ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART IV. Office of the Secretary of State CHAPTER 81. Elections SUBCHAPTER D. Voting Systems Certification 1 TAC sec.81.60 The Office of the Secretary of State, Elections Division, adopts an amendment to sec.81.60, concerning voting system certification procedures with changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5543). The amendment is being adopted to require applicants for certification or modification of a voting system in Texas to include a summary report from a Nationally Recognized Test Laboratory (NRTL) declaring that the item meets the Federal Election Commission's minimum voting system requirements. The proposed amendment has been modified to require the NRTL to have been certified by the National Association of State Election Directors (NASED). No comments were received regarding adoption of the amendment. The amendment is adopted under the Code, Chapter 31, Subchapter A, sec.31.003, which provides the Secretary of State with authority to promulgate rules to obtain uniformity in the interpretation and application of the Code, and under the Code, Chapter 122, sec.122.001(c), which authorizes the Secretary of State to prescribe additional standards for voting systems. The Code, Chapter 122, is affected by this proposed amendment. sec.81.60. Voting System Certification Procedures. In addition to the procedures prescribed by the Texas Election Code, Chapter 1322, compliance with the following procedures is required for certification of a voting system. (1) (No change.) (2) The applicant must deliver four copies of all relevant software and source codes, and six copies of any user and/or reference manuals, and six copies of the summary report(s) for all examinations conducted by a NRTL and certified by the NASED, if applicable, declaring that the item meets the Federal Election Commission's minimum voting system requirements to the Office of the Secretary of State no later than 45 days prior to the examination. (3)-(11) (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 July 7, 1998. TRD-9810738 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: July 27, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-5650 1 TAC sec.81.61 The Office of the Secretary of State, Elections Division, adopts a new rule, sec.81.61, concerning voting system certification procedures with changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5543). The text as originally published has been amended to add a requirement that the laboratory testing a vendor's system have been certified by the National Association of State Election Directors (NASED). The new rule is adopted to require an electronic voting system, or modifications to a previously certified system, to have been certified by a nationally recognized test laboratory and to meet or exceed the minimum FEC voting system requirements. No comments were received regarding adoption of the rule. The new rule is adopted under the Code, Chapter 31, Subchapter A, sec.31.003, which provides the Secretary of State with authority to promulgate rules to obtain uniformity in the interpretation and application of the Code, and under the Code, Chapter 122, sec.122.001(c), which authorizes the Secretary of State to prescribe additional standards for voting systems. The Code, Chapter 122, sec.122.001, is affected by this rule. sec.81.61. Condition for Approval of Electronic Voting Systems. For any voting machine, voting device, voting tabulation device and any software used for each, including the programs and procedures for vote tabulation and testing, or any modification to any of the above, to be certified for use in Texas elections, the system shall have been certified, if applicable, by means of qualification testing by a Nationally Recognized Test Laboratory (NRTL) and shall meet or exceed the minimum requirements set forth in the Performance and Test Standards for Punch Card, Mark Sense, and Direct Recording Electronic Voting Systems, or in any successor voluntary standard document developed and promulgated by the Federal Election Commission. The NRTL must have been approved for testing of voting systems by the NASED. This section applies only to systems and modifications to previously certified systems submitted after the effective date of this rule. 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 July 7, 1998. TRD-9810737 Clark Kent Ervin Assistant Secretary of State Office of the Secretary of State Effective date: July 27, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-5650 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 3.Boll Weevil Eradication Program SUBCHAPTER E.Creation of Eradication Zones 4 TAC sec.3.114 The Texas Department of Agriculture (the department) adopts new sec.3.114, concerning the creation of a nonstatutory boll weevil eradication zone, without changes to the proposal published in the June 5, 1998, issue of the Texas Register (23 TexReg 5867). The new section is adopted to establish a new nonstatutory boll weevil eradication zone consisting of counties not currently 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.3.114 establishes the Southern Blacklands Boll Weevil Eradication Zone. A grower referendum will be conducted to determine whether or not a boll weevil eradication program and assessment will be approved for that zone. One comment was received from the Blackland Cotton and Grain Producers Association generally in support of the proposal. A prior proposal for the establishment of a Southeastern Blacklands zone was withdrawn by the department because, based upon comment received on that proposal from various individuals and organizations including the Commissioner's Blacklands Area Interim Advisory Committee, the South Texas Cotton and Grain Association and the Texas Boll Weevil Eradication Foundation, the department determined that the boundaries in the original proposal should be modified to those proposed for the Southern Blacklands zone. Comments received on the original proposal also supported the need for the establishment of a zone in the area for boll weevil control. The department agrees with the comments received in support of the designation of the proposed zone and believes that enough grower support and justification has been demonstrated to adopt the designation of the Southern Blacklands Zone and provide the opportunity for growers to express their support by passing or defeating a referendum to establish a zone eradication program. The new section is adopted under the Texas Agriculture Code, 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. 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 July 9, 1998. TRD-9810900 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: July 29, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 463-7541 PART III. Office of the Texas State Chemist/Texas Feed and Fertilizer Control Service CHAPTER 65.Commercial Fertilizer Rules SUBCHAPTER B.Permitting and Registration 4 TAC sec.65.11 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, adopts an amendment to sec.65.11, concerning Application for Registration without changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (23 TexReg 5868) and will not be republished. The amendment to the rule is to become effective September 1, 1998. The rule is being amended to ensure compliance with sec.76.041(f) of the Texas Pesticide Law. That paragraph requires appropriate certification from the Texas Department of Agriculture that the pesticide is approved for use. The following comments were received concerning the proposed section. Following each comment is the Service's response. Comment: Respondents claimed that the rule burdens manufacturers of packaged specialty fertilizer/pesticide products that have been registered by the USEPA by unnecessarily delaying the approval of those products. The request was made that the products that are registered with the EPA and display an EPA Registration Number be exempt. Response: Registration with the EPA is not recognized by sec.76.041 as an exemption from the Texas Department of Agriculture's requirement to register. The Service has no authority to grant such exemption. The following 10 specialty fertilizer firms co-signed a common letter expressing opposition to the amendment of the rule: A. H. Hoffman, Central Garden & Pet, J. R. Peters, Martin Resources, Pursell Industries, Scott-Miracle Gro Products, The Andersons, The Espoma Company, The Scotts Company, United Industries Corp. The Texas Ag Industries Association and Frit Industries commented in favor of the rule. The amendment is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter C, sec.63.034, is affected by the amendment to the rule. 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 July 13, 1998. TRD-9811012 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertilizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 845-1121 4 TAC sec.65.13 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, adopts new sec.65.13, concerning Waste Products Distributed as Fertilizers without changes to the proposed text as published in the June 5, 1998 issue of the Texas Register (23 TexReg 5868). The new rule is to become effective September 1, 1998. This new section is necessary to ensure that sewage, sludge and septage used as fertilizers meet the same standards as other commercial fertilizers and can be safely used. It defines requirements for registration of sewage, sludge and septage under 4 TAC 63 of the Texas Fertilizer Law. The following comments were received concerning the proposed section. Following each comment is the Service's response. Comment: One respondent asked why sludges, sewage, septage and mixed fertilizers containing the same (sec.65.13) are treated differently from chemical fertilizers with respect to their non-nutritive elements (sec.65.17). Response: The respondent has confused two different actions: (1) what the registrant must supply on registration (sec.65.13) and (2) the general requirements any fertilizer must meet when distributed (sec.65.17). There is no difference in standards for distribution of commercial fertilizers. The Service requires additional information on registration of sludges, sewage, septage and mixed fertilizers containing them because of possible adverse effects on the biosphere from inappropriately conditioned products. Comment: A second respondent opposed sec.65.13(a) as being too broad and consequently effectively prohibits the use of materials that have long been used as fertilizer materials. Response: The Service disagrees. There is no prohibition against the use of or distribution of waste or waste-derived materials; what is required is registration before distribution of the product. The following 10 specialty fertilizer firms -- A. H. Hoffman, Central Garden & Pet, J. R. Peters, Martin Resources, Pursell Industries, Scott-Miracle Gro Products, The Andersons, The Espoma Company, The Scotts Company, United Industries Corp. -- in a common letter and Stoller Industries opposed one or more of the subsections. The Texas Ag Industries Association and Frit Industries favored the rule. The amendment is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter H, sec.63.142 and sec.63.143 are affected by the amendment to the rule. 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 July 13, 1998. TRD-9811013 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertilizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 845-1121 SUBCHAPTER C.Labeling 4 TAC sec.65.17 The Office of the Texas State Chemist, Texas Feed and Fertilizer Control Service, adopts new sec.65.17, concerning Labeling - General Requirements with changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (23 TexReg 5869). The new section requires all fertilizers to make available information about components of the fertilizers and about appropriate use and to meet certain standards for non-nutritive and nutritive elements. The rule serves to set standards for various non-nutritive components of fertilizer and to make available to the consumer who wishes it information about the components of the formulation as well as ways to use the product in conformance with the standards. Change: The Service notes in its final review of all comments that the various amendments to the rule have had an unintended effect on sec.65.17(a)(2). Without amendment to this rule manufacturers would be forced to guarantee plant nutrients contained in the ingredients (components) list whether they wish to do so or not. The Service has no intention of imposing such a requirement. Accordingly, sec.65.17(a)(2) is amended to read: "Plant nutrients other than nitrogen, available phosphate and potassium, when mentioned in any form or manner on the label of a fertilizer product other than in the list of ingredients shall be guaranteed." Editorial changes were made in sec.65.17 to change phosphorus and available phosphorus to available phosphate to conform to new terminology of the Association of American Plant Food Control Officials (AAPFCO). The changes were in (a)(1), (a)(2), (2)(A) and (2)(B) The following comments were received concerning the proposed new rule. Following each comment is the Service's response. Comment: Respondents claimed that the labeling prescribed in 4 TAC sec.65.17(b)(1) violates the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) which prohibits disclosure of inert ingredients of pesticides. Response: There is no violation of FIFRA. The rule states that the label shall list all "components" of the fertilizer, not all the "components of the components" of the fertilizer. Different terms could have been used, e.g., constituent, raw material, ingredient, which for the purposes of the rule are synonymous. There is no intent and the rule should not be read as saying that a label describing an ammonium sulfate nitrate/calcium carbonate mixture must list the raw materials which originally composed the ammonium sulfate, nitrate or limestone. The label of a fertilizer containing the aforementioned components and a pesticide with a trade name of XXXX would read, assuming the pesticide has proper EPA and Texas Department of Agriculture registrations, ammonium sulfate nitrate, pulverized limestone, XXXX. Note, there is no requirement to disclose proprietary inert ingredients which compose the pesticide. Comment: Respondents argued that the State has underestimated the cost of new labeling of specialty fertilizer as required in 4 TAC sec.65.17(b) because it has allowed only one fertilizer season, i.e., fall-spring 1998-1999 to utilize existing packaging and because of trans-shipment of non-conforming labeling into the state from distribution centers located outside of Texas. The comments also suggest that the Service would face a costly compliance problem caused by old packaging remaining in trade. Response: The Service recognizes that there are costs to both the Service and the manufacturer, but those costs must be balanced against the need to make the change in a reasonable time. Manufacturers have had ample notice; they have known since August 1997 that changes would be forthcoming. Manufacturers are complying with the State of Washington's requirements which allow only three months for bags bearing new or overstickered labels to appear in the marketplace and which require that all old label products be removed by January 1, 1999. Thus, while a year to clear the marketplace of old labels seems reasonable, the Service will not require old label product to be out of the marketplace until December 31, 1999. The Service disagrees that the new rule will require it to undertake a costly program of compliance; it believes present marketplace surveillance is adequate. (In addition, the Service is prepared to accept bags labeled according to the presently existing July 1, 1998 Washington State Law and rules, but if those products are distributed in Texas, they must meet the Washington standards both for availability of information and levels of trace metals or they will be deemed misbranded (sec.63.142 of the Fertilizer Law). Comment: The Service was asked to wait until the August meeting of the Association of American Plant Food Control Officials (AAPFCO) to ensure that state labeling regulations are uniform. Response: The rules meet the specifications adopted by the AAPFCO Board at its mid-year meeting with the exception of the levels of trace metals allowed. It is the industry who wished adoption of a non-AAPFCO recommended level of non- nutritive metals despite the Service's desire to maintain uniformity with AAPFCO; thus, this is a matter which needs to be resolved by the industry. Comment: Although the adoption of cumulative pollutant loading rates from the EPA sludge/sewage rules rather than the so-called Canadian standard as adopted by Washington State were favored by all, some questioned linkage between these rates (sec.65.24(3)(B) Table 2) and the allowable concentration of those metals when conforming to sec.65.17(g), Table 1. Response: The industry expressed its strong preference for the cumulative annual pollutant loading rates, but did not want, in all cases, to label its product with application rates. Without application rates, the Service cannot determine, simply by testing, whether a product meets the cumulative annual loading rate. Recognizing this need, the rule offers the distributor the option of foregoing printing an application rate if the product meets the standard in Table 1 (sec.65.17(g)). Table 1 uses as its basis 40 CFR sec.503.13(a)(2) as does Table 2. Comment: A number of respondents believed the allowable levels of molybdenum given in the Tables are inconsistent. Response: They are correct; the molybdenum level in Table 2 (sec.65.24(3)(B)) is the so-called Canadian standard rather than that in 40 CFR sec.503.13. The level should be 0.16 lbs/acre/yr. However, the Service has no basis for raising the levels above those set in 40 CFR sec.503.13(a)(2) as some urged. Comment: Some suggested basing the allowable levels of the metals listed in Tables 2 on the % P2O5 since contributions among products would be more nearly comparable. Response: There are good reasons for not doing so: (1) the Service and users must deal with a vide variety of products which do not contain P2O5; some standard must be set for them; (2) the customer needs to be able to determine quickly and easily at what levels he/she may appropriately use the product without calculations to an abstract base -- lbs of product per acre per year is directly understandable; (3) the Service is not interested in achieving comparability of contribution, but whether the product used as normally expected exceeds the limits stated. Comment: The question was asked how a national manufacturer could distinguish the individual production runs that would produce an appropriate paper trail for a product that is produced at various times during the year in massive quantities -- placed after production in a common pile and intermixed with new production and shipped over time to customers. Response: The Service discussed this issue with representatives of the fertilizer industry while developing the rule. The Service is interested in product distributed not in how firms trade product before distribution. What is required is that the distributor provide information on that product in that shipment. Many firms indicated they already had tracking systems in place for product entering distribution which will satisfy the need. However, if they do not wish to do so, firms have the option of labeling according to sec.65.17(g). The Service believes it inappropriate to prescribe any particular method to achieve the goal of providing information to the user. Comment: The Service was asked what basis it had for the requirements set forth in sec.65.17(e)(3)(A) and (B) which detail the Service's intent in obtaining additional information from a registrant regarding safety, availability and efficacy. Response: Section 63.032(a)(3) Application for Registration of the Texas Fertilizer Law provides the Service with the authority to request additional information from a registrant. Section 63.035 of the Law grants the Service authority to refuse or revoke registration if fertilizers do not comply with the Law. Section 63.142 and sec.63.143 of the Law give the Service authority to cite as violations of the Law false statements (efficacy and availability) and distribution of a product containing a poisonous or deleterious substance. The following specialty fertilizer companies -- A. H. Hoffman, Central Garden & Pet, J. R. Peters, Martin Resources, Pursell Industries, Scott-Miracle Gro Products, The Andersons, The Espoma Company, The Scotts Company, United Industries Corp. -- in a common letter and Stoller Industries opposed one or more portions of the new section. PCS Sales specifically objected to the cumulative level of molybdenum set as standard. However, PCS specifically approved adopting of other limits. Texas Ag Industries Association and Frit Industries commented in favor of the new rule. One editorial correction is made in the rule. Under sec.65.17(b)(2), there should be closing quotation marks following the words (statement notes location on package). A correction of error was published in the June 26, 1998, issue of the Texas Register (23 TexReg 6754). The new rule is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter H, sec.63.142 and sec.63.143 are affected by the new rule. sec.65.17. General Requirements. (a) Primary Plant Nutrients (1) Nitrogen, available phosphate and potassium shall be guaranteed on the label of a commercial fertilizer in either of the following forms: (A) Abbreviated Label or Figure: 4 TAC sec.65.17(a)(1)(A) (B) Expanded Label Figure: 4 TAC sec.65.17(a)(1)(B) (2) Plant nutrients other than nitrogen, available phosphate, and potassium, when mentioned in any form or manner on the label of a fertilizer product other than in the list of ingredients shall be guaranteed. (A) Guarantees other than nitrogen, phosphate, and potassium shall be expressed on an elemental basis as a percentage by weight. (B) Any guarantees or claims for plant nutrients shall appear in the order given, shall immediately follow the guarantees for the nitrogen, available phosphate, and potassium. Absent evidence that an unlisted nutrient fulfills the requirement of subsection (e)(3)-(4) of this section, the only guarantees are as follows: (i) Inorganic: Calcium (Ca), Magnesium (Mg), Sulfur (S), Boron (B), Chlorine (Cl), Cobalt (Co), Copper (Cu), Iron (Fe), Manganese (Mn), Molybdenum (Mo), Sodium (Na), Selenium (Se), Vanadium (V), Zinc (Zn). (ii) Organic: Humic acid. (b) The label shall (1) list all components of the fertilizer alphabetically; or (2) bear a statement which says in effect, "Information about the components of this lot of fertilizer may be obtained by writing to (name and address of manufacturer/guarantor) and giving the lot number which is found (statement notes location on package)"; or (3) conform to sec.65.26(2) of this title (relating to Requirements for Fertilizers Suitable for Use in Organic Production Programs). (c) The component of a fertilizer must be denoted by its usual or common name or by a name (1) as accepted by the United States Department of Agriculture's National Organic Program; or (2) as defined by a term promulgated by the Association of American Plant Food Control Officials; or (3) as approved by the Texas Department of Agriculture's Organic Certification Program; or (4) as approved by the Service. (d) The label shall display (1) directions for use which include both an amount to be applied per unit area and a frequency of use per year; or (2) a statement which says in effect, ""For the agronomic application rates suitable for your geographical area or the maximum allowable non-nutrient application rates per acre, consult a trained soil specialist or write to (name and address of manufacturer/guarantor)." (e) The registrant of a fertilizer shall furnish to the Service upon request: (1) the proposed label; (2) the source of the elements guaranteed; (3) proof that any non-traditional fertilizer components or additives guaranteed or claimed on the label provide: (A) long-term safety to animals, plants, and the environment; and (B) availability and efficacy; (4) a method acceptable to the Service for determining any component at 50% of the level guaranteed on the label; and (5) the levels of arsenic, cadmium, cobalt, mercury, molybdenum, nickel, lead and selenium in the product. (f) Registrants who elect to have their labels conform to subsection (b)(2) and/or subsection (d)(2) of this section shall keep the requisite production and formulation records by customer, by invoice, by lot/batch numbers for 18 months from the production date and make such available to the public on written request and to the Service at any time. (g) Registrants who elect to have their labels conform to subsection (d)(2) of this section shall not distribute any lot of fertilizer when any one of the elements listed in Table 1 exceeds the limiting value shown. Figure: 4 TAC sec.65.17(g) (h) Any guarantee of the degree of fineness of unacidulated phosphatic materials stated on the label of a fertilizer product shall be stated in terms of the percentage of the material that will pass the United States standard sieve series number 200 (200 mesh, dry sieve method), adopted by reference under sec.65.51 of this title (relating to Sampling and Analytical Procedures). (i) Any guarantee of the degree of fineness of basic slag stated on the label of a fertilizer product shall be stated in terms of the percentage of the material that will pass the United States standard sieve series number 100 (100 mesh, dry sieve method), adopted by reference under sec.65.51 of this title. 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 July 13, 1998. TRD-9811014 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertilizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 845-1121 4 TAC sec.65.21 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, adopts the repeal of sec.65.21, concerning Primary Plant Nutrients of 4 TAC: Chapter 65 Commercial Fertilizer Rules effective September 1, 1998. The repeal is made to incorporate the text into sec.65.17 - General Requirements - to accommodate new labeling requirements. No comments were received regarding the repeal to the rule. The repeal is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter D, sec.63.054, is affected by the appeal. 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 July 13, 1998. TRD-9811018 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertilizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 845-1121 4 TAC sec.65.24 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, adopts an amendment to sec.65.24, concerning Warnings or Cautionary Statements with changes to the proposed text as published in the Texas Register June 5, 1998 (23 TexReg 5871). One editorial change was made in sec.65.24(3)(B) -- the title of the Table should be Cumulative Element Loading Rate. A correction of error was published in the June 26, 1998, issue of the Texas Register (23 TexReg 6754). The amendment includes an additional warning statement for acceptable levels of trace elements and a list of these elements and also includes editorial changes to ensure consistency throughout the section. The amendment is necessary to ensure that the section is consistent with new sec.65.17. Change: In sec.65.24(3)(B) Table 2, add for clarification in the title of the Table: "When Conforming to sec.65.17(d)(1)." The following comments were received. Following each comment is the Service's response. Comment: A number of respondents believed the allowable levels of molybdenum given in the Tables are inconsistent. Response: They are correct; the molybdenum level in Table 2 (sec.65.24(3)(B)) is the so-called Canadian standard rather than that in 40 CFR 503.13. The level should be 0.16 lbs/acre/yr. However, the Service has no basis for raising the levels above those set in 40 CFR 503.13(a)(2) as some urged. Comment: The Service was questioned as to why there was no terminology in regard to the directions for use. Response: The Service assumes the comment applies only to sec.65.24(3) where it appears in the respondent's letter. While the Service believes it inappropriate to prescribe any particular statement for such directions, the essential details are laid out in sec.65.17(d). Comment: One commentor suggests that a manufacturer is forced to accept a choice of being either below or exceeding the two tables defined levels of heavy metals. Response: The Service disagrees. What the manufacturer decides is what labeling information it wishes to provide the user. If it provides directions for use on the label, the product must comply with Table 2. If it chooses not to do so, the product must comply with Table 1. Stoller Industries opposed the amendment to the rule. Texas Ag Industries Association and Frit Industries favored the amendment to the rule. The amendment is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter D, sec.63.054, and Subchapter H, sec.63.143, are affected by the amendment. sec.65.24. Warnings or Cautionary Statements Required. A warning or cautionary statement is required on any fertilizer product which: (1) contains 0.10% or more boron in water soluble form. The statement shall include: (A) the word "Warning" or "Caution" conspicuously displayed; (B) the crop(s) for which the fertilizer is recommended; and (C) that the use of the fertilizer on any crop(s) other than those recommended may result in serious injury to the crop(s); (2) contains 0.001% or more of molybdenum. The statement shall include: (A) the word "Warning" or "Caution" conspicuously displayed; and (B) that the application of fertilizers containing molybdenum may result in forage crops containing levels of molybdenum which are toxic to ruminant animals; (3) when applied according to the directions for use adds to the land levels of trace elements exceeding the limits set forth in Table 2, subparagraph (B) of this paragraph. (A) The statement, conspicuously displayed, shall read "WARNING: Application according to the directions for use EXCEEDS the allowable limits of certain trace elements which can be applied to one acre of land in a calendar year." (B) Table 2. Cumulative Element Loading Rate When Conforming to sec.65.17(d)(1) Figure: 4 TAC sec.65.24(3)(B) 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 July 13, 1998. TRD-9811015 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertilizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 845-1121 4 TAC sec.65.25 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, adopts the repeal of sec.65.25, concerning Degree of Fineness of Unacidulated Phosphatic Materials and Basic Slag of 4 TAC: Chapter 65 Commercial Fertilizer Rules effective September 1, 1998. The repeal is made to incorporate the text into sec.65.17 - General Requirements - to accommodate new labeling requirements. There were no comments made on the proposed repeal. The repeal is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter D, sec.63.054, is affected by the repeal. 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 July 13, 1998. TRD-9811019 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (409) 845-1121 4 TAC sec.65.26 The Office of the Texas State Chemist, Texas Feed and Fertilizer Control Service, adopts an amendment to sec.65.26, concerning Requirements for Fertilizers Suitable for use in Organic Production Programs without changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (23 TexReg 5872) and will not be republished. The amendment is necessary to clarify the section and to delete that portion of sec.65.26(2) which has been moved to sec.65.17(c). No adverse comments were received regarding this amendment. The Texas Ag Industries Association and Frit Industries commented favorably. The amendment is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter D, sec.63.054, 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 July 13, 1998. TRD-9811016 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (409) 845-1121 4 TAC sec.65.28 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, adopts an amendment to sec.65.28, concerning Trademarks, Trade Names, Common Names, Emphasis on a Particular Component without changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (23 TexReg 5872) and will not be republished. The amendment to the section is only editorial in nature. Section 65.28(3) has the word "and" and it is being removed from the text. There were no comments received regarding this amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter D, sec.63.054, 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 July 13, 1998. TRD-9811017 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (409) 845-1121 SUBCHAPTER F.Appeals and Rehearing 4 TAC sec.65.85 The Office of the Texas State Chemist, Texas Feed & Fertilizer Control Service, proposes to repeal sec.65.85, concerning Notice of Opportunity for Appeals and Rehearings in effective September 1, 1998. The repeal is proposed because this section simply recapitulates sec.63.128 of the Fertilizer Law. Dr. George W. Latimer, Jr. has determined that for the first five-year period the repeal is in effect, there will be no financial implications for the Office, state or local government as a result of enforcing or administering the section. Dr. Latimer also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated is an elimination of redundancies. There will be no effect on small businesses. There is no anticipated economic cost to persons as a result of repealing this section. Comments on the proposed changes may be submitted to Dr. George W. Latimer, Jr., by mail at Office of the Texas State Chemist, P.O. Box 3160, College Station, Texas 77841-3160 or FAX (409) 845-1389. The repeal is proposed under the Texas Agriculture Code, Chapter 63, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers. The Texas Agricultural Code, Texas Commercial Fertilizer Control Act, 4 TAC Chapter 63, Subchapter G, sec.63.128, is affected by the proposed repeal. 