purpose of the adopted amendments is to implement legislative changes to Texas Water Code, sec.34.002(a), regarding exemptions from the registration requirement, as enacted by House Bill 328, 75th Legislature (1997). These amendments also eliminate one of the fees for new registration, change by one day the date by which continuing education must be acquired, clarify that a renewal application must be submitted for renewal of registrations, and make conforming changes regarding backflow prevention devices. TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Assessment for this rule pursuant to Texas Government Code Annotated, sec.2007.043. The following is a summary of that Assessment. The proposed rulemaking does not create a burden on an owner's private real property. The proposed rules add an exemption to licensure requirements for irrigation or yard sprinkler systems on certain types of real property. This rule lessens the burden on real property by adding an exemption to licensure requirements. Likewise, the proposed deletion of the registration fee for irrigators and the changing of the certificate of registration renewal date has no effect on real property. Finally, promulgation and enforcement of the rules related to backflow prevention will not create a burden on the property that would otherwise exist in absence of the rulemaking. FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, sec.2001.0225 and has determined that the rulemaking is not subject to sec.2001.0225 because it does not meet the definition of "major environmental rule" as defined in the act. No comments on the proposal were received. COASTAL MANAGEMENT PROGRAM The executive director has reviewed the proposed rulemaking and determined that it is not an action that may adversely affect a coastal natural resource area that is subject to the Coastal Management Program (CMP). The proposed rule does not govern any of the actions that must be subject to the goals and policies of the CMP, pursuant to 31 TAC, sec.505.11. HEARINGS AND COMMENTS The proposed rule was published in the October 17, 1997, issue of the Texas Register (22 TexReg 10245) with a 30-day comment period which closed on November 17, 1997. A public hearing on the proposal was held in Austin on Tuesday, November 4, 1997. No comments were received at the hearing or during the comment period. SUBCHAPTER A.General Provisions 30 TAC sec.344.2 LEGAL AUTHORITY The amendment is adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120, and 34.006, which provide the commission with the authority to promulgate rules necessary for the exercise of its jurisdiction and powers provided by the Code and other laws. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9717013 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 16, 1998 Proposal publication date: October 17, 1997 For further information, please call: (512) 239-4640 SUBCHAPTER C.Registration/Licensure of Irrigators and Installers 30 TAC sec.344.43, sec.344.56 These amended sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 34.006 which provide the Texas Natural Resource Conservation Commission with the authority to promulgate rules necessary for the exercise of its jurisdiction and powers provided by the Code and other laws. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9717014 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 16, 1998 Proposal publication date: October 17, 1997 For further information, please call: (512) 239-4640 SUBCHAPTER D.Standards for Water Supply Connections 30 TAC sec.344.73, sec.344.75 These amended sections are adopted under Texas Water Code, sec.sec.5.103, 5.105, 5.120 and 34.006 which provide the Texas Natural Resource Conservation Commission with the authority to promulgate rules necessary for the exercise of its jurisdiction and powers provided by the Code and other laws. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 19, 1997. TRD-9717015 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: January 16, 1998 Proposal publication date: October 17, 1997 For further information, please call: (512) 239-4640 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART IX. Texas Department on Aging CHAPTER 254.Operation of the Texas Department on Aging 40 TAC sec.245.5, sec.254.7 The Texas Department on Aging adopts amendments to sec.254.5, concerning the Texas Board on Aging and sec.254.7, concerning Advisory Committees with changes to the text of both rules as proposed in the September 19, 1997, issue of the Texas Register (22 TexReg 9449). The amendments were adopted in order to establish new policies and guidelines relating to the composition and functioning of advisory councils established by the Texas Board on Aging. The amended sections will better maximize the participation and input from local advisory committees, restructures the Citizen's Advisory Council (CAC) membership and functions, and establishes new procedures for the Texas Board on Aging to evaluate the effectiveness and cost efficiency of all advisory councils at the end of each year and act on their continuation or abolishment. Comments to the proposed amendments to sec.sec.254.5 and 254.7 were received from the Area Agency on Aging of