Volume 42 Number 46 November 17, 2017 Pages

Transcription

1 Volume 42 Number 46 November 17, 2017 Pages

2 School children's artwork is used to decorate the front cover and blank filler pages of the Texas Register. Teachers throughout the state submit the drawings for students in grades K-12. The drawings dress up the otherwise gray pages of the Texas Register and introduce students to this obscure but important facet of state government. The artwork featured on the front cover is chosen at random. Inside each issue, the artwork is published on what would otherwise be blank pages in the Texas Register. These blank pages are caused by the production process used to print the Texas Register. Texas Register, (ISSN , USPS ), is published weekly (52 times per year) for $ ($ for first class mail delivery) by Matthew Bender & Co., Inc., 3 Lear Jet Lane Suite 104, P O Box 1710, Latham, NY Material in the Texas Register is the property of the State of Texas. However, it may be copied, reproduced, or republished by any person without permission of the Texas Register director, provided no such republication shall bear the legend Texas Register or "Official" without the written permission of the director. The Texas Register is published under the Government Code, Title 10, Chapter Periodicals Postage Paid at Albany, N.Y. and at additional mailing offices. POSTMASTER: Send address changes to the Texas Register, 136 Carlin Rd., Conklin, N.Y Secretary of State - Rolando B. Pablos Director - Robert Sumners a section of the Office of the Secretary of State P.O. Box Austin, TX (512) FAX (512) register@sos.texas.gov Staff Leti Benavides Belinda Kirk Deana Lackey Jill S. Ledbetter Cecilia Mena Joy L. Morgan Breanna Mutschler Barbara Strickland Tami Washburn

3 ATTORNEY GENERAL Requests for Opinions EMERGENCY RULES TEXAS DEPARTMENT OF AGRICULTURE CITRUS 4 TAC TAC PROPOSED RULES TEXAS DEPARTMENT OF AGRICULTURE WEIGHTS AND MEASURES 4 TAC TAC TAC 12.11, 12.13, TAC CREDIT UNION DEPARTMENT CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS 7 TAC TAC TAC TAC TAC TEXAS HIGHER EDUCATION COORDINATING BOARD RULES APPLYING TO ALL PUBLIC INSTITUTIONS OF HIGHER EDUCATION IN TEXAS 19 TAC TAC PROGRAM DEVELOPMENT IN PUBLIC TWO-YEAR COLLEGES 19 TAC TAC TAC TEXAS OPTOMETRY BOARD GENERAL RULES 22 TAC DEPARTMENT OF STATE HEALTH SERVICES HOSPITAL LICENSING 25 TAC TAC DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS 25 TAC TEXAS COMMISSION ON ENVIRONMENTAL QUALITY REGIONAL ASSESSMENTS OF WATER QUALITY 30 TAC 220.4, CONSOLIDATED PERMITS 30 TAC RADIOACTIVE SUBSTANCE RULES 30 TAC COMPTROLLER OF PUBLIC ACCOUNTS TAX ADMINISTRATION 34 TAC TEXAS DEPARTMENT OF PUBLIC SAFETY COMMERCIAL VEHICLE REGULATIONS AND ENFORCEMENT PROCEDURES 37 TAC TAC TAC TEXAS JUVENILE JUSTICE DEPARTMENT SUBSTANCE ABUSE TREATMENT PROGRAMS 37 TAC TAC , TAC , , TAC TAC , TAC TAC WITHDRAWN RULES CREDIT UNION DEPARTMENT CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS 7 TAC TEXAS CIVIL COMMITMENT OFFICE CIVIL COMMITMENT 37 TAC TAC TAC ADOPTED RULES DEPARTMENT OF INFORMATION RESOURCES TABLE OF CONTENTS 42 TexReg 6421