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 July 13, 1998. TRD-9811020 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (409) 845-1121 TITLE 16. ECONOMIC REGULATION PART IV. Texas Department of Licensing and Regulation CHAPTER 69.Regulation of Certain Transportation Services Providers 16 TAC sec.sec.69.1. 69.10, 69.20-69.22, 69.60, 69.70, 69.80, 69.90, 69.91 The Texas Department of Licensing and Regulation adopts new sec.sec.69.1. 69.10, 69.20-69.22, 69.60, 69.70, 69.80, 69.90, and 69.91 concerning the Regulation of Certain Transportation Service Providers. These sections are adopted without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4755) and will not be republished. Texas Civil Statutes, article 6675(e) (Vernon 1997) and Texas Revised Civil Statutes Annotated, article 9100 (Vernon 1991) provide the department with the authority to regulate and register transportation service providers and freight forwarders that operate in this state. These sections are adopted to implement Chapter 307, Acts of the 75th Legislature, Regular Session 1997 (article 6675(e) Texas Civil Statutes) and establish procedures and requirements necessary for the regulation and registration of certain transportation service providers. The new rules are adopted under Texas Civil Statutes, article 6675(e) (Vernon 1997) which authorizes the Texas Department of Licensing and Regulation to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purpose of the Article. The Articles affected by the new rules are Texas Civil Statutes, article 6675(e) (Vernon 1997) and Texas Revised Civil Statutes Annotated, article 9100 (Vernon 1991). sec.69.1. Authority. These rules are promulgated under the authority of the Regulation of Certain Transportation Service Providers, Texas Civil Statutes, article 6675(e) (Vernon 1997) and Texas Revised Civil Statutes Annotated, article 9100 (Vernon 1991). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 9, 1998. TRD-9810840 Rachelle A. Martin Executive Director Texas Department of Licensing and Regulation Effective date: July 29, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 463-7357 TITLE 22. EXAMINING BOARDS PART I. Texas Board of Architectural Examiners CHAPTER 1.Architects SUBCHAPTER I.Charges Against Architects: Action 22 TAC sec.1.161 The Texas Board of Architectural Examiners adopts an amendment to sec.1.161 Disciplinary Action. The amendment to sec.1.161 is being adopted without changes to the text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3792). The amendment is being adopted in order to provide specific standards to govern the implementation of an amendment to Vernon's Texas Civil Statutes, Article 249a, Section 11. The expected effect is to allow the agency's enforcement division to enforce the statutory provision consistently and efficiently. No comments were received concerning the adoption of the amendment. The amendment is adopted pursuant to Vernon's Texas Civil Statutes, Article 249a, Section 5(b), which provides the Texas Board of Architectural Examiners with authority to promulgate rules regarding registration to practice architecture in Texas. 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 July 8, 1998. TRD-9810836 Cathy L. Hendricks, ASID/HDA Executive Director Texas Board of Architectural Examiners Effective date: July 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 305-8535 CHAPTER 5.Interior Designers SUBCHAPTER I.Charges Against Interior Designers: Action 22 TAC sec.5.171 The Texas Board of Architectural Examiners adopts an amendment to sec.5.171 Disciplinary Action. The amendment to sec.5.171 is being adopted without changes to the text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3793). The amendment is being adopted in order to provide specific standards to govern the implementation of an amendment to Vernon's Texas Civil Statutes, Article 9102., Section 5(d). The expected effect is to allow the agency's enforcement division to enforce the statutory provision consistently and efficiently. No comments were received concerning the adoption of the amendment. The amendment is adopted pursuant to Vernon's Texas Civil Statutes, Article 249e, Section 5(d), which provides the Texas Board of Architectural Examiners with authority to promulgate rules regarding registration to practice architecture in Texas. 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 July 8, 1998. TRD-9810837 Cathy L. Hendricks, ASID/HDA Executive Director Texas Board of Architectural Examiners Effective date: July 28, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 305-8535 PART III. Texas Board of Chiropractic Examiners CHAPTER 73. Licenses and Renewals 22 TAC sec.73.2 The Texas Board of Chiropractic Examiners adopts an amendment to sec.73.2, relating to continuing education, without changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3793). The Chiropractic Act, Texas Civil Statutes, Article 4512b, sec.8b(c), requires the board to establish a minimum number of continuing education courses for licensees for renewal of a license each year. Currently, the board's continuing education program is set out in three separate rules, sec.sec.73.2(d), 73.3, and 73.5. Some of the provisions are internally inconsistent. This rulemaking is adopted in conjunction with another rulemaking in order to set out in a single rule, the continuing education requirements and consequences of failing to meet the requirements, to delete other redundant or inconsistent language, and to clarify existing provisions. Substantive changes to the board's continuing education program are found in amendments to sec.73.3 and sec.73.5, which have been adopted by the board by separate rulemaking in this issue of the Texas Register. The proposed amendments to sec.73.3 and sec.73.5 were published for public comment in the May 29, 1998, issue of the Texas Register (23 TexReg 5555). The amendment to sec.73.2 deletes subsection (d). The subject matter of this subsection is addressed in sec.73.3 and sec.73.5; therefore the subsection (d) in sec.73.2 is not needed. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512b, sec.4(c), sec.4a, which authorize the board to adopt rules necessary for performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the Act, and sec.8b, which requires the board to establish a mandatory continuing education program with which licensees must comply in order to renew their licenses annually. 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 July 13, 1998. TRD-9811037 Joyce Kershner Director of Licensure Texas Board of Chiropractic Examiners Effective date: August 2, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 305-6700 22 TAC sec.73.3, sec.73.5 The Texas Board of Chiropractic Examiners adopts amendments to sec.73.3, relating to course options for continuing education and verification of and exemption from mandatory continuing education, and sec.73.5, relating to failure to meet continuing education requirements, without changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5555). The Chiropractic Act, Texas Civil Statutes, Article 4512b, sec.8b(c), requires the board to establish a minimum number of continuing education courses for licensees for renewal of a license each year. Currently, the board's continuing education program is set out in three separate rules, sec.sec.73.2(d), 73.3, and 73.5. Some of the provisions are internally inconsistent. The reason for this rulemaking is to set out in a single rule, the continuing education requirements and consequences of failing to meet the requirements, to delete other redundant or inconsistent language, and to clarify existing provisions. Additionally, sec.73.3(1)(E) is being amended to allow licensees to listen to audio tapes in addition to video tapes when they are unable to attend continuing education courses due to illness or disability. The current practice of the board is to allow a licensee an additional 12 months in which to meet the annual continuing education obligation. That practice is continued in sec.73.5 with some changes. One amendment to sec.73.5 revises subsection (d). Instead of a license being "canceled" for failure to be reinstated at the end of a probationary period, the board will consider a license to have "expired" from the date of its renewal, with the existing consequence of having to obtain a new license as provided in the Chiropractic Act, sec.8a(e) and board rule 73.2(c) for failure to renew timely a license. In this context, the word "expired" is consistent with terminology in related board rules and sections of the Chiropractic Act. New subsections (e)-(h) for sec.73.5 are adopted. They: prohibit a licensee from applying courses obtained for reinstatement toward the continuing education requirement for the next reporting year; allow a licensee to be placed on probationary status for only one year at a time and prohibit renewal of a license of a licensee who is deficient for two years in a row; prohibit such a licensee from practicing until the license is renewed; and allow renewal if all deficient courses are completed and as provided by sec.73.2 for expired licenses generally. Under these amendments, a licensee who is in non-compliance with the continuing education requirements for two consecutive years, must cease practicing as provided by the Chiropractic Act, sec.8a for expired licenses for failure to renew. Such licensee may renew his or her license by curing any deficiency and complying with sec.8a and board rule sec.73.2(c). The adopted rules provide an incentive for timely compliance by making the burdens and sanctions for noncompliance more stringent the longer compliance is delayed. As stated previously, the Chiropractic Act mandates the board to require continuing education as a condition of renewal, that is, renewal of a license is to be denied if the continuing education requirement is not met. The Act further expressly states in sec.8a(a) that practicing without a renewal certificate is practicing without a license, subject to all of the penalties provided in the Act. The overwhelming majority of licensees meet timely the board's annual continuing education requirement each year. For the first five months of the current license year, only four licensees out of more than 1,000 reported incomplete continuing education hours. It is the board's opinion that one year is a reasonable amount of time to complete 16 hours of continuing education. The board also recognizes that circumstances beyond the control of licensee may make compliance difficult or impossible some years. Rule 73.5, as adopted, continues the board's policy of allowing 12 additional months to complete courses for a prior reporting year. However, the additional 12 months is not intended to extend the compliance period to two years on a permanent basis. Accordingly, sec.73.5(f), as adopted, restricts the number of times a license is allowed an extension to complete the annual continuing education requirement. The one year probationary limitation in sec.73.5(f) will not be effective, and thus, not enforced, until January 1, 1999, in order to give licensees ample notice of the new requirement. The board will not count a licensee's continuing education status in 1997-1998. Accordingly, if a licensee is deficient for license years 1997-1998 and 1998-1999 (current license year), he or she would still be eligible for probationary status in license year 1999-2000. He or she would not be eligible in 2000-2001 for any deficiencies in 1999-2000. The board is deleting part of sec.73.3(3)(A) by separate rulemaking which was proposed in the April 17, 1998, issue of the Texas Register (23 TexReg 3793 and sec.73.2(d), relating to mandatory continuing education for renewal of license. The subject matter of these provisions is addressed in the new subsections of sec.73.5. The board is also deleting sec.73.3(3)(B), which relates to verification of compliance, the subject matter of which is covered in paragraph (2). Section 73.3(1)(A) and (2)(A) is amended to clarify that licensees are to report compliance at the time of license renewal, that is, on or before the first day of their birth months. The amendment to sec.73.3(2)(A) also explains the type of verification required. The sanction, in sec.73.3(2)(C), for failing to provide verification upon request is deleted as being unnecessary. A new subparagraph (C) makes the failure to provide verification for each reporting year the same as non-compliance with the continuing education requirements under sec.73.5. Verification of compliance is essential to any regulatory program. The absence of verification leaves the board without any adequate mechanism to confirm each licensee's compliance; therefore, failing to submit verification is treated the same as failing to comply in the first instance. Other grammatical and format changes for clarity and consistency have been adopted throughout the affected sections. Lastly, the board adopts an amendment to sec.73.3(1)(E). Currently, an eligible licensee may satisfy the board's continuing education requirements by viewing video taped courses which are offered by the Foundation for Chiropractic Education and Research. The adopted amendment adds audio tapes to this provision. The amendment seeks to provide an appropriate accommodation for persons who are ill or disabled by allowing an alternative means of complying with board's continuing education requirements. The amendment will assist licensees who may be visually impaired or otherwise ill or disabled to complete their continuing education requirements by use of audio or video tapes. The amendment indirectly promotes the continuing safety of patients by facilitating access to continuing education training for those licensees who may be physically unable to travel to a course. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4512b, sec.4(c), sec.4a, which authorize the board to adopt rules necessary for performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the Act, and sec.8b, which requires the board to establish a mandatory continuing education program with which licensees must comply in order to renew their licenses annually. 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 July 13, 1998. TRD-9811033 Joyce Kershner Director of Licensure Texas Board of Chiropractic Examiners Effective date: August 2, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 305-6700 22 TAC sec.73.4 The Texas Board of Chiropractic Examiners adopts an amendment to sec.73.4, relating to inactive status, with changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5557). The purpose of this rulemaking is to conform the fee provision in sec.73.4 to the board's current fee schedule in sec.75.7 under which the board charges no fee for inactive status. Under subsection (b), as adopted, a licensee who files a late application for inactive status will be subject to late fees for late renewal of a license. Subsection (e) also conforms the rule's re-examination requirement for licensees on inactive status for more than five years to the board's current examinations in sec.71.6. Other amendments incorporate changes for clarity, grammar and consistency, and delete redundant language in existing subsections (d) and (e). Matters in those subsections are also found in existing subsections (h) and (i). These four subsections have been combined into subsections (d) and (f). It is anticipated that the revised format will provide licensees with better notice of the board's procedures and requirements relating to inactive status. The only change from the proposed version is in subsection (c)(2). The word "place" was changed to "placed". No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512b, sec.sec.4(c), 4a, which authorize the board to adopt rules necessary for performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the act, and sec.8d, which requires the board to establish rules for inactive status. sec.73.4. Inactive Status. (a) A licensee who is not currently practicing chiropractic in Texas may request his or her license be placed on inactive status by applying on a form prescribed by the board . (b) A licensee on inactive status is not required to pay a fee if the application for inactive status is submitted on or before the annual expiration date of the license. If the application is late, the licensee shall be subject to the applicable late fee as provided by sec.73.2 of this title (relating to Renewal of License). A licensee on inactive status is not required to complete continuing education as provided in sec.73.3 of this title (relating to Continuing Education). (c) To place a license on inactive status at a time other than the time of license renewal, a licensee shall: (1) return the current renewal certificate to the board office; and (2) submit a signed, notarized statement stating that the licensee shall not practice chiropractic in Texas while the license is inactive, and the date the license is to be placed on inactive status. (d) To reactivate a license which has been on inactive status for five years or less, a licensee shall, prior to beginning practice in this state: (1) apply for active status on a form prescribed by the board; (2) submit written verification of attendance at and completion of continuing education courses as required by sec.73.3 of this title for the number of hours that would otherwise have been required for renewal of a license. Approved continuing education earned within the calendar year prior to the licensee applying for reactivation may be applied toward the continuing education requirement; and (3) pay the Active License Renewal Fee. (e) A license which has been on inactive status for a period of more than five years may be reactivated only upon successfully passing Part IV of the National Board of Examination and the board's Jurisprudence Examination prior to reactivation. (f) Prohibition against Practicing Chiropractic in Texas. A licensee while on inactive status shall not practice chiropractic in this state. The practice of chiropractic by a licensee while on inactive status constitutes the practice of chiropractic without a license. 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 July 13, 1998. TRD-9811034 Joyce Kershner Director of Licensure Texas Board of Chiropractic Examiners Effective date: August 2, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 305-6700 CHAPTER 75. Rules of Practice 22 TAC sec.75.1, sec.75.2 The Texas Board of Chiropractic Examiners adopts an amendment to sec.75.1, relating to grossly unprofessional conduct, and new sec.75.2, relating to proper diligence and the efficient practice of chiropractic, without changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5558). The amendment to sec.75.1 is made for the purpose of clarifying the board's intent. The prohibited conduct enumerated in the rule is not an exclusive list. Other types of conduct, based on the totality of circumstances, could also be considered grossly unprofessional conduct in violation of this rule and the Chiropractic Act (Act), Texas Civil Statutes, Article 4512b sec.14a.5. The rule, as adopted, clarifies that intent by expressly stating that grossly unprofessional conduct is not limited to the enumerated conduct. Also, sec.75.1, subsection (b) is deleted. The subsection is not necessary, and its inclusion could inaccurately imply that the board did not intend to exercise its power to discipline a licensee under sec.14a in instances of grossly unprofessional misconduct, but intends only to assess administrative penalties. Under Article 4512b sec.sec.14a, 14e, and 19a, the board has power to discipline by suspension, revocation, probation, or assessment of administrative penalties for violations of the Chiropractic Act or its rules or orders. The appropriate disciplinary sanction in a particular case is within the discretion of the board based on the circumstances of the case. In its enforcement activities, the board intends to make use of the full range of the sanctions which are authorized in the Act. Other changes are adopted for further clarity, grammar and consistency. The board also adopts new sec.75.2 to provide examples of conduct which it considers to be a lack of proper diligence in the practice of chiropractic or grossly inefficient practice of chiropractic. Article 4512b sec.14a.14 makes such conduct a basis for disciplining a licensee. Section 14a does not define the terms, "lack of proper diligence" or "grossly inefficient practice," leaving the board with the discretion to define the type of conduct covered by sec.14a.14. In order to give better notice to licensees of the expected standard of conduct and the consequences if that standard is violated, the board has set out two categories of prohibited conduct which may subject a licensee, under the proper facts, to disciplinary action. Both categories directly relate to the treatment of patients. The failure to comply with appropriate standards can cause injury to a patient; therefore, the board believes that such conduct is at the core of proper diligence and efficient practice of chiropractic, whether a licensee performs basic chiropractic procedures or more complex procedures requiring greater skill and training than provided in the basic curriculum at colleges of chiropractic. Greater awareness of compliance standards and adherence to them will benefit the public by providing greater care in the treatment and safety of patients. No comments were received regarding adoption of the amendment and new section. The amendment and new rule are adopted under Texas Civil Statutes, Article 4512b, sec.sec.4(c), 4a, which authorize the board to adopt rules necessary for performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the act. 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 July 13, 1998. TRD-9811035 Joyce Kershner Director of Licensure Texas Board of Chiropractic Examiners Effective date: August 2, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 305-6700 CHAPTER 78. Chiropractic Radiologic Technologists 22 TAC sec.78.1, sec.78.2 The Texas Board of Chiropractic Examiners adopts an amendment to sec.78.1, relating to registration of chiropractic radiologic technologists (CRT's), and new sec.78.2, relating to definitions for use in Chapter 78, without changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5560). The Medical Radiologic Technologist Certification Act (MRTCA), Texas Civil Statutes, Article 4512m sec.2.08, and the Texas Chiropractic Act, Texas Civil Statutes, Article 4512b sec.14b, require the board to adopt rules in compliance with the MRTCA and rules of the Texas Department of Health (TDH) relating to medical radiologic technologists. Section 78.1 was originally adopted to implement this statutory mandate. In 1997 (22 TexReg 2230), the board amended the rule to require board registration for persons performing radiologic procedures in a chiropractic facility. Under the MRTCA and TDH rules, all persons performing radiologic procedures had a deadline of January 1, 1998 to complete the mandatory training requirements unless they were performing under the supervision of a practitioner who had been granted a hardship exemption by the TDH, under 25 TAC sec.143.19. The current sec.78.1 does not recognize the hardship exemption process. Accordingly, one amendment allows a person to register with the board and to perform radiologic procedures without compliance with the TDH minimum training standards if working under a hardship exemption. Another amendment clarifies the board's annual continuing education requirements for CRT's and the exemption from continuing education during enrollment in TDH's mandatory training and instruction program. A new subsection (g) has been added to sec.78.1 expressly restricting a CRT to performing such procedures under the supervision of a chiropractor. The TDH's definition of supervision is provided in new sec.78.2 along with other relevant definitions. New subsections (j) and (k) in sec.78.1 set out the responsibilities of board licensees in the performance of radiologic procedures under the MRTCA. Lastly, new subsection (l) gives notice that board disciplinary action against a CRT is governed by the Administrative Procedures Act and applicable enforcement provisions in the Chiropractic Act. Other amendments make changes in existing text for clarity and consistency. It is anticipated that sec.78.1 and sec.78.2, as adopted, will provide licensees and persons required to be registered under sec.78.1 better notice of the board's compliance provisions. Moreover, public safety benefits are addressed by requiring chiropractor supervision of CRT's, licensee and CRT responsibility for compliance with the MRTCA and TDH rules, and continuing education of CRT's. No comments were received regarding adoption of the amendment and new section. The amendment and new rule are adopted under Texas Civil Statutes, Article 4512b, sec.4(c), sec.4a, which authorize the board to adopt rules necessary for performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the Act, sec.6 which authorizes the board to adopt rules establishing guidelines relating to tasks and procedures that a chiropractor may delegate to an assistant, and sec.14b which authorizes the board to require evidence of proper training, precaution and safety in the use of x-ray in conformity with state law and TDH rules and to implement state law relating to radiologic training for employees of a chiropractor. The amendment and new rule are further adopted pursuant to the Medical Radiologic Technologist Certification Act, Texas Civil Statutes, Article 4512m sec.2.08, which requires the board to adopt rules relating to the delegation and supervision of the performance of radiologic procedures and which must include certain specified requirements listed in sec.2.08(c). 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 July 13, 1998. TRD-9811036 Joyce Kershner Director of Licensure Texas Board of Chiropractic Examiners Effective date: August 2, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 305-6700 PART XIV. Texas Optometry Board CHAPTER 271.Examinations 22 TAC sec.271.1 The Texas Optometry Board adopts an amendment to sec.271.1, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4762). Section 271.1 is required in order to inform licensees and general public of the correct and applicable legal cite. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.3.01 and sec.2.14. The Texas Optometry Board interprets sec.3.01 as authorizing the entry level examination for licensure. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810981 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (409) 845-1121 22 TAC sec.271.2 The Texas Optometry Board adopts an amendment sec.271.2, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4763). Section 271.2 is required in order to inform applicants regarding the application process and submission of references. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.sec.3.02, 3.03, and 2.14. The Texas Optometry Board interprets sec.3.02 as authorizing the procedures for application to take the examination and sec.3.03 as authorizing procedures for submitting the examination fee. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810982 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.271.3 The Texas Optometry Board adopts an amendment to sec.271.3, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4763). Section 271.3 is required in order to inform applicants regarding procedures for the Jurisprudence examination for licensure. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.sec.3.01, 3.02, 3.06 and 2.14. The Texas Optometry Board interprets sec.3.01 as authorizing the entry level examination for licensure and interprets sec.3.02 as authorizing the procedures for application to take the examination and sec.3.06 as authorizing the conduct of the examination. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810983 Dr. George W. Latimer, Jr. Assistant to the Associate Vice Chancellor of Agriculture Office of the Texas State Chemist/Texas Feed and Fertillizer Control Service Effective date: August 2, 1998 Proposal publication date: June 5, 1998 For further information, please call: (409) 845-1121 22 TAC sec.271.4 The Texas Optometry Board adopts the repeal of sec.271.4, without change to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4764). Section 271.4 is no longer required since it addressed re-examinations of a clinical and written examination no longer given by the Board. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.sec.3.01, 3.02, 3.06 and 2.14. The Texas Optometry Board interprets sec.3.01 as authorizing the entry level examination for licensure, interprets sec.3.02 as authorizing the procedures for application to take the examination and sec.3.06 as authorizing the conduct of examination. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810984 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.271.6 The Texas Optometry Board adopts an amendment to sec.271.6, without change to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4764). Section 271.6 is required in order to inform applicants for licensure that the national board examination is required for licensure in Texas. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.sec.3.01, 3.06 and 2.14. The Texas Optometry Board interprets sec.3.01 as authorizing the entry level examination for licensure, and interprets sec.3.06 as authorizing the conduct of examination. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810985 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 CHAPTER 273.General Rules 22 TAC sec.273.1 The Texas Optometry Board adopts an amendment to sec.273.1, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4765). Section 273.1 is required in order to grammatically correct language in regard to alternatives to surrender of license when a license has not been renewed. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.4.04 and sec.2.14. The Texas Optometry Board interprets sec.4.04 as authorizing procedures for the renewal of licenses. The Board interprets sec. 2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810986 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.273.4 The Texas Optometry Board adopts an amendment to sec.273.4, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4765). Section 273.4 is required in order to inform licensees of the fee to be assessed when a licensee becomes therapeutically certified. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.sec.1.03, 3.03, and 2.14. The Texas Optometry Board interprets sec.1.03 and sec.3.03 as authorizing the establishment of fees for therapeutic optometry. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810987 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.273.5 The Texas Optometry Board adopts an amendment to sec.273.5 without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4766). The sec.273.5 amendment streamlines the duties required of deans of educational institutions regarding the licenses of faculty members. No comments were received. The amendment is adopted under the Texas Optometry Act, Texas Civil Statutes, Articles 4552-2.14 and 4552-3.09. The Texas Optometry Board interprets sec.2.14 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The Board interprets sec.3.09 as authorizing the issuance of a limited license to a clinical faculty member. 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 July 13, 1998. TRD-9810988 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.273.6 The Texas Optometry Board adopts an amendment to sec.273.6, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4766). Section 273.6 is required in order to inform provisional licensees of the testing requirements. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.3.08 and sec.2.14. The Texas Optometry Board interprets sec.3.08 as authorizing the procedures for provisional licensure prior to examination. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810989 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.273.7 The Texas Optometry Board adopts an amendment to sec.273.7, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4767). Section 273.7 is required in order to grammatically correct language in regard to an inactive license. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.3.104 and sec.2.14. The Texas Optometry Board interprets sec.3.10 as authorizing the provision for licensees to place their license on inactive status. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810990 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.273.8 The Texas Optometry Board adopts an amendment to sec.273.8, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4768). The sec.273.8 amendment imposes a late penalty fee on licensees, along with the continuing education penalty fee, who have not met mandatory continuing education requirements in compliance with the law. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552-2.14, 4552-4.01, and 4552-4.01B. The Texas Optometry Board interprets sec.2.14 as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The Board interprets sec.4.01 as authorizing an annual renewal fee and late penalty fees and sec.4.01B as authorizing the requirement of continuing education including penalty for not timely obtaining the mandatory continuing education. 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 July 13, 1998. TRD-9810991 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 CHAPTER 277.Practice and Procedure 22 TAC sec.277.2 The Texas Optometry Board adopts an amendment to sec.277.2, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4768). Section 277.2 specifies that the Board's legal counsel may be in attendance at informal conferences, in lieu of the attorney general's representative. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.sec.4.04, 4.05 and 2.14. The Texas Optometry Board interprets sec.4.04 as authorizing the Board to establish the procedures for informal conferences and sec.4.05 as authorizing an administrative penalty against a person licensed or regulated under the Act. The Board interprets sec. 2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810992 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 CHAPTER 279.Interpretations 22 TAC sec.279.5 The Texas Optometry Board adopts an amendment to sec.279.5, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4769). Section 279.5 is required in order to inform licensees of those examinations required to be performed by the licensee and those which may be performed by an assistant, and to establish certain instrumentation to be used in certain examination steps. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.5.12 and sec.2.14. The Texas Optometry Board interprets sec.5.12 as authorizing the interpretation of what constitutes the specific basic competence steps of an initial examination as required by the Act. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810993 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.279.14 The Texas Optometry Board adopts an amendment to sec.279.14, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4770). Section 279.14 specifies the form of an acceptable prescription for dispensing contact lenses and exceptions that are applicable under certain circumstances. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.1.02 and sec.2.14. The Texas Optometry Board interprets sec.1.02 as authorizing the interpretation of a fully-written contact lens prescription as required by the Act including the format of a prescription in an emergency situation. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810994 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.279.15 The Texas Optometry Board adopts an amendment to sec.279.15, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4771). Section 279.15 is required in order to grammatically correct rule language concerning definitions of infectious or contagious diseases. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.5.08 and sec.2.14. The Texas Optometry Board interprets sec.5.08 as authorizing the adoption of rules prohibiting an optometrist or therapeutic optometrist from practicing while knowingly suffering from a contagious or infectious disease. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810995 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 CHAPTER 280.Therapeutic Optometry 22 TAC sec.280.1 The Texas Optometry Board adopts an amendment to sec.280.1, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4771). Section 280.1 is required in order to clarify for licensees the amount of the certification fee for therapeutic licensure. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.1.03 and sec.3.03 and sec.2.14. The Texas Optometry Board interprets sec.1.03 as authorizing the interpretation of the therapeutic optometry requirements established by the Act and interprets sec.3.03 as authorizing the Board to establish fees for examination certification. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810996 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 22 TAC sec.280.2 The Texas Optometry Board adopts an amendment to sec.280.2, without changes to the proposed text as published in the May 15, 1998, issue of the Texas Register (23 TexReg 4772). Section 280.2 is required in order to inform licensees of the correct name for the Board committee reviewing therapeutic education. No comments were received. The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, sec.1.03 and sec.2.14. The Texas Optometry Board interprets sec.1.03 as authorizing the interpretation of the therapeutic optometry requirements established by the Act. The Board interprets sec.2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed 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 July 13, 1998. TRD-9810997 Lois Ewald Executive Director Texas Optometry Board Effective date: August 2, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 305-8502 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 403. Other Agencies and the Public SUBCHAPTER K. Client-Indentifying Information 25 TAC sec.sec.403.291-403.308 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeals of sec.sec.403.291- 403.308 of Chapter 403, Subchapter K, concerning client-identifying information without changes to the proposal as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3180). New sec.sec.414.1-414.17 of Chapter 414, Subchapter A, concerning the same, which replace the repealed sections, are contemporaneously adopted in this issue of the Texas Register. The repeals allow for the adoption of new sections. No public comment was received. The repeals of these sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and with the Texas Health and Safety Code, sec.595.002, which allows the Board to adopt rules that it considers necessary to facilitate compliance with Chapter 595. 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 July 13, 1998. TRD-9811023 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 3, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 206-4516 CHAPTER 404. Protection of Clients and Staff SUBCHAPTER H. Criminal History Clearances 25 TAC sec.sec.404.301-404.309 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeals of sec.sec.404.301 - 404.309 of Chapter 404, Subchapter H, concerning criminal history clearances, without changes to the proposal as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3800). New sec.sec.414.501 - 414.509 of new Chapter 414, Subchapter K, concerning the same, which replace the repealed sections, are contemporaneously adopted in this issue of the Texas Register. The repeals allow for the adoption of new sections. No public comment was received. These sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and the Texas Health and Safety Code, sec.250.002(d) and sec.533.007, which permit TDMHMR to adopt rules relating to the processing and use of criminal history information. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 13, 1998. TRD-9811021 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 3, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 206-4516 CHAPTER 407. Internal Facilities Management Public Records 25 TAC sec.407.151-407.161 The Texas Department of Mental Health and Mental Retardation (department) adopts the repeal of sec.sec.407.151-161 of Chapter 407, concerning Public Records, without changes to the text as proposed in the May 15, 1998, issue of the Texas Register (23 TexReg 4775). The repeal is adopted because the statute requiring the department to adopt by rule specific charges for public information was deleted from the Public Information Act (the Act). During the 75th Legislative Session in 1997, the Act was amended deleting the provision that required the department to adopt by rule charges for providing public information. As required by the Act, the department uses the charges set forth in GSC rules. These charges and the department's procedures for processing requests for public information are described in the Open Records Operating Instruction (417 - 7), which remains in effect. No public hearing was held and no written comments were received from the public. The repeal is adopted under the Texas Health and Safety Code, sec.532.015, which provides the department with broad rulemaking authority. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 13, 1998. TRD-9811025 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 3, 1998 Proposal publication date: May 15, 1998 For further information, please call: (512) 206-4516 CHAPTER 414.Protection of Individuals and Individual Rights SUBCHAPTER A. Client-Indentifiying Information 25 TAC sec.sec.414.1-414.17 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.414.1 - 414.17 of Chapter 414, Subchapter A, concerning client- identifying information. Sections 414.2 - 414.10, 414.12, and 414.14 - 414.16 are adopted with changes to the proposed text as published in the March 27, 1998, issue of the Texas Register (23 TexReg 3181-3188). Sections 414.1, 414.11, 414.13, and 414.17 are adopted without changes. The repeals of sec.sec.403.291 - 403.308 of Chapter 403, Subchapter K, concerning the same, which the new sections replace, are contemporaneously adopted in this issue of the Texas Register. The subchapter describes the state and federal statutory requirements for disclosure of client-identifying information. Language in sec.414.2 is modified to specify that the entire subchapter applies to facilities and state-operated community services (SOCS), and that all of the sections in the subchapter, except sec.414.14, apply to local authorities that are not SOCS. The section also requires contract providers' compliance with the subchapter pursuant to the contract. In sec.414.3(10)(B), the definition of "incompetent" is revised to state the professional determines if the client does not have the ability to comprehend the effect or consequences of giving consent to disclose confidential information. Definitions for "subpoena" and "subpoena duces tecum" are added to the same section. Reference to the Texas Council on Offenders with Mental Impairments, Texas Health and Safety Code, Chapter 614, as it relates to the exchange of client-identifying information concerning special needs offenders, is added as a new subsection (h) in sec.414.4. Language is added to sec.414.5(d) clarifying that client-identifying information could be released without consent if it were done in accordance with law. The designation of the exhibit mentioned in sec.414.6(c), which was incorrectly referenced as Exhibit B, is changed to Exhibit A. Language is added to sec.414.7(a)(1) and sec.414.8(a)(1) clarifying that consent to disclosure of client-identifying information is not required if proper consent has been obtained previously and has not been revoked. Language is added to sec.sec.414.7(c)(9) and 414.8(c)(2) referencing the federal regulations that allow Advocacy, Inc. access to client- identifying information. Language is modified in sec.414.7(f) to identify the agencies and their divisions that are responsible for providing continuity of care to special needs offenders and that can exchange confidential information concerning a special needs offender. Language is modified in sec.414.9(b) to require the use of Exhibit B for facilities only. Reference to the Consent for Publication form and its use is added as a new subsection (d) in sec.414.9. A list of who is within the first degree of consanguinity is added to sec.414.10(c). Language is added to sec.414.12(a) and (b) requiring the determination that access by the client to parts of his/her record that would not be in the client's best interest to receive be made within three working days. Language is added to sec.414.12(b)(1) clarifying that the written statement must state that having access to the specified portion of the record would be harmful. Language is added to sec.414.12(b)(5) requiring the summary or narrative to be prepared within 10 working days, rather than within a reasonable time. Language is added to sec.414.12(c)(1) requiring that access to the record be provided within three working days. Language is added to sec.414.12(c)(2) clarifying that a client or the client's LAR (legally authorized representative) can authorize an attorney to have access to the client's records. Modifications are made to the title of sec.414.14 and its text to require only facility and SOCS staff compliance. The statutory reference in sec.414.14(b)(1)(A) is corrected. The Consent for Publication form is added as Exhibit C in sec.414.15(3). The references in sec.414.16 are updated to include changes made to the subchapter upon adoption. Written public comment was received from the Texas Council of Community MHMR Centers, Austin; Burke Center, Lufkin; Life Resources Managed Care Services, Beaumont; Tri-County MHMR Services, Conroe; Texas Commission on Jail Standards, Austin; Texas Council on Offenders with Mental Impairments, Austin; Bell County Sheriff's Office, Belton; Collin County Sheriff's Office, McKinney; Advocacy, Inc., Austin; Parent Association for the Retarded of Texas (PART), Austin; the parent of a state school resident, Garland; and a mental health consumer advocate, Houston. Regarding sec.414.14(b)(1)(A), one commenter stated that "there was much confusion following the 74th Legislative Session (1995) regarding the type of subpoena that legally compels [community] centers and other health care providers to disclose medical records. The confusion centered around the term 'court subpoena' used in Chapter 241 of the Texas Health and Safety Code and Article 4495b, Rev.Tex.Stat.Ann. Most medical records subpoenaed for lawsuits are obtained with a subpoena issued by a notary public from a records service company. Using a court subpoena (as stated in Chapter 414, Subchapter A, Section 414.14(b)(1)(A)) increases judicial intervention, increases attorney fees, and significantly increases the time it takes to obtain records. Senator Frank Madla, who authored S.B. 667, 74th Legislature, recognized the unintended confusion caused by the Bill and issued a letter addressing his real intent... In that letter he promised to resolve the confusion during the 75th Legislative Session (1997). Note that Chapter 611.006(11) of the Texas Health and Safety Code simply uses the term 'subpoena.' Chapter 241.515 et seq. was then amended in the 75th Legislative Session to state that if a patient is a party to a law suit, medical records may be obtained with a notary subpoena alone; but if the patient is not a party to a law suit, a court order or a court subpoena must be obtained. This clarification is in line with the Rules of Civil Procedure and gives adequate protection to subpoenaed medical records." The commenter stated that the rule's language reflects language adopted during the 74th Legislative Session (1995) in Chapter 241 of the Texas Health and Safety Code, but it conflicts with the amended language in Chapter 241 adopted by the 75th Legislative Session (1997). The commenter stated that such conflict will create confusion for community centers and their hospital contractors. The commenter added that "the circumstances surrounding an administrative or judicial proceeding, other than litigation, determine the type of subpoena and the entity authorized to use such. These situations vary, and knowing the requirements for release of information with or without consent requires an attorney's opinion based on the circumstances of the situation." Because of the stated reasons, the commenter provided suggested language that would reflect the commenter's position. The department responds by acknowledging that, generally, sec.414.14 provides procedural interpretation of statutes and Rules of Evidence. While it is appropriate to provide such interpretation for its facilities and SOCS, the department understands that local authorities and contract providers should be responsive to the statutory interpretation of their legal counsel on these matters. Therefore, the department modifies sec.414.14 to apply only to facility and SOCS staff. Regarding sec.414.7(f), the same commenter stated that "the ability to release information without consent among agencies providing continuity of care for a special needs offender continues to be an area of misunderstanding. Adding language to this rule to address the provisions of Section 614.017 of the Texas Health and Safety Code is an important step toward achieving statewide understanding of this statutory permission. We observe that the proposed language does not sufficiently embrace all the agencies who are authorized to provide continuity of care for special needs offenders (and thereby share information without consent in accordance with the provisions in Section 614.017)." The commenter provided suggested language that would reflect the commenter's position. The department concurs and adds language to reflect the commenter's concerns. The same commenter requested adding definitions for "subpoena" and "subpoena duces tecum." The department responds by adding definitions as requested. The same commenter suggested adding the statutory reference governing disclosure of information regarding special needs offenders to sec.414.4 (Statutes and Federal Regulations Governing Disclosure). The department responds by adding language to reflect the commenter's suggestion. Regarding the definition of "incompetent" in sec.414.3(10)(B), two commenters asked who will make the decision that the client doesn't have the ability to comprehend the effect or consequences of giving consent to disclose confidential information and what criteria will be used to make the decision. The commenters added that, by not clarifying who can make the decision, the rule could be used to empower staff who are not qualified to make a decision of this importance. The department responds by adding language stating the professional (as defined in sec.414.3(15)) makes the determination of whether the client has the ability to comprehend the effect or consequences of giving consent to disclose confidential information. Regarding the criteria. the department responds that establishing criteria for such a determination is unnecessary because the professional's education and experience in diagnosing, evaluating, and treating mental and emotional conditions is sufficient for him/her to make a determination of whether the client has the ability to comprehend the effect or consequences of giving consent to disclose confidential information. Regarding the definition of "qualified service organization" in sec.414.3(16)(A), the same commenters asked why it is applicable only to chemical dependency programs and not extended to MHMR programs. The department responds that the federal statute allowing for the exception is applicable only to chemical dependency records. Regarding sec.414.7(b)(11), the commenters requested further clarification asking which "agency" is being referenced and if all subpoenas can be accepted or just those subpoenas that are court ordered. The department responds that the agency being referenced includes those agencies with subpoena power, such as the Texas Department of Protective and Regulatory Services, the Texas Department of Human Services, or any other agency involved in an administrative hearing under the Administrative Procedures Act. Regarding which subpoenas can be accepted, the department responds that only court- or agency-issued or -ordered subpoenas are acceptable. The department notes that under current law, a notary subpoena alone is not sufficient for the release of client-identifying information. Regarding sec.414.9(b), the same two commenters questioned why the use of the Exhibit B consent form was required, noting several of the form's inadequacies as it relates to other programs (e.g., TCADA, ECI). The commenters expressed concern about the fine print for the release of HIV/AIDS information, asking if clients will really know they are agreeing to the release of this information. The commenters also asked why the client is referred to as "patient." The department responds by deleting the requirement for local authorities and contract providers to use Exhibit B. The department notes, however, that the elements listed in sec.414.9(a) are still required in order for consent to be valid. Regarding the commenters concern about the fine print for the release of HIV/AIDS information, the department responds that the print size is the same for all information on the form. Regarding the client being referenced as "patient," the department responds that Exhibit B is used for the release of medical records, and generally medical records are for patients. Additionally, Chapter 611 of the Texas Health and Safety Code uses the term "patient." Regarding sec.414.10(c), the commenters requested that the term "consanguinity" be redefined in layman's language because the word was too large for most staff to understand. The department responds by adding language to reflect the commenters' request. Regarding sec.414.12, the same two commenters stated that there should be a time frame for denial of access to information or for providing copies to the client and that the client should also be provided an appeal method. The commenters suggested the time frame for denial be 90 days and the appeal method should be review by another professional of the client's choice at the client's expense. If the other professional disagrees with the decision to deny the client access, then the facility should provide a third unbiased professional to review the case and make a decision that all parties will follow. The department responds that it believes a 90-day time frame for denying a client access to a portion of his/her record is much too long and patently contrary to all other access time frames. The department adds a three-working-day time frame. Regarding an appeal method, the department responds that an appeal method is unnecessary because sec.414.12(b)(3) allows for the examination and copying of the record by another professional if the client selects the other professional to treat the client for the same or a related condition as the professional denying access. Regarding sec.414.12(b)(5), the commenters asked that "within a reasonable time" be clarified. The commenters stated that reasonable does not mean the same thing to all people. The commenter also stated that the law allows only 15 days after the payment is received for information to be provided. The department responds by modifying language to state the summary or narrative is prepared within 10 working days. Regarding sec.414.12(c)(1), the commenters again asked that "reasonable time," as well as "reasonable fee" be clarified. The commenters suggested that the rule "follow the new law for charges for outside requests and set a lower fee for the client. There also needs to be an addendum that only allows the client to receive one copy of the information without charge." The department responds by modifying language which grants access to the record within three working days. Regarding clarification of reasonable fee, the department notes that the action is permissive and not required. Adding clarifying language could be interpreted as making the action (i.e., charging a fee) mandatory. Further, the department directs any client who believes he/she is being charged an unreasonable fee for access to his/her records to contact Advocacy, Inc., at 1-800-315-3876. Regarding sec.414.14(b)(1)(C), the commenters asked if the language meant that information could be released without consent with a subpoena that is not court- issued. The department responds that, for a facility or SOCS, a subpoena must be court or agency issued in order for client-identifying information to be released without consent. The department notes that sec.414.14 is modified to apply only to facility and SOCS staff. Regarding sec.414.7(b), one commenter suggested, for consistency with sec.414.14(b)(1)(A), adding the phrase "if the request is made for records pursuant to Texas Rules of Civil Evidence 510(d)." The commenter then suggested referencing sec.414.7(b) in sec.414.14(b)(1)(A) and deleting sec.414.14(b)(1)(B). The department responds that, while there is significant overlap between the Texas Health and Safety Code, Chapter 611, and Texas Rules of Civil Evidence, the former controls on disclosure and the later controls on admissibility of the evidence that is produced in a court situation. The department elects to include only the provisions of the Texas Health and Safety Code, Chapter 611, because the rules being adopted deal primarily with the disclosure of client-identifying information. The department notes that sec.414.14 is modified to apply only to facility and SOCS staff. Regarding sec.414.5(g) and (h), one commenter stated that the deletion of the two subsections would certainly hinder a jail's ability to ensure ongoing care and/or provide appropriate care for those individuals entering the jail who may not yet have reached the crisis level provided for in sec.611.004(a)(2) of the Texas Health and Safety Code. The commenter added that the intent of recent legislation was to encourage the exchange of information, thereby reducing duplication, improving levels of care through continuity of care, as well as saving taxpayers money. The department responds that the deletion of the two subsections reflects the amendments to sec.576.005 (Texas Health and Safety Code) adopted in the 75th Legislative Session (1997). The department notes that sec.611.004(a)(9) of the Texas Health and Safety Code allows for a professional to disclose client-identifying information without consent "to health care personnel of a penal or other custodial institution in which the patient is detained if the disclosure is for the sole purpose of providing health care to the patient." The provision, which is also stated in sec.414.7(c)(12), would ensure ongoing care and/or provide appropriate care for those individuals entering the jail who have not yet have reached the crisis level. Regarding sec.414.7(f), one commenter stated that although House Bill 1747 (75th Legislature) added community supervision and corrections departments as a continuity of care agency, the bill did not delete the Texas Council on Offenders with Mental Impairments from the exchange of information process. The commenter noted that the statutory provisions cited in Chapter 614 (Texas Health and Safety Code) allows all continuity of care agencies to be included in the exchange of information process without consent. The commenter stated that the exclusion of such allowance in the department's rules renders the rules out of compliance with statutory guidelines. The department responds by adding language to address the commenter's concern. Two commenters expressed concern that the proposed rules concerning "special needs offenders" would have a direct negative impact on jail operations. The commenters stated that the physical and mental conditions of inmates directly correlate to their care while in custody and that access to an inmates' medical information is crucial. The department responds that it does not believe that the proposed rules concerning "special needs offenders" could create such a broad negative impact, mainly because the term "special needs offender" is very narrowly defined. The department notes that gaining medical information of inmates is addressed in sec.611.004(a)(9) of the Texas Health and Safety Code, which allows for a professional to disclose client-identifying information without consent "to health care personnel of a penal or other custodial institution in which the patient is detained if the disclosure is for the sole purpose of providing health care to the patient." The provision is also stated in sec.414.7(c)(12). Regarding the definition of "legally authorized representative (LAR)" in sec.414.3(12)(E), two commenters requested the addition of the phrase "this cannot be used if the client has legal guardian." The department responds that the addition of the phrase is unnecessary because state statute and the department's rules (which are referenced in the definition) clearly delineate the activities of a surrogate decision-making committee or surrogate decision- maker. Regarding the definition of "professional" in sec.414.3(15), the same two commenters requested deleting the language "or person reasonably believed by the client to so be" because merely believing a person to be a professional does not make the person a professional. The department declines to delete the language because it is consistent with sec.611.001(2)(C) of the Texas Health and Safety Code. Regarding sec.414.5(b), the commenters requested deleting the subsection because it is an automatic assumption that records received from sources outside the department are not to be protected. The department declines to delete the subsection because it believes that the commenters have misinterpreted the language. The department notes that the rule states records received from outside sources "that become a part of the client's record may be released under the guidelines established in this subchapter." This means that client records received from outside sources are protected and released in the same manner as records that are created internally. Regarding sec.414.6(a), the same two commenters requested the term "or legally authorized representative (LAR)" follow the reference to client. The department responds that the section relates to notice of federal confidentiality requirements for clients receiving chemical dependency services. The federal regulation requires the client to be so notified of the information in this section regardless of whether the client has an LAR. Regarding sec.414.7(b)(5), the two commenters requested adding the phrase "only if the client is competent." The commenters also observed that the subsection does not address situations in which the client is adjudicated incompetent by a court and has an LAR. The department responds that the language contained in sec.414.7(b)(5) is consistent with the statutory provision stated in the Texas Health and Safety Code, sec.611.006(a)(5). The department declines to expand a provision beyond what the Texas Legislature has set forth on this very narrow exception. Regarding sec.414.7(c)(3), the same two commenters requested the deletion of "program evaluations or research." The commenters stated that the provision was misused in order to conduct a particular research study in 1993-1995. The department declines to delete the provision because the language is taken directly from sec.611.004(a)(3) and (b) of the Texas Health and Safety Code. Regarding sec.414.7(c)(6), the two commenters requested the phrase "except that no client-identifying information shall be released without proper consent" not be deleted. The department responds that the phrase is deleted because it is in conflict with the prefacing language in (c), which states, "client-identifying information may be released without consent..." The department notes that although sec.611.004(c) of the Texas Health and Safety Code (on which the rule's language is based) states that client-identifying information "may be released only with the patient's proper consent" in an official legislative inquiry, such language conflicts with a more recently adopted statute (Texas Government Code, sec.552.008(b)), which allows persons participating in an official legislative inquiry to receive client-identifying information without consent provided they sign a confidentiality agreement. Regarding sec.414.7(d) and (f)(1)-(2), the same two commenters suggested deleting subsection (d) and paragraphs (1) and (2) of subsection (f) because "there is no valid reason for these exceptions to informed consent." One of the commenters asked why the department would want to disclose client-identifying information without the LAR's consent. The department declines to delete the language because it would hinder the continuity of care for many clients because the majority of incompetent clients served by the department do not have an LAR. If a client has an LAR, then it is likely that the LAR is aware of the need to disclose confidential information in order to ensure the client's continuity of care (e.g. when the client moves from a state facility to a group home contracted by a local authority, the local authority and the contract provider require medical and treatment information contained in the client's record in order to adequately serve the client). Notifying the LAR or client of the disclosure is a courtesy. If consent for the disclosure were required, then incompetent clients without an LAR would not be able to receive appropriate continuity of care because necessary client-identifying information could not be disclosed. Regarding sec.414.10(c), the two commenters stated that consent should initially be required of the LAR in situations in which the client with mental retardation is deceased. The commenters also requested a simpler explanation of "related to the client within the first degree of consanguinity." The department declines to revise the language because the portion of sec.414.10(c) that references deceased clients with mental retardation is consistent with sec.595.003(a)(4)(B) of the Texas Health and Safety Code. The department notes that if a client with mental retardation has an LAR, then the LAR is most likely to be the executor or administrator of the client's estate. Regarding simplifying first degree of consanguinity, the department responds by adding language to reflect the commenters' request. Regarding sec.414.12(c)(1), the same two commenters requested clarification that the reasonable fee being referenced is for copies of the client's records, not access to the client's records. The department responds that the reasonable fee is for both access and copies, although the Texas Health and Safety Code, sec.611.0045(i) (on which the rule's language is based), mentions only access and not copies. (The department does not support or endorse charging clients any type of fee for access to their records; however, state statute allows for such action.) The department notes that the action of charging a reasonable fee is permissive and not required. The department declines to provide clarifying language because such clarification could be interpreted as making the action (i.e., charging a fee) mandatory. The department directs any client who believes he/she is being charged an unreasonable fee for access to his/her records to contact Advocacy, Inc., at 1-800-315-3876. Regarding sec.414.12(c)(2), the two commenters suggested including a provision to address situations in which a client's LAR has authorized an attorney to have access to the client's records. The department responds by adding language to reflect the commenters' suggestion. Regarding the definition of "client" in sec.414.3(3), one commenter stated that the term needed to be changed to "individual" because "individual" is used in other department policies. The department responds that it declines to make the change because the term "client" is adequate for the purposes of this subchapter. The department notes that in other department policies the terms "person served" and "consumer" are also used. Regarding sec.414.5(b), one commenter stated that her organization (Advocacy, Inc) has experienced barriers accessing information in client records generated by outside sources (e.g., commitment documents). The commenter asked if this subsection authorizes the release of such information. The department responds that the subsection authorizes the release of client records generated by outside sources in the same manner as it authorizes the release of records generated internally. Regarding sec.414.7(c)(9) and sec.414.8(c)(2), the same commenter requested the addition of language referencing the federal regulations which state that Advocacy, Inc. shall have access to the records of an individual with a guardian or other legal representative in the absence of the representative's authorization in which the representative, although offered assistance by Advocacy, Inc. to resolve a situation, has failed or refused to act on behalf of the individual with a disability. The department responds by adding language to reflect the commenter's request. Regarding sec.414.10(c), the same commenter stated that her organization (Advocacy, Inc.) has experienced difficulty receiving client-identifying information it is authorized to receive in cases in which the client is deceased. The commenter attributed this difficulty to the language in the subchapter regarding who can give consent when the client is deceased. The department responds that the portion of the subchapter that addresses Advocacy, Inc.'s federal authorization to receive client-identifying information (sec.414.7(c) and sec.414.8(c)) is prefaced with language that states, "Client- identifying information may be disclosed without consent...." This prefacing language makes obtaining consent irrelevant, regardless of whether the client is living or deceased. Regarding sec.414.12(b)(1), the same commenter requested language be added clarifying that the written statement must state that having access to the specified portion of the record would be harmful. The commenter believed that without the clarification, the professional could merely document that access to the record in general would be harmful. The department responds by adding language to reflect the commenter's request. A mental health consumer/advocate wrote, "This is another type of abuse by the system. In our computer age, Texas providers provide our identities to every Tom, Dick, and Harry without our permission. The exception is working with the families and consumers. To succeed one must beg." The department responds that sec.414.7(d) allows for the exchange of client-identifying information without consent when the information is used between facilities, local authorities, and contract providers (a provider that delivers services pursuant to a contract with a facility or local authority). All "Texas providers" of mental health and mental retardation services, regardless of whether they contract with a facility or local authority, must comply with state and federal statutes governing disclosure of client- identifying information. These sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and with the Texas Health and Safety Code, sec.595.002, which allows the board to adopt rules that it considers necessary to facilitate compliance with Chapter 595. sec.414.2. Application. (a) This subchapter applies to all facilities and state-operated community services (SOCS) of the Texas Department of Mental Health and Mental Retardation. (b) All of the sections in this subchapter, with the exception of sec.414.14 of this title (relating to Depositions, Subpoenas, and Subpoenas Duces Tecum - Facility Staff Compliance), apply to all local authorities that are not SOCS. (c) All facilities of the Texas Department of Mental Health and Mental Retardation and all local authorities are responsible for ensuring their contract providers are required to comply with this subchapter as stated in the contract. sec.414.3. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise: (1) Adult - A person: (A) who is 18 years of age or older; or (B) who is under 18 years of age and: (i) is or has been legally married; or (ii) whose disabilities of minority have been legally removed. (2) Chief executive officer or CEO - The superintendent/director of a facility or the executive director of a local authority or contract provider. (3) Client - A person who, voluntarily or involuntarily, is seeking or receiving, or who has received mental health, mental retardation, or chemical dependency services from a facility, local authority, or contract provider. (4) Client-identifying information - The name, address, social security number, or any information by which the identity of a client can be determined either directly or by reference to other publicly available information. The term includes, but is not limited to, a client's medical record, graphs, or charts; statements made by the client, either orally or in writing, while receiving services; photographs, videotapes, etc.; and any acknowledgment that a person is or has been a client of a facility, local authority, or contract provider. The term does not include a client-identifying number. The statutes, regulations, and rules requiring that client-identifying information be kept confidential apply regardless of the means or methods utilized for the storage and retrieval of such information. (5) Competent - A term used to describe a person who has the ability to comprehend the effect and consequences of giving an authorization for disclosure of client-identifying information and who has not been adjudicated incompetent by a court, or for whom an order of restoration has been executed and recorded subsequent to the client's having been adjudicated incompetent. (6) Contract provider - An individual, entity, or organization that contracts with the department, a facility, or local authority to provide mental health, mental retardation, and/or chemical dependency services. (7) Consent - The authorization to disclose client-identifying information given by a person with such authority as described in sec.414.10 of this title (relating to Who Can Give Consent for Disclosure: Clients Receiving MHMR Services) or sec.414.11 of this title (relating to Who Can Give Consent for Disclosure: Clients Receiving Chemical Dependency Services). (8) Department - The Texas Department of Mental Health and Mental Retardation. (9) Facility - A state hospital, state school, state center, Central Office of the Texas Department of Mental Health and Mental Retardation. (10) Incompetent - A term used to describe a person who: (A) has been adjudicated incompetent by a court and for whom no subsequent order of restoration has been executed or recorded; or (B) does not, as determined by the professional, have the ability to comprehend the effect or consequences of giving an authorization for disclosure of client- identifying information. (11) Legal counsel - At a facility or state-operated community services, staff of the department's legal services office; at a local authority (that is not a state-operated community services) or a contract provider, the attorney(s) in its service. (12) Legally authorized representative - A legally authorized representative means: (A) a parent or legal guardian if the client is a minor, or a legal guardian if the client has been adjudicated incompetent to manage the client's personal affairs; (B) an agent of the patient authorized under a durable power of attorney for health care; (C) an attorney ad litem appointed for the client; (D) a parent, spouse, adult child, or personal representative (executor or administrator of the client's estate) if the client is deceased; or (E) a surrogate decision-making committee or surrogate decision-maker, as appropriate, pursuant to the Texas Health and Safety Code, Chapter 597, Subchapter C, and Chapter 405, Subchapter J of this title (relating to Surrogate Decision-Making for Community-Based ICF/MR and ICF/MR/RC Facilities). (13) Local authority - An entity to which the Texas Mental Health and Mental Retardation Board delegates its authority and responsibility within a specified region for the planning, policy development, coordination, resource development and allocation, and for supervising and ensuring the provision of mental health services to persons with mental illness and/or mental retardation services to persons with mental retardation in one or more local service areas. (14) Minor - A person under 18 years of age: (A) who is not and never has been legally married; and (B) whose disabilities of minority have not been legally removed. (15) Professional - A person authorized to practice medicine in any state or nation, or a person licensed or certified by the State of Texas in the determination, diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, or a person reasonably believed by the client to so be. (16) Qualified service organization - An individual, partnership, corporation, governmental agency, or any other legal entity that: (A) provides services for chemical dependency programs, such as data processing, bill collecting, dosage preparation, laboratory analyses, or legal, medical, accounting, or other professional services, or services to prevent or treat child abuse or neglect, including training on nutrition and child care and individual and group therapy; and (B) has entered into a written agreement with a program under which that entity: (i) acknowledges that in receiving, storing, processing, or otherwise dealing with any client records from the programs, it is fully bound by the provision of this subchapter; and (ii) if necessary, will resist in judicial proceedings any efforts to obtain access to client records except as permitted by state and federal law and this subchapter. (17) Special needs offender - A special needs offender is: (A) a convicted felon with mental illness or mental retardation; or (B) an individual with mental illness or mental retardation placed on community supervision after a grant of deferred adjudication. (18) State-operated community services (SOCS) - Community residential and nonresidential programs operated by the Texas Department of Mental Health and Mental Retardation. (19) Subpoena - A command to appear at a certain time and place to give testimony about a certain matter. (20) Subpoena duces tecum - A command to produce or bring items (e.g., books, papers, documents, records) at a certain place and time. sec.414.4. Statutes and Federal Regulations Governing Disclosure. (a) State statutory provisions governing disclosure of client-identifying information concerning clients receiving mental health and mental retardation services are contained in sec.576.005 and Chapter 611 of the Texas Health and Safety Code. (b) The provisions for disclosure of client-identifying information concerning clients receiving mental retardation services are contained in the Persons with Mental Retardation Act, Texas Health and Safety Code, Chapter 595. The provisions described in sec.576.005 and Chapters 595 and 611 of the Texas Health and Safety Code should be interpreted together in reaching a determination regarding the disclosure of client-identifying information concerning clients receiving mental retardation services. (c) Texas Human Resources Code, sec.48.0385, establishes authority for the Texas Department of Protective and Regulatory Services (TDPRS) to have access to client records necessary to conduct investigations into allegations of abuse and neglect of persons served. (d) Texas Civil Statutes, Article 4512g-1, allows for the release of information concerning the mental health treatment of a sex offender (as defined by Code of Criminal Procedure, Article 42.12, Section 9) to a criminal justice agency or local law enforcement authority. (e) The Secretary of the United States Department of Health and Human Services has promulgated extensive regulations governing the disclosure of records of clients receiving chemical dependency services as described in 42 Code of Federal Regulations Part 2. (f) The Secretary of the United States Department of Education has promulgated extensive regulations governing the disclosure of educational records of school- age children as described in 45 Code of Federal Regulations 99ff. State statutory provisions governing the disclosure of a client's educational records are described in the Texas Health and Safety Code, sec.595.005(c). Any questions concerning the disclosure of such educational records should be referred to legal counsel. (g) The Texas Open Records Act, Texas Government Code, Chapter 552, provides that all information collected, assembled, or maintained by governmental bodies, and agencies operating in part or whole with state funds, pursuant to law or ordinance in connection with the transaction of official business is public information and available to the public during normal business hours; however, the act does set out certain exceptions. One such exception is information deemed confidential by law, such as records which directly or indirectly identify a client, former client, or prospective client. (h) The Texas Health and Safety Code, sec.614.017, allows for the exchange of client-identifying information of special needs offenders between the state agencies responsible for providing continuity of care if it furthers the purposes of the Texas Council on Offenders with Mental Impairments, Texas Health and Safety Code, Chapter 614. sec.414.5. General Provision for Release of Client-Identifying Information. (a) All requests for client-identifying information by persons or organizations, other than employees and agents of the department or employees of local authorities or contract providers who need the information for the purpose of fulfilling their duties, should be made to the CEO (or designee) of the facility, local authority, or contract provider (or designee) from which the client receives or has received services. Employees and agents of the Texas Department of Protective and Regulatory Services shall direct inquiries and requests for client records to the CEO of the facility, local authority, or contract provider. (b) Any records received from another governmental or private source that become part of the client's record may be released under the guidelines established in this subchapter. (c) Except as otherwise described in these rules, an inquiry as to whether a person is a client of a facility, local authority, or contract provider, should not be affirmed or denied, but should be answered by stating that information cannot be given without proper authorization. (d) Verbal consent to disclosure of client-identifying information is not adequate. In no case should identifying information be released to the news media or to friends and family of a client: (1) without prior written consent in accordance with this subchapter; or (2) unless authorized by law (e.g., Texas Health and Safety Code, sec.595.010). (e) Identifying information regarding other clients must be expunged from records released. (f) The requirements in this subchapter for the disclosure of client-identifying information for clients receiving chemical dependency services apply to all clients who have a chemical dependency diagnosis, prognosis, or are receiving chemical dependency services even if they are also receiving mental health and/or mental retardation services. Should an individual be diagnosed as having mental illness or mental retardation in addition to chemical dependency, the portions of the individual's record which refer to mental illness or mental retardation may be released under the mental health or mental retardation requirements of this subchapter if no mention or reference is made about the chemical dependency diagnosis, treatment, or record. sec.414.6. Notice of Federal Confidentiality Requirements for Clients Receiving Chemical Dependency Services. (a) At the time of admission or as soon thereafter as the client is capable of rational communication, staff shall: (1) communicate to the client that federal law and regulations protect the confidentiality of records for clients receiving chemical dependency services records; and (2) give the client a written summary of the federal law and regulations. (b) The written summary of the federal law and regulations (42 CFR Part 2) must include: (1) a citation to the federal law and regulations; (2) a description of the limited circumstances under which a program may disclose outside the program, information identifying a client as chemically dependent; (3) a description of the limited circumstances under which a program may acknowledge that an individual is present at a program; (4) a description of the circumstances under which records for a client receiving chemical dependency services may be used to initiate or substantiate criminal charges against a client; (5) a statement that information related to a commission of a client's crime on the premises of the program against personnel of the program is not protected; (6) a statement that the federal law and regulations do not prohibit a program from giving a client access to his or her own records; (7) a statement of the criminal penalty for violation of the federal law and regulations; (8) a statement that reports of suspected child abuse and neglect made under state law to appropriate state or local authorities are not protected; and (9) an address where suspected violations of the federal law and regulations may be reported. (c) A copy of a sample notice form that meets the requirements of subsection (b) of this section, which is required to be given to clients receiving chemical dependency services, is referenced as Exhibit A in sec.414.15 of this title (relating to Exhibits). sec.414.7. When Consent for Disclosure is not Required: Clients Receiving MHMR Services. (a) When consent has been previously given. Consent to disclosure of client- identifying information is not required if: (1) proper consent has been obtained previously and has not been revoked; (2) the duration of the consent has not expired; and (3) the specifications of the consent (what is to be released, to whom, for what purpose) are the same. (b) When required by certain judicial and administrative proceedings. Client- identifying information may be disclosed without consent in: (1) a judicial or administrative proceeding brought by the client or the client's legally authorized representative against a professional, including malpractice proceedings; (2) a license revocation proceeding in which the client is a complaining witness and in which disclosure is relevant to the claim or defense of a professional; (3) a judicial or administrative proceeding in which the client waives his or her right in writing to the privilege of confidentiality of information or when the client's legally authorized representative, acting on the client's behalf, submits a written waiver to the confidentiality privilege; (4) a judicial or administrative proceeding to substantiate and collect on a claim for mental or emotional health services rendered to the client; (5) a judicial proceeding if the judge finds that the client, after having been informed that communications would not be privileged, has made communications to a professional in the course of a court-order examination, except that those communications may be disclosed only with respect to issues involving the client's mental or emotional health; (6) a judicial proceeding affecting the parent-child relationship; (7) any criminal proceeding subject to a subpoena issued by the court; (8) a judicial or administrative proceeding regarding the abuse or neglect, or the cause of abuse or neglect, of a resident of an institution, as defined by the Texas Health and Safety Code, sec.242.002(6); (9) a judicial proceeding relating to a will, if the client's physical or mental condition is relevant to the execution of the will; (10) an involuntary commitment proceeding for court-ordered treatment or for a probable cause hearing under Chapter 462, 574, or 593 of the Texas Health and Safety Code; or (11) a judicial or administrative proceeding where the court or agency has issued an order or subpoena. (c) When required in other than court proceedings. Client-identifying information may be disclosed without consent: (1) to government agencies if required or authorized by law (for example, to the Texas Department of Protective and Regulatory Services in cases of client/child abuse; to a member of a child fatality review team who is investigating the death of a child in accordance with the Texas Family Code, Chapter 264); (2) to medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others or there is a probability of immediate mental or emotional injury to the client; (3) to qualified personnel for management audits, financial audits, program evaluations, or research, except that personnel who receive the information may not directly or indirectly or otherwise disclose the identity of a client in a report or in any other manner; (4) to persons, corporations, or governmental agencies involved in the paying or collecting of fees for mental or emotional health services provided by a professional; (5) to other professionals and personnel under the professionals' direction who are participating in the diagnosis, evaluation, and treatment of the client; (6) to persons participating in an official legislative inquiry regarding state hospitals or state schools in accordance with the Texas Government Code, sec.552.008 (this exception only applies to records created by employees of the state hospitals or state schools); (7) to medical personnel to the extent necessary to meet a bona fide medical emergency; (8) to personnel legally authorized to conduct investigations concerning complaints of abuse or denial of rights of clients; (9) to Advocacy, Incorporated, in the investigation of a complaint by or on behalf of a client in accordance with 42 USC sec.10806 or sec.6042(a)(2)(I) (Protection and Advocacy of Individuals with Mental Illness and Protection and Advocacy of Individuals with Developmental Disabilities). Excepted from this disclosure without consent are records subject to attorney/client privilege, e.g., records of an investigation conducted at the request of a departmental attorney in preparation for potential litigation; (10) to an employee or agent of the treating professional who requires the mental health care information to provide mental health care services or in complying with statutory, licensing, or accreditation requirements, if the professional has taken appropriate action to ensure that the employee or agent: (A) will not use or disclose the information for any other purposes; and (B) will take appropriate steps to protect the information; (11) to satisfy a request for medical records of a deceased or incompetent person pursuant to sec.4.01(e), Medical Liability and Insurance Improvement Act, Texas Civil Statutes, Article 4590i; and (12) to health care personnel of a penal or other custodial institution in which the client is detained if the disclosure is for the sole purpose of providing health care to the client. (d) When used between facilities, local authorities, and contract providers. Client-identifying information may be disclosed without consent when it is used between department facilities, local authorities, and contract providers only if: (1) the client or legal guardian has been informed that the records may be exchanged at the time of or prior to release; (2) the client or legal guardian is informed of the purpose of the release, e.g., to facilitate continuing care for the client; and (3) this advisement is documented in the client's record, dated, and signed by the client or legal guardian and staff. (e) When used by an attorney ad litem. Client-identifying information may be disclosed without consent to the attorney ad litem representing the client in legal process. (f) When used for continuity of care of special needs offenders. In accordance with the Texas Health and Safety Code, sec.614.017, to provide continuity of care for a special needs offender (as defined), client-identifying information (i.e., identity, needs, treatment, social, criminal and vocational history, and medical and mental health history) concerning the offender may be disclosed and received without consent among the following agencies, or a division within the following agencies, or a person with an agency relationship with a following agency, or a person who contracts with a following agency: (1) Texas Department of Criminal Justice and its divisions, which are: (A) Community Justice Assistance Division; (B) Parole Division; (C) Institutional Division; (D) State Jail Division; and (E) the office of the Texas Council on Offenders with Mental Impairments; (2) a community supervision and corrections department; (3) Texas Department of Human Services; (4) Texas Department on Aging; (5) Texas Rehabilitation Commission; (6) Texas Department of Health; (7) Texas Commission for the Blind; (8) Texas Commission for the Deaf and Hard of Hearing; (9) Texas Department of Mental Health and Mental Retardation; and (10) a local authority. sec.414.8. When Consent for Disclosure is not Required: Clients Receiving Chemical Dependency Services. (a) When consent has been previously given. Consent to disclosure of client- identifying information is not required if: (1) proper consent has been obtained previously and has not been revoked; (2) the duration of the consent has not expired; and (3) the specifications of the consent (what is to be released, to whom, for what purpose) are the same. (b) When required by certain court proceedings. Client-identifying information may be disclosed without consent pursuant to a specific court order which meets the requirements of the Health and Human Services regulations set forth in 42 Code of Federal Regulations sec.2.61, et seq. A subpoena that does not meet such requirements is not sufficient to allow disclosure of the information without consent. (c) When required in other than court proceedings. Client-identifying information may be disclosed without consent: (1) in accordance with the Health and Human Services regulations (42 Code of Federal Regulations Part 2): (A) to medical personnel to meet a medical emergency; (B) to the United States Food and Drug Administration when it is necessary to notify a client of a dangerous drug in accordance with 42 CFR sec.2.51; (C) for research, audit, and evaluation purposes, subject to the limitations described in 42 CFR sec.2.52; and (D) to state or federal governmental agencies performing research, audit, or evaluation in accordance with 42 CFR sec.2.53; (2) to Advocacy, Incorporated, in the investigation of a complaint by or on behalf of a client in accordance with 42 USC sec.10806 or sec.6042(a)(2)(I) (Protection and Advocacy of Individuals with Mental Illness and Protection and Advocacy of Individuals with Developmental Disabilities). Excepted from this disclosure without consent are records subject to attorney/client privilege, e.g., records of an investigation conducted at the request of a departmental attorney in preparation for potential litigation; (3) to report information about suspected child abuse or neglect to state or local authorities under state law; and (4) to a member of a child fatality review team who is investigating the death of a child in accordance with the Texas Family Code, Chapter 264. (d) When used between facilities, state-operated community services, and personnel of the department. Consent is not required for disclosure of client- identifying information between department facilities, state-operated community services, and personnel of the department having a need for the information in connection with their duties. This subsection does not include disclosure of information by department personnel to personnel of local authorities that are not state-operated or contract providers, unless the local authority or contract provider is also a qualified service organization as defined in sec.414.3 of this title (relating to Definitions). (e) Any information regarding the application for chemical dependency services of a minor under the age of 16 years may be communicated to the parent, guardian, or other person authorized under Texas law to act on the minor's behalf if the CEO determines that the minor, because of a mental or physical condition, lacks the capacity to make a rational decision on whether to consent to the notification of his or her parent, guardian, or other person authorized under Texas law to act on the minor's behalf and the situation poses a substantial threat to the physical well-being of any person which may be reduced by communicating relevant facts to the minor's parent, guardian, or other person authorized under Texas law to act on the minor's behalf. (f) Consent is not required for disclosure of client-identifying information between a program and a qualified service organization of information needed by the organization to provide services to the program. sec.414.9. Form of Consent: Clients Receiving MHMR and Chemical Dependency Services. (a) A valid consent form authorizing the disclosure of client-identifying information concerning a client contains the following