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 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 3.Boll Weevil Eradication Program SUBCHAPTER E.Creation of Eradication Zones 4 TAC sec.3.111 The Texas Department of Agriculture (the department) adopts new sec.3.111, concerning the creation of a nonstatutory boll weevil eradication zone, without changes to the proposal published in the December 5, 1997, issue of the Texas Register (22 TexReg 11879). The new section is adopted to establish a new nonstatutory boll weevil eradication zone consisting of counties now located in a statutory zone created under the Texas Agriculture Code, Chapter 74, Subchapter D, in order to allow cotton producers in the proposed area an opportunity to establish a more manageable, efficient eradication program that better meets the local needs of producers. New sec.3.111 establishes the Permian Basin Boll Weevil Eradication Zone consisting of all of Dawson, Ector, Howard and Martin counties, and portions of Borden and Midland counties. A grower referendum will be conducted to determine whether or not a boll weevil eradication program and assessment will be approved for that zone. Comments generally in favor of the proposal were received from a number of individuals, the St. Lawrence Cotton Growers Association and Plains Cotton Growers Inc.. In addition to written comment received in support of establishing the proposed new boll weevil eradication zone, oral comment in support of the proposal was also received at a public hearing conducted by the department on December 11, 1997 in Ackerly, Texas. Comments in support of creating the new zone by splitting the larger Southern High Plains/Caprock zone centered on the need for smaller, more manageable zones to enable cotton growers to address like cultural practices and boll weevil pressures on a more local level, with more local input and in a more cost-efficient manner. Comments were received that did not support the new zone for reasons including the cost of the program, the belief that there is not actual support for the zone among producers, and belief that any program established would not have local control, but rather would be under the control of the Texas Boll Weevil Eradication Foundation. The department understands the concern over costs of the program, but agrees with other commenters that the cost of a comprehensive, cost-sharing program is more cost efficient than costs to individual growers battling the boll weevil on their own. In regards to grower support, the department believes that enough grower support has been demonstrated to justify the designation of the zone and providing the opportunity for growers to express their support by passing or defeating a referendum to establish a zone program. Finally, while the current law does designate the Foundation as the entity to implement an eradication program, the law also does provide for ample grower input as to how a program will be structured and an assessment rate established in the form of zone advisory committees and opportunity for public comment, as well as oversight authority by the Commissioner in the implementation of an eradication program. In addition to the comments generally supporting the new zone, additional comments were received on the dire need for a boll weevil eradication program, stating that any program should be funded by all aspects of the cotton industry and not just the cotton producer, and in support of the proposed boundaries. Comments in support of the proposed boundaries stated that the geographic boundaries are the most workable given the similarities in boll weevil pressures and cultural practices in counties included. Other comments received on the zone boundaries were primarily in regard to the addition of the northern part of Glassock County, an area of about 18,000 acres which is currently a part of the St. Lawrence eradication zone. The department acknowledges that the area requested to be added to the Permian Basin zone is contiguious to the new zone and would most likely have more similarities to the new zone, but believes that the addition of any other area to the new zone is more appropriately initiated after the effective establishment of the new zone and passage of a referendum of growers establishing an eradication program in the new zone. The new section is adopted under the Texas Agriculture Code, sec.74.120, which provides the commissioner of agriculture with the authority to adopt rules to carry out the purposes of Chapter 74; sec.74.1042, which provides the commissioner of agriculture with the authority, by rule, to designate an area of the state as a proposed boll weevil eradication zone; and Senate Bill 1814, 75th Legislature, 1997, sec.1.27(d), which provides the commissioner of agriculture with the authority to by rule divide a statutory zone. 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. Filed with the Office of the Secretary of State on January 8, 1998. TRD-9800286 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: January 28, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7541 TITLE 10. COMMUNITY DEVELOPMENT PART I. Texas Department of Housing and Community Affairs CHAPTER 1.Administration SUBCHAPTER A.General Policies and Procedures 10 TAC sec.1.4 The Texas Department of Housing and Community Affairs adopts new sec.1.4, amending 10 Texas Administrative Code (TAC) Chapter 1, to provide for protest procedures for actual or prospective bidders, offerors, or contractors consistent with those set out in 1 TAC sec.111.3, General Services Commission Rules, and for standards for maintaining documentation about the purchasing process, without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11620). The adopted rule is necessary to comply with new statutory requirements enacted in the 75th Legislative Session. Senate Bill 1752, Chapter 1206, Acts of the 75th Legislature, Regular Session, effective September 1, 1997 (to be codified as an amendment to Subchapter B, Chapter 2155 by addition sec.2155.076), requires the Department by rule to adopt procedures for resolving vendor protests relating to purchasing issues consistent with the General Services Commission's rules, and to include standards for maintaining documentation about the purchasing process to be used in the event of a protest. No written comments were received regarding adoption of the new rule. The new rule is adopted under Government Code, Chapter 2306, sec.2306.053(b)(4) which gives the Department authority to adopt and enforce rules. The new rule affects Title 10 of the Texas Administrative Code, Chapter 1. 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800363 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: January 29, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 475-3726 TITLE 16. ECONOMIC REGULATION PART VI. Texas Motor Vehicle Commission CHAPTER 101.Practice and Procedure Adjudicative Proceedings and Hearings 16 TAC sec.101.52 The Texas Motor Vehicle Board of the Texas Department of Transportation adopts an amendment to sec.101.52, concerning evidence without changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8824). The amendment to sec.101.52 allows an Administrative Law Judge, under appropriate circumstances as defined under the Texas Government Code, Chapter 2001, to take official notice of information listed in Motor Vehicle Division licensing files as necessary to improve the efficiency and effectiveness of the administrative process. The effect of the amendments to sec.101.52 will be to allow Administrative Law Judges, under the Texas Motor Vehicle Commission Code, to fully perform all functions in a contested case hearing and to use official notice as a tool in the hearing process to conserve time and resources of the agency and those who practice before it. Comments against the proposed amendment expressed concern that official notice of licensing files would have the effect of admitting information as true without requiring authentication or supporting evidence. Written comments were filed by the American Automobile Manufacturers Association (AAMA). Oral comment was received from Mr. Merritt Spencer, attorney, representing AAMA. The amendment is adopted under sec.3.06 of the Texas Motor Vehicle Commission Code, Article 4413(36) and (36a), Texas Revised Civil Statutes, which provides the Board with the authority to adopt rules necessary and convenient to effectuate the provisions of the Code and to govern practice and procedure before the 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800382 Brett Bray Director Texas Motor Vehicle Commission Effective date: January 29, 1998 Proposal publication date: September 5, 1997 For further information, please call: (512) 416-4800 CHAPTER 103.General Rules 16 TAC sec.103.1, sec.103.4 The Texas Motor Vehicle Board of the Texas Department of Transportation adopts amendments to sec.103.1 concerning representative defined, and sec.103.4, concerning notice of license application; protest requirements without changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8824). The amendment to sec.103.1 reflects legislative changes to sec.1.03 of the Texas Motor Vehicle Commission Code. The rule formerly indicated that the statutory definition of "representative" could be found at Texas Motor Vehicle Commission Code, sec.1.03(7) when it is actually at sec.1.03(31). The amendment corrects the citation by generally referring to sec.1.03 of the Motor Vehicle Commission Code. The amendment to sec.103.4 conforms the rule to legislative changes to sec.4.06(e) of the Texas Motor Vehicle Commission Code which no longer grants like-line dealers the right to protest the granting of an application for the relocation of an existing dealership if the proposed relocation site is not farther than one mile from the site from which the dealership is being relocated. The amendment to sec.103.4 adds language reflecting this additional restriction. The effect of the correcting the citation in sec.103.1 and limiting the notice of protest and the protest right in sec.103.4 is consistent with legislative amendments to the Texas Motor Vehicle Commission Code, and will benefit the public by conserving the time and resources of the agency, as well as those of the licensee body. Written and oral comments regarding sec.103.1 suggested that the rule be additionally revised to limit licensure to representatives who reside in Texas, routinely travel to Texas or are a primary contact for the manufacturer regarding sales and service. Written comments on the proposed amendment to sec.103.1 were filed by the American Automobile Manufacturers Association (AAMA). Oral comment was received from Mr. Merritt Spencer, attorney, representing AAMA. No written or oral comments on proposed amendments to sec.103.4 were filed. The amendments are adopted under sec.3.06 of the Texas Motor Vehicle Commission Code, Article 4413(36) and (36a), Texas Revised Civil Statutes, which provides the Board with the authority to adopt rules necessary and convenient to effectuate the provisions of the Code and to govern practice and procedure before the 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800383 Brett Bray Director Texas Motor Vehicle Commission Effective date: January 29, 1998 Proposal publication date: September 5, 1997 For further information, please call: (512) 416-4800 16 TAC sec.103.2 The Texas Motor Vehicle Board of the Texas Department of Transportation adopts the repeal of sec.103.2, concerning records without changes which appeared in the September 5, 1997, issue of the Texas Register (22 TexReg 8825). The repeal of sec.103.2 deletes an obsolete provision of the agency rules regarding public access to agency records. The rule indicated that records of the Board shall be public documents and open to inspection during regular office hours, unless the Board or director determined that any specific portion of such records is made confidential or privileged by any applicable law, or if such records contain a secret process, information on the personal wealth or affairs of an individual, or the personnel records of an individual, publication of which could serve no bona fide purpose, in which case such records shall not be available for public inspection. The repeal of this rule eliminates the appearance of conflict with the Texas Government Code, sec.552 (the Public Information Act or Open Records Act The effect of the repeal is to eliminate potential confusion and conserve the time and resources of the agency and those entities seeking information from the agency. No comments on the proposed repeal of sec.103.2 were received. The repeal is adopted under sec.3.06 of the Texas Motor Vehicle Commission Code, Article 4413(36) and (36a), Texas Revised Civil Statutes, which provides the Board with the authority to adopt rules necessary and convenient to effectuate the provisions of the Code and to govern practice and procedure before the 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800381 Brett Bray Director Texas Motor Vehicle Commission Effective date: January 29, 1998 Proposal publication date: September 5, 1997 For further information, please call: (512) 416-4800 TITLE 19. EDUCATION PART II. Texas Education Agency CHAPTER 153.School District Personnel SUBCHAPTER CC.Commissioner's Rules on Creditable Years of Service 19 TAC sec.153.1021 The Texas Education Agency (TEA) adopts new sec.153.1021, concerning creditable years of service, with changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11622). The new section recognizes the experience a teacher or librarian is given credit for placement on the state minimum salary schedule. The adopted section ensures consistent administration of the