4 GENERAL ADMINISTRATION 1 TAC MANAGEMENT OF ELECTRONIC TRANSAC- TIONS AND SIGNED RECORDS 1 TAC TAC TAC PURCHASES OF COMMODITY ITEMS 1 TAC PROJECT MANAGEMENT PRACTICES 1 TAC CREDIT UNION DEPARTMENT CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS 7 TAC TAC TAC TAC TAC TAC TEXAS MEDICAL BOARD LICENSURE 22 TAC 163.2, 163.4, 163.6, TAC POSTGRADUATE TRAINING PERMITS 22 TAC TEMPORARY AND LIMITED LICENSES 22 TAC 172.4, TELEMEDICINE AND MENTAL HEALTH SERVICES 22 TAC TAC TAC FEES AND PENALTIES 22 TAC 175.1, PROCEDURAL RULES 22 TAC , TAC TEXAS COMMISSION ON FIRE PROTECTION FIRE SUPPRESSION 37 TAC 423.1, 423.3, 423.5, 423.7, 423.9, , TAC , , , , , TAC , , , , DRIVER/OPERATOR 37 TAC TAC , RULE REVIEW Adopted Rule Reviews Credit Union Department IN ADDITION Office of Consumer Credit Commissioner Correction of Error Notice of Rate Ceilings State Board for Educator Certification Correction of Error Texas Commission on Environmental Quality Agreed Orders Enforcement Orders Notice of Opportunity to Comment on Agreed Orders of Administrative Enforcement Actions Notice of Opportunity to Comment on Default Orders of Administrative Enforcement Actions Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter Notice of Public Hearing on Proposed Revisions to 30 TAC Chapters 220 and Notice of Water Quality Applications Revised Notice of Public Meeting for TPDES Permit for Industrial Wastewater New Permit No. WQ Texas Ethics Commission List of Late Filers General Land Office Notice and Opportunity to Comment on Requests for Consistency Agreement/Concurrence Under the Texas Coastal Management Program Texas Health and Human Services Commission Public Notice - Texas State Plan for Medical Assistance Amendments Effective December 1, Public Notice - Texas State Plan for Medical Assistance Amendments Effective January 1, Department of State Health Services Licensing Actions for Radioactive Materials Texas Department of Housing and Community Affairs TABLE OF CONTENTS 42 TexReg 6422

5 Release of the Notice of Funding Availability for the "2018 Amy Young Barrier Removal Program" Release of the Notice of Funding Availability for the "FY Texas Bootstrap Loan Program" Texas Lottery Commission Scratch Ticket Game Number 2012 "Hot 7's" Scratch Ticket Game Number 2018 "Super 7's" North Central Texas Council of Governments Notice of Consultant Contract Award Texas Board of Nursing Texas Peer Assistance Program for Nurses Audit Contract Public Utility Commission of Texas Notice of Application for Approval of a Service Area Contract and to Amend Water Certificates of Convenience and Necessity Notice of Application for Sale, Transfer, or Merger Notice of Application for Sale, Transfer, or Merger Notice of Application for Sale, Transfer, or Merger Notice of Application for Sale, Transfer, or Merger Notice of Application to Amend a Service Provider Certificate of Operating Authority Notice of Petition for Amendment to a Water Certificate of Convenience and Necessity by Expedited Release Notice of Petition for True-Up of 2015 Federal Universal Service Fund Impacts to the Texas Universal Service Fund Teacher Retirement System of Texas Correction of Error Texas Department of Transportation Public Transportation Division - Notice of Call for Projects TABLE OF CONTENTS 42 TexReg 6423

6 Open Meetings Statewide agencies and regional agencies that extend into four or more counties post meeting notices with the Secretary of State. Meeting agendas are available on the Texas Register's Internet site: Members of the public also may view these notices during regular office hours from a computer terminal in the lobby of the James Earl Rudder Building, 1019 Brazos (corner of 11th Street and Brazos) Austin, Texas. To request a copy by telephone, please call Or request a copy by register@sos.state.tx.us For items not available here, contact the agency directly. Items not found here: minutes of meetings agendas for local government bodies and regional agencies that extend into fewer than four counties legislative meetings not subject to the open meetings law The Office of the Attorney General offers information about the open meetings law, including Frequently Asked Questions, the Open Meetings Act Handbook, and Open Meetings Opinions. The Attorney General's Open Government Hotline is OPEN ( ) or tollfree at (877) OPEN TEX ( ). Additional information about state government may be found here: Meeting Accessibility. Under the Americans with Disabilities Act, an individual with a disability must have equal opportunity for effective communication and participation in public meetings. Upon request, agencies must provide auxiliary aids and services, such as interpreters for the deaf and hearing impaired, readers, large print or Braille documents. In determining type of auxiliary aid or service, agencies must give primary consideration to the individual's request. Those requesting auxiliary aids or services should notify the contact person listed on the meeting notice several days before the meeting by mail, telephone, or RELAY Texas. TTY:

7 Requests for Opinions RQ-0190-KP Requestor: The Honorable Joseph C. Pickett Chair, Committee on Environmental Regulation Texas House of Representatives Post Office Box 2910 Austin, Texas Re: Applicability of amendments to the Transportation Code made by Senate Bill 312, 85th Regular Session, to the Loop 1604 toll project in Bexar County (RQ-0190-KP) Briefs requested by December 4, 2017 For further information, please access the website at or call the Opinion Committee at (512) TRD Amanda Crawford General Counsel Office of the Attorney General Filed: November 8, 2017 ATTORNEY GENERAL November 17, TexReg 6425

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9 TITLE 4. AGRICULTURE PART 1. TEXAS DEPARTMENT OF AGRICULTURE CHAPTER 21. CITRUS SUBCHAPTER D. CITRUS NURSERY STOCK CERTIFICATION PROGRAM The Texas Department of Agriculture (the Department) adopts on an emergency basis the repeal of, and adopts new Title 4, Part 1, Chapter 21, Subchapter D, 21.61, relating to facility structural requirements. Section is repealed and proposed as new to permit the reader to review the revised regulations in a more clear and concise manner which is easier to understand. The adoptions are made on an emergency basis to protect citrus production in Texas and to contain and slow the spread of citrus greening, citrus canker, Asian citrus psyllid and other citrus pests and diseases which can cause irreparable and widespread damage to the state's citrus industry. The Department has determined that the citrus production and nursery industries are in peril of the spread of citrus greening and citrus canker disease. The spread of citrus pests and diseases can be damaging to the Texas citrus industry and can devastate the current and future production of citrus in Texas. However, by requiring citrus growers and producers to comply with the new rule immediately, the imminent threat created following Hurricane Harvey can be reduced. Citrus canker, a disease that citrus is susceptible to, is harmless to humans and animals. The disease produces leaf-spotting, fruit rind-blemishing, defoliation, shoot dieback, fruit drop, and it can expose the interior of fruit to secondary infection by decay organisms. The disease does not travel through the tree to become systemic. The marketability of symptomatic fresh fruit is negatively impacted. In the field, symptoms may take several months to appear, and lower temperatures may increase the latency of the disease. In August 2017, Hurricane Harvey made landfall directly over Fort Bend and Harris counties. High winds and extreme rain associated with Hurricane Harvey remained in the affected counties for several days, creating highly favorable conditions for the spread of citrus canker. Citrus canker bacterium and diseases can stay viable in old lesions on leaves, branches and other plant surfaces for several months, including in those dropped on the ground. The disease can spread by wind, splashing water, movement of infected plant material or mechanical contamination. The pathogen flourishes under warm moist conditions and requires a host to survive in a natural environment. Prior to Hurricane Harvey, areas within Fort Bend and Harris counties were designated as quarantine areas for citrus canker by the Department. The conditions during and following Hurricane Harvey exponentially increased the threat of the current citrus canker outbreak in Fort Bend and Harris counties to spread throughout the geographical regions effected by Hurricane Harvey. At the current time, the Department and the United States Department of Agriculture Animal and Plant Health Inspection Service (USDA-APHIS) Plant Protection and Quarantine (PPQ) suspect that the disease organism for citrus canker may have spread over a large area of Texas where citrus is produced. At this time, without surveying outside of the above-named counties, the extent of the current infestation outside of the above named counties cannot be estimated. Currently, USDA-APHIS structural requirements for the exclusion of pests and disease are only mandatory in areas under quarantine for pests and disease. However, to avoid the potential spread of pests, diseases and the future expansion of quarantined areas, the emergency rule is crucial to ensure that facilities have extensive safeguards in place which will prevent the entry of pests and diseases. These additional structural requirements exceed current requirements in rule and align with USDA- APHIS requirements set forth in the Code of Federal Regulations. By ensuring these requirements are in place, it will be possible to continue producing clean citrus nursery stock throughout the state. The adoption of the rule which requires seed, cuttings, budding, cell culture or other means to be produced inside certified pest exclusionary facilities are vital to effectively combat and prevent the spread of citrus pests and diseases to non-infected nurseries, groves and residential areas. Without requiring mandatory compliance with USDA-APHIS requirements set forth in the emergency rule, despite the expansion of quarantined areas, it will be impossible to slow the spread of quarantined citrus pests, contain pests and disease, and continue the disease free production of citrus nursery stock. The rules must be adopted on an emergency basis to ensure that facility owners are in compliance by January 1, For this reason, the Department, in cooperation with input from Texas citrus producers and nursery industries, adopts on an emergency basis to immediately help prevent the spread of citrus canker (Strain-A) and other quarantined pests into the commercial citrus production area. The emergency rules will be proposed for comment on a permanent basis. 4 TAC The adoption is made pursuant to Chapters 19 and 71 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; and Texas Government Code, , which provides for the adoption of ad- EMERGENCY RULES November 17, TexReg 6427