information: (1) the name of the client; (2) the name of the organization that is to make the disclosure; (3) the person or organization to whom the client-identifying information is to be disclosed; (4) the purpose of the disclosure; (5) a description of the client-identifying information to be disclosed and any limitations on disclosure; (6) a statement that the consent is subject to revocation at any time except to the extent that the organization which is to make the disclosure has already acted in reliance on it. Acting in reliance includes the provision of treatment or services in reliance on a valid consent to disclose information to a third- party payor; (7) the date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must ensure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given; (8) the signature of the client or authorized person as allowed by sec.414.10 of this title (relating to Who Can Give Consent for Disclosure: Clients Receiving MHMR Services) and sec.414.11 of this title (relating to Who Can Give Consent for Disclosure: Clients Receiving Chemical Dependency Services); and (9) the date the consent form was signed. (b) A copy of a sample consent form containing the information referred to in subsection (a) of this section, which is required for use by facilities, is referenced as Exhibit B in sec.414.15 of this title (relating to Exhibits). (c) A disclosure may not be made on the basis of a consent which: (1) has expired; (2) does not comply with subsection (a) of this section; (3) is known to have been revoked; or (4) is known, or through a reasonable effort could be known, by the person holding the records to be materially false. (d) Consent to be interviewed, photographed, filmed, or recorded is documented on the Consent for Publication form, referenced as Exhibit C in sec.414.15 of this title (relating to Exhibits). sec.414.10. Who Can Give Consent for Disclosure: Clients Receiving MHMR Services. (a) Adult clients. (1) If a client is a competent adult, then the client is the only person who can authorize and consent to disclosure of client-identifying information. (2) If the client is an incompetent adult, then the legally authorized representative (LAR) is the only person who can authorize and consent to disclosure of client-identifying information. (b) Minor clients. (1) If the client is a minor receiving mental retardation services, then the client does not have the capacity to consent to disclosure of client-identifying information. Only a parent, guardian of the person, managing conservator, or possessory conservator of the minor client can authorize and consent to disclosure of client-identifying information to any third party other than an attorney representing the client. (2) If the client is a minor under 16 years of age receiving mental health services, then the client does not have the capacity to consent to disclosure of client-identifying information. Only a parent, guardian of the person, managing conservator, or possessory conservator of the minor client can authorize and consent to disclosure of client-identifying information to a third party other than an attorney representing the client. (3) If the client is a competent minor at least 16 years of age but under 18 years of age receiving voluntary mental health services, then the client can unilaterally authorize and consent to disclosure of client-identifying information. The parent, managing conservator, or possessory conservator of such a minor client also can unilaterally authorize and consent to disclosure of client-identifying information. (4) If the client is a minor at least 16 years of age but under 18 years of age receiving court-ordered mental health services, then only a parent, guardian of the person, managing conservator, or possessory conservator can authorize and consent to disclosure of client-identifying information to a third party other than an attorney ad litem representing the client. (5) A possessory conservator has the right of access to medical, dental, and educational records of a minor to the same extent as the managing conservator. However, before releasing records to the possessory conservator, all references in the records to the place of residence of the managing conservator must be deleted. (c) Deceased clients. If the client is deceased, consent for disclosure of client-identifying information can be given by the client's personal representative, usually the executor or administrator of the client's estate. For clients with mental retardation, if an executor or administrator has not been appointed, consent can be given by the client's spouse, or if the client was not married, by an adult related to the client within the first degree of consanguinity (i.e., parent or child). sec.414.12. Disclosure to a Client of Information Contained in His or Her Records. (a) Records of clients receiving mental retardation services. The content of a client's record is to be made available to the client upon request; however, parts of the client's record may be withheld from the client if the qualified professional responsible for supervising the client's habilitation determines that access by the client to parts of the record would not be in the client's best interest. The determination that access by the client to parts of his/her record would not be in the client's best interest must be made within three working days of the client's request. The reasons for the determination must be documented in the client's record. (b) Records of clients receiving mental health and chemical dependency services. The content of a client's record is to be made available to the client upon request; however, parts of the client's record may be withheld from the client if a professional determines that access by the client to parts of the record would not be in the client's best interest. The determination that access by the client to parts of his/her record would not be in the client's best interest must be made within three working days of the client's request. (Notwithstanding the Medical Practice Act, Texas Civil Statutes, Section 5.08, Article 4495b, this subsection applies to the release of a confidential record created or maintained by a professional, including a physician, that relates to the diagnosis, evaluation, or treatment of a mental or emotional condition or disorder, including alcoholism or drug abuse/addiction.) (1) Pursuant to the Texas Health and Safety Code, sec.611.0045, if a professional denies a client receiving mental health or chemical dependency services access to any portion of the client's record, then the professional shall give the client a signed and dated written statement that having access to the specified portion of the record would be harmful to the client's physical, mental, or emotional health. The professional shall include a copy of the written statement in the client's record. The statement must specify the portion of the record to which access is denied, the reason for denial, and the duration of the denial. (2) The professional who denies access to a portion of a record under this subsection shall redetermine the necessity for the denial at each time a request for the denied portion is made. If the professional again denies access, the professional shall notify the client of the denial and document the denial as prescribed by subsection (b)(1) of this subsection. (3) If a professional denies access to a portion of a confidential record, the professional shall allow examination and copying of the record by another professional if the client selects the other professional to treat the client for the same or a related condition as the professional denying access. (4) A professional shall delete confidential information about another person who has not consented to the release, but may not delete information relating to the client that another person has provided, the identity of the person responsible for that information, or the identity of any person who provided information that resulted in the client's commitment. (5) If a summary or narrative of a confidential record is requested by the client or legally authorized representative acting on the client's behalf, then the professional shall prepare the summary or narrative within 10 working days. (c) Records of clients receiving mental retardation, mental health, or chemical dependency services. (1) If requested by the client, the professional or other entity who has possession or control of the client's record shall grant access to any portion of the record to which access is not specifically denied under subsection (a) or (b) of this section within three working days and may charge a reasonable fee. (2) When a legally authorized representative (LAR) requests access to the client's records or when a client or a client's LAR has authorized an attorney to have access to the client's records, the records shall be made available to the LAR or attorney. If it has been determined that access by the client to parts of the record would not be in the client's best interest, this fact shall be brought to the attention of the LAR or attorney, but the LAR or attorney shall be permitted to view such parts. sec.414.14. Depositions, Subpoenas, and Subpoenas Duces Tecum - Facility and SOCS Staff Compliance. (a) If consent has been given, the facility/SOCS may testify in court or by deposition or affidavit on matters relating to the client or make available records in reference to the client when asked to do so. (b) In civil proceedings in which consent has not been given. (1) For clients receiving mental health and mental retardation services. (A) A court-issued subpoena and/or subpoena duces tecum is sufficient to permit the release of records if the request is made for records pursuant to Texas Rules of Civil Evidence, Rule 510(d). (B) A court-issued subpoena and/or subpoena duces tecum is sufficient to permit the release of records if the request is made for records pursuant to any judicial or administrative situation described in sec.414.7(b)of this title (relating to When Consent for Disclosure is not Required: Clients Receiving MHMR Services). (C) Every effort should be made by the facility/SOCS to cooperate and work out an arrangement for written consent that is satisfactory to all concerned and which adequately protects the rights of the client. If the facility/SOCS is unable to work out a satisfactory arrangement, then legal counsel should be contacted immediately and its advice sought concerning the proper manner in which to proceed. (2) For clients receiving chemical dependency services. Client-identifying information may be disclosed without consent pursuant to a specific court order which meets the requirements of the Health and Human Services regulations set forth in 42 Code of Federal Regulations sec.2.61, et seq. A subpoena that does not meet such requirements is not sufficient to allow disclosure of the information without consent. (c) In criminal proceedings in which consent has not been given. (1) For clients receiving mental health and mental retardation services. (A) A court-issued subpoena is sufficient to permit the release of records of a client who is a defendant, victim, or witness. (B) A court-issued subpoena is sufficient to permit the release of records if the request is made for records pursuant to a judicial or administrative situation described in sec.414.7(b)of this title (relating to When Consent for Disclosure is not Required: Clients Receiving MHMR Services). (2) For clients receiving chemical dependency services. Client-identifying information may be disclosed without consent pursuant to a specific court order which meets the requirements of the Health and Human Services regulations set forth in 42 Code of Federal Regulations sec.2.61, et seq. A subpoena that does not meet such requirements is not sufficient to allow disclosure of the information without consent. (d) Whenever there is doubt as to the proper procedure to be followed in litigation, the subpoenaed party should immediately contact legal counsel. sec.414.15. Exhibits. The following exhibits referenced in this subchapter are available from the Texas Department of Mental Health and Mental Retardation, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711-2668. (1) Exhibit A - Sample Notice Form: Confidentiality of Records of Clients Receiving Chemical Dependency Services; (2) Exhibit B - Authorization and Consent for the Disclosure of Clinical Record Information (Form MHRS 9-13); and (3) Exhibit C - Consent for Publication. sec.414.16. References. Reference is made to the following state and federal statutes and rules of the department: (1) Texas Health and Safety Code, Chapters 462, 574, 593, 595, 597, 611, and 614; sec.576.005; sec.595.005(c); sec.242.002(6); and sec.614.017; (2) Texas Human Resources Code, sec.48.0385; (3) Texas Civil Statutes, Article 4512g-1; (4) Medical Practice Act, Texas Civil Statutes, Section 5.08, Article 4495b; (5) Medical Liability and Insurance Improvement Act, Texas Civil Statutes, Article 4590i, sec.4.01(e); (6) Code of Criminal Procedure, Article 42.12, Section 9; (7) 42 Code of Federal Regulations Part 2, sec.2.51, sec.2.52, sec.2.53, and sec.2.61; (8) 45 Code of Federal Regulations 99ff; (9) Texas Government Code, Chapter 552; (10) Texas Family Code, Chapter 264; and (11) Texas Rules of Civil Evidence, Rule 510(d). 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 July 13, 1998. TRD-9811024 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 3, 1998 Proposal publication date: March 27, 1998 For further information, please call: (512) 206-4516 SUBCHAPTER K. Criminal History Clearances 25 TAC sec.sec.414.501-414.509 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.414.501 - 414.509 of new Chapter 414, Subchapter K, concerning criminal history clearances. Sections 414.502 - 414.507 are adopted with changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3800-3803). Sections 414.501, 414.508, and 414.509 are adopted without changes. The repeals of sec.sec.404.301 - 404.309 of Chapter 404, Subchapter H, concerning the same, which the new sections replace, are contemporaneously adopted in this issue of the Texas Register. The new sections implement Senate Bills 190 and 262 of the 75th Legislature, which amend sec.250.006 of the Texas Health and Safety Code by adding offenses' for which a conviction constitutes an absolute bar to employment with or volunteer status at TDMHMR, community MHMR centers, and their contract providers of residential services. The provisions of this subchapter implement a system which is designed to protect individuals receiving inpatient/residential services funded by the department. Baring employment and volunteer status to persons convicted of certain offenses allows the department, community centers, and other applicable providers to be accountable for the protection of the individuals they serve. Language in sec.414.502 states that the subchapter does not apply to board members and advisory committee members, with the exception of public responsibility committee (PRC) members. PRC members are subject to criminal history clearances because their duties require frequent, direct interaction with individuals served by facilities and community centers. A definition of "volunteer" is added. The statutory cite for the offense listed in sec.414.504(g)(7) is corrected. The term facility is added to sec.414.505(a) and (b) when referencing for whom a provider contracts. The requirement to develop written policies and procedures in sec.414.506(b) is extended to providers. A provision is added to sec.414.506(b) requiring the written policies and procedures to include a mechanism for determining the accuracy of reports to the extent possible and for obtaining complete information. Language is added to sec.414.507(c)(1) clarifying while adverse personnel action may not be taken on information pertaining to arrest warrants or wanted persons notices, that the employee/volunteer may be reassigned to a non-direct care area until dissolution of the matters relating to the arrest warrant or wanted persons notice. Written public comment was received from the Texas Council of Community Mental Health and Mental Retardation Centers, Austin; Mental Health and Mental Retardation Authority of Harris County, Houston; the Parent Association for the Retarded of Texas, Inc.(PART), Austin; and the parent of a state school resident, Garland. One commenter noted that the department's policy of not requiring criminal history clearances for advisory committee members is not articulated in the proposed rules. Another commenter noted the absence of a definition of "volunteer" and questioned if members of a community center's board of trustees, advisory committees, and public responsibility committee were considered volunteers, and if the rules apply to them. One of the commenters provided language for a definition of "volunteer" and suggested stating in the application section that the rules do not apply to advisory committee members. The department responds by adding a definition of "volunteer" and stating in the application section that the rules do not apply to board members and advisory committee members, with the exception of public responsibility committee (PRC) members. PRC members are subject to criminal history clearances because their duties require frequent, direct interaction with individuals served by facilities and community centers. Regarding the definition of "provider," two commenters found the phrase "who have been ... discharged from a facility or community center" very disturbing. The commenters stated that, previously when asked what the criteria is for discharge, the department responded that the criteria for discharge has not been determined. The commenters stated that they could not locate the term in their review of the statutes and asked from which document is the department using the term. The department responds that the phrase is taken from the Texas Government Code, sec.411.115(b)(1)(E) in its description of the contractual entities for which the department or community center has authority to require criminal history clearances of its applicants and employees. Regarding criminal history clearances of professional clinical interns in sec.414.504(c)(2), the same two commenters requested that the memorandum of understanding or affiliation agreement (MOA) between the facility/community center and the university/college require the criminal history clearances be conducted through the department. The department responds that because professional clinical interns are neither employees nor volunteers it does not have the authority to require what the commenters' have requested. The department notes that subsection (c) mandates that the MOU state that the university/college is responsible for conducting a reasonable background check of the intern. In an effort to facilitate a "reasonable background check," the MOA may include a provision by which the facility/community center actually conducts the criminal history clearances; however, the decision to include this provision is made by the facility/community center and university/college. Regarding sec.414.504(d), the commenters recommended adding the requirement for the employer to err on the side of protection of consumers when considering other criminal offenses for which a conviction would be a contraindication to employment or volunteer status. The department responds that language in state statute and this subchapter was written to allow the maximum amount of flexibility for an employer to err on the side of caution. The same two commenters expressed disbelief that a conviction of rape, other types of assaultive offenses, public lewdness, or indecent exposure was not included in the list of offenses which would bar employment. The commenter stated that wanted persons' notices, arrest warrants, temporary or permanent protective orders, and deferred adjudications, in addition to convictions should be an absolute bar to employment or volunteer status. The commenter also stated that the department should add these items to its 1999 legislative list. The department responds that the types of criminal offenses for which a conviction would bar employment is contained in state statute. State statute also allows employers to consider other offenses, such as public lewdness, indecent exposure, and driving while intoxicated, to be a contraindication to employment or volunteer status. Incidentally, the department notes that rape is sexual assault, which is an absolute bar to employment or volunteer status. Regarding the addition of wanted persons' notices, arrest warrants, etc., the department declines to include the additional items suggested by the commenters because to do so would go beyond its statutory authorization. Regarding sec.414.507(c)(1), the same commenters requested language that required removing the employee or volunteer from contact with consumers until dissolution of the matters relating to the arrest warrant or wanted persons' notice. The department responds by adding language that allows for the employee/volunteer to be reassigned to a non-direct care area until dissolution of the matters relating to the arrest warrant or wanted persons' notice. These sections are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and the Texas Health and Safety Code, sec.250.002(d) and sec.533.007, which permit TDMHMR to adopt rules relating to the processing and use of criminal history information. sec.414.502. Application. (a) This subchapter applies to: (1) facilities (which includes the department's Central Office in Austin); (2) community centers; and (3) providers that contract with facilities or community centers to deliver residential services to individuals with mental illness or mental retardation, including residences certified by the intermediate care facilities for the mentally retarded or persons with a related condition (ICF/MR or ICF/MR/RC) program that are owned and operated by a community center. (b) This subchapter does not apply to residences certified by the ICF/MR or ICF/MR/RC program that are owned by a community center but operated under contract by a private provider, or that are privately owned and operated. Criminal history clearances are conducted for such residences in accordance with rules of the Texas Department of Human Services (TDHS) in 40 TAC sec.sec.76.101- 76.106. (c) This subchapter does not apply to: (1) entities and providers that must otherwise conduct criminal history clearances as required by the Texas Health and Safety Code, Chapter 250; (2) members of the Texas MHMR Board; (3) members of a community center's board of trustees; and (4) members of a facility or community center's advisory committees, with the exception of the public responsibility committee (PRC). sec.414.503. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise: (1) Applicant - At the employer's discretion, a person: (A) who has applied for a position as an employee or volunteer; (B) who is one of a select number of final candidates for a position as an employee or volunteer; or (C) to whom the employer intends to offer a position as an employee or volunteer. (2) Community center - A community mental health and mental retardation center established under the Texas Health and Safety Code, Title 7, Chapter 534. (3) Conviction - The adjudication of guilt, plea of guilty or nolo contendere, or the assessment of probation or community supervision for a violation of the Penal Code. (4) Department - The Texas Department of Mental Health and Mental Retardation (TDMHMR). (5) Facility - Any state hospital, state school, state-operated community services (SOCS), or state center operated by the department, or the department's Central Office in Austin. (6) IS Coordinator, Criminal History Record Information (CHRI) - The person responsible for receiving criminal history requests and FBI cards, processing them through the appropriate agencies, and forwarding the reports to the requestor. (7) Provider - Any entity or person which contracts with a facility or community center to deliver residential services to individuals with mental illness or mental retardation who have been furloughed or discharged from a facility or community center as described in the Texas Government Code, sec.411.115(b). This does not include private ICF/MR or ICF/MR/RC providers; TDHS is responsible for conducting criminal history clearances for those entities. (8) Professional clinical intern - A person who is enrolled in a formal clinical rotation at a university/college in a professional training program accredited by the appropriate licensing authority or board of examiners, or is engaged in a recognized graduate level, clinical professional degree program. Professional degree programs include, but are not limited to, nursing, pharmacy, physical therapy, occupational therapy, medicine, clinical psychology, social work, and dentistry. (9) Volunteer - An individual who provides time and/or services to persons served at a facility, community center, or provider without compensation from the facility, community center, or provider other than reimbursement for actual expenses. sec.414.504. Pre-employment Criminal History Clearance. (a) A facility, community center, or provider must conduct a pre-employment criminal history clearance of all applicants for employment or volunteer status. (b) Providers that request criminal history record information through a private agency and providers that must otherwise conduct criminal history clearances as required by the Texas Health and Safety Code, Chapter 250, must provide evidence of compliance with the Texas Health and Safety Code, Chapter 250, to the facility or community center with which it contracts. (c) For professional clinical interns, a memorandum of understanding or affiliation agreement (MOA) must exist between the facility or community center and the university/college that specifically states that: (1) responsibility for the care of individuals receiving services is retained by the facility or community center; and (2) the university/college is responsible for conducting a reasonable background check of the intern. To facilitate this check, the university/college may elect to include a provision in the MOA which requires the department to conduct a criminal history clearance. (d) An applicant who has been convicted of any of the criminal offenses listed in subsection (g) of this section may not be employed or assigned volunteer status by the facility, community center, or provider. Each facility, community center, or provider may determine other criminal offenses, not listed in subsection (g) of this section, for which a conviction may be considered a contraindication to employment or volunteer status at that entity. (e) The facility, community center, or provider must inform applicants in writing at the time that application is made: (1) that a pre-employment/volunteer criminal history clearance will be conducted; (2) of the types of criminal offenses for which a conviction would bar employment or volunteer status; and (3) that conviction of other types of criminal offenses may be considered a contraindication to employment or volunteer status at that entity. (f) An applicant may be employed on a temporary or interim basis without a criminal history clearance if an emergency exists in which there is a risk to the health and safety of individuals receiving services as a result of unfilled positions or in which the operations of the organization are severely impaired as determined by the chief executive officer of the facility, community center, or provider. (1) The applicant shall furnish the employer with an affidavit stating that the applicant has not been convicted of any of the criminal offenses listed in subsection (g) of this section or any criminal offense which that employer has determined is a contraindication to employment. The affidavit shall be kept in the applicant's file. A sample affidavit may be obtained by contacting Human Resource Services, TDMHMR, P.O. Box 12668, Austin, Texas 78711-2668. (2) Within 72 hours of the time the person is employed on a temporary or interim basis, the facility, community center, or provider shall request a criminal history clearance of that person as described in sec.414.505 of this title (relating to Requesting a Criminal History Clearance.) (3) If the results of the criminal history clearance reveal a conviction for any of the criminal offenses listed in subsection (g) of this section or for any criminal offense which the employer has determined is a contraindication to employment, the facility, community center, or provider shall dismiss the person as unemployable immediately upon receipt of the criminal history report. (4) An applicant may not receive volunteer placement on a temporary or interim basis pending a criminal history clearance. (g) Consistent with the Texas Health and Safety Code, sec.250.006, convictions of criminal offenses which constitute an absolute bar to employment include: (1) criminal homicide (Penal Code, Chapter 19); (2) kidnapping and false imprisonment (Penal Code, Chapter 20); (3) indecency with a child (Penal Code, sec.21.11); (4) sexual assault (Penal Code, sec.22.011); (5) aggravated assault (Penal Code, sec.22.02); (6) injury to a child, elderly individual, or disabled individual (Penal Code, sec.22.04); (7) abandoning or endangering a child (Penal Code, sec.22.041); (8) aiding suicide (Penal Code, sec.22.08); (9) agreement to abduct from custody (Penal Code, sec.25.031); (10) sale or purchase of a child (Penal Code, sec.25.08); (11) arson (Penal Code, sec.28.02); (12) robbery (Penal Code, sec.29.02); and (13) aggravated robbery (Penal Code, sec.29.03). (h) Consistent with the Texas Government Code, sec.411.115(e), the facility, community center, or provider shall destroy conviction information from the Texas Department of Public Safety (TDPS) or the Federal Bureau of Investigation (FBI), whether obtained through the department or a private agency, after an employment/volunteer decision has been made or personal action has been taken. sec.414.505. Requesting a Criminal History Clearance. (a) Facilities must submit criminal history clearance requests to the IS Coordinator, Criminal History Records Information (CHRI) in the department's Central Office in Austin. Community centers and providers (through the facility or community center with which it contracts) may submit requests to the IS Coordinator, Criminal History Records Information (CHRI) or may choose to contract with a private agency, as permitted by the Texas Health and Safety Code, 250.002(b), to conduct criminal history clearances. (b) The department may charge a fee to community centers and providers (through the facility or community center with which it contracts) which equals the fee that TDPS or the FBI charges the department to conduct a criminal history clearance. (c) The Criminal History Record Information Request Form HR-44 is used to submit requests to the IS Coordinator, CHRI, for criminal history clearances. The request is submitted via confidential electronic mail, confidential fax, or mail. Copies of the HR-44 form may be obtained by contacting TDMHMR, IS Coordinator, Criminal History Records Information, P.O. Box 12668, Austin, Texas 78711-2668. The form may be duplicated. (d) Applicants who have lived outside the State of Texas at any time during the two years preceding the application for employment/volunteer status are cleared through the FBI using a complete set of fingerprints on the official FBI card which may be obtained from Human Resource Services, TDMHMR, P.O. Box 12668, Austin, TX 78711-2668. There is a charge for obtaining this information. sec.414.506. Criminal History Report. (a) The IS Coordinator, Criminal History Records Information (CHRI) will forward criminal history reports immediately to the requesting facility or community center. (b) Facilities, community centers, and providers will have written policies and procedures consistent with this subchapter that describe how information obtained through a criminal history clearance will be processed and later destroyed. The policies and procedures must include: (1) processes that protect the confidentiality of criminal history reports pursuant to the Texas Health and Safety Code, sec.250.007; (2) the notification of an applicant if a conviction is revealed; (3) a mechanism for determining the accuracy of reports to the extent possible and for obtaining complete information; and (4) information on how an applicant can address inaccuracies of a report (i.e., the opportunity to be heard by Texas Department of Public Safety (TDPS), pursuant to Texas Health and Safety Code, sec.250.005(b)) if the applicant believes he/she has been unjustly denied employment or volunteer status as a result of an inaccurate criminal history report. (c) An applicant whose report identifies a conviction of any of the criminal offenses listed in sec.414.504(g) of this title (relating to Pre-employment Criminal History Clearance) or a conviction of any criminal offense which the employer considers to be a contraindication to employment or volunteer status must be notified in writing: (1) of the TDPS or FBI report of the conviction; (2) of the applicant's ineligibility for employment or volunteer status because of the conviction; and (3) how to address inaccuracies of a report (i.e., the opportunity to be heard by Texas Department of Public Safety (TDPS), pursuant to Texas Health and Safety Code, sec.250.005(b)) if the applicant believes he/she has been unjustly denied employment or volunteer status as a result of an inaccurate criminal history report. sec.414.507. Self-Reporting and Subsequent Criminal History Checks. (a) Following employment with or attaining volunteer status at a facility, community center, or provider, all employees and volunteers shall report to a person designated by that facility, community center, or provider any subsequent convictions or offenses for which they are charged. (b) A facility, community center, or provider may conduct criminal history checks on any employee or volunteer at any time it deems appropriate. Requests by a facility for subsequent criminal history checks must be coordinated with the director of human resource services at the department's Central Office prior to submission. (c) Each facility, community center, and provider shall develop written policies and procedures consistent with this subchapter describing how it will respond to information obtained through self-reporting and subsequent criminal history checks. (1) Pursuant to the Texas Health and Safety Code, sec.533.007(i), adverse personnel action may not be taken if the information received pertains to arrest warrants or wanted persons' notices. However, the employee/volunteer may be reassigned to a non-direct care area until dissolution of the matters relating to the arrest warrant or wanted persons' notice. (2) If the information reflects a conviction for an offense: (A) listed in sec.414.504(g) of this title (relating to Pre-employment Criminal History Clearance), then consideration may be given to any contention by the employee/volunteer concerning errors of fact or identity in the report. While the employee/volunteer is attempting to rectify the accuracy of the information, the employee/volunteer shall be removed from direct contact with individuals receiving services. If the employee or volunteer fails to rectify the accuracy of the information, as provided by Texas Health and Safety Code, sec.250.005(b), then the facility. community center, or provider shall immediately dismiss the employee or volunteer. (B) considered to be a contraindication to employment or volunteer status, then consideration may be given to mitigating circumstances. 