state minimum salary schedule by all Texas public schools by establishing criteria for the award of service credit. The new section also provides school districts with an official definition of what constitutes a year of service for a teacher or full-time librarian for purposes of placement on the state minimum salary schedule since the State Board of Education (SBOE) repealed rules related to creditable years of service in January 1996. The adopted new section contains similar language to rules repealed by the SBOE in January 1996. The following changes have been made to the rule since it was published as proposed. Deleting the requirements to have an oath of office on file and to have evidence of educational attainment on file since these requirements are not related to years of creditable service. The table in sec.153.1021(f), published as proposed in subsection (h), relating to the number of days required to earn a year of service has been modified to be consistent with the rules of the Teacher Retirement System pertaining to length of service for retirement purposes. Language in sec.153.1021(f)(6) was added to clarify that the change made to the table relative to the 90-day requirement can be equivalent to four and one-half months, a full semester, or 90 full-time equivalent days. Language in sec.153.1021(h)(1)(A), published as proposed in subsection (j)(1)(A), was deleted to clarify that the state minimum salary schedule applies only to teachers and full-time librarians. Language in sec.153.1021(h), published as proposed in subsection (j)(1)(C), related to not recognizing special education related service prior to the 1979- 1980 school year was deleted to ensure that service as a teacher is not contingent on the type of instruction being delivered or when the instruction was delivered. The effective date for recognizing service as an instructor in an agricultural extension service in sec.153.1021(h)(7)(A), published as proposed in subsection (j)(7)(A), was changed from 1997-1998 to 1998-1999 to alleviate potential budget problems in some school districts. Language in sec.153.1021(d)(8), published as proposed in subsection (d)(10), relating to the transferability of sick and personal leave was modified to avoid interference with local school district policies which may allow transfer and accumulation of locally awarded leave or leave from other entities. Language in sec.153.1021(a)(18) and sec.153.1021(k), published as proposed in subsection (m), relating to substitute teachers was changed to allow a substitute teacher who is certified and providing instruction to earn a year of service. The minimum number of days (90) required to earn and receive credit for the 1998-1999 period of years services rendered was added. The pay grade reference in subsection (h)(3) was changed to be consistent with the current classification schedule. Language in subsection (d)(6) relating to a fiscal agent/manager having responsibility for keeping service records of all cooperative personnel in a central file was deleted based on this language being redundant with the language in this subsection. In subsection (k), language was added relating effective date for substitute teacher being eligible for creditable service. Since substitute teaching was not previously recognized, making this rule effective during the 1997-98 school year would impose a cost that school districts had not budgeted for in planning for their 1997-98 expenditures. Adding this language will allow school districts time to plan accordingly. Other changes include: (1) language in sec.153.1021(b) relating to required documentation deleted since requirements for oath of office and evidence of educational attainment were deleted; (2) language in sec.153.1021(d) to allow school districts greater flexibility in designating persons authorized to sign service records deleted; and (3) making minor changes to the rule to improve clarity of rules, including a specific reference to physical assault in sec.153.1021(a) and deleting redundant language in sec.153.1021(e), published as proposed in subsection (g). The following public comments have been received regarding adoption of the new section. Comment. Some school administrators expressed their concern with extending credit to teachers employed in agricultural extension services beginning with the 1997-1998 school year. Since this type of service had not previously been recognized and school administrators had not budgeted for the cost of granting this service in the 1997-1998 school year, they felt it would be more appropriate to delay the recognition of this type of service until the 1998-1999 school year. Agency Response. The agency agreed and a change was made to recognize instruction in an agricultural extension service operated by an accredited college or university beginning with the 1998-1999 school year. Comment. The Texas Classroom Teachers Association (TCTA) expressed its appreciation that the rules being proposed were substantially similar to the former rules that were in effect prior to Senate Bill. TCTA suggested changing sec.153.1021(k), published as proposed in subsection (m), related to substitute teachers so that certified substitute teachers would be eligible for service credit regardless of the compensation level. Agency Response. The agency agreed to delete the compensation level requirement but changed the definition of a substitute teacher in sec.153.1021(a) to clarify that a substitute teacher was a certified person delivering curriculum. Comment. The Texas Association of School Boards (TASB) suggested that the compensation level for substitutes be eliminated and that the rule be amended to conform with a Teacher Retirement System (TRS) rule that grants credit to substitutes for 90 days of employment. Agency Response. The agency agreed and the appropriate changes have been made to sec.153.1021(f), published as proposed in subsection (h). Comment. TCTA suggested a "catch-all" rule that would apply to individuals who met all the requirements for service credit except for the certification requirement. According to TCTA, the agency in the past has granted service credit to individuals who were not certified to avoid punishing the individual for a school district's failure to secure certification for that individual. Agency Response. While the agency may have granted credit to an individual who was not certified, it was only after receiving verification that the individual would have been eligible for at least an emergency teaching permit had the employing district secured the permit. The agency does not believe that a "catch all" rule is necessary. Comment. TCTA and TASB recommended that sec.153.1021(d)(8), published as proposed in subsection (d)(10), be changed to conform to a new law that authorizes leave accrued at a regional education service center to be transferred to a public school. TCTA also suggested that the non-transferable provision be deleted entirely, as it was interfering with the local control of school districts that do allow for transfer and accumulation of local leave or leave from other types of entities. Agency Response. The agency agrees that leave granted locally by an entity may be recognized by another district at its discretion and sec.153.1021(d)(8) has been changed accordingly. The subsection was also amended to conform to the new law related to leave accrued at a regional education service center. Comment. TCTA suggested eliminating sec.153.1021(h)(1)(C), published as proposed in subsection (j)(1)(C), which states that special education related service personnel cannot receive credit for service performed prior to the 1979-80 school year. Agency Response. The agency agrees that this particular rule is no longer pertinent and it has been deleted. Comment. TASB expressed concerns that the proposed rules went far beyond statutory authority granted the commissioner by Senate Bill 280 and that the proposed rules would impose many new requirements on school districts. Specifically, TASB objected to the requirement to have on file and available for review or audit an oath of office and evidence of educational attainment. Agency Response. The agency agrees that these two requirements are no longer necessary and the appropriate sections have been deleted. As for imposing many new requirements on school districts, the agency does not agree. The requirements in the proposed rules are substantially similar to former rules that have been in place for at least 25 years and do not impose any additional record-keeping requirements on school districts. Comment. TASB expressed concern that the 85-day requirement for earning a year of service was not coordinated with a similar rule adopted by the Teacher Retirement System (TRS), that requires four and one-half months, and stated that having different definitions was confusing and unnecessary. Agency Response. The agency does not believe that the rules necessarily have to be the same, since they are being used for two entirely different purposes. However, the agency agrees that changing the proposed requirement would promote consistency, and thus appropriate changes have been made Comment. TASB took exception to the term "professional personnel" as used in the heading in sec.153.1021(h), published as proposed in subsection (j), as it would expand the salary schedule to positions other than teachers and full-time librarians. TASB also stated that the last sentence in sec.153.1021(h)(1)(A), published as proposed in subsection (j)(1)(A), conflicted with current law in that it would require a school district to pay a teacher the state minimum salary whose only certification was a teaching permit. Agency Response. The agency does not agree that the use of "professional personnel" as used in the heading in sec.153.1021(h) expands the salary schedule and is aware that the salary schedule only applies to teachers and full-time librarians. The rules are structured so that a person being employed as a teacher or full-time librarian can receive credit for other types of professional service without restricting that service to teaching. The agency agrees that the use of the term "professional personnel" in the last sentence in sec.153.1021(h)(1)(A) could conflict with current law and a change has been made to clarify that the state minimum salary schedule applies only to teachers and full-time librarians. Comment. The Association of Texas Professional Educators (ATPE) suggested that the definition of authorized leave be expanded to include assault leave. Agency Response. The agency believes that the state personal leave policy as stated in the definition includes assault leave; however, the definition was modified slightly to reference assault leave. Comment. ATPE suggested adding the word "professional" to the last sentence in sec.153.1021(g), published as proposed in subsection (i). Agency Response. The agency agrees with the modification. The new section is adopted under the Texas Education Code, sec.21.403, as amended by Senate Bill 280, 75th Texas Legislature, 1997, which authorizes the commissioner of education to adopt rules for the administration of the state minimum salary schedule. sec.153.1021.Recognition of Creditable Years of Service. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise: (1) Accredited institution - A public or private elementary, secondary, or post- secondary institution whose education program has been evaluated and deemed accredited by a state department of education or recognized regional accrediting agency. (2) Assignment - Refers to the actual duties a person has with a school district or other educational entity. (3) Authorized leave - Leave granted under the state's former minimum sick leave program, leave granted under the state's current minimum personal leave program, (which includes physical assault leave), or any leave granted under a local leave policy for which the employee is paid as if on regular duty. (4) Certificate - A document issued by the State Board of Educator Certification (formerly the division of teacher certification of the Texas Education Agency) authorizing the holder to teach in the public elementary and secondary schools of Texas. (5) Certified - Status of a person who holds a valid Texas teaching certificate. (6) Contractual year - The employment period between July 1 and the following June 30. (7) Current valid certificate - A certificate that is or was valid at a given time, including the stipulation that after June 30, 1986, a Texas certificate is valid only if the certified person has successfully passed either the Texas Examination of Current Administrators and Teachers or the Examination for Certification of Educators in Texas. (8) Faculty status - Employment by a college or university as a member of the professional administrative or instructional staff, not as a graduate assistant, an assistant instructor, or an instructor on a fellowship. (9) Full-time employment - Employment for 100 % of an institution's normal work schedule. (10) Full-time equivalency - The amount of time required of a staff member to perform a less than full-time assignment divided by the amount of time required in performing a corresponding full-time assignment. Full-time equivalency of assignment usually is expressed as a decimal fraction to the nearest tenth. (11) Minimum salary - The minimum salary a teacher or full-time librarian must be paid as prescribed in Texas Education Code (TEC), Chapter 21. (12) Part-time employment - Employment for less than 100 % of an institution's normal work schedule. (13) Professional personnel - Teachers, full-time librarians, any other employee who is required to hold a certificate issued under TEC, Chapter 21, Subchapter