North Central Texas, the Area Planning Advisory Council to the Houston/Harris County Area Agency on Aging, the Heart of Texas Area Agency on Aging, and one individual. In sec.254.5(8) guidelines for the voting membership for any one Citizen's Advisory Council meeting was clarified in response to a comment received. Insec.254.7 implied (a), a change to the wording from "appoint" to "establish" was made and a sentence regarding committee members serving at the pleasure of the Board was deleted in order to clarify the role of the Board. In sec.254.7(2)(C) a change was made to correct references to sec.254.5 due to the renumbering of the adopted rule. A summary of the comments received are as follows: Comment: One commenter believes that in sec.254.5(8) ". . . automatically designating the local committee chair as the Citizens Advisory Committee (CAC) representative is problematic . . ." The commenter stated concerns that this would significantly expand the physical demands, time commitment and financial commitment associated with chairing the local advisory committee and that it may make it more difficult to recruit and retain a chairperson. The commenter expressed concerns about local chairpersons being able to coordinate schedules to attend all CAC meetings and the difficulty of attending out-of-region meetings if no reimbursement is available. The commenter stated that "The problem with tying the local chair position to membership on the CAC is that chairs may be selected on the basis of physical, time or financial considerations that are not critical for effective leadership at the local level." Agency Response: The rule allows a local committee chair to designate another person to attend any meeting in his/her place, which would eliminate undue pressure on any individual to attend. Comment: The commenter asked for clarification to sec.254.5(8) regarding the rule stating that committee membership ". . .shall not exceed 24 . . ." but then saying " . . .shall be composed of the chair of the advisory council of each of the twenty-eight planning and service areas of the State or their designee." Agency Response: The department concurs and has added the following text to clarify the department's intent: "The voting membership of the CAC for any one meeting shall consist of the first twenty-four local advisory council chairs or their designees to register their attendance and be participants at a CAC meeting. The remaining four shall serve as alternates for that meeting." Comment: A commenter recommended deleting the date 1994 in sec.254.5(9) as it no longer serves a purpose. Agency Response: This portion of the rule, which refers to the Options for Independent Living Advisory Committee, is not proposed for revision at this time. Changes to 254.5(9) will be addressed at a future time. Comment: Two commenters asked for clarification to sec.254.5(11) and (12) regarding whether "advisory councils" means the Citizen's Advisory Council (CAC) or all councils and committees. Agency Response: In this case, "advisory councils" refers to all advisory committees. Comment: One commenter considered the statement in sec.254.7 implied (a) "All members of advisory councils and committees shall serve at the pleasure of the Board" in conflict with the manner in which members are appointed to the Citizens Advisory Council (CAC). The commenter believes that the Board would have to negotiate with the Agency Planning and Advisory Council (APAC) why their representative could not serve on the CAC. The commenter believes the purpose of APAC appointing a representative to serve on the CAC assures that the representative clearly represents them and does not give the appearance of being influenced and under the control of the Board. Agency Response: The department concurs and the wording will now read as: "The Board shall establish advisory councils and/or committees..." and, the sentence, "All members of advisory councils and committees shall serve at the pleasure of the Board" has been eliminated. Comment: One commenter was confused regarding the dates on sec.254.7(1)(A) and believes 1, 2001 to be a whole number. Agency Response: There is no such number as 1,2001. The rule clearly is referring to the dates September 1, 2001. No change is necessary. Comment: A commenter questioned if sec.254.7(1)(C) would allow the local Citizen's Advisory Council (CAC) chair to designate the area agency director as a voting member even though the director is not a member of the local CAC. Agency Response: No. The intent of this rule is that CAC members will be members of local advisory councils. Comment: One commenter was in favor sec.254.7(1)(E) regarding the local CAC appointing its own representative to the State CAC through the provision stating that members shall be made up of chairs of local advisory councils or their designees. Agency Response: The department concurs. No change necessary. Comment: A commenter did not understand why the Options for Independent Living Advisory Committee is entitled to reimbursement for transportation and per diem as stated in sec.254.7(2)(G) and the CAC is not as stated in sec.254.7(1)(D). The commenter believes that this influences attendance at CAC