10 ministrative rules on an emergency basis, without notice and comment. Chapters 19 and 71 of the Texas Agriculture Code are affected by the proposal Facility Structural Requirements. The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Effective date: November 2, 2107 Expiration date: March 1, 2018 For further information, please call: (512) TAC The adoption is made pursuant to Chapters 19 and 71 of the Texas Agriculture Code (Code), which authorize the Department to adopt rules necessary to protect agricultural and horticultural interests and administer citrus programs; and Texas Government Code, , which provides for the adoption of administrative rules on an emergency basis, without notice and comment. Chapters 19 and 71 of the Texas Agriculture Code are affected by the proposal Facility Structural Requirements. (a) All quarantined articles, as defined in 21.5, related to quarantined articles, that are grown after January 1, 2018, from seed, cuttings, budding, cell culture or other means must be produced inside a certified pest exclusionary facilities that meets USDA-APHIS Plant Protection and Quarantine (PPQ) structural requirements, and requirements found in 7 CFR Part 301 (Subpart-Citrus Greening and Asian Citrus Psyllid, and Subpart-Citrus Canker). (b) To qualify as an exclusionary structure which meets certification requirements, a facility must include, at a minimum, the following: (1) Exterior walls and top. (A) Any combination of solid surfaces and screening may be used, so long as the structure meets or exceeds USDA-APHIS PPQ insect exclusionary and citrus canker prevention requirements, including resistance to wind-blown rain. (B) Mesh size for any screening used in walls, doors, vent covers, or other parts of a structure to be operated under a certificate of registration shall not exceed 0.3 square millimeters (e.g., x mm or 0.5 x 0.6 mm). (2) Each approved structure must have at least a 100 foot citrus free buffer area around the exterior of the approved structure. If 100 feet is not feasible, a minimum buffer area of 25 feet is allowed if the side of the structure facing citrus nursery plant material is constructed with a water-proof wall, or double-walled screening with a minimum of a 4-inch space between each screen. Interior walls may be constructed of a single-wall approved screening with a minimum buffer area of 5 feet between screening and citrus nursery stock. (3) Doors, doorways, and entryways must be designed and constructed to exclude wind-blown rain, and pests, and organisms. (A) All doorways shall have a positive pressure air curtain, double doors, or other mechanisms sufficient to prevent the entrance of any insect pests, both during operation of the door and while the door is closed. (B) All doors shall fit against the floor and door frame, so that no pests, diseases or rain can enter the facility. (C) All facility emergency exit doors must be marked 'Emergency Exit Only' and may not be used as an entrance. (D) Each entrance to the facility shall be equipped so that, prior to entering the facility, personnel must disinfect hands and arms and spray clothing and footwear with a product approved by the Department as effective against citrus canker. A footbath containing a product approved by the Department as effective against citrus canker must be located at each entrance and must be properly utilized on footwear by all persons prior to entering the facility. (E) Vehicles, equipment, and other articles used to handle or move citrus nursery stock must be treated in accordance USDA- APHIS PPQ requirements, immediately before entering the premises. (4) Other openings. Except for doors, all exterior openings for cooling pads, fans, vents or other parts of a structure to be operated under a certificate of registration must be covered with screening, specified in paragraph (1)(B) of this subsection. (5) The facility perimeter must facilitate drainage away from the structure. (c) The owner of the facility is responsible for maintaining the integrity of the facility and ensuring it remains disease and pest-free. (d) The Department must be notified in writing immediately if a breach is detected at any time during the life cycle of the citrus stock, from propagation to point of sale. The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Effective date: November 2, 2017 Expiration date: March 1, 2018 For further information, please call: (512) TexReg 6428 November 17, 2017 Texas Register