B, registered nurses, and any other personnel reported by a school district to the Public Education Information Management System with a "professional" role- id. (14) Regional accrediting agency - The recognized regional accrediting agencies are: (A) Southern Association of Colleges and Schools; (B) Middle States Association of Colleges and Schools; (C) North Central Association of Colleges and Schools; (D) New England Association of Schools and Colleges; (E) Western Association of Schools and Colleges; and (F) Northwest Association of Schools and Colleges. (15) Salary increments - Increases in salary granted for teaching or work experience. (16) Service - A term of employment measured in school years in an entity in which the employment is recognized for salary increment purposes. (17) State school - A school that is funded by legislative action in the appropriations act. These schools include the Texas School for the Blind, the Texas School for the Deaf, and schools under the jurisdiction of the Department of Mental Health and Mental Retardation and the Texas Youth Commission. (18) Substitute teacher - A certified teacher who works on call, does not have a full-time assignment, and provides instruction. (19) Teacher service record - The official document used to record years of service and days used and accumulated under the states former minimum sick leave program or the state's current personal leave program. (b) Required documentation. The following records on professional personnel must be readily available for review. (1) credentials (certificate or license); (2) service record(s) and any required attachments; (3) contract; (4) teaching schedule or other assignment record; and (5) absence from duty reports. (c) Credentials for professional personnel. The credentials for professional personnel are as follows. (1) A current valid Texas certificate, a special assignment permit, a nonrenewable permit, a non-certified instructor's permit, or an emergency teaching permit. (2) For special education related service teachers, the credential must be appropriate licensure from the State of Texas. (3) For those special education related service personnel who do not require Texas certification or licensure, proper credentials as described in 19 Texas Administrative Code (TAC) sec.89.1131 of this title (relating to Qualifications of Special Education, Related Service, and Paraprofessional Personnel) are required. (d) Teacher Service Record. The basic document in support of the number of years of professional service claimed for salary increment purposes and both the state's sick and personal leave program data for all personnel is the teacher service record (form FIN-115) or a similar form containing the same information. It is the responsibility of the issuing school district to ensure that service records are true and correct and that all service recorded on the service record was actually performed. (1) The service record must be validated by a person designated by the school district to sign service records. (2) Supporting documents are required for service in out-of-state private schools, foreign public and private institutions, the military, and colleges and universities. The type of supporting documentation for each particular entity is prescribed by subsection (j) of this section. (3) If a person is employed by more than one school district during the same school year, a service record from each employing district is required. (4) For personnel employed in a year-round school system, the actual dates of employment during that school's calendar must be indicated on the service record. The dates may not necessarily conform to the contractual year as defined by subsection (a) of this section. (5) The service record shall be kept on file at the school district. When employment with the district is terminated, the original service record, signed by the employee shall be given to the employee upon request or sent to the next employing school district. The local school district must maintain a legible copy for audit purposes. (6) Cooperative personnel employed by a fiscal agent/manager and itinerant personnel of a cooperative shall be considered to be employees of the fiscal agent/manager and the service record shall be the fiscal agent/manager's responsibility. Personnel employed by a member of a cooperative and assigned to the member are employees of the member and the service record shall be the member's responsibility. (7) Work experience claimed by career and technology education personnel for salary increment purposes as prescribed by subsection (k) of this section must be recorded on a service record. (8) State sick leave balances, days earned, and days used by personnel under the former state's minimum sick leave program and the state's current personal leave program must be recorded on the service record or another similar form containing the same information. State sick leave or state personal leave accumulated in Texas public elementary and secondary schools is transferable among these schools. Sick leave accrued by an employee of a Texas regional education service center, not to exceed five days per each year of employment, is transferable to a Texas public elementary and secondary school. Local leave accrued under the policy of any entity recognized for creditable service under subsection (g) of this section may be transferred to a Texas public elementary or secondary school at the discretion of the employing school district. (e) General provisions for years of creditable service. All service claimed for salary increment purposes must meet the requirements in subsections (f)-(h) of this section. The service record and any other required supporting documents must meet the requirements for such records and documentation in this section. All service shall be based on the contractual year (July 1 - June 30). No more than one year of experience may be acquired in any one contractual year. (f) Minimum requirements. The table in this subsection indicates the minimum number of days required to earn and receive credit for a year of experience. Figure 1: 19 TAC sec.153.1021(f) (1) For service performed through the 1989-1990 school year, minimum days at less than 100 % or at full-time equivalency are applicable only to service in Texas public schools, Texas education service centers, and, beginning in 1978- 1979, Texas colleges and universities. (2) Beginning with service performed during the 1990-1991 school year or any year thereafter, employment at less than 100 % of the day is recognized in all entities where full-time employment is recognized, provided that documentation is presented to the employing district which verifies that the employment was for not less than three and one-half hours each day. (3) The 90 days required at 100 % of the day for years prior to 1972-1973 may be equivalent to four and one-half months, a full semester, or three six-weeks. Where the school year was less than 180 days for any year prior to 1972-1973, a minimum of 175 days at 50-99 % of the day will be accepted, provided that the 175 days constituted two full semesters or six six-weeks. (4) For experience from the 1978-1979 through the 1987-1988 school years, full- time equivalent days equal the total number of days employed at 100 % of the day plus days employed at 50-99 % of the day divided by two. (5) Beginning with the 1988-1989 school year, full-time equivalent days equal the total number of days employed multiplied by the percent of day actually worked. (6) Beginning with the 1998-1999 school year, the 90 days required at 100 % of the day may be equivalent to four and one-half months or a full semester. The 180 days required at 50- 99 % of the day may be equivalent to 90 full-time equivalent days (percent of day employed multiplied by number of days employed). (7) Extended day migrant program employment shall be calculated in accordance with this section and the resulting equivalent must meet the same minimum requirements for professionals for the year in question. (A) For service prior to the 1970-1971 school year, the days employed in the migrant program shall be multiplied by a factor of 1.37. (B) For service during the 1970-1971 through the 1975-1976 school years, the days employed in the migrant program shall be multiplied by a factor of 1.31. (g) Entities recognized for years of service. Service in any of the entities listed in this subsection shall be recognized for professional personnel. The minimum employment requirements in subsection (f) of this section must be met. Requirements concerning service in each type of entity in subsection (h) of this section must also be met. Professional service in the following entities is creditable: (1) Texas public elementary and secondary schools; (2) State regional education service centers; (3) State departments of education; (4) Texas Department of Corrections--Windham Schools; (5) Overseas schools operated by the U. S. Government; (6) Public elementary and secondary schools in all other states in the United States or within the boundaries of any of its territorial possessions; (7) Texas public or private colleges or universities; (8) Texas private elementary and secondary schools; (9) Texas non-public special education contract schools; (10) Texas Department of Mental Health and Mental Retardation--state hospitals; (11) Texas veterans' vocational schools; (12) U. S. Department of Interior--Bureau of Indian Affairs; (13) U. S. service academies; (14) U. S. military service; (15) Job Corps; (16) Peace Corps (in a teaching capacity only); (17) Public or private colleges or universities and private elementary and secondary schools in all other states in the United States or within the boundaries of any of its territorial possessions; and (18) Foreign public or private colleges or universities, or elementary and secondary schools. (h) Requirements. Requirements for entities recognized for professional personnel are as follows: (1) Texas public elementary and secondary schools. (A) All professional personnel must be certified by the State of Texas, must hold the proper state or national licensure as required by the position held, or must have the educational requirements for the job assigned. Regardless of the funding source, teachers and full-time librarians must be paid at least the minimum salary specified in the Texas State Public Education Compensation Plan. (B) Professional personnel placed on developmental leaves of absence must be paid at least one-half of their state minimum salary by the school district to receive service credit for increment purposes. (C) Instructors in Reserve Officer Training Corps (ROTC) programs conducted by local school districts must be certified or hold an emergency teaching permit and must be paid at least the state minimum salary to receive service credit for increment purposes. An emergency teaching permit need not be renewed as long as the person continues in the ROTC assignment. (2) State regional education service centers. (A) Personnel employed in cooperatives for which the education service center is acting as fiscal agency must meet the same requirements as personnel employed in Texas public elementary and secondary schools. (B) All other personnel must meet the same requirements as personnel employed in state departments of education. (3) State departments of education. Employment must have been in a professional capacity. For Texas department of education employment, professional positions are defined as personnel employed in positions starting in state pay grade classification B4/A12 and above. (4) Texas Department of Corrections - Windham schools. Requirements in this subsection shall apply. (5) Public elementary and secondary schools in all other states of the United States or within the boundaries of any of its territorialpossessions. Employment prior to 1990-1991 must have been on a full-time basis. (6) Overseas schools operated by the U.S. government. Schools operated by the United States Government for military dependents and dependents of personnel assigned to an embassy, consulate, etc., are treated as public schools in other states of the U.S. and policies pertaining to public schools in other states apply. (7) Texas public or private colleges or universities. (A) Officer Training Corps programs conducted by accredited colleges or universities must have been employed full-time on a faculty status level. Beginning in 1998-1999, service as an instructor in an agricultural extension service operated by an accredited college or university may be recognized for salary increment purposes as long as the person held a valid Texas teaching certificate at the time the service was rendered. (B) All college or university experience must be recorded on the teacher service record. A supporting letter or form must be attached to the teacher service record verifying that either the full-time or part-time employment was at faculty status or its equivalent and that the schedule of work and the pay constituted that of other similar faculty employees. It is the responsibility of the employing school district to secure verification of college or university experience. (8) Texas private elementary and secondary schools. (A) For experience prior to the 1986-1987 school year, accreditation by the Texas Education Agency or the Southern Association of Colleges and Schools is required. (B) For experience in the 1986-1987, 1987-1988, and 1988-1989 school years, service shall be acceptable if the school was accredited by the Texas Education Agency, or a recognized regional accrediting agency. (C) For experience in the 1989-1990 school year and thereafter, service shall be acceptable if the school