meetings and effects the perceived importance of the CAC to the Board. Agency Response: The portion of rule that refers to the Options for Independent Living Advisory Committee is not being addressed at this time. It is anticipated that revisions to the rules relating to this advisory committee will be addressed at some future time. Comment: A commenter was in favor of sec.254.7(1)(E) regarding members of the CAC appointing their own chair and vice chair. Agency Response: The department concurs. No change necessary. Comment: A commenter recommended deleting the sentence "The committee will function from February 10, 1994, to February 10, 1998" in sec.254.7(2)(B). The commenter also recommended editing the last sentence to replace "after this date" with "each year." Agency Response: The portion of rule that refers to the Options for Independent Living Advisory Committee is not being addressed at this time. It is anticipated that revisions to the rules relating to this advisory committee will be addressed at some future time. Comment: A comment was made regarding a reference in the rule to sec.254.5 (10) in sec.254.7(2)(C) needing to read as sec.254.5(9) because of proposed changes and renumbering in sec.254.5. Agency Response: The reference of sec.254.5(10) refers to sec.254.5 as the rule was currently in effect at the time of the proposed amendments. A non- substantive change to the reference has been made to reflect the numbering change in sec.254.5 as adopted. Comment: A commenter wanted to know if there is any such thing as an excused absence from the CAC. And if there is, what would the procedure be, i.e. excused by a majority vote of the committee? Agency Response: With each local advisory committee chair being able to appoint a designee, the department does not anticipate that there will be a necessity for excused absences. The amendment sections are adopted under the Human Resources Code, Title 6, Chapter 101, sec.101.021 which authorizes the board to adopt rules governing the functions of the agency, and Texas Civil Statutes, Article 6252-33, sec.5 which requires a state agency that is advised by an advisory committee to adopt rules that (1) state the purpose of the committee; and (2) describe the task of the committee and the manner in which the committee will report to the agency. The Human Resources Code, Title 6, Chapter 101, relating to the operation of the Texas Department on Aging, is affected by this action. sec.254.5.The Texas Board on Aging. The Texas Board on Aging, hereinafter referred to as the Board, carries out the functions prescribed by Senate Bill 2, Chapter 599, sec.1 (Human Resources Code, Chapter 101), as herein described and detailed. (1) Composition. The Board shall be composed of nine members appointed by the governor, with the advice and consent of the senate. Each member must have demonstrated an interest in and knowledge of the problems of aging. Eligibility and restrictions of the appointees are described in Human Resources Code, sec.101.001 and sec.101.0031. (2) Terms. Members are appointed to serve for terms of six years. Such terms will be staggered so that the terms of three members expire every two years. A member may be reappointed to the Board. (3) Chairman of the Board. The governor shall appoint a chairman who will direct the work of the Board. The chairman shall serve at the pleasure of the governor. (4) Compensation. Members of the Board may receive the compensatory per diem authorized by the General Appropriations Act for each day spent engaged in the performance of their official duties. Board members are entitled to reimbursement for actual travel expenses incurred in the performance of their duties. (5) Entitlements. The chairman and Board members may be entitled, during their tenure, to participate in the Uniform Group Insurance Program of Texas and such other programs that may be provided by law. (6) Meetings. The Board will conduct meetings in accordance with the following instructions. (A) Scheduling. The Board shall hold quarterly meetings and may hold any additional meetings as deemed necessary by the chairman. The chairman shall set the dates and locations of all meetings; however, at least one meeting shall be held annually in Austin, Texas. The chairman shall give notice to the executive director so that the members may have notice no less than three weeks in advance of the regular meeting. Special and emergency meetings may be held in response to a call of the chairman or a majority of the members at any time by giving one week's notice to all members. All meetings will be governed by Robert's Rules of Order, open to the public and conducted in accordance with Texas Civil Statutes, Article 6252-17. (B) Agenda. The chairman, with the assistance of the executive director, shall prepare and submit to each member prior to each meeting a listing of subjects to be considered by the Board. The agenda shall provide an opportunity for citizens to address the Board on any item of business included on the agenda. Notice of date, time, place, and the agenda shall be posted publicly and published in the Texas Register as required by law. (C) Quorum. Five of the members of the Board shall