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 July 13, 1998. TRD-9811022 Charles Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: August 3, 1998 Proposal publication date: April 17, 1998 For further information, please call: (512) 206-4516 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 5.Property and Casualty Insurance SUBCHAPTER E.Texas Catastrophe Property Insurance Association 28 TAC sec.5.4007, sec.5.4008 The Commissioner of Insurance adopts amendments to sec.5.4007, and sec.5.4008, concerning building code specifications in the plan of operation of the Texas Windstorm Insurance Association (Association). The amendments are adopted without change to the proposed text published in the June 5, 1998, issue of the Texas Register (23 TexReg 5932), and the text will not be republished. The Commissioner adopted the amendments in a public hearing on July 6, 1998, Docket Number 2365. Created in 1971 by the Texas Legislature as the Texas Catastrophe Property Insurance Association, the Association is composed of all insurers authorized to transact property insurance in Texas and operates pursuant to Article 21.49 of the Insurance Code. The Texas Legislature in H.B. 1632 (Acts 1997, 75th Leg., ch. 438, sec.1, eff. Sept. 1, 1997) changed the name of the Texas Catastrophe Property Insurance Association to the Texas Windstorm Insurance Association. The purpose of the Association is to provide windstorm and hail insurance coverage to residents in designated catastrophe areas who are unable to obtain such coverage in the voluntary market. Since its inception, the Association has provided this coverage to residents of 14 coastal counties, including Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Jefferson, Kenedy, Kleberg, Matagorda, Nueces, Refugio, San Patricio and Willacy. The Association also provides coverage to certain designated catastrophe areas in Harris County, including (i) effective March 1, 1996, the area located east of a boundary line of State Highway 146 and inside the city limits of the City of Seabrook and the area located east of the boundary line of State Highway 146 and inside the city limits of the City of La Porte (Commissioner's Order Number 95-1200, November 14, 1995); (ii) effective June 1, 1996, the City of Morgan's Point (Commissioner's Order Number 96-0380, April 5, 1996); and (iii) effective April 1, 1997, in areas located east of State Highway 146 and inside the city limits of the City of Shoreacres and the City of Pasadena (Commissioner's Order Number 97-0225, March 11, 1997). The Association's plan of operation specifies in sec.5.4007 applicable building code standards to qualify for coverage from the Association, as required by Article 21.49, sec.6A(f) of the Insurance Code, for structures located in designated catastrophe areas which were constructed, repaired, or to which additions are made prior to the effective date of the new building code standards and specifications; and in sec.5.4008, for structures located in designated catastrophe areas which were constructed, repaired, or to which additions are made on and after the effective date of the new building code standards and specifications. The Building Code for Wind Resistant Construction (Code) is adopted by reference in sec.5.4008(a) pursuant to Commissioner's Order Number 97-0626, (June 30, 1997) with an original effective date of June 1, 1998. The adopted amendments are necessary to delay the effective date of the new building code standards and specifications in the Code from June 1, 1998 to September 1, 1998. The change in the effective date is necessary to allow additional time for building products and materials that meet the windload requirements of the new Code to become available in the designated catastrophe areas subject to the Code. The June 1 effective date was not viable because of the scarcity in these designated catastrophe areas of certain building products, such as shutters, windows, doors, and garage doors, that are necessary to comply with the new Code. Adoption of the September 1 effective date will allow an additional three months for manufacturers to produce the new building products and for building material suppliers to obtain these new products for distribution to home builders. Although under the adopted amendments, the new Code becomes effective September 1, 1998, builders in the designated catastrophe areas subject to the Code are encouraged to use products and methods which comply with the Code in the interim as new products become available. Under sec.5.4007, as amended, the building code standards and specifications in sec.5.4007(a) apply to designated catastrophe areas seaward of the Intracoastal Canal for structures constructed, repaired or to which additions are made prior to September 1, 1998; and the building code standards and specifications in sec.5.4007(b) apply to designated catastrophe areas inland of the Intracoastal Canal for structures constructed, repaired or to which additions are made prior to September 1, 1998. Under sec.5.4008, as amended, the building code standards and specifications contained in sec.5.4008(a) apply to designated catastrophe areas seaward of the Intracoastal Canal for structures constructed, repaired or to which additions are made on and after September 1, 1998; the building code standards and specifications contained in sec.5.4008(b) apply to designated catastrophe areas inland of the Intracoastal Canal and within approximately 25 miles of the Texas coastline and east of the specified boundary line (as specified in sec.5.4008(b)(2)(A)) and certain areas in Harris County for structures constructed, repaired or to which additions are made on and after September 1, 1998; and the building code standards and specifications contained in sec.5.4008(c) apply to designated catastrophe areas inland and west of the specified boundary line (as specified in sec.5.4008(b)(2)(A)) for structures constructed, repaired or to which additions are made on and after September 1, 1998. NAMES OF THOSE COMMENTING FOR AND AGAINST. For: Texas Association of Builders and Unique Style Incorporated. Against: No comments were received opposing the adoption of the amendments. SUMMARY OF COMMENTS AND AGENCY'S RESPONSE. Two commenters support the adoption of the amendments to allow manufacturers additional time to have products approved by the Department and made available along the coast. The amendments are adopted pursuant to the Insurance Code, Articles 21.49 and 1.03A, and in accordance with the Government Code sec.sec.2001.004-2001.038. Article 21.49, sec.6A specifies building code requirements and approval or inspection procedures for windstorm and hail insurance through the Association. Article 21.49, sec.6A(f), Insurance Code, requires the Commissioner to appoint a Building Code Advisory Committee to advise and make recommendations to the Commissioner on building specifications in the Association's plan of operation for structures to be eligible for windstorm and hail insurance through the Association. Article 21.49, sec.5(c) of the Insurance Code provides that the Commissioner of Insurance by rule shall adopt the Association's plan of operation with the advice of the Association's board of directors. Article 21.49, sec.6A(f) and sec.5(c), by their terms, delegate the foregoing authority to the State Board of Insurance. However, under Article 1.02 of the Insurance Code, a reference in the Insurance Code or another insurance law to the State Board of Insurance means the Commissioner of Insurance or the Texas Department of Insurance, as consistent with the respective powers and duties of the Commissioner and the Department under Article 1.02. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations, which must be for general and uniform application, for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. The Government Code sec.sec.2001.004-2001.038 (Administrative Procedure Act) authorize and require each state agency to adopt rules of practice stating the nature and requirements of available formal and informal procedures and prescribe the procedures for adoption of rules by a state agency. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 9, 1998. TRD-9810895 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: September 1, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 463-6327 SUBCHAPTER F.Inland Marine Insurance Division 1. Definition and Classification of Inland Marine Insurance 28 TAC sec.5.5002 The Commissioner of Insurance adopts an amendment to sec.5.5002(5)(Q), relating to inland marine insurance. The amendment is adopted with changes to the proposed text as published in the February 6, 1998, issue of the Texas Register (23 TexReg 913). A public hearing was requested on the amendment as proposed and held April 9, 1998 to receive comments from interested persons. The effective date of the amendment as adopted is January 1, 1999. The amendment is necessary to provide that credit property insurance coverage resulting from an open or closed end consumer credit transaction that is a retail installment transaction under the Texas Finance Code is a class of inland marine insurance for which rules, rates, and forms must be filed with the department for approval. The purpose of the amendment is to effectively regulate credit property insurance rates for Texas consumers. The final adoption includes several clarifying changes to the amendment as published, and changes the requirements for certain consumer disclosures. The final adoption includes a clarifying change to sec.5.5002(5)(Q)(i)(I) that no credit property insurance policy may cover the vendor's, mortgagee's or lessor's interest beyond termination of that interest. The final adoption includes a change to sec.5.5002(5)(Q)(i)(II) which removes the limiting definition of "durable personal property" from the amendment by eliminating published sec.5.5002(5)(Q)(i)(II)(-a-). The final adoption further changes sec.5.5002(5)(Q)(i)(II) as published by moving the provisions of various items to other locations within the amendment or by eliminating them from the amendment as adopted. Published sec.5.5002(5)(Q)(i)(II)(-c-) is resequenced as sec.5.5002(5)(Q)(i)(II) and changed to provide that all policies or certificates must include a clear statement to the insured about the method of payment allocation to all outstanding purchase obligations referenced in the applicable lending documents to determine how the coverage will be applied. Published sec.5.5002(5)(Q)(i)(II)(-b-) is changed and resequenced as sec.5.5002(5)(Q)(i)(III) to provide that premium calculation for credit property insurance coverage involving a closed end consumer transaction may not be based on amounts paid for services, meals, entertainment, finance or service fees, loan interest, delivery charges, or other insurance premiums (e.g., credit life, credit disability, credit property, or credit involuntary unemployment insurance coverage). Published sec.5.5002(5)(Q)(i)(III)(-a-) through (-e-) are relocated and sequenced as adopted sec.5.5002(5)(Q)(i)(IV) and (V). Adopted sec.5.5002(5)(Q)(i)(IV) and (V) set out the specific, prescribed language which must be included in consumer disclosures, rather than merely indicating the essential information which must be included in the written disclosures provided at the time of invitation to contract. Published sec.5.5002(5)(Q)(i)(III) provisions regarding type size are changed in adopted sec.5.5002(5)(Q)(i)(IV) and (V) to require that the prominent written disclosure be provided in no smaller than 10-point boldface type, rather than 12-point boldface type. Adopted sec.5.5002(5)(Q)(i)(IV) prescribes the written disclosure to be provided for coverage extended under closed end consumer transactions. Adopted sec.5.5002(5)(Q)(i)(V) prescribes the written disclosure to be provided for coverage extended under open end consumer transactions. Each disclosure is set out to provide notice that the coverage might be duplicative, that it is primary and therefore the first source to be used in the event of a loss on property it covers, that it may be cancelled at any time by calling the insurer at the toll- free number provided or by writing the insurer, as well as what its cost is. Adopted sec.5.5002(5)(Q)(i)(IV) provides additional notice that the coverage ceases when the debtor has fully paid the debt. Adopted sec.5.5002(5)(Q)(i)(V) provides additional notice that the premium charged for the coverage is based on the entire outstanding balance, but that coverage applies only to tangible personal property purchased on the open end credit account. The adoption changes published sec.5.5002(5)(Q)(i)(IV), resequenced as sec.5.5002(5)(Q)(i)(VI), to provide that policies or certificates extending credit property insurance coverage are to be provided to the insured at the time the coverage is accepted by the insurer, along with written instructions for filing a claim. The change also provides that the instructions shall include the insurer's toll-free telephone number, as well as a list of essential elements to be included by the insured to perfect a claim. The adopted amendment also includes two further changes not in the proposal as published. New sec.5.5002(5)(Q)(i)(VII) and (VIII) are adopted to address additional prescribed and specific notice requirements, respectively, when coverage is extended under open end consumer transactions. Adopted sec.5.5002(5)(Q)(i)(VII) mandates a prescribed disclosure no less frequently than semiannually on the face of the account statement or through a statement insert subject to typeface and type size requirements. Adopted sec.5.5002(5)(Q)(i)(VIII) requires a disclosure each billing cycle indicating the amount of credit property insurance charge separately from any other insurance charge, the amount of debt to which the rate applies, the date the rate was applied, and the period covered by the charge. Further reasoning and justification for revisions to the amendment as adopted are set out in the agency response to comments section. The amendment provides that credit property insurance coverage resulting from consumer credit transactions must comply with all applicable provisions of the subparagraph. The amendment sets out the meaning of an open or closed end consumer credit transaction that is a retail installment transaction. The amendment provides that coverage under credit property insurance policies must include coverage while in transit, may be extended to include the interest of a vendee, mortgagor, or lessee, but may not cover the vendor's, mortgagee's, or lessor's interest beyond the termination of that interest. The amendment provides that policies or certificates must include a clear statement to the insured about the method of payment allocation to all outstanding purchase obligations referenced in the applicable lending documents to determine how the coverage will be applied. The amendment provides that premium calculations for credit property insurance coverage involving closed end consumer transactions may not be based on amounts paid for services, meals, entertainment, finance or service fees, loan interest, delivery charges, or other insurance premiums (e.g., credit life, credit disability, credit property, or credit involuntary unemployment insurance coverage). The amendment provides that an offer to extend coverage for closed end consumer transactions must include a specific prescribed written disclosure setting out five items of information for the prospective insured. The amendment provides that an offer to extend coverage for open end consumer transactions must include a specific prescribed written disclosure which sets out seven items of information for the prospective insured. The amendment provides that at the time the coverage is accepted by the insurer, the policy or certificate extending the coverage must be provided to the insured, along with instructions on filing claims under the coverage. The instructions are to include the toll-free telephone number of the insurer and essential elements for inclusion by the insured in perfecting a claim. The amendment requires that at the time of acceptance by the insurer, the policies or certificates provided to the insured must include the same disclosures that were provided to the insured at the time of invitation to contract. The amendment requires that policies and certificates extending coverage under open end consumer transactions must provide for a semiannual prescribed disclosure on the face of the account statement or through a statement insert which contains four essential items of information for the insured consumer debtor. The amendment provides that policies and certificates extending coverage under open end consumer transactions must provide that the insured will be furnished a statement each billing cycle setting out four essential items of information, including the amount of credit property insurance charge, the amount of debt to which it applies, the date the rate was applied, and the period covered by the monthly charge. The amendment provides that credit property insurance coverage resulting from commercial credit transactions, as set out in clause (ii) of the amendment, continues to be non-regulated. The department received written comments on the amendments as published from five sources. One commenter, though requesting a hearing on the amendments, did not submit specific written comments on the amendments as published. A summary of those comments, comments made at the hearing, and the department response follow: Published sec.5.5002(5)(Q)(i)(II)(-a-) COMMENT: The two comments on published sec.5.5002(5)(Q)(i)(II)(-a-) urged that the definition of "durable personal property" is too restrictive, that any blanket prohibition on sale of open-end credit property insurance for specific noninsurable items effectively eliminates availability of this coverage, and that to insist that wearing apparel and draperies are uninsurable items runs contrary to general insurance practice. The commenters urged that personal property floaters, for example, include clothing, linens, draperies and rugs among unscheduled property items. They also urged that homeowner policies also ordinarily cover clothing and draperies. The commenters stated that if these items are carved out, many consumers electing credit coverage will be left without protection for such items, and retailers will not be able to protect their purchase money security interests in such items. One commenter suggested eliminating the definition of "durable personal property" entirely and addressing coverage of an outstanding balance composed of various property and invariably some non-property items, but consistent with a premium rate discounted to recognize existence of such items in the outstanding account balance. RESPONSE: The department has devoted significant time to considering the merits of these recommendations. After careful consideration, the limiting definition of "durable personal property" has been removed from the adopted amendment. This removal is based on written comments and hearing testimony concerning impracticability of computer systems reprogramming for segregation and tracking of insured and noninsured items by retailers to permit timely compliance by insurers with the published amendment. In making the decision to remove the limiting definition, the department evaluated any continuing benefit that credit property insurance might provide to some consumers against the detriment that might have been occasioned by unavailability of such coverage resulting from retailers' inability to reprogram existing computer systems quickly enough. The department understands that both general retail department stores and the insurance industry might prefer developing a single rate applied to a total periodic outstanding balance, since department store account balances may include charges for both durable and nondurable goods, as well as services and consumables. However, the department also is sensitive to the fact that the general accepted definition of "durable goods" includes only goods that have a class life extending over a period of many years without significant deterioration, like furniture, appliances, electronic goods and fixtures. Moreover, property historically insured under an installment sales floater as defined under the Texas Definition of Inland Marine Insurance has been big ticket items such as furniture and appliances, which generally were sold under closed end installment contracts where the interests of both the retailer and the purchaser were easily determined. Notably, although the adoption includes removal of the limiting definition of "durable personal property," the adopted amendment continues to provide that for coverage extended in a closed end consumer credit transaction the premium charged may not be based on amounts paid for services, meals, entertainment, finance or service fees, loan interest, delivery charges, or other insurance premiums (e.g., credit life, credit disability, credit property, or credit involuntary unemployment insurance coverage). In addition, the elimination of the "durable personal property" definition also is accompanied by enhanced as well as additional consumer disclosure requirements for coverage extended under open end consumer credit transactions. For disclosures made at the time of an offer to extend coverage and at the time of policy-or-certificate delivery, the notice language is prescribed, to assure that consumers electing such coverage have made an informed election for that coverage. The adoption also includes two new required post-issuance disclosures, the language for one of which is prescribed, to be provided periodically to insureds with credit property insurance coverage under open end consumer credit transactions. These disclosures are to assure continued receipt of information by such consumers to assist them in making decisions about whether to continue their credit property insurance coverage. Finally, the department will vigilantly monitor the credit property insurance rate and form filing process and activity under provisions of the adopted amendment, and as necessary will consider further amendment to the rule. Published sec.5.5002(5)(Q)(i)(II)(-b-) COMMENT: One commenter recommended published sec.5.5002(5)(Q)(i)(II)(-b-) be revised to clarify that "other insurance premiums" would include credit property insurance premiums for purposes of exclusion from premium calculations for credit property insurance coverage addressed in the amendment. RESPONSE: Although the final adoption changes the manner and extent of application of the exclusion of "other insurance premiums" from premium calculations, the department agrees that for closed end transactions the recommended revision should be included. For that reason the final adoption includes language in resequenced sec.5.5002(5)(Q)(i)(III) to indicate that "other insurance premiums" include premiums for credit property insurance. Published sec.5.5002(5)(Q)(i)(II)(-c-) COMMENT: The three comments received on published sec.5.5002(5)(Q)(i)(II)(-c-) objected to the requirement that certificates state the payment allocation as set out in the provision, on the bases that the requirement places an inappropriate compliance burden on insurers, that since the matter of allocation is solely within the control of a retail creditor an insurer cannot anticipate every merchant's payment application procedure, and that there is no universally accepted or required payment allocation method for accounts for which coverages of this type may be issued. The commenters urged this matter is outside the scope of regulation. Additional similar comments on this provision were made at the hearing. RESPONSE: Though the department does not necessarily agree with all ideas expressed in comments on this provision, the adoption includes a change to clearly indicate the intent of the provision. The requirement set out in published sec.5.5002(5)(Q)(i)(II)(-c-) is designed to provide clear and necessary information to insureds for purposes of understanding the extent and duration of coverage under credit property insurance policies and certificates. If the insured is not aware of how a payment is applied, the insured cannot know what is or is not covered under the insurance policy at a given time. If consumers pay premium for insurance coverage, they have a right to know what is covered and for what period of time. The published language was selected based on a belief it represented an almost universal standard for payment allocation. It was not intended to require insurers to control payment allocation under such an arrangement. However, to eliminate any confusion and make clear the intent of the provision, the final adoption includes a revision to the published provision, sequenced as sec.5.5002(5)(Q)(i)(II), stating that policies or certificates must include a clear statement to the insured about the method of payment allocation to all outstanding purchase obligations referenced in the applicable lending documents to determine how the coverage will be applied. This will help insureds understand the limits of coverage under policies and certificates of credit property insurance. COMMENT: One commenter suggested placing a new nonsubstantive provision to be captioned sec.5.5002(5)(Q)(i)(II)(-c-) into the proposal, and to resequence published sec.5.5002(5)(Q)(i)(II)(-c-) as (-d-), for the purpose of providing that premium calculations for coverage addressed in this clause are to be based on the lower of purchase price or original debt amount. RESPONSE: Although the suggested revision was in the department's first published proposal, later withdrawn, the department considers such a revision to this adoption unnecessary, primarily because of other revisions made to the amendment in connection with adoption. The department therefore declines to make the recommended revision. Published sec.5.5002(5)(Q)(i)(III) COMMENT: Three commenters objected to the five separate items to be disclosed in 12-point bold face type at the time of invitation to contract. One said it is an onerous requirement, may match the size of the credit application itself, and will make the offer of open-end credit insurance coverage impractical. Another suggested it is unnecessary to make the same disclosures both before and after the sale. The third suggested, in addition to the notice being possibly oversized for the application, that a substantially similar notice be provided at the time a policy is provided to an insured with a 30-day free look provision. Other commenters at the hearing also suggested reduction or elimination of pre-sale disclosure and urged instead that post-sale disclosure including a 30-day free look notice is sufficient. RESPONSE: The department agrees in part and disagrees in part with these comments. The department agrees that, for purposes of space utilization, requiring disclosures to be in no smaller than 10-point boldface type at the time of invitation to contract and at the time the policy or certificate is provided to the insured is more reasonable than requiring 12-point type. The department disagrees with the remainder of the comments, and the final adoption retains the requirement for both pre-issuance and post-issuance consumer disclosures in both closed end and open end consumer credit transactions. The department strongly believes the time for a consumer disclosure is before the purchase, not after. One of the most important disclosure elements in the amendment is to advise the consumer that the insurance offered might duplicate coverage provided under a homeowners policy. If the consumer has a homeowners policy, the solicitation process can stop at that point. It is inappropriate to wait and disclose this information after a policy has been issued and then require the consumer to cancel the policy within the first 30 days. In fact, a 30-day free look provision is itself potentially confusing to consumers. Some might not realize that the 30-day free look is just that, and that they can in fact cancel the coverage at any time, but that after 30 days they simply won't receive a full refund of premium. Since the purpose of the required disclosures is to assure that consumers electing credit property insurance coverage have made an informed election for that coverage, the department considers that both the notice and manner of presentation are necessary and reasonably required both at the time of invitation to contract and at the time the policy or certificate is provided to the insured. The adoption therefore retains the requirement for consumer disclosure to be made at both points in time. Moreover, and partially in response to comments made about space requirements for the consumer disclosures, the adoption changes published provisions by setting out prescribed actual notice language for the required consumer disclosures addressed in the published proposal. The prescribed notice language was drafted to be as plain, concise and brief as possible to minimize space requirements for insurers, while simultaneously facilitating consumer comprehension of the notices. In addition, the adoption includes two new mandatory post-issuance disclosures, the language for one of which is prescribed, to be provided periodically to insureds with credit property insurance coverage under open end consumer credit transactions. These disclosures are to assure continued receipt of information by such consumers to assist them in making decisions about whether to continue their credit property insurance coverage. Published sec.5.5002(5)(Q)(i)(IV) COMMENT: Three commenters objected to provision of claim forms at the time coverage is issued, on the bases that: (1) claim forms for other lines of insurance typically are not required or provided to insureds at issuance; (2) since only a certain percentage of insureds will file claims, issuing claim forms with certificates results in unnecessary printing and handling costs; (3) giving claim forms at issuance is not beneficial because insureds may discard or misplace them prior to a claim arising; (4) providing claim forms at the retail location may confuse insureds, and slow claim response/processing; and (5) claim forms change over time, so it makes more sense to provide them at the time a claim has arisen. In addition, two of the three commenters recommended credit property insurers prominently display a claim contact address and claim form toll-free number on the certificate. RESPONSE: The department agrees that providing actual copies of claim forms is unnecessary at the time the policy is issued. The department also believes, however, that in addition to providing a toll-free telephone number, claim filing instructions provided at the time the certificate is delivered should include information setting out essential elements an insured must include to perfect a claim under the policy. For this reason, the adoption changes published sec.5.5002(5)(Q)(i)(IV) to sec.5.5002(5)(Q)(i)(VI), and deletes the requirement to provide claim forms at issuance, but includes a requirement to provide instructions on filing claims which contain the insurer's toll-free telephone number and a list of essential elements for inclusion by the insured to perfect a claim. COMMENT: A commenter suggested clarification that the policies or certificates addressed in this clause are to be provided at the time the coverage is accepted "by the insurer." RESPONSE: The department agrees that inserting the words "by the insurer" after "accepted" provides necessary clarification, since the provision is intended to address the time at which the policy is issued by the insurer, and the final adoption includes the recommended revision in sec.5.5002(5)(Q)(i)(VI). EFFECTIVE DATE COMMENT: Two commenters suggested in writing that a specific effective date be set out to permit a compliance window. One proposed May 15, 1998. The other suggested 90 -- 120 days from the date the notice of final adoption is published in the Texas Register. At the hearing, some commenters also recommended an "earliest possible" effective date, suggesting alternatively that the effective date of the amendments be June 1, 1998 or July 1, 1998. Others indicated that compliance with coverage and premium rate calculation restrictions -- and the corresponding necessary segregation of insurable items from noninsurable items in open end transactions over the term of coverage -- would require substantial computer programming and considerably more time than that recommended by the staff. Such comments suggested a phased-in effective date with a fully effective rule mid-year 2000. RESPONSE: The department agrees that the amendment should set out an effective date to permit credit property insurers appropriate time to comply with the rate and form filing provisions of the rule amendment. After careful consideration, the department has determined the amendment shall be effective January 1, 1999. The effective date is based on amended compliance requirements resulting from changes made to the amendment in response to comments received by the department during and after the publication period. The effective date recognizes that substantial computer programming to segregate insurable items from noninsurable items in open end consumer credit transactions is no longer necessary, and that those time requirements have been eliminated by revisions to the adopted amendment. Comments generally in favor of the amendments as published were received from the Center for Economic Justice and Zale Indemnity Company. Comments generally against the amendments were received from American Bankers Insurance Company, Wesco Insurance Company, and American National Insurance Company. The Consumer Credit Insurance Association (CCIA) and Center for Economic Justice requested a hearing on the amendments. The Office of Public Insurance Counsel and Consumers' Union expressed support for the rule at the hearing. The CCIA presented oral comments at the hearing, generally in favor of regulating credit property insurance, but generally against the amendments as proposed and published. The amendment to sec.5.5002(5)(Q) is adopted proposed pursuant to the Insurance Code, Articles 5.53 and 1.03A. Article 5.53 authorizes the commissioner to adopt a definition and classes of inland marine insurance. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance as authorized by statute. sec.5.5002.Texas Definition of Inland Marine Insurance. Inland marine insurance is defined and classified as follows. (1) -- (4) (No change.) (5) Other inland marine risks. (A) -- (P) (No change.) (Q) Inland marine insurance classes of coverage, commonly referred to as consumer credit property insurance and commercial credit property insurance, set out in clauses (i) and (ii), respectively, as follows: (i) Coverage resulting from an open or closed end consumer credit transaction that is a retail installment transaction (filed). For purposes of this subparagraph, "retail installment transaction" has the meaning assigned in the Finance Code, sec.345.001. The credit property insurance addressed in this clause must comply with provisions in subclauses (I) through (VIII) of this clause. (I) Policies offering coverage addressed in this clause must include coverage while in transit and may be extended to include the interest of a vendee, mortgagor, or lessee, but in no event shall the policy cover the vendor's, mortgagee's, or lessor's interest beyond the termination of that interest. (II) All policies or certificates issued under this clause shall include a clear statement to the insured about the method of payment allocation to all outstanding purchase obligations by reference to the applicable lending documents to determine how the coverage will be applied. (III) Premium calculations for coverage addressed in this clause involving a closed end consumer transaction may not be based on amounts paid for services, meals, entertainment, finance or service fees, loan interest, delivery charges, or other insurance premiums (e.g., credit life, credit disability, credit property, or credit involuntary unemployment insurance coverage). (IV) An offer to extend coverage for a closed end consumer transaction addressed in this clause shall include, at the time of the invitation to contract, the following prominent written disclosure in no smaller than 10-point boldface type: "This coverage might duplicate existing coverage if you have a residential property insurance policy. This coverage ceases when you have fully paid the debt. This coverage is primary, so it is the first source to be used in the event of a loss on property it covers. You may cancel this coverage at any time by calling the insurer at the toll-free telephone number provided to you, or by writing to the insurer. This coverage costs (set out the total identifiable credit property insurance charge)." (V) An offer to extend coverage for an open end consumer transaction addressed in this clause shall include, at the time of the invitation to contract, the following prominent written disclosure in no smaller than 10-point boldface type: "This coverage might duplicate existing coverage if you have a residential property insurance policy. It applies to any item of covered property on which you owe a debt. This coverage is primary, so it is the first source to be used in the event of a loss on property it covers. You may cancel this coverage at any time by calling the insurer at the toll-free telephone number provided to you, or by writing to the insurer. This coverage costs $(enter amount) per $100 of outstanding balance on your account. The premium charged for this coverage is based on your entire outstanding balance, but the coverage only applies to tangible personal property purchased on an open-end credit account. Services, meals or other consumables, entertainment, finance or service fees, loan interest, delivery charges, or other insurance premiums, which may be part of your outstanding balance, are not covered." (VI) Policies or certificates extending the coverage addressed in this clause shall be provided to the insured at the time coverage is accepted by the insurer, along with written instructions on filing claims under the coverage. The instructions shall include the insurer's toll-free telephone number, as well as a list of essential elements for inclusion by the insured to perfect a claim. All such policies or certificates provided to insureds shall include the disclosure set out in subclause (IV) of this clause, or subclause (V) of this clause, as applicable, subject to the same type face and size requirements. (VII) Policies and certificates of insurance issued to cover open end consumer transactions shall provide that the policyholder or certificate holder will be furnished the following disclosure notice on the face of the account statement or through a statement insert not less than semi-annually in no smaller than 6- point boldface type if on the face of that statement or in no smaller than 10- point boldface type if on a statement insert: "If you are paying a credit property insurance premium, that premium is based on the entire outstanding balance of this account. You may cancel this coverage at any time by calling the insurer at the toll-free telephone number it has provided to you, or by writing to the insurer. Any premium charged for credit property insurance coverage is based on your entire outstanding balance, but the coverage only applies to tangible personal property purchased on an open-end credit account. Services, meals or other consumables, entertainment, finance or service fees, loan interest, delivery charges, or other insurance premiums, which may be part of your outstanding balance, are not covered." (VIII) Policies and certificates of insurance offering coverage for an open end consumer transaction shall provide that the policyholder or certificate holder will be furnished a statement each billing cycle, but not less frequently than quarterly, which indicates: (-a-) the amount of the credit property insurance charge, shown separately from any total insurance charge; (-b-) the amount of the insured's indebtedness to which the insurance charge rate was applied; (-c-) the date the rate was applied; and (-d-) the period covered by such monthly charge. (ii) Coverage resulting from commercial credit transactions involving installment sales, leased property, and deferred payment contracts (non- regulated). For purposes of this subparagraph, a commercial credit transaction is one which does not fall within the meaning of an open or closed end consumer credit transaction that is a retail installment transaction under clause (i) of this subparagraph. The credit property insurance coverage addressed in this clause covers the interest of a vendor or mortgagee in property sold in a commercial transaction under an installment sales contract, or a partial or deferred payment contract; and the interest of a lessor in property leased. Credit property insurance policies subject to this clause must include coverage while in transit and may be extended to include the interest of the vendee, mortgagor, or lessee, but in no event shall the policy cover beyond termination of the vendor's, mortgagee's, or lessor's interest. (R) -- (OO) (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 July 9, 1998. TRD-9810643 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: January 1, 1999 Proposal publication date: February 6, 1998 For further information, please call: (512) 463-6327 SUBCHAPTER N.Residential Property Insurance Market Assistance Program 28 TAC sec.sec.5.10001, 5.10003, 5.10004, 5.10007-5.10009, 5.10011 The Commissioner of Insurance adopts amendments to sec.sec.5.10001, 5.10003, 5.10004, 5.10007-5.10009, and 5.10011, concerning the plan of operation of the Residential Property Insurance Market Assistance Program (MAP), pursuant to the Insurance Code, Article 21.49-12. The amendments are adopted without changes to the text published in the May 1, 1998 issue of the Texas Register (23 TexReg 4196) and will not be republished. Article 21.49-12 was enacted by the Texas Legislature in 1995 (Acts 1995, 74th Legislature, p. 3008, ch. 415, sec.5, eff. August 28, 1995) to require the Commissioner to establish a voluntary market assistance program to assist consumers in obtaining residential property insurance coverage, defined in Article 21.49-12, sec.1(a) as homeowners, residential fire and allied lines, and farm and ranch owners coverage, in underserved areas that are determined and designated by the Commissioner under separate rule (28 TAC sec.5.3700). The purpose of the MAP is to provide a fair, efficient, and economical voluntary mechanism to assist Texas consumers in obtaining residential property insurance in designated underserved areas of the state, including rural areas. The adopted amendments are necessary to update the plan of operation to provide for the processing of MAP applications by Department staff in lieu of the contracting entity; and to incorporate changes because farm and ranch owners and farm and ranch insurance are now regulated as commercial property insurance pursuant to Article 5.13-2 of the Insurance Code. These amendments are recommended for adoption by the MAP Executive Committee pursuant to Article 21.49-12, sec.2(a) of the Insurance Code and sec.5.10012 of the plan of operation (also sec.5.10012 of this title). The following adopted amendments to sec.sec.5.10001, 5.10003, and 5.10007- 5.10009, and 5.10011 concern the processing of MAP applications by Department staff in lieu of the Department's contracting entity. The adopted amendment to sec.5.10001 deletes the reference to the Department's contracting entity because it is no longer necessary for the plan of operation to address the role and responsibilities of the Department's contracting entity. Section 5.10003 deletes the definition for "contracting entity" and adds number designations for the defined terms in accordance with recently adopted Texas Register form and style rules. Section 5.10007 is amended to delete reference to the contracting entity's electronic bulletin board and to provide that an insurer may use any criteria from the MAP application in selecting applications for review. Section 5.10008 is amended to delete the reference to the contracting entity's electronic database and to provide that within five working days after the issuance date of the insurance policy issued through the MAP, the insurer shall notify the Department by mail or facsimile transmission, that the insurance policy was issued. Section 5.10009 is amended to provide that the Department's MAP Division, in lieu of the contracting entity, shall perform the application review and referral as specified in subsection (b) and subsection (c). The section is also amended to revise the application review and referral process since a contracting entity will no longer be involved in the processing of MAP applications. Subsection (d) of sec.5.10009 is amended to delete reference to the contracting entity's electronic bulletin board and database, to provide that an insurer may select MAP applications for review based on criteria contained in the application, and to provide for notification to the Department's MAP Division of the insurer's determination of whether to issue a premium quote and issuance of a premium quote. An amendment is also adopted to subsection (d)(5) to provide that a MAP application shall be considered inactive upon acceptance of a quote by the applicant. Amendments are adopted to subsection (f) to delete the application of confidentiality requirements to the contracting entity and to provide instead that copies of the application may be forwarded directly to prospective insurers for the sole purpose of selecting risks for review for the purpose of writing residential property insurance. Section 5.10011 is amended to delete reference to the contracting entity's electronic bulletin board and to provide instead that an application shall not be counted for purposes of the Commissioner's consideration in determining to hold a hearing to consider implementation of mandatory participation by insurers in the MAP unless the application has been either active for 90 days or a policy has been issued, whichever occurs first. A parallel amendment is adopted to sec.5.10011(c)(3)(B) concerning the Executive Committee's determination of the need to recommend implementation of mandatory MAP. The remaining adopted amendments are related to the regulation of farm and ranch owners and farm and ranch insurance as commercial property insurance. The Legislature enacted S.B. 1499 (Acts 1997, 75th Leg., p. 5030, ch. 1330, sec.1, eff. Sept. 1, 1997) to provide that effective January 1, 1998, farm and ranch and farm and ranch owners insurance are no longer regulated as personal lines coverage pursuant to Articles 5.35 and 5.101 of the Insurance Code, but rather are to be regulated as commercial property insurance under Article 5.13-2 of the Insurance Code. This legislative enactment necessitates the following adopted changes to sec.5.10004 of the MAP plan of operation. New subparagraphs (C) and (D) have been added to subsections (b)(1) and (b)(2) to include a farm and ranch owners policy form and endorsements filed by an individual insurer pursuant to Article 5.13-2 of the Insurance Code and approved by the Commissioner as forms that may be used in Class 1 and Class 2 designated underserved areas respectively, in writing coverage through the MAP. The remaining subparagraphs have also been redesignated. Amendments are adopted to subsection (c) to provide that the form rules governing the writing of farm and ranch policies and farm and ranch owners policies in the MAP shall be the rules filed by individual insurers and approved by the Commissioner pursuant to Article 5.13-2 of the Insurance Code. Subsection (d) is amended to provide that the types of coverage that may be provided in Class 1 and Class 2 designated underserved areas include any other coverage available under policy forms and endorsements filed by an individual insurer pursuant to Article 5.13-2 for the purpose of providing farm and ranch or farm and ranch owners coverage and approved by the Commissioner. SUMMARY OF COMMENTS AND AGENCY'S RESPONSE TO COMMENTS. One commenter supports the revisions which designates the Texas Department of Insurance as the entity that will review and process MAP applications and incorporates commercial farm and ranch owners policies into the plan. NAMES OF THOSE COMMENTING FOR AND AGAINST. For: Office of Public Insurance Counsel. The amendments are adopted pursuant to the Insurance Code, Articles 21.49-12 and 1.03A. Article 21.49-12 sec.1(a) requires the Commissioner to establish a voluntary market assistance program to assist Texas consumers in obtaining residential property insurance coverage in underserved areas, which shall be determined and designated by the Commissioner by rule (28 TAC sec.5.3700) using the standards specified in Article 5.35-3, sec.1 of the Insurance Code. Article 21.49-12 sec.2(a) provides that the MAP Executive Committee may submit suitable amendments to the plan of operation to the Commissioner for adoption by rule after notice and hearing. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations, which must be for general and uniform application, for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 9, 1998. TRD-9810896 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: August 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 463-6327 28 TAC sec.5.10016 The Commissioner of Insurance adopts amendments to sec.5.10016, concerning the application form (Form TMAP-10, Texas MAP Application) to be used in the Residential Property Insurance Market Assistance Program (MAP) pursuant to the Insurance Code Article 21.49-12. The amendments are adopted with changes to the text published in the May 1, 1998, issue of the Texas Register (23 TexReg 4202). Article 21.49-12 was enacted by the Texas Legislature in 1995 (Acts 1995, 74th Leg. p. 3008, ch. 415, sec.5, eff. Aug. 28, 1995) to require the Commissioner to establish a voluntary market assistance program to assist consumers in obtaining residential property insurance coverage, defined in Article 21.49-12, sec.1(a) as homeowners, residential fire and allied lines, and farm and ranch owners coverage, in underserved areas that are determined and designated by the Commissioner under separate rule (28 TAC sec.5.3700). The purpose of the MAP is to provide a fair, efficient, and economical voluntary mechanism to assist Texas consumers in obtaining residential property insurance in designated underserved areas of the state, including rural areas. Form TMAP-10, which is adopted by reference in sec.5.10016, is used in applying for homeowners, dwelling, farm and ranch owners, and farm and ranch coverage. The amendments to Form TMAP-10 (Texas MAP Application) are necessary to amend the applicant's authorization because a contracting entity is no longer processing the MAP applications and to update the form to add an entry blank for indicating the Public Protection Classification for the risk to be insured. These amendments are recommended for adoption by the MAP Executive Committee pursuant to Article 21.49-12, sec.2(a) of the Insurance Code and sec.5.10012 of the plan of operation (also sec.5.10012 of this title, relating to Amendments to the MAP Plan of Operation). Article 21.49-12, sec.2(b) of the Insurance Code requires the use of applications for assistance to apply for coverage through the MAP. Form TMAP-10 is amended to delete the reference to forwarding of the application form and other pertinent documents to the Department's contracting entity because MAP applications are now being processed by the Department in lieu of the contracting entity. Under the adopted new procedures (see adopted 28 TAC sec.5.10009 also published in this issue), the Department's MAP Division will forward copies of the completed application form directly to insurers. The applicant's authorization on the application form continues, however, to be necessary because of the confidentiality requirements in Article 21.49-12, sec.5, which provide that the Department shall maintain as confidential all application files and related documents received under Article 21.49-12, except to certain specified persons and entities, including the originating and issuing agents, the applicant for their own file, or an insurer that agrees to insure the applicant. The Commissioner under Commissioner's Order No. 96-1377 (November 25, 1996) repealed the existing Texas Key Rate Schedule used for grading public fire protection of cities and towns in Texas and replaced that schedule with a new Fire Suppression Rating Schedule to be used for determining and grading public fire protection of cities, towns, and districts in Texas. The use of the Fire Suppression Rating Schedule to grade public fire protection results in the establishment of Public Protection Classifications (PPCs) for cities, towns and districts to reflect the appropriate classification of the public fire protection afforded in the specific city, town or district. On August 21, 1997, the Commissioner adopted in Commissioner's Order No. 97-0840 the new residential benchmark rates which incorporated the use of the new Fire Suppression Rating Schedule and Public Protection Classifications as part of the new rating system for homeowners and dwelling insurance. The effective date of the new rating schedule and the recently adopted residential property benchmark rates was February 1, 1998. Pursuant to Article 21.49-12, sec.2(b)(3), each insurer that writes a policy through the MAP has the right to individually evaluate the risk and apply the rates in accordance with the provisions of the Insurance Code applicable to each insurer. Insurers that write homeowners and dwelling insurance policies through the MAP must use the PPCs adopted by the Commissioner unless an insurer files a different classification system that is approved by the Commissioner pursuant to Article 5.101, sec.3(k)-(m) of the Insurance Code. The Legislature enacted S.B. 1499 (Acts 1997, 75th Leg., p. 5030, ch. 1330, sec.1, eff. Sept. 1, 1997) to provide that effective January 1, 1998, farm and ranch and farm and ranch owners lines of insurance are no longer regulated as personal lines coverage pursuant to Articles 5.35 and 5.101 of the Insurance Code, but rather are to be regulated as commercial property insurance under Article 5.13-2 of the Insurance Code. Therefore, an insurer that writes farm and ranch owners and farm and ranch insurance policies in Texas must file applicable rates and rating plans pursuant to Article 5.13-2, sec.5 of the Insurance Code. The rates and rating plans must include a rating schedule to recognize the grading of public fire protection. Insurers that write farm and ranch owners and farm and ranch insurance policies through the MAP may use the PPCs approved by the Commissioner for use with commercial risks or use the individual insurer's own classification system filed pursuant to Article 5.13-2, sec.5 and which is not disapproved pursuant to Article 5.13-2, sec.7. The Commissioner amends Form TMAP-10, Texas MAP Application, to update the form to implement the use of the Public Protection Classifications to add an entry blank for indicating the PPC for the risk to be insured. Because of the capping of premiums for homeowners and dwelling insurance for the first two years (pursuant to Commissioner's Order No. 97-0840, effective February 1, 1998) and farm and ranch owners and farm and ranch insurance (insurers may file to use the existing or advisory form and ranch loss costs which include a capping of premiums for the first two years), it is necessary to continue to provide an entry blank on the MAP application form for indicating the key rate as well as the PPC. SUMMARY OF COMMENTS AND AGENCY'S RESPONSE TO COMMENTS. One commenter supports the amendments which adds recently approved Public Protection Classifications to the form. NAMES OF THOSE COMMENTING FOR AND AGAINST. For: Office of Public Insurance Counsel. The amendments are adopted pursuant to the Insurance Code, Articles 21.49-12 and 1.03A. Article 21.49-12, sec.1(a) provides that residential property insurance shall be provided through the MAP under a homeowners policy, a residential fire and allied lines policy, and a farm and ranch policy. Article 21.49-12, sec.2(b)(1)-(2) requires the use of applications for assistance to apply for coverage through the MAP. Article 21.49-12, sec.2(b)(2) requires that each MAP application must be accompanied by a copy of a current nonrenewal or cancellation notice and a current declination letter from at least one other insurer writing the coverage sought and that applicants not having previous residential property insurance coverage must provide copies of current declination letters from at least two unaffiliated insurers writing the coverage sought. Article 21.49-12, sec.8 authorizes the Commissioner to adopt rules in addition to the plan of operation that are appropriate to accomplish the purposes of Article 21.49-12. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations, which must be for general and uniform application, for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. sec.5.10016.Forms Promulgated for Use in the Residential Property Insurance Market Assistance Program. The Commissioner of Insurance adopts by reference the forms specified in this section for use in the Residential Property Insurance Market Assistance Program, which is operated pursuant to Article 21.49-12 of the Insurance Code. Specimen copies of these forms are available from the Texas Department of Insurance, MAP Division, MC #104-MA, 333 Guadalupe Street, P. O. Box 149104, Austin, Texas 78714-9104. These forms are: (1) Form TMAP-10--Texas MAP Application. As Amended Effective August 1, 1998. (2) (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 July 9, 1998. TRD-9810897 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: August 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 463-6327 CHAPTER 21.Trade Practices SUBCHAPTER O.Notice of Availability of Coverage Under the Texas Health Insurance Risk Pool 28 TAC sec.sec.21.2301-21.2306 The Commissioner of Insurance adopts new subchapter O, sec.sec.21.2301-21.2306, concerning a notice of the availability of coverage through the Texas Health Insurance Risk Pool (Health Pool). Sections 21.2304 - 21.2306 are adopted with changes to the proposed text as published in the May 22, 1998, issue of the Texas Register (23 TexReg 5328). Sections 21.2301 -21.2303 are adopted without changes and will not be republished. House Bill 710, enacted by Acts 1997, 75th Legislature, codified at Texas Insurance Code Article 3.77, effective July 1, 1997, amended the existing Texas Health Insurance Risk Pool statute to enable the Health Pool to commence operation. The establishment of the Health Pool brings Texas into compliance with the federal Health Insurance Portability and Accountability Act of 1996 (sometimes referred to as "HIPAA") and federal regulations. The Health Pool will also increase access to health coverage, enhance health coverage portability, and reduce family impoverishment among medically uninsurable Texans without diminishing the availability of traditional health coverage. House Bill 710 also authorizes the commissioner of insurance to establish rules as are necessary and proper to implement the Health Pool. The enrollment of eligible persons is essential to the successful implementation of the Health Pool. This new subchapter, which requires health carriers that provide individual health coverage in this state to provide a notice in certain instances, is thus necessary to facilitate public awareness of and subsequent enrollment in the Health Pool. The required notice is an efficient method of raising general public conciousness of the Health Pool as well as providing information directly to persons likely eligible for Health Pool coverage. The notice is also an economical alternative to advertising, the cost of which would require additional assessments against participating health carriers. This subchapter also specifies the requirements for the distribution and content of the notice and provides a model notice that health carriers can utilize to notify persons that they may be eligible for coverage under the Health Pool. After receiving public comments on the proposal, the department has made the following changes to the subchapter. Based on comments, the department changed language in sec.21.2304(b)(3)(C) to make it consistent with language in sec.21.2304(b)(3)(B). Based on comments, the department changed language in sec.21.2305(b) to clarify the standard for proving eligibility for coverage under the Health Pool. Based on comments, the department deleted superflous language from sec.21.2305(b). The department changed language in sec.21.2306 so that application of the new subchapter will coincide more closely with its effective date. Section 21.2301 states that the purpose of these rules is to facilitate public awareness of and enrollment in the Health Pool. Section 21.2302 defines terms used in the subchapter. Section 21.2303 sets forth procedures for delivering the notice and delineates to whom the notice must be sent. Section 21.2304 refers to a notice developed by the department that health carriers may use and sets forth criteria for the notice if a health carrier chooses to develop and utilize a notice other than the notice developed by the department. Section 21.2305 contains the promulgated Notice of Availability of Coverage Under the Texas Health Insurance Risk Pool. Section 21.2306 states that the subchapter applies to any application for health coverage received, processed or acted upon by a health carrier on or after August 1, 1998. SUMMARY OF COMMENTS AND AGENCY'S RESPONSE TO COMMENTS. sec.21.2304(b)(3)(C). Comment: A commenter suggested replacing the phrase "a statement offering" with the phrase "the offer of" as this language is consistent with the language of sec.21.2304(b)(3)(B). Response: The agency agrees and has made the suggested change. sec.21.2305(b) Comment: A commenter suggested replacing the word "evidence" with the word "documentation" in the second paragraph of the notice form. Response: The agency agrees and has made the suggested change. Comment: A commenter suggested deleting the phrase "a statement containing" from the third bullet point of the notice, as a rate quote may or may not be contained in another statement. Response: The agency agrees and has made the suggested change. NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS. For with changes: The Texas Health Insurance Risk Pool. The new subchapter is adopted under the Insurance Code, Articles 3.77 and 1.03A. Article 3.77, sec.8 gives the commissioner authority to adopt rules as necessary and proper to implement Article 3.77. Article 1.03A provides that the commissioner of insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance as authorized by statute. sec.21.2304.Notice. (a) The health carrier may use the Form Health Pool Notice provided at Figure 1 in sec.21.2305 of this title (relating to Form). (b) In lieu of the notice outlined in subsection (a) of this section, a health carrier may opt to provide a notice that contains substantially similar language to the language contained in Figure 1 in sec.21.2305 of this title (relating to Form). The substantially similar language shall be in a readable and understandable format and shall include a clear, complete and accurate description of the items set out in paragraphs (1) - (5) of this subsection in the following order: (1) a heading in bold print and all capital letters indicating the information in the notice relates to availability of coverage under the Health Pool; (2) a statement in bold print that the notice is being provided to advise the individual that he/she may be eligible for coverage from the Health Pool; (3) a listing of the reasons an individual may be eligible for coverage under the Health Pool including: (A) two refusals or rejections for health coverage from health carriers, (B) the offer of health coverage with a rider that excludes certain health conditions of the individual (and an example of such rider similar to the following: For example, a health carrier will provide coverage to the individual with an exclusion of the individual's diabetes, heart disease, cancer, etc.); (C) the offer of health coverage with rates that exceed the rates of the Health Pool; (D) the individual has been diagnosed with one of the medical conditions specified by the Health Pool Board of Directors that qualifies him/her for Health Pool coverage; or (E) the individual has maintained health coverage for the previous 18 months with no gap in coverage greater than 63 days, the most recent health coverage was with an employer-sponsored plan, government plan or church plan. (4) a statement that the individual should contact the Health Pool for additional information regarding eligibility, coverages, cost, limitations, exclusions and termination provisions; (5) in bold print the full name, address and telephone numbers of the Health Pool as shown in sec.21.2305(b) and as subsequently updated. (c) The notice shall be in no less than 10 point type. sec.21.2305.Form. (a) Form Health Pool Notice is included in subsection (b) of this section in its entirety and has been filed with the Office of the Secretary of State. The address and phone numbers are variable to encompass any future changes. The form can be obtained from the Texas Department of Insurance, Life/Health Group, MC 106-1A, P.O. Box 149104, Austin, Texas 78714-9014. (b) Form Health Pool Notice: Figure: 28 TAC sec.21.2305(b) sec.21.2306.Compliance and Effective Date. The requirements of this subchapter apply to any application for health coverage received, processed or acted upon by a health carrier on or after August 1, 1998. If before the effective date of these rules, a health carrier has provided notice to eligible individuals that contains information substantially similar to that required by the notice described in this subchapter, such notice shall be deemed to comply with the requirements of this subchapter. 