was accredited by the Texas Private School Accreditation Commission. (D) During the 1986-1987, 1987-1988, and 1988-1989 school years, private schools accredited by the Texas Education Agency, a recognized regional accrediting agency, or an association recognized by the commissioner of education will be listed in the Texas School Directory. (E) Beginning with the 1989-1990 school year and thereafter, private schools accredited by the Texas Private School Accreditation Commission will be listed in the Texas School Directory. (9) Non-public special education contract schools. (A) Approval from the Texas Education Agency to provide special education services during the year service was rendered is required. A list of approved schools is maintained by the Texas Education Agency and is also distributed annually to all public schools in Texas. (B) The person must have been certified in an area of special education. (10) Texas Department of Mental Health and Mental Retardation state hospitals and state schools. (A) The assignment must have been in an educational program operated in conjunction with a public school program or in a non-educational professional capacity. (B) Persons employed in an educational program must have held a valid Texas teaching certificate and must have been paid at least the state minimum salary of a teacher in a Texas public school. (11) Texas veteran's vocational school. (A) The assignment must have been as an instructor or coordinator. (B) Service during the period of July 1, 1946, through June 30, 1955, must have been at a school under the jurisdiction of the Texas Education Agency (this service can be verified by the agency). (C) Service after June 30, 1955, must have been at a veteran's vocational school operated by a Texas county board of school trustees under the jurisdiction of the Veterans Administration. (12) Public or private colleges and universities, and private elementary and secondary schools in all other states in the United States or within the boundaries of any of its territorial possessions. (A) Employment must have been, and in the case of colleges and universities must be verified in the same manner as for Texas colleges or universities. (B) Accreditation by a recognized state or regional accrediting agency in the United States is required. In states or territories that have no provisions for accrediting, licensing, or approving private elementary or secondary schools, service shall be acceptable provided the person held, while employed, a valid teaching certificate from the state in which the school is located or a valid Texas teaching certificate. (C) It is the responsibility of the employing school district to have evidence on file of the accreditation status of private schools in other states. (13) Foreign public or private elementary and secondary schools, colleges, and universities. (A) Employment in colleges or universities must be verified in the same manner as for Texas colleges or universities. (B) For foreign public schools, public colleges and universities, accreditation by a recognized agency of the foreign country or by a recognized accrediting agency in the United States is required. (C) For foreign private schools, private colleges or universities, accreditation must be by a recognized accrediting agency in the United States. (D) The accreditation status must be verified in the same manner as for public or private schools in the United States. (14) United States Department of the Interior - Bureau of Indian Affairs. Service must have been full-time. (15) United States service academies. (A) Employment must have been at a faculty status level and must be verified in the same manner as other college or university service. (B) The service academies are as follows: (i) Air Force Academy, Colorado Springs, Colorado: (ii) Coast Guard Academy, New London, Connecticut; (iii) Military Academy, West Point, New York; (iv) Naval Academy, Annapolis, Maryland; and (v) Merchant Marine Academy, Kings Point, New York. (16) United States military service. Service with the military forces of the United States of America may be counted for salary increment purposes if the following conditions are met: (A) The person was a professional employee of any entity recognized for creditable service for salary increment purposes within twelve months of entry into active duty. (B) Form DD-214 or other official discharge papers must be filed with the teacher service record showing: (i) that military service was in the capacity of an enlisted man or woman or commissioned officer; (ii) that release or separation from active duty was under honorable conditions; and (iii) dates of entry and release from active duty. (C) The person claiming military service was on active duty during the periods September 1, 1940, through August 31, 1947, or September 1, 1950, through August 31, 1954, or for other periods if: (i) the military service was a result of involuntary induction into active duty; or (ii) the military service was a result of voluntary entry into active duty for the first time for the individual, and such initial period of voluntary military service claimed as years of service for teacher salary increments does not exceed four years. (D) Beginning with the 1983-1984 school year, for purposes of determining the total years of military experience creditable for increment purposes, a year shall be considered to begin on July 1 and end June 30. During this period, four and one- half months of service must be acquired for an individual to be entitled to one year of experience. Only one year of experience may be earned during any 12- month period. Prior to the 1983-1984 school year, credit for military service was calculated based on the 12-month period from September 1 - August 31. Credit granted on that basis shall continue to be effective. (17) Job Corps. The person must have held a valid teaching certificate during the period of employment. (18) Peace Corps. (A) Employment must have been with a school system (Grades K-12) in a foreign country. (B) The person must have held a valid teaching certificate from any state in the United States during the period of employment. (i) Credit for career and technology teachers. In accordance with TEC, sec.21.403, effective with the 1982-1983 school year, certified career and technology education teachers employed for at least 50 % of the time in an approved career and technology position may count up to two years of work experience for salary increment purposes if the work experience was required for career and technology certification. (1) For purposes of this section, an emergency teaching permit shall be the equivalent of a teaching certificate. (2) Once credit for work experience has been granted, the credit shall be continued regardless of the position held. For personnel granted credit under this section whose employment is split between career and technology and non- career and technology positions, the years granted shall apply to both the career and technology and the non-career and technology position. (j) Adult basic education program credit. A person teaching adult basic education is eligible for creditable service if the program was operated by a public school and the person held a valid teaching certificate. (k) Substitute teachers. Beginning with the 1998-99 school year, a substitute teacher, as defined in subsection (a) of this section, employed in an entity recognized for years of service as prescribed by subsection (g) of this section is eligible for creditable service. (l) Salary schedule. The commissioner of education shall publish annually the state minimum salary schedule. 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800378 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: February 1, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART XII. Board of Vocational Nurse Examiners CHAPTER 239.Contested Case Procedure Enforcement 22 TAC sec.239.11 The Board of Vocational Nurse adopts the amendment to sec.239.11, relative to unprofessional conduct without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11210). This rule is adopted to include the fact that failure to perform CPR on a patient is grounds for disciplinary action. No comments were received relative to the adoption of this rule. The amendment of this rule is adopted under Texas Civil Statutes, Article 4528c, Section 5(f), which provides the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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. Filed with the Office of the Secretary of State on January 8, 1998. TRD-9800272 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: January 28, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 305-8100 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 409.Medicaid Program SUBCHAPTER H.Diagnostic Services for Persons with Potential of Mental Retardation 25 TAC sec.sec.409.301-409.306 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.sec.409.301-409.306, concerning, governing diagnostic services for persons with potential of mental retardation without changes to the text as proposed in the October 17, 1997, issue of the Texas Register (22 TexReg 10236). The repeal complies with amendments to the Texas Health and Safety Code by the 73rd Legislature which allow a diagnosis of mental retardation to be provided by a physician or a psychologist. The current four part diagnosis and evaluation process described in this subchapter, which requires medical, psychological, social and developmental assessments, would be discontinued. A public hearing was held on October 29, 1997, in Austin, with no oral or written testimony was offered. A written comment was received from a Houston clinical and forensic psychologist. The commenter recommended the department continue to identify and require functional assessments as the primary measure of functioning for purposes of delineating the level of care required, e.g. residential placement, sheltered workshop placement, etc. The department responds that an agency rule (Chapter 405 Subchapter D, concerning Determination of Mental Retardation and Appropriateness for Admission to Mental Retardation Services) adopted in response to the statutory changes by the 73rd Legislature requires an assessment of adaptive behavior. In addition, placement recommendations and reimbursement are determined in part by a functional assessment instrument called the Inventory for Client and Agency Planning (ICAP). The repeal is adopted under the Texas Health and Safety Code, sec.532.015(a), which provides TDMHMR with broad rulemaking authority; Texas Human Resource Code, sec.32.021, and Texas Government Code, sec.531.021, which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer federal medical assistance funds and administer the state's medical assistance program. Senate Bill 509 of the 74th Texas Legislature clarifies THHSC's authority to delegate the operation of all or part of a Medicaid program to a health and human service 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. Filed with the Office of the Secretary of State on January 12, 1998. TRD-9800425 Ann Utley Chair, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: April 1, 1998 Proposal publication date: October 17, 1997 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE PART II. Texas Workers' Compensation Commission CHAPTER 126.General Provisions Applicable to All Benefits 28 TAC sec.126.11 The Texas Workers' Compensation Commission (the commission) adopts new sec.126.11, concerning Extension of the Date of Maximum Medical Improvement for Spinal Surgery, with changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9630). As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. Changes made to the proposed rule are in response to public comment received in writing and at a public hearing held on October 8, 1997, and as a result of staff recommendations, and are described in the summary of comments and responses section of this preamble and in the staff recommendations section. Changes in the text of the rule as proposed are found in subsections (a), (b), (c), (d), (e), (f)(3), (g), (h), (i), and (k). Subsection (f)(6) has been added. The rule is adopted to reflect changes to the definition of maximum medical improvement, the application process for extending the date of maximum medical improvement in certain circumstances, and the dispute resolution process for disputing such extensions, contained in amendments to sec.401.011 and sec.408.104 of the Texas Labor Code. Recent legislation (House Bill 3522, 75th legislature, 1997) amended the Texas Labor Code, sec.401.011(30) and sec.408.104, effective January 1, 1998, to allow for an extension of the date of maximum medical improvement after the expiration of the 104-week period if the injured employee has had spinal surgery or has been approved for spinal surgery under sec.408.026 of the Texas Labor Code within 12 weeks before the expiration of the 104-week period. This legislation specifically requires the commission to adopt rules regarding the procedure for requesting these extensions of the date of maximum medical improvement and the process for disputing the approval or denial of such extensions. Prior to this amendment, the injured worker reached maximum medical improvement no later than 104 weeks after the date income benefits began to accrue regardless of the existence or need for spinal surgery during the 104-week time frames. The previous limitation of the 104-week period dramatically impacts the receipt of temporary income benefits in cases where the injured employee has not secured the appropriate medical or surgical intervention within the first two years after the date income benefits began to accrue. This