constitute a quorum, and when a majority vote is required, this is deemed to mean a majority of those members present at a meeting having a quorum. The chairman shall vote only to break a tie. (D) Attendance. It is a ground for removal from the Board if a member is absent for more than half of the regularly scheduled Board meetings that the member is eligible to attend during each calendar year, except when the absence is excused by majority vote of the Board, and then the matter shall be reported by the chairman to the governor. (E) Proxies. No proxies shall be permitted at any meeting of the Board. (F) Minutes. The proceedings of all meetings shall be duly recorded. Copies of the minutes shall be forwarded to each member for review and comments or corrections prior to approval at a subsequent meeting. The approved minutes shall be the "official" minutes and will be kept at the Department on Aging's offices and shall be open for inspection by the public. (7) Executive director. The Board shall appoint an executive director on aging who shall discharge all executive and administrative functions of the Department. The executive director shall serve at the pleasure of the Board. Unless otherwise specified in these rules, or by order of the Board, all rights, powers, and duties of the Board may be delegated to the executive director. (8) Composition of advisory committees. The Board shall appoint members to advisory councils as may be required. All advisory committees appointed by the Board shall be composed of a reasonable number of members and shall not exceed 24 members. The Citizens Advisory Council (CAC) shall be composed of the chair of the advisory council of each of the twenty-eight planning and service areas of the State or their designee. The voting membership of the CAC for any one meeting shall consist of the first twenty-four local advisory council chairs or their designees to register their attendance and be participants at a CAC meeting. The remaining four shall serve as alternates for that meeting. (9) Options for Independent Living Committee. This committee shall be appointed by the Board and include, but not be limited to, consumers, family caregivers, social workers, case managers, area agency on aging representatives, hospital discharge planners, hospital administrators, home health agency representatives, nurses and physicians. Membership shall be appointed by the Board on Aging at its first meeting of the calendar year 1994. The Board shall appoint as many members as the Board considers necessary, up to a maximum number of 24 members, with balanced representation of each membership category. A complete description of the duties and responsibilities of this committee is contained in sec.254.7(2) of this title (relating to Options for Independent Living Advisory Committee). (10) Amendments. These rules may be amended by the Board at any regular or special meeting, provided a copy of the proposed amendments are furnished each Board member 21 days prior to the date of the meeting at which the amendments are to be considered. (11) Reimbursement of Advisory Council members' expenses. The Texas Board on Aging shall request authority to reimburse the expenses of its advisory council members through the appropriations or budget execution process. (12) Evaluation of councils. The Board shall evaluate the effectiveness and cost efficiency of the advisory councils at the end of each year and act on their continuance or abolishment at the end of the second year of each biennium. sec.254.7.Advisory Councils The Board of the Department shall establish advisory councils and/or committees as required by law or needed to accomplish a specific task for the Department. All members of advisory councils and committees shall serve at the pleasure of the Board. (1) Citizens Advisory Council. (A) Duration. The Council shall function from September 1, 1997, to September 1, 2001. The Citizens Advisory Council shall continue after this date by an affirmative vote of the Texas Board on Aging. The Citizens Advisory Council (CAC) shall be evaluated at the end of each year. The CAC may be abolished prior to September 1, 2001, if the Board's evaluation determines it has not performed in an efficient and effective manner. (B) Purpose. It shall be the purpose of the Citizens Advisory Council to advise the Texas Board on Aging of the following: (i) advise the Board of the local needs and concerns on behalf of the elderly of their communities; (ii) identify rural issues relating to their areas of the State; (iii) identify urban issues relating to their areas of the State; (iv) participate in advocacy on behalf of the elderly of the State; and (v) review area plans of the 28 area agencies on aging for a statewide plan development. (C) Composition. The Citizens Advisory Council (CAC) is composed of the chair of the advisory council of each of the twenty-eight planning and service areas of the State or their designee. The voting membership of the CAC for any one meeting shall consist of the first twenty-four local advisory council chairs or their designees to register their attendance and be participants at a CAC meeting. The remaining four shall serve as alternates