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 July 10, 1998. TRD-9810951 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: July 30, 1998 Proposal publication date: May 22, 1998 For further information, please call: (512) 463-6327 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 9.Property Tax Administration SUBCHAPTER H.Tax Record Department 34 TAC sec.9.3004 The Comptroller of Public Accounts adopts an amendment to sec.9.3004, concerning the appraisal records of all property, without changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (23 TexReg 5947). This rule is being amended to provide for the addition of the transfer of school tax limitation for over-65 persons from House Bill 4, 75th Legislature, 1997, effective January 1, 1998. The amendment also adds the limitation on the appraised value of residence homesteads and deferral collection eligibility from Senate Bill 841, 75th Legislature, 1997, effective January 1, 1998. We received one comment from a chief appraiser. He did not have any objections to the amendments to the rule, but did not agree with the fiscal note that stated this rule had no significant impact on local governments. Fiscal implications for local governments were evaluated in the fiscal note that accompanied the statutory provisions, and were considered at that time. The fiscal note for this rule action evaluated costs that were not covered by the statute. This amendment is adopted under the Tax Code, sec.5.07, which requires the comptroller to prescribe the contents and form for the administration of the property tax system. The amendment implements the Tax Code, sec.sec.6.13, 11.26, 23.12, 23.23, 25.02, and 33.065. 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 July 10, 1998. TRD-9810950 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: July 30, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 463-3699 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART III. Texas Youth Commission CHAPTER 81.Interaction with the Public 37 TAC sec.81.53 The Texas Youth Commission (TYC) adopts an amendment to sec.81.53, concerning research projects, with changes to the proposed text as published in the March 20, 1998, issue of the Texas Register (23 TexReg 2985). The changes consist of a correction in wording. The justification for amending the section is more efficient use of state resources. The amendment will change the name of the research and planning department to the research department to reflect an organizational change. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to adopt policies and make rules appropriate to the proper accomplishment of its functions. The adopted rule implements the Human Resource Code, sec.61.034. sec.81.53.Research Projects. (a) Purpose. The purpose of this rule is to allow for research related to juvenile delinquency and to ensure confidentiality by establishing procedures which comply with state and federal guidelines and accepted professional and scientific ethics. (b) Restrictions. (1) The agency will encourage research. (2) The agency will use research results to aid decision making regarding agency operations and for youth treatment programs. (3) The agency will collaborate with other agencies whenever possible and share research information as appropriate. (4) Any patentable product, process, or idea that might result from a research project funded by the Texas Youth Commission shall be the property of the Texas Youth Commission. (c) Youth Participation. Participation by TYC youth as research subjects shall be restricted as follows: (1) TYC youth will not be used in experimental projects involving medical, pharmaceutical, or cosmetic research. (2) TYC youth may participate in nonmedical, nonpharmaceutical or noncosmetic research on a voluntary, noncoercive basis. (3) TYC youth who elect to participate in research projects will not be denied basic services available to other youth, nor participate in research activities which may accrue negative personal results. (d) Researchers. TYC staff, university faculty or students, or contracted firms or individuals may, if approved, conduct research if they: (1) show that the proposed project will provide benefits to TYC or the juvenile justice profession; (2) ensure confidentiality of TYC youth; (3) do not place undue burden on TYC staff, youth or resources; and (4) agree to comply with other agency rules of conduct for research as specified below. (e) Project Management. Procedures for research projects are managed through the research department. (f) Research Proposals. Project directors other than those employed by the research department must submit a research proposal to the research department. The proposal should include as much of the following information as possible: (1) project title; (2) names and qualifications of all project researchers; (3) purpose (e.g., thesis, professional paper, dissertation); (4) research design and methodology; (5) number of and time required by each TYC youth if used in research; (6) provisions for confidentiality of youth names and identification numbers; (7) amount of TYC staff time needed; (8) benefit to TYC or juvenile profession; (9) research supervisor, if any (e.g., Chairman of Thesis Committee); and (10) amount and source of funding, if any. (g) Research Agreement. TYC and the research consultant shall enter into a research agreement prior to the commencement of an outside research project. The agreement shall contain the following: (1) a description of the research project; (2) an agreement to maintain the confidentiality of individual youth; (3) a clause providing that any patentable product, process, or idea that results from the performance of the research agreement, and for which TYC has expended appropriated funds, shall become the property of the Texas Youth Commission; and (4) an agreement to furnish TYC with a copy of the final report. 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 July 6, 1998. TRD-9810671 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: March 20, 1998 For further information, please call: (512) 424-6244 CHAPTER 87.Treatment SUBCHAPTER A.Program Planning 37 TAC sec.87.3 The Texas Youth Commission (TYC) adopts an amendment to sec.87.3, concerning resocialization program, with changes to the proposed text as published in the February 6, 1998, issue of the Texas Register (23 TexReg 919). Changes to the proposed text consist of correction of grammatical errors. The justification for amending the section is to allow TYC to evaluate a youth's progress more thoroughly. The amendment will add specific assessment information which clarifies requirements in the TYC treatment programs. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.076, which provides the Texas Youth Commission with the authority to require the modes of life and conduct that seem best adapted to fit the child for return to full liberty without danger to the public. The adopted rule implements the Human Resource Code, sec.61.034. sec.87.3.Resocialization Program. (a) Purpose. The purpose of this rule is to identify the agency's philosophy and approach to rehabilitation of juvenile delinquents in order to reduce future delinquent behavior and increase accountability of the youth and programs. (b) Explanation of Terms Used. (1) Resocialization Program - the basic program implemented in all Texas Youth Commission (TYC) facilities. (2) Phases of Resocialization - five competency based phases in the resocialization program used to determine a youth's progress in the program. (3) Phases Checklist - standardized list of measurements used at every program for individual determination of phase completion. (c) Each TYC facility will maintain a program of resocialization consisting of four cornerstones: correctional therapy, education, discipline and work. (d) All aspects of the TYC resocialization program will be competency based with clearly defined performance expectations. Individual progress will be measured monthly and be based on all identified treatment needs and strengths. (e) Phases of resocialization are progressive. Youth will be assessed by a treatment team at each residential placement for the appropriate phase. Parole youth will be assessed by the assigned parole officer. Higher phases are associated with increased expectations of responsibility and decreased need for direct staff supervision. (f) TYC facilities shall maintain a structured 16-hour day for all youth. During each day, the youth will work on components of the resocialization program. (g) TYC facilities shall provide for and youth will participate in a structured, individually appropriate educational program or equivalent. (h) TYC facilities shall provide and eligible youth may participate in work experiences. (i) TYC facilities shall provide and youth will participate in regular physical training programs. (j) TYC facilities shall provide and youth will participate in correctional therapy. Therapy will consist of three types of required group sessions for all youth. Participation in behavior, core intervention, and life skills groups will be required. (k) Staff responsible for provision of resocialization service delivery will receive appropriate training and certification. 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 July 6, 1998. TRD-9810684 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 6, 1998 For further information, please call: (512) 424-6244 SUBCHAPTER B.Special Needs Offender Programs 37 TAC sec.87.91 The Texas Youth Commission (TYC) adopts an amendment to sec.87.91, concerning family reintegration of sex offenders, with changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1919). The changes to the proposed text restructure the sentence including the family members of a sex offender's family and the victim's family. The justification for amending the section is greater protection of the public. The amendment will clarify that certain requirements involving therapy treatment apply to the family members of both the victims and the sex offender, committed to TYC, when the victim and the offender are in the same family. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.0761, which provides the Texas Youth Commission with the authority to develop programs that encourage family involvement in the rehabilitation of the child. The adopted rule implements the Human Resource Code, sec.61.034. sec.87.91.Family Reintegration of Sex Offenders. (a) Purpose. The purpose of this rule is to provide for some protection of the victim through procedures for reintegration of documented sex offenders who return home when the offender's victim or a potential victim lives in the home. (b) Explanation of Terms Used. Family - As used herein, shall refer to the family members and/or the victim or potential victim who live in the designated home to which the TYC youth will return. (c) The offender, the victim and the family must have received treatment specific to the sexual offense prior to the youth's return to his/her home such that: (1) the family demonstrates knowledge and understanding of the sex offender's behavior; (2) the family agrees to implement specific strategies to ensure the ongoing safety of the victim or potential victims; (3) the victim has demonstrated sufficient progress in therapy to be ready for the offender to return home. See (GAP)sec.81.35 of this title (relating to Involvement of Victims); and (4) the offender has demonstrated sufficient progress in therapy to be ready for the offender to return home. See (GAP)sec.81.35 of this title (relating to Involvement of Victims). (d) Direct contact must occur between the therapists in which a specific reintegration plan is defined and mutually agreed upon. (e) At a minimum, the reintegration plan must include at least one face-to-face contact between offender and victim facilitated by one or both therapists and not in the home. (f) Based upon a successful initial meeting between offender and victim, an overnight furlough is arranged. (g) Actual home placement should occur only after mutual agreement between PSW(s), therapists, victim and offender that trial visits have been successful. (h) There must be a specific plan for continued treatment and supervision for the offender in the community. 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 July 6, 1998. TRD-9810677 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 424-6244 CHAPTER 91.Program Services SUBCHAPTER A.Basic Services 37 TAC sec.91.21 The Texas Youth Commission (TYC) adopts the repeal of sec.91.21, concerning moral values, worship and religious education, without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1920). The justification for the repeal is greater protection for the public and TYC youth. The repeal will allow for the publication of a new section. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. The adopted rule implements the Human Resource Code, sec.61.034. 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 July 6, 1998. TRD-9810679 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 424-6244 SUBCHAPTER C.Youth Employment and Work 37 TAC sec.91.61 The Texas Youth Commission (TYC) adopts the repeal of sec.91.61, concerning youth employment and work, without changes to the proposed text as published in the February 6, 1998, issue of the Texas Register (23 TexReg 921). The justification for the repeal is increased structure within TYC programs and greater protection for the public. The repeal will allow for the publication of a new section. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of it functions. The adopted rule implements the Human Resource Code, sec.61.034. 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 July 6, 1998. TRD-9810682 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 6, 1998 For further information, please call: (512) 424-6244 37 TAC sec.91.65 The Texas Youth Commission (TYC) adopts the repeal of sec.91.65, concerning payment for youth employment by TYC, without changes to the proposed text as published in the February 6, 1998, issue of the Texas Register (23 TexReg 922). The justification for the repeal is greater protection for the public and TYC youth. The repeal will allow for the publication of a new section which will provide TYC youth with opportunities for compensated and uncompensated work experience. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. The adopted rule implements the Human Resource Code, sec.61.034. 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 July 6, 1998. TRD-9810680 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 6, 1998 For further information, please call: (512) 424-6244 SUBCHAPTER D.Health Care Services 37 TAC sec.91.89 The Texas Youth Commission (TYC) adopts the repeal of sec. 91.89, concerning suicide alert, without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1921). The justification for the repeal is greater protection for TYC youth. The repeal will allow for the publication of a new section. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. The adopted rule implements the Human Resource Code, sec.61.034. 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 July 6, 1998. TRD-9810676 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 424-6244 The Texas Youth Commission (TYC) adopts new sec.91.89, concerning suicide alert, with changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1921). Changes to the proposed text consist of grammatical corrections only. The justification for the new rule is greater protection for youth placed in TYC facilities. The new rule will establish a process whereby mental health professional(s) assess suicide risk and assign a suicide alert status or remove a youth from the status. No comments were received regarding adoption of the new rule. The new rule is adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order the child's confinement under conditions it believes best designed for the child's welfare and the interests of the public. The adopted new rule implements the Human Resource Code, sec.61.034. sec.91.89.Suicide Alert. (a) Purpose. The purpose of this rule is to establish procedures for screening, assessing, and treating as specified youth who may be at risk for suicide. (b) Applicability. This rule applies to all youth who are currently assigned to placement in TYC institutions, halfway houses and contract residential facilities. This policy does not apply to youth living at home or in a home substitute except where specifically stated. (c) Explanation of Terms Used. (1) Mental Health Professional (MHP) - An individual who is a Psychiatrist, doctoral level Psychologist, Associate Psychologist (masters level), or a Social Worker with an Advanced Clinical Practitioner designation (LMSW-ACP). (2) Designated Mental Health Professional(s) - The individual having the primary responsibility and accountability for the evaluation, monitoring and treatment of all youth referred as suicide risks. This individual shall be a Psychiatrist or a licensed Psychologist. (d) Suicide Alert Assignment/Removal Process. (1) At risk youth will receive suicide screenings and/or assessments. (A) A suicide risk screening will be initiated by a Primary Service Worker (PSW) or the MHP equivalent in contract care when a youth expresses suicidal intent through words, or when the youth's record indicates a history of prior suicidal ideation. (B) A suicide risk assessment will be initiated by a MHP when a screening indicates a risk for suicidal action, when youth expresses suicidal intent through actions, or when the youth's record indicates a history of prior suicidal actions. (2) A designated MHP shall determine whether a youth is a suicide risk based upon a clinical assessment. Only the designated MHP may place a youth on suicide alert process or authorize the youth's return to regular schedule. (3) A youth may be removed from suicide alert status only by the designated MHP who placed the youth on alert after the youth has stabilized. (4) Youth on suicide alert status may not be moved to another placement unless: (A) the receiving placement is a TYC institution, residential treatment center or other placement having on-site psychiatric or psychological staff; or (B) the designated MHP at the sending site approves the transfer following consultation between the MHPs at the sending and receiving sites. (5) Youth who have been on suicide alert within six months prior to a placement change are reevaluated by a MHP at the receiving facility following a placement change. (e) Implementation Rules. (1) All staff, including parole officers, is responsible for reporting a youth believed to be at risk for suicide to a designated qualified MHP in a TYC facility. (2) Facility staff shall be informed when a youth in placed on suicide alert status. (3) All staff of a contract residential setting shall be informed when a youth is placed on suicide alert status and are responsible for following that setting's approved suicide alert procedure. (4) All direct care staff in TYC operated facilities and in contract residential settings will receive suicide prevention training. 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 July 6, 1998. TRD-9810675 Steve Robinson Executive Director Texas Youth Commission Effective date: August 28, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 424-6244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART II. Texas Rehabilitation Commission CHAPTER 112. Personal Attendant Services Program 40 TAC sec.sec.112.1-112.9 The Texas Rehabilitation Commission adopts new sec.sec.112.1-112.9, concerning Personal Attendant Services Program. Sections 112.1-112.4, 112.7-112.9 are adopted with changes to the proposed text as published in the May 29, 1998, issue of the type-name="italic">Texas Register (23 TexReg 5645). Section 112.5 and sec.112.6 are adopted without changes and will not be republished. This chapter is being created to implement the Personal Attendant Services Program. Comments were received from two individuals and one organization, the Coalition of Texans with Disabilities, recommending changes to clarify the rules. The Texas Rehabilitation Commission adopts sec.sec.112.1-112.4, 112.7-112.9 with changes to incorporate recommendations made by the commenters. The new sections are adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. sec.112.1. Purpose. (a) The purpose of the Texas Rehabilitation Commission (TRC) Personal Attendant Services (PAS) Program is to provide long-term client managed personal assistance services to persons with disabilities who require such services to maintain employment. (b) This program is funded entirely with state funds. sec.112.2. Services Provided. (a) Services available in the Texas Rehabilitation Commission (TRC) Personal Attendant Services (PAS) program include attendant services in the following areas: personal care, home management, and transportation. (b) Personal care includes, but is not limited to, assistance with: (1) transferring; (2) dressing and undressing; (3) eating; (4) meal preparation; (5) bathing; (6) grooming; (7) toileting; (8) health related tasks when delegated by a physician. (c) Home management includes, but is not limited to, assistance with: (1) housecleaning; (2) laundering; (3) shopping; (4) washing dishes. (d) Transportation includes, but is not limited to, assistance with: (1) arranging for transportation; (2) providing assistance with transportation as needed; (3) minor wheelchair maintenance and cleaning. (e) Services may be provided in the consumer's home and/or in the workplace. Services will be available based upon the "Individual Needs Assessment" and documented in a "Plan for Personal Attendant Services" prepared by the contractor and agreed to and signed by the client. sec.112.3. Eligibility. (a) To be eligible for the Texas Rehabilitation Commission (TRC) Personal Attendant Services (PAS) program, applicants must: (1) be working a minimum of 20 hours per week and earning a salary for a public or private employer for at least minimum wage, or self employed with a net income of at least $300 per month; and (2) have one or more disabilities; and (3) have a need for one or more personal attendant services due to their disability(ies). (b) For purposes of eligibility for the TRC PAS program, an individual with a disability is an individual who has a physical or mental impairment which results in a substantial impediment to functioning independently in the home and community, and which results in a substantial impediment to employment, and who requires personal attendant services to engage in employment. sec.112.4. Contractor Responsibilities. Personal Attendant Services (PAS) contractor responsibilities are: (1) provide PAS services to a specific number of eligible consumers in a specific geographic area as outlined in their contract with Texas Rehabilitation Commission (TRC); (2) provide outreach in specific counties as outlined in the contract with TRC; (3) employ a qualified "program evaluator" who: (A) determines service eligibility; (B) determines that the TRC PAS program is the most appropriate alternative for the client; (C) performs an "Individual Needs Assessment" to determine the service needs of the individual, and develops a "Plan for Personal Attendant Services" for each eligible consumer. (i) "Individual Needs Assessments" must be performed annually to determine continued need for PAS services based on the following listed in subclauses (I)- (II) of this clause: (I) activities of daily living with codes for levels of assistance needed; and (II) assistance needed due to impairments rated in terms of severity. (ii) The "Plan for Personal Attendant Services" must contain the number of allowed hours, the co-pay amount based upon income determination, and the choice of method of payment to the attendant; (D) maintains a waiting list if the contractor is operating at full capacity. Services are provided as space becomes available and in chronological order according to the date eligibility was established; (E) determines the client's copayment annually ; (F) offers the applicant an informed choice among three methods of paying the attendant: direct payment by contract agency, "block grant", or "voucher"; (G) develops an agreement between the client and the contract agency detailing the responsibilities of both parties; (H) verifies that there are standing physician orders in accordance with the Texas Medical Practices Act (Act) and all related state and federal statutes and regulations if the attendant(s) provides the client any of the health-related services which the Act specifies, and ensures that the contractor maintains a copy of the standing physician's orders in the client's file; and (I) negotiates with the applicant and contract agency the number of hours and tasks authorized. sec.112.7. Copayment. (a) Basis and calculation of copayment: (1) The copayment amount is based on the monthly net income of both the client and the client's spouse. (2) The copayment schedule is specified in each client services contract between the providers and the Commission. (b) Net income. Net income is computed by subtracting allowable monthly deductions from monthly total income, after income exclusions have been applied. (c) Determination of Monthly Total Income. The applicant's/client's monthly total income is the total of the following listed in paragraphs (1)-(13) of this subsection: (1) the total earnings of the applicant/client and spouse including self employment; (2) social security and railroad retirement benefits; (3) dividends and interest; (4) net income from rental of a house, store, or other property; (5) net income from lease of mineral rights; (6) income from mortgages or contracts; (7) public assistance or welfare payments. These payments include AFDC, SSI, and general assistance (cash payments from a county or city); (8) pensions, annuities, and irrevocable trust funds; (9) veterans' pensions and compensation checks; (10) educational loans and grants; (11) unemployment compensation, worker's compensation and disability payments; (12) alimony; and (13) net income from the client's share of a life estate. (d) Income exclusions. The applicant's/client's monthly total income excludes: (1) loans and grants such as scholarships; (2) in-kind income such as rent subsidies; (3) infrequent or irregular income if the total does not exceed $20 a month from all sources; and (4) reimbursement from an insurance company for health insurance claims. (e) Allowable monthly deductions. Allowable monthly deductions from the applicant's/client's monthly total income include the following listed in paragraphs (1)-(5) of this subsection: (1) the cost of tuition and books when the applicant/client is a student; (2) $93 deducted for each of the applicant/client, spouse, and each dependent supported by the applicant/client and spouse; (3) FICA withholding, and any other required deductions from wages or salaries; (4) expenditures and savings for large disability related expenses and equipment such as vans, vehicle modifications, and power wheelchairs, with a per-item value over $500; and (5) actual monthly expenditures for child care costs for children 0 - 6 years up to $250 each, and 6 - 12 years up to $100 each. sec.112.8. Suspension or Termination of Services. (a) Suspension of services. (1) The contract agency may suspend services before the end of the period for which duties have been authorized. The client must be notified of the suspension. (2) Suspension may occur for one of the following reasons listed in subparagraphs (A)-(E) of this paragraph: (A) the client leaves the state or moves out of the geographical area served by the contract; (B) the client receives services through a Medicaid waiver, or other publicly supported source; (C) the client does not agree with the copayment or does not pay the copayment; (D) the client is repeatedly abusive to attendants or demands additional hours or tasks not in the service plan; or (E) the client is admitted to a hospital or other institution; (3) Services must be reinstated upon resolution of the circumstances that initiated the service suspension. If attempts to resolve the issue are unsuccessful after 30 days of the date of suspension, the contract agency must initiate termination of services. (b) Termination of services. The contract agency provides the client with written notification that services are being terminated when: (1) the client fails to meet eligibility criteria; (2) the physician's statement expires; (3) non-resolution of threats to the health or safety of the attendant or others; (4) the client dies; (5) the client is unemployed for six months; or (6) funding for the contract becomes unavailable. sec.112.9. Client Appeals. An applicant/client is entitled to appeal the suspension or termination of services, or decisions regarding determination of number of service hours. The applicant/client can appeal the decision of the contract agency to the Texas Rehabilitation Commission (TRC) Program Specialist for the Personal Attendant Services (PAS) program, in accordance with the provisions of Chapter 104 of this title (relating to Informal and Formal Appeals by Applicants/Clients of Decisions by a Rehabilitation Counselor or Agency Official). The client will be notified in writing of his/her right to appeal. 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 July 13, 1998. TRD-9811030 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: August 2, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 424-4050