could occur due to circumstances including delay by the parties or the exhaustion of conservative medical treatment near the expiration of the 104-week period. When an injured employee reaches maximum medical improvement, the doctor is required to assign an impairment rating. If the injured employee had recently undergone surgery, it is possible that the impairment rating would not be accurate due to the unstable condition of the spine after recent spinal surgery or a period of time required to assess the results of the spinal surgery. The amendment to the Texas Labor Code allows the commission to extend the temporary income benefit period to be able to secure an impairment rating after the medical condition is stable. Subsection (a) of new sec.126.11 describes the situations where an extension may be granted and defines what is meant by an approval for spinal surgery. The commission may approve an extension only one time during the course of a claim. This is an administrative change in the date of maximum medical improvement from 104 weeks after the date income benefits began to accrue to a specific date in the future. Subsections (b), (c), and (d) outline the general process that must be followed in requesting an extension of the date of maximum medical improvement. The application process includes a requirement to attempt to secure specific information from the injured employee's treating doctor or surgeon. This information relates to medical opinions regarding recovery times and other conditions or factors that may impact the date that the condition may become medically stable. These processes also require that the parties be notified of any requests for extensions of the date of maximum medical improvement. Subsection (e) defines when the request for the extension may be submitted to the commission. Since the legislation limits the approval of extensions to those cases that are either approved for surgery or that have had surgery within the 12 weeks prior to the expiration of 104 weeks from the date income benefits began to accrue, a person may not submit a request before this 12 week period has begun. The rule's 110-week limitation on submitting requests allows the parties an additional six weeks to secure the treating doctor's or surgeon's information or address other potential delays. Subsection (f) lists the various items that the commission will consider in determining whether to approve or deny an extension. Subsection (g) outlines the process for disputing an approval or denial of an extension of the date of maximum medical improvement. This subsection requires the parties to request a benefit review conference to attempt to informally resolve the dispute prior to a formal hearing. The parties may dispute the approval of an extension, the denial of an extension, or the length of time granted in an approved extension. The requirement that the standard of review for all levels of these disputes be the abuse of discretion standard has been removed. This deletion should not be interpreted to infer that an abuse of discretion standard is not appropriate for particular levels of disputes. Subsection (h) states that if a dispute is not timely filed, the parties waive their right to dispute the order. Further, any timely disputed order will be binding pending further resolution of the issue, thereby requiring the insurance carrier to continue to pay temporary income benefits pursuant to an order extending the date of maximum medical improvement as long as disability exists. Subsection (i) addresses the situation where a doctor certifies that an injured employee has reached maximum medical improvement between the date the order granting an extension is issued and the date of maximum medical improvement contained in the extension order. This section requires such disputes to be resolved in the normal fashion, by the selection of a designated doctor whose report will be entitled to presumptive weight. In addition, subsection (i) provides that if the employee reaches maximum medical improvement prior to the date certain established in the Commission's order of extension, the earliest date becomes the date of maximum medical improvement. Subsection (j) addresses the situation where an extension is granted but surgery is not performed. The Legislative Committee Bill Analysis indicates that it was the intent of HB 3522 to provide extensions of maximum medical improvement when spinal surgery is performed. In the event that surgery is not performed (possibly through a finding of non-concurrence through the appeals process or some other reason), any order granting an extension becomes null and void. This is because the statute requires spinal surgery as a prerequisite for the granting of an extension. Subsection (k) clarifies the application of the statutory provision and the new section of the rules. The effective date for the legislative change is January 1, 1998 and applies only to a claim for workers' compensation benefits based on a compensable injury that occurs on or after the effective date. In addition, subsection (k) of the adopted rule has been revised as a result of public comment to ensure that only injured employees who have compensable claims with a date of injury on or after January 1, 1998 and who have not reached maximum medical improvement pursuant to the Texas Labor Code, sec.401.011(30)(A), prior to application for extension, are eligible for these extensions. As long as the injured worker's disability continues, insurance carriers will be required to continue to pay temporary income benefits from the date income benefits began to accrue through either, the date of maximum medical improvement specified in the Commission order granting an extension, or through the date the employee reaches maximum medical improvement, whichever comes first. However, this is offset by the fact that a change in this section would not alter the statutory limit of 401 weeks of potential entitlement to income benefits. Realistically, the impact would be that the injured employees with an impairment rating of 15% or more may not have to prove entitlement to supplemental income benefits at a stage where they would not be medically stable. The extension of temporary income benefits will increase the amount paid in temporary income benefits, but may reduce the amount paid in supplemental income benefits. In cases where the injured employee is determined to have less than a 15% impairment rating, the changes will result in the payment of additional temporary income benefits. However, it is anticipated that the impairment ratings in those cases or in cases where no spinal surgery was performed will still involve an impairment rating based on the pathological deficits which lead to the recommendation of surgery. The insurance carriers would be able to convert any additional temporary income benefits paid to impairment income benefits. There is a possibility that with these extensions, the insurance carrier may have an increased cost in the amount paid in temporary income benefits that are not able to be recouped when these benefits are converted to impairment income benefits. The benefit to the injured worker will include the ability to receive additional temporary income benefits after the expiration of the 104 week period while their medical condition becomes more stable. Finally, it is anticipated that various parties may experience additional costs associated with the adjudication of disputes under this section (similar to current costs related to the resolution and adjudication of other benefit disputes). Comments neither specifically supporting nor opposing the proposed amendment but requesting changes to proposed sec.126.11 were received from the following: Downs & Judin & Stanford, Texas Workers' Compensation Insurance Fund, Texas Business and Chambers of Commerce. Summaries of the comments and commission responses are as follows. Subsection (a). Comment: Commenters stated that the preamble clearly indicates that the Commission may approve an extension only one time during the course of the claim and this statement does not appear in the rule. Commenters felt this concept is a fundamental and important aspect of the legislative changes and should be included in the proposed rule. One commenter suggested that subsection 126.11(a) be changed to state: "The commission may only approve one extension of the date of maximum medical improvement,..." Texas Workers' Compensation Insurance Fund (TWCIF), Texas Association of Business and Chambers of Commerce (TABCC) Response: Staff agrees. The following sentence has been added to subsection (a) of the rule: "Only one extension of the date of maximum medical improvement pursuant to this section may be granted." Comment: Commenters expressed concern that the proposed rule would allow an injured employee to seek an extension of maximum medical improvement even after the employee has been certified as having reached maximum medical improvement under the Workers' Compensation Act. Commenters did not believe this result was intended by the legislature or the proposed rule and offered various suggestions for incorporating the entire definition of maximum medical improvement into the rule or limiting the application of this section. TWCIF, TABCC, Downs and Judin and Stanford Response: Staff agrees that subsection (k) should be clarified. Texas Labor Code, sec.408.104(a), provides a method for extending "the 104-week period described by sec.401.011(30)(B)." It does not provide for extension of maximum medical improvement which has been determined according to sec.401.011(30)(A), which describes maximum medical improvement established by methods other than the arrival of the end of the statutory 104-week period. To clarify this, subsection (k) has been revised to add the following statement: "This section does not apply to an employee who has reached maximum medical improvement pursuant to the Texas Labor Code, sec.401.011(30)(A), prior to requesting an extension under this section." In addition, to address the situation where an employee is determined to have reached maximum medical improvement in accordance with the Texas Labor Code, sec.401.011(30)(A), and the date of maximum medical improvement is different from the date of maximum medical improvement specified in a Commission extension order, the following has been added to subsection (i): "If the certification of maximum medical improvement during this time period is not disputed and the date certified is prior to the date of maximum medical improvement specified in the order for the extension, the date of maximum medical improvement from that certification shall apply. If the certification was timely disputed and the resolution of such a dispute determines that the injured employee reached maximum medical improvement at a date which is different than the date of maximum medical improvement specified in the order for the extension, the earlier date shall apply." Comment: Commenter questioned how the proposed rule would be applied in a situation where the injured employee has previously reached maximum medical improvement, but the certification has been disputed and has not yet been formally adjudicated or decided. Commenter felt that the rule as written did not prohibit a claimant from seeking an extension of maximum medical improvement in this situation. Commenter suggested that additional language be included to address this situation. Downs and Judin and Stanford Response: Staff agrees that the rule should be clarified. The change to subsection (k) described previously addresses this issue. In addition, to clarify the meaning of "reached maximum medical improvement in accordance with the Texas Labor Code, sec.401.011(30)(A)," as stated in subsection (k), the following sentence has been added to that subsection: "An employee has reached maximum medical improvement in accordance with the Texas Labor Code, sec.401.011(30)(A), when either a finding of the date of maximum medical improvement is not disputed, or the date of maximum medical improvement has been finally resolved." Therefore, an extension pursuant to sec.408.104 could be sought during the pendency of a dispute regarding whether the employee has reached maximum medical improvement. Subsection (b). Comment: Commenter expressed concern that field office personnel, not medical review personnel nor staff with medical credentials will be deciding whether to grant extensions of the date of Maximum Medical Improvement. TWCIF Response: Staff disagrees. The Official Actions Officers (OAO) in the individual field offices of the Commission will be responsible for initially approving or denying requests for the extension of the date of maximum medical improvement. These decisions involve the review of both medical and non-medical information, and are consistent with other benefit determinations, often including medical components, made by the same staff. The OAO will make the determination regarding a requested extension based on established procedures, including medical and other records. This information will allow the OAO to determine if the employee has had spinal surgery or has been approved for spinal surgery under Commission rules within twelve weeks before the 104-week statutory maximum period. This information normally will include medical information obtained from doctors examining the injured employee, including their recommendations concerning any extension. Other information regarding typical recovery times of injured employees in Texas for specific types of procedures will assist in the determination of the length of any extension period. The decisions made by the OAO on these requests for benefits, like other benefits