for that meeting. (D) Compensation. Citizen's Advisory Council members shall serve without compensation. (E) Presiding officer of the council. The CAC shall select a chair and vice- chair at the first meeting of the fiscal year who shall preside at all meetings. In the event the chair of the advisory council is unable to preside at a scheduled meeting, the vice-chair will preside. The chair and vice-chair shall be selected for terms of one year and may be re-selected up to a total of three years. (F) Meetings. Meetings of the advisory council will be governed by the following. (i) Scheduling. The council shall hold meetings quarterly and may hold any additional meetings as deemed necessary by the chair in coordination with the executive director. The chair shall set the dates and locations of all meetings; however, at least one meeting shall be held annually in Austin, Texas. The chair shall give notice to the executive director so that the members may have notice no less than three weeks in advance of the regular meeting. Special and emergency meetings may be held in response to a call of the chair or a majority of the members at any time by giving one week's notice to all members. All meetings will be governed by Roberts Rules of Order, open to the public and conducted in accordance with the Texas Government Code, Chapter 551. (ii) Agenda. The chair, with the assistance of the executive director, shall prepare and submit to each member prior to each meeting a listing of subjects to be considered by the council. The agenda shall provide an opportunity for citizens to address the council on any item of business included on the agenda. Notice of date, time, place, and the agenda of the meeting shall be posted publicly and published in the Texas Register as required by law. (iii) Quorum. One-half of the members of the council shall constitute a quorum, and when a majority vote is required, this is deemed to mean a majority of those members present in person or by telephone at a meeting having a quorum. The chair shall vote only to break a tie. (iv) Minutes. The proceedings of all meetings shall be duly recorded. Copies of the minutes shall be forwarded to each member for review and comments or corrections prior to approval at a subsequent meeting. The approved minutes shall be the official minutes and will be kept at the department offices and shall be open for inspection by the public. (v) Attendance. In the event a member shall fail to attend scheduled meetings of the Citizens Advisory Council over the period of four quarters, such member shall be deemed to have resigned de facto, and after due inquiry by the chairperson of the council as to reasons for such absences, the matter shall be reported by the chair of the advisory council to the Board. (vi) Proxies. No proxies or local advisory council chairs or their designees shall be permitted at any meeting of the advisory council. (G) Evaluation. The agency shall annually evaluate the committee's work, the committee's usefulness, and the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. A report shall be made to the Board at the end of each year to justify the continuation of the Council for the next two-year period as required by Texas Civil Statutes, Article 6252, as added by Senate Bill 383, 73rd Legislature, 1993. The information developed in the evaluation shall be reported to the Legislative Budget Board biennially in connection with the agency's request for appropriations. (H) Amendments. The council may propose amendments to the Board on these rules at any regular or special meeting. A copy of the proposed amendments shall be furnished each Board member 21 days prior to the date of the meeting at which the amendments are to be considered. (2) Options for Independent Living Advisory Committee. (A) Establishment of an advisory committee. An advisory committee shall be established, to be known as the Options for Independent Living Advisory Committee. (B) Purpose. The Options for Independent Living Advisory Committee shall advise and make recommendations to the staff, executive director, and Board of the Department on matters pertaining to the implementation and administration of the Options for Independent Living Program established by the Human Resources Code, Chapter 101, Subchapter C, as a result of the Acts of the 71st Legislature. The matters upon which the committee shall advise and make recommendations include funding allocations for the Options program, reviewing proposals for Options grant awards, evaluation of Options projects, or other matters that may need to have Board approval, on an as-needed basis as determined by the Department staff, executive director, or the Board. Written recommendations and reports will be provided by the committee to the Department staff and executive director. The committee will function from February 10, 1994, to February 10, 1998. The committee shall continue after this date by an affirmative vote of the Texas Board on Aging. (C) Membership and structure. The committee members shall be appointed by the Board on Aging and shall conform to the specifics detailed in sec.254.5(9 ) of this title (relating to Selection Criteria). A member's