11 TITLE 4. AGRICULTURE PART 1. TEXAS DEPARTMENT OF AGRICULTURE CHAPTER 12. WEIGHTS AND MEASURES The Texas Department of Agriculture (Department) proposes the repeal of Title 4, Part 1, Subchapter A, 12.1; repeal of Subchapter B, 12.13; new Subchapter A, 12.1; Subchapter B, 12.13, and 12.15, and amendments to These new and amended rules are necessary to comply with House Bill 2174, enacted during the 85th Regular, Texas Legislative Session, which amends Chapter 13 of the Texas Agriculture Code related to weights and measures devices. The proposed sections are necessary to align Administrative Code rules with the amended statutes and define procedures for device inspections and complaints. Sections proposed for repeal and proposed as new to permit the reader to more easily read and understand the new requirements in a clear and concise manner. New 12.1 adds definitions which delineate the roles of the Department and Licensed Service Companies (LSC) to align the rules with the new statutory requirements for administering the weights and measures program. Amended prescribes the calibration timeline for new devices and renewal of device registrations. Section which has been repealed and proposed as new, adds motor fuel metering devices to be subject to registration and inspection. New 12.15, defines the timeline for maintaining documents related to inspections, testing and calibration for motor fuel metering devices to two years. Stuart Strnad, Director for Consumer Product Protection, has determined that for the first five years the proposal is in effect, there will be no anticipated fiscal impact to local government. There will be minimal fiscal impact to state government as the Department currently conducts routine processing in response to weights and measures complaints. Mr. Strnad has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of administering the proposed rule will be increased consumer protection to the public through efficiencies of administering the consumer protection program, industry compliance and regulation of the affected industry. At this time, the Department cannot estimate the fiscal impact on businesses in the fuel retail industry because samples required to be submitted, other than routine samples, are dependent on complaint volume. Comments on the proposal may be submitted to Stuart Strnad, Director for Consumer Product Protection, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by to Stuart.Strnad@texasagriculture.gov. Comments must be received no later than 30 days from the date of publication on the proposal in the Texas Register. SUBCHAPTER A. GENERAL PROVISIONS 4 TAC 12.1 The repeal is proposed under Agriculture Code, , which authorizes the Department to adopt rules related to administration of the weights and measures program. The code affected by the proposal is Chapter 13 of the Texas Agriculture Code Definitions. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on October 31, TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TAC 12.1 The new section is proposed under Agriculture Code, , which authorizes the Department to adopt rules related to administration of the weights and measures program. The code affected by the proposal is Chapter 13 of the Texas Agriculture Code Definitions. In addition to the definitions set out in the Texas Agriculture Code, Chapter 13, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise. (1) Anniversary date--the last day of the month during which test standards are due annual calibration. (2) ASTM--American Society for Testing Materials. (3) Audit--An official TDA administrative review completed by a Representative of the Commissioner of all fuel quality samples and device inspections, tests and calibrations records and/or related documentation. PROPOSED RULES November 17, TexReg 6429

12 (4) Certificate of Authority--Written authorization issued by the department authorizing a public weigher to issue an official certificate. (5) Certified/Certification--Written verification from a department approved laboratory declaring the accuracy of a service company's test standards. (6) Code--The Texas Agriculture Code. (7) Commercial transaction--the purchase, offer or submission for sale, hire or award, barter or exchange of