requests, are subject to dispute resolution by the interested parties using the hearings process, under the provisions of Chapter 410 of the Texas Workers' Compensation Act. Subsection (c). Comment: Commenter suggested that the information from the treating doctor or surgeon be required to be sent to the insurance carrier within ten days. TWCIF Response: Staff aqrees that the information from the treating doctor or surgeon should be sent to other than just the requesting party. Subsection (c) has been revised to require that information requested in subsection (f) be sent to the injured employee, the injured employee's representative, and the insurance carrier, rather than to only the requesting party. In addition, the last sentence of subsection (c) has been changed to allow 15 days, rather than 14 days for the receipt of information requested in subsection (f). This change makes subsection (c) consistent with sec.102.5 of this title (relating to General Rules for Written Communications To and From the Commission). Subsection (d). Comment: Commenter expressed concern that insurance carriers would not receive a copy of the employee's request for extension of MMI date and suggested that the rule require that the application, after receipt of the information from the treating doctor or surgeon, be sent to the insurance carrier on the same day it is sent to the Commission. TWCIF Response: Staff Agrees. Subsection (d) has been revised to add the sentence, "In addition, the request shall be sent to the injured employee, the injured employee's representative, and the insurance carrier on the same date it is sent to the commission." To clarify where at the Commission a request for extension of the date of maximum medical improvement should be filed, the word "field" has been added before the word "office" and the words "delivered to" replaced with "filed at" in the first sentence of subsection (d). To clarify the date of filing, the sentence "A request is deemed filed upon receipt at the appropriate field office" has also been added. Comment: Commenter suggested that the Commission should delay any and all action on a request for an extension of MMI for 30 days to give the insurance carrier an opportunity to submit information regarding the requested extension of MMI. TWCIF Response: Staff disagrees. The insurance carrier will be informed of the request for the extension of MMI date at the time the information is requested from the treating doctor or surgeon. The information from the treating doctor or surgeon must be provided within ten days. This gives the insurance carrier approximately two weeks to gather the information to be provided regarding the extension. A 30 day period of inaction by the Commission does not appear to be in the best interest of any party. Subsection (f). Comment: Commenter suggested that the following be added as subsection (f)(6), "any pertinent information provided by the insurance carrier regarding the extension being requested under this section." TWCIF Response: Staff agrees that all pertinent information should be considered by the Commission. Subsection (f) has been revised to add (f)(6) as follows: "any pertinent information provided by the insurance carrier, injured employee, and/or the injured employee's representative regarding the extension being requested under this section." Comment: Commenters indicated that the Commission has not considered the compliance of the treating doctor, surgeon, and injured employee with sec.134.1001 of this title (relating to Spine Treatment Guidelines), when evaluating a request for spinal surgery. One commenter indicated that the treating doctor or surgeon should explain any factors that caused a variance from the Spine Treatment Guidelines and another commenter felt incorporation of the Spine Treatment Guidelines in the rule would enhance the consistency and objectivity of the determinations. One commenter recommended changing subsection (f)(3) to state the following: "case specific information regarding any extenuating circumstances that may have resulted in variances from conservative treatment protocols and time frames specified in sec.134.1001 of this title (relating to the Spine Treatment Guideline) or that may impact recovery times as provided by the treating doctor or the surgeon." TWCIF, TABCC Response: Staff agrees. The suggested language has been added to subsection (f)(3) of the rule. Comment: Commenter stated that the proposed rule does not reference any definition or methodology for determining typical recovery times. Commenter suggested that the rule devise and state the method for determining the typical recovery times for current and future determinations and to reference that standard in the rule. TABCC Response: Staff disagrees. The Commission has developed the procedures specified in this rule, together with statistical information on typical recovery times of injured employees in Texas for specific medical procedures based upon medical opinions of spinal surgeons. The statistical information will be changed or revised with advances in medical technology, information resource management, and new data. Because of the necessity for repeated revision, a set methodology for determining typical recovery times is not included in the rule. A summary of such statistical information will be made available for review upon request. Subsection (g). Comment: Commenter requested that the language of the rule be changed to allow for a dispute of the application not the action of the Commission (approval/denial) based on the application. Commenter cited the statute that allows the parties to dispute an application for an extension of MMI and expressed the belief that the intent was to have the dispute adjudicated prior to action being taken on the request. TWCIF Response: Staff disagrees. The addition of sec.408.104 to the Texas Labor Code, specifically subsection (c), gives the Commission the authority to develop and adopt rules establishing procedures for requesting "and disputing an extension." This allows the Commission to determine the dispute resolution process and indicates that it is the extension that may be disputed as opposed to simply the application for an extension. In addition, the process suggested by the commenter would result in unnecessary proceedings. The suggestion would involve proceedings regarding the application, and then separate proceedings regarding the actions after the application proceeding is concluded. If an extension is granted or denied and neither party disputes the extension order, then there is no need to schedule a proceeding. Judicial economy is served by allowing the parties to dispute the total action taken by the Commission including the approval, denial, or the length of an extension. Challenges to all of these decisions can be handled during the same proceeding under the rule. The rule as proposed does not prevent the dispute of an action taken on an application. Comment: Commenters suggested omitting the abuse of discretion standard from the dispute resolution process. Commenters questioned the appropriateness of using an abuse of discretion standard for administrative determinations on whether to approve or deny requests for extensions. One commenter felt the abuse of discretion standard is only appropriate if there has been a full evidentiary hearing with an opportunity to cross-examine. The ability to consider information from the insurance carrier was questioned in addition to questioning whether or not the rule provided participants with due process. TWCIF, TABCC Response: Staff agrees that the abuse of discretion standard of review may not be appropriate for all levels of the dispute resolution process regarding extension of the statutory date of maximum medical improvement. This requirement has been deleted from subsection (g). However, staff disagrees that the abuse of discretion standard of review is inappropriate for some levels of the dispute resolution process, for example, the Appeals Panel level. The parties are afforded due process by the provisions of subsection (f) of the rule, including the added subsection (f)(6), that provides insurance carriers with an opportunity to present information to the Commission to be considered in making its initial determination of whether to grant an extension of the date of maximum medical improvement. In addition, at the Contested Case Hearing level of the dispute resolution process, the parties will be afforded an opportunity for presentation of evidence and cross-examination of witnesses. Subsection (g) and (h). Comment: Commenter felt that the 10-day deadline for disputing an order under subsection (g) and the 15-day deadline for receipt of a dispute in subsection (h) are confusing and contradictory. TWCIF Response: Staff agrees that the deadlines could be made consistent. Subsection (h) has been revised to state: "If a request for benefit review conference is not received by the commission within ten days after the date the order granting or denying the extension was received by the disputing party, the parties waive their right to dispute the commission order. In the event that an order is timely disputed, the order shall remain binding pending final resolution of the dispute." This change makes the language in subsection (g) and (h) consistent. In addition, for clarity, the word "requesting" in the first sentence of subsection (g) has been changed to "by filing a request." A request for a benefit review conference must be received by the Commission within ten days after the date the order granting or denying the extension was received by the disputing party. When the order is mailed, sec.102.5(h) of this title (relating to General Rules for Written Communications To and From the Commission) establishes the date of receipt of the order to be five days after the date mailed. Section 126.11: General. Comment: Commenters stated a concern that the statutory change potentially may provide an opportunity under which certain individuals may fraudulently obtain additional benefits. Commenter contended that actions by a doctor or an injured employee to delay recommending or performing spinal surgery for the purpose of securing additional benefits would constitute obtaining benefits in violation of Texas Labor Code, sec.415.003, which provides for a Class B administrative violation. Commenters suggested including language about this potential for an administrative violation. TWCIF, TABCC Response: Staff disagrees. Penalties for the situation described by commenters are addressed by provisions already contained in Texas Labor Code, sec.sec.415.001, 415.002, 415.003, and 418.001. Under those provisions, any person who commits fraudulent actions is subject to both administrative violations and criminal penalties. These potential sanctions apply to many different people; including: injured employees, insurance carriers and health care providers. Adding a statement in sec.126.11 regarding these provisions of the statute is not necessary. Staff Recommendations: Subsection (b)-The reference to Texas Labor Code, sec.401.001(30)(B), is incorrect and has been changed to sec.401.011(30)(B). Subsection (e)-To make the language in the rule consistent, the word "submitted" in subsection (e) has been changed to "filed." In addition, to clarify that a request which is filed prior to 12 weeks before the expiration of the statutory 104-week period will be denied, the last sentence of subsection (e) has been changed to read "The commission shall deny any request for an extension of the date of maximum medical improvement that is received by the commission prior to 12 weeks before the expiration of 104 weeks after the date income benefits began to accrue or is received on or after the expiration of 110 weeks from the date income benefits began to accrue." Subsection (i)-To clarify that in the event an injured employee reaches maximum medical improvement prior to the date of maximum medical improvement specified in a Commission extension order, the earlier date of maximum medical improvement applies, the following has been added to subsection (i): "If the certification of maximum medical improvement during this time period is not disputed and the date certified is prior to the date of maximum medical improvement specified in the order for the extension, the date of maximum medical improvement from that certification shall apply. If the certification was timely disputed and the resolution of such a dispute determines that the injured employee reached maximum medical improvement at a date which is different than the date of maximum medical improvement specified in the order for the extension, the earlier date shall apply." The new rule is adopted pursuant to the Texas Labor Code, sec.401.011(30), which sets out the definition of maximum medical improvement; the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.408.026, which sets out the spinal surgery second opinion process; the Texas Labor Code, sec.408.083, which sets out the provisions for termination of temporary income benefits, impairment income benefits, and supplemental income benefits; the Texas Labor Code, sec.408.101, which defines eligibility for temporary income benefits; and the Texas Labor Code, sec.408.102, which sets the duration of temporary income benefits; the Texas Labor Code, sec.408.104, which sets out when the commission may approve extensions of the date of maximum medical improvement and specifically provides for the adoption of rules regarding the process for applying for and disputing such extensions of the date of maximum medical improvement. sec.126.11. Extension of the Date of Maximum Medical Improvement for Spinal Surgery. (a) The