term consists of two years, commencing upon the date of appointment by the Board on Aging. Members' terms of service shall be no more than two consecutive two-year terms. (i) Subcommittees. The committee may create any ad hoc subcommittees it deems necessary to fulfill its duties. Subcommittees shall be appointed by the chair with the advice and consent of the Department/committee membership. These subcommittees may include persons who are not members of the committee. (ii) Appointment of subcommittee chairs. The committee chair shall appoint the chairs of these subcommittees. Subcommittee chairs must be committee members. (D) Meeting and voting. (i) Meetings. The advisory committee shall hold meetings on an as-needed basis, as determined by the Department staff and executive director, with the advice of the chairman. All members shall be advised of all meetings in writing at least ten days prior to meeting dates. (ii) Special meetings. Special and emergency meetings may be held in response to a call of their chair or a majority of the members at any time by giving seven days' notice to all members. (iii) Agenda. The chair, with the assistance of the Department, shall prepare and submit to each member prior to each meeting a listing of subjects to be considered by the committee. (iv) Quorum. One-half of the members of the committee shall constitute a quorum, and when a majority vote is required, this is deemed to mean a majority of those members present at the meeting having a quorum. The chair, or the vice-chair when presiding for the chair, shall vote only to break a tie. (v) Minutes. The proceedings of all meetings shall be duly recorded. Copies of the minutes shall be forwarded to each member for review and comments or corrections prior to approval at a subsequent meeting. The approved minutes shall be the official minutes and will be kept at the offices of the Texas Department on Aging and shall be open for inspection by the public. (vi) Attendance. In the event a member, other than a legislator, shall fail to attend three consecutive, regularly scheduled meetings of the committee, such member shall be deemed to have resigned from the committee. (vii) Proxies. No proxies shall be permitted at any meeting of the committee. A legislative member of the committee may be represented by a member of his or her staff, at any meeting, and is exempted from the attendance requirement. (viii) Rules of order. Rules contained in Roberts Rules of Order, Revised, shall govern the committee in all cases to which they are applicable and in which they are not inconsistent with these rules. (E) Officers. The officers of the committee shall consist of a chair and a vice- chair and shall be selected from and by the members of the committee at the first regular meeting. Thereafter, the chair and vice-chair shall be selected by the committee as terms expire or vacancies are otherwise created. (i) Duties. Each officer shall be expected to fulfill the assigned duties and other appropriate duties requested by the committee, as follows: (I) Chair: (-a-) preside at meetings; (-b-) coordinate the agenda of committee meetings; (-c-) act as spokesperson for the committee; (-d-) appoint subcommittee members as needed; (-e-) appoint subcommittee chairs; and (-f-) perform other duties as requested by the committee. (II) Vice-chair: (-a-) preside at meetings in absence of chair; (-b-) cooperate with the chair in the administration of the committee; (-c-) assume all duties and responsibilities of the chair in the event that the chair is unable to serve; and (-d-) assume additional duties as requested by the committee. (ii) Terms. The committee chair and vice-chair shall both serve two-year terms. If one of these positions becomes vacant before the end of the term, the committee shall select another member to complete the unexpired term. (F) Amendments. The bylaws of the committee may be amended by the affirmative vote of at least two-thirds of the members present at any regular or special meeting of the committee, subject to written notice to all members, setting forth the amendments to be considered, at least 30 days prior to said meeting. The proposed amendments must then go through the rulemaking process as required by the Administrative Procedure Act. (G) Compensation. Committee members shall serve without compensation but are entitled to reimbursement for transportation and the per diem allowance for state employees in accordance with the General Appropriations Act. (H) Public participation. In accordance with state statutes, each regular meeting will be posted in the Texas Register no later than eight days before the scheduled meeting. (I) Annual evaluation. The committee shall conduct an annual evaluation of its work, its usefulness, and the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. Department staff shall provide the cost information to the committee for its consideration in the self-evaluation. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 23, 1997. TRD-9717166 Mary Sapp Executive Director Texas Department on Aging Effective date: January 12, 1998 Proposal publication date: September 19, 1997 For further information, please call: (512) 424-6840