commission may approve an extension of the date of maximum medical improvement, subject to subsection (f) of this section, if the injured employee has had spinal surgery or has been approved for spinal surgery 12 weeks or less before the expiration of 104 weeks from the date income benefits began to accrue. Only one extension of the date of maximum medical improvement pursuant to this section may be granted. Approval for spinal surgery is either the notification from the spinal surgery section of the commission or a decision from the appeal process finding the insurance carrier liable for the reasonable costs of spinal surgery. Any extension of the date of maximum medical improvement ordered by the commission must be to a specific and certain date. (b) Upon application by either the injured employee or the insurance carrier, the commission may by order extend the date of maximum medical improvement past the period of 104 weeks from the date income benefits began to accrue as described in the Texas Labor Code, sec.401.011 (30)(B). The request shall be made in the form and manner prescribed by the commission. The commission shall issue an order approving or denying the request for an extension of the date of maximum medical improvement within ten days of the date the request is received by the commission. (c) Prior to submission to the commission of a request for an extension of the date of maximum medical improvement, the requestor shall request from the treating doctor or surgeon the information listed in subsection (f) of this section. The request shall also be sent to the injured employee, the injured employee's representative, and the insurance carrier by first class mail on the same day it is submitted to the treating doctor or surgeon. The treating doctor or surgeon shall provide to the injured employee, the injured employee's representative, and the insurance carrier the information requested in subsection (f) of this section within ten days of the date the request is received. If the requesting party has not received the information from the treating doctor or surgeon within 15 days, the request may be submitted to the commission without this information. (d) After the actions in subsection (c) have been completed, a request for an extension of the date of maximum medical improvement shall be filed at the commission field office managing the claim by personal delivery or first class mail. A request is deemed filed upon receipt at the appropriate field office. In addition, the request shall be sent to the injured employee, the injured employee's representative, and the insurance carrier on the same date it is sent to the commission. If the information from the treating doctor or surgeon is absent when the request is received, commission staff may invoke the provisions of sec.102.9 of this title (relating to Submission of Information Requested by the Commission) to secure any necessary information. (e) A request for an extension of the date of maximum medical improvement shall be filed no earlier than 12 weeks before the expiration of 104 weeks after the date income benefits began to accrue. The commission shall deny any request for an extension of the date of maximum medical improvement that is received by the commission prior to 12 weeks before the expiration of 104 weeks after the date income benefits began to accrue or is received on or after the expiration of 110 weeks from the date income benefits began to accrue. (f) In making the determination to approve or deny a request for an extension of the date of maximum medical improvement, the commission shall consider: (1) typical recovery times for the specific spinal surgery procedure; (2) projected date and information regarding when the condition may be medically stable as provided by the treating doctor or the surgeon; (3) case specific information regarding any extenuating circumstances that may have resulted in variances from conservative treatment protocols and time frames specified in sec.134.1001 of this title (relating to the Spine Treatment Guideline) or that may impact recovery times as provided by the treating doctor or the surgeon; (4) information from any source regarding intentional or non-intentional delays in securing the surgery or medical treatment for the compensable injury; (5) any pending, unresolved disputes regarding the date of maximum medical improvement; and (6) any pertinent information provided by the insurance carrier, injured employee, and/or the injured employee's representative regarding the extension being requested under this section. (g) An injured employee or an insurance carrier may dispute the approval, denial, or the length of the extension granted by the commission order by filing a request for a benefit review conference in accordance with sec.141.1 of this title (relating to Requesting and Setting a Benefit Review Conference) no later than ten days after the date the order is received. Any proceedings and further appeals shall be conducted in accordance with Chapters 140-143 of this title (relating to Dispute Resolution/General Provisions, Benefit Review Conference, Benefit Contested Case Hearing, and Review by the Appeals Panel). Any agreement which resolves a dispute regarding extension of the date of maximum medical improvement in accordance with this section shall be in writing and approved by the commission. Approval shall not be granted if any party rescinds the agreement by notifying the commission within three working days of signing the agreement. (h) If a request for benefit review conference is not received by the commission within ten days after the date the order granting or denying the extension was received by the disputing party the parties waive their right to dispute the commission order. In the event that an order is timely disputed, the order shall remain binding pending final resolution of the dispute. (i) If the injured employee is certified by a doctor to have reached maximum medical improvement between the date the extension order was issued and the extended date of maximum medical improvement specified in the order, any dispute regarding the date of maximum medical improvement shall be resolved through the selection of a designated doctor consistent with the provisions of the Texas Labor Code, sec.408.122, relating to Eligibility for Impairment Income Benefits; Designated Doctor, and sec.130.6 of this title (relating to Designated Doctor; General Provisions). If the certification of maximum medical improvement during this time period is not disputed and the date certified is prior to the date of maximum medical improvement specified in the order for the extension, the date of maximum medical improvement from that certification shall apply. If the certification was timely disputed and the resolution of such a dispute determines that the injured employee reached maximum medical improvement at a date which is different than the date of maximum medical improvement specified in the order for the extension, the earlier date shall apply. (j) In the event that the extension of the date of maximum medical improvement is granted based on a finding of liability for spinal surgery within the 12 week period and a party appeals the concurrence finding to a benefit contested case hearing, any extension of the date of maximum medical improvement ordered by the commission shall be conditional pending final decision under the commission's jurisdiction of the liability for spinal surgery. If spinal surgery is not performed within six weeks after the date the final decision of the commission is issued, the order for the extension of the date of maximum medical improvement shall be null and void. (k) This section applies only to compensable claims with a date of injury on or after January 1, 1998. This section does not apply to an employee who has reached maximum medical improvement prior to requesting an extension under this section. An employee has reached maximum medical improvement in accordance with the Texas Labor Code, sec.401.011(30)(A), when either a finding of the date of maximum medical improvement is not disputed, or the date of maximum medical improvement has been finally resolved. 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800337 Susan M. Cory General Counsel Texas Workers Compensation Commission Effective date: January 29, 1998 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 134.Benefits-Guidelines for Medical Services, Charges, and Payments 28 TAC sec.134.1002 The Texas Workers' Compensation Commission (Commission) adopts an amendment to sec.134.1002, concerning the Upper Extremities Treatment Guideline, without changes to the proposed text as published in the October 24, 1997, issue of the Texas Register (22 TexReg 10498). As required by the Government Code sec.2001.033(1), the Commission's reasoned justification for the amendment to this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, and a restatement of the factual basis for the rule. The sole change to the rule is a revision of the expiration or "Sunset" date in subsection (b)(1) of the rule from February 1, 1998 to July 1, 1998. The proposed revision of the text of the Upper Extremities Treatment Guideline is also available from the Publications Department of the Texas Workers' Compensation Commission, 4000 South IH 35, Southfield Building, Austin, Texas 78704-7491. No comments were received regarding adoption of the amendment. The Upper Extremities Treatment Guideline clarifies those services that are reasonable and necessary for operative and nonoperative care of the upper extremities for the injured workers of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a normal course of treatment and reflects typical courses of intervention, while recognizing that there will be injured workers who will require less or more treatment than is outlined. The guideline also acknowledges that in atypical cases, treatment falling outside the guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment are subject to more careful scrutiny and review and require documentation of the special circumstances that justify the treatment. The guideline does not prescribe the type and frequency of treatment; treatment must be based on patient need and professional judgement. The rule was designed to function as a guideline and is not to be used as the sole reason for denial of treatments and services. The clinical and diagnostic treatment guidelines contained in the rule were developed in conjunction with health care providers and other parties in the workers' compensation system. The guideline was designed to achieve the following goals: (1) to assist all parties with regard to the appropriate treatment and management of upper extremities injuries; (2) to establish elements against which aspects of care can be compared; (3) to establish a guideline to identify clinically acceptable courses of treatment for specific disorders; (4) to establish documentation standards which support the appropriateness of the level of service; and (5) to provide a mechanism of prospective, concurrent, and retrospective review for efficient and effective health care utilization. The guideline promotes quality health care, injury specific treatment and appropriateness of care, by identifying clinically acceptable courses of care for specific upper extremities injuries, and by facilitating communication between all parties in order to achieve rapid recovery from the effects of an injury. This communication also promotes a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured worker. Subsection (b)(1) has been amended to provide that the rule will remain in effect until July 1, 1998. This will allow the Commission to continue to monitor and analyze the effectiveness of the rule and to receive input from affected parties with regard to whether any portion of the substantive provisions of the rule should be revised. At this time, the Commission believes that the rule is functioning as intended and the Commission is not aware of any concerns or problems on the part of parties affected by the rule. This is therefore the only revision to the rule which is being adopted. The amendment is adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, the Texas Labor Code, sec.413.011, which authorizes the commission to establish by rule medical policies and guidelines relating to necessary treatments for injuries, and the Texas Labor Code, sec.413.013, which authorizes the commission to establish by rule a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; and to establish by rule a program for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments or services, including the authorization of prospective, concurrent, or retrospective review under the medical policies of the commission to ensure that the medical policies or guidelines are not exceeded. 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800338 Susan M. Cory General Counsel Texas Workers Compensation Commission Effective date: January 29, 1998 Proposal publication date: October 24, 1997 For further information, please call: (512) 440-3972 TITLE 34. PUBLIC FINANCE PART III. Teacher Retirement System of Texas CHAPTER 29.Benefits Deferred Retirement Option Plan 34 TAC sec.29.61 The Teacher Retirement System of Texas (TRS) adopts a new sec.29.61 concerning the administration of the new Deferred Retirement Option Plan (DROP) passed by the 75th Legislature, 1997. Section 29.61 is adopted without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11058). The text will not be republished. The justification for TRS to adopt this rule is to establish needed administrative procedures for the distribution of DROP accounts. The rule allows a lump sum, or installment payments for five or ten years. It also provides the guidance for the designation of beneficiaries to receive a DROP distribution in the event of death. No public comments were made on this proposal. The new section is adopted under the Government Code, Chapter 825, sec.825.102, which provides the Board of Trustees of the Teacher Retirement System with the authority to adopt rules for the administration of the funds of the retirement system. In addition, House Bill 2644 passed by the 75th Legislature, 1997, provided authority in the Government Code, sec.824.804 for the Board of Trustees to determine the number and frequency of installment payments under the DROP. Further, the Government Code, sec.824.101(e) and sec.824.505 authorize the Board of Trustees to adopt rules relating to beneficiary designation for accounts payable upon the death of members and annuitants. 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800353 Charles Dunlap Executive Director Teacher Retirement System of Texas Effective date: January 29, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 370-0592 Ext. 6115 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART XI. Texas Juvenile Probation Commission CHAPTER 341. Texas Juvenile Probation Standards 37 TAC sec.341.4 The Texas Juvenile Probation Commission adopts an amendment to sec.341.4, concerning juvenile probation personnel salaries, without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11645) and will not be republished. The amendment is adopted in an effort to clarify and improve TJPC standards. Adoption of this amendment will establish guidelines with respect to salaries for juvenile probation personnel. No public comments were received regarding adoption of this amendment. The amendment is adopted under Texas Human Resource Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. No other code or article is affected by the amendment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 6, 1998. TRD-9800171 Steve Bonnell Deputy Executive Director Texas Juvenile Probation Commission Effective date: January 26, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 424-6681 CHAPTER 342. Standards for Housing Non-Texas Juveniles in Texas Correctional Facilities 37 TAC sec.sec.342.1-342.5 The Texas Juvenile Probation Commission adopts new sec.sec.342.1 - 342.5, regarding non-Texas juveniles, coordination with law enforcement, required reporting, and standards compliance. Sections 342.1 - 342.5 are adopted without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11645) and will not be republished. The new sections are adopted in an effort to clarify and improve TJPC standards Adoption of these new standards will establish guidelines for housing non-Texas juveniles in Texas correctional facilities. No public comments were received regarding adoption of these new standards. The new sections are adopted under Texas Human Resource Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. No other code or article is affected by the new sections. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 6, 1998. TRD-9800172 Steve Bonnell Deputy Executive Director Texas Juvenile Probation Commission Effective date: January 26, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 424-6681 CHAPTER 343. Standards for Juvenile Pre-Adjudication Secure Detention Facility 37 TAC sec.343.1 The Texas Juvenile Probation Commission adopts an amendment to sec.343.1, regarding definitions of holdover detention facility and rated capacity, without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11645) and will not be republished. The amendments are adopted in an effort to clarify juvenile probation standards. Adoption of these amendments will modify the definitions of holdover detention facility and rated capacity. No public comments were received regarding adoption of these amendments. The amendment is adopted under Texas Human Resource Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. No other code or article is affected by the amendment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 6, 1998. TRD-9800173 Steve Bonnell Deputy Executive Director Texas Juvenile Probation Commission Effective date: January 26, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 424-6681 37 TAC sec.343.19 The Texas Juvenile Probation Commission adopts new sec.343.19, regarding the waiver process for juvenile pre-adjudication secure detention facilities, without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11645) and will not be republished. The new section is adopted in an effort to improve juvenile probation services. Adoption of the new standard will establish a waiver process for juvenile pre- adjudication secure detention facilities. No public comments were received regarding adoption of this new standard. The new section is adopted under Texas Human Resource Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. No other code or article is affected by the new section. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 6, 1998. TRD-9800174 Steve Bonnell Deputy Executive Director Texas Juvenile Probation Commission Effective date: January 26, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 424-6681 CHAPTER 344. Standards for Juvenile Post-Adjudication Secure Correctional Facilities 37 TAC sec.344.1 The Texas Juvenile Probation Commission adopts an amendment to sec.344.1, regarding definition of rated capacity, without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11645) and will not be republished. The amendment is adopted in an effort to clarify juvenile probation standards. Adoption of this amendment will modify the definition of rated capacity. No public comments were received regarding adoption of this amendment. The amendment is adopted under Texas Human Resource Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. No other code or article is affected by the amendment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 6, 1998. TRD-9800175 Steve Bonnell Deputy Executive Director Texas Juvenile Probation Commission Effective date: January 26, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 424-6681 37 TAC sec.344.18 The Texas Juvenile Probation Commission adopts new sec.344.18, regarding the waiver process for juvenile post-adjudication secure detention facilities, without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register (22 TexReg 11645) and will not be republished. The amendment is adopted in an effort to improve juvenile probation services. Adoption of the new standard will establish a waiver process for juvenile post- adjudication secure detention facilities. No public comments were received regarding adoption of this new standard. The amendment is adopted under Texas Human Resource Code, sec.141.042, which provides the Texas Juvenile Probation Commission with the authority to adopt reasonable rules that provide minimum standards for juvenile boards and that are necessary to provide adequate and effective probation services. No other code or article is affected by the amendment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 6, 1998. TRD-9800176 Steve Bonnell Deputy Executive Director Texas Juvenile Probation Commission Effective date: January 26, 1998 Proposal publication date: November 28, 1997 For further information, please call: (512) 424-6681 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 3.Income Assistance Services SUBCHAPTER AA.Special Households 40 TAC sec.3.2701 The Texas Department of Human Services (DHS) adopts an amendment to sec.3.2701, without changes to the proposed text published in the December 5, 1997, issue of the Texas Register (22 TexReg 12026). The justification for the amendment is to implement Texas House Bill 2481, which allows the department to determine food stamp eligibility and benefits for residents of faith-based chemical dependency treatment programs registered with the Texas Commission on Alcohol and Drug Abuse (TCADA) as exempt from licensing. The amendment will function by ensuring that the state will be in compliance with state legislation. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 31, which provides the department with the authority to administer public and financial assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.31.001-31.0325. 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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800360 Glenn Scott General Counsel Texas Department of Human Services Effective date: February 1, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 438-3765 CHAPTER 19.Nursing Facility Requirements for Licensure and Medicaid Certification SUBCHAPTER X.Requirements for Medicaid-Certified Facilities 40 TAC sec.19.2322 The Texas Department of Human Services (DHS) adopts an amendment to sec.19.2322, with changes to the proposed text published in the November 14, 1997, issue of the Texas Register (22 TexReg 11063). Justification for the amendment is to permit residents who entered facilities under private pay and then become eligible for Medicaid to stay if no Medicaid bed is available. The amendment will function by complying with Senate Bill 190 passed by the 75th Legislature that gives DHS the authority to develop procedures on contracting for Medicaid-certified beds. This allows additional Medicaid-certified beds to serve persons who were not eligible for Medicaid at the time they were admitted to the facility, have resided in the facility for a minimum of six months, and have become Medicaid eligible. This rule was developed through a negotiated rulemaking process that was announced by DHS under the title "Notice of Negotiated Rulemaking" in the October 24, 1997, issue of the Texas Register (22 TexReg 10555). In that notice, DHS invited participation in a negotiated rulemaking process for the purpose of reviewing issues relating to DHS's current Medicaid nursing facility bed moratorium and to implement the recent legislative mandate to decertify and reallocate unused nursing facility beds. DHS and the negotiated rulemaking committee chose first to address the issue of the needs of patients who have exhausted their financial resources. Accordingly, the committee drafted the adopted rule set forth below at its meeting on October 31, 1997. A copy of the report of the negotiated rulemaking committee may be obtained by contacting Deputy General Counsel Paul Leche, Texas Department of Human Services W-615, P.O. Box 149030, Austin, Texas 78714-9030 or by phone at (512) 438-3106. During the public comment period, the department received one positive comment regarding the proposal from the Texas Association of Residential Care Communities. The department received the following comments from Living Centers of America. Comment regarding sec.19.2322(d)(9)(C): "The certification of the bed remains in effect until the resident's death or the resident is permanently discharged from the facility." This could allow the certified facility to add certified beds outside the existing rules, using spend down residents to the facility's advantage. The rule should read, "until the resident's death or permanent discharge from the facility or a Medicaid bed in the facility becomes available." Response: The department concurs and will change the current language. Comment: "Will the spend-down waiver be granted if the Medicaid certified beds are filled with non-Medicaid eligible residents, i.e.- Title XVIII residents in dually certified beds, insurance or private pay residents, that can be relocated to make room under the current rules?" Response: Effective April 30, 1996, facilities contract for a certain number of Medicaid beds, but specific Medicaid beds are not designated. At the time of the annual survey the Medicaid census must be at or below its contracted certified capacity. Therefore, Medicare, insurance, or private pay residents do not have to be moved for the facility to accept another Medicaid resident. Comment: What are the enforcement procedures and penalties for obtaining these beds under false pretenses? Response: The normal survey procedures will apply. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code, sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.2322.Additional Participation Requirements. (a)-(c) (No change.) (d) If the provider meets all criteria, DHS may exempt the following facilities from the policy stated in subsection (b) of this section. (1)-(8) (No change.) (9) Facilities with Medicaid eligible residents for whom no Medicaid bed is available. Facilities with Medicaid eligible residents for whom no Medicaid bed is available may obtain certified beds to serve those residents by meeting the following conditions: (A) The resident must: (i) have been a resident of the facility for at least six consecutive months before becoming eligible for Medicaid; and (ii) not have been eligible for Medicaid at the time of admission to the facility. (B) The facility must: (i) request certification of currently noncertified Medicaid beds; (ii) meet requirements for Medicaid participation, and obtain a Medicaid contract; and (iii) have demonstrated to DHS a satisfactory compliance history. (C) The certification of the bed is in effect until the resident's death or permanent discharge from the facility or a Medicaid bed in the current certified facility becomes available. (D) The number of Medicaid certified beds under this paragraph may not exceed 10% of the total number of licensed beds in the facility at any one time. (e) (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. Filed with the Office of the Secretary of State on January 9, 1998. TRD-9800361 Glenn Scott General Counsel Texas Department of Human Services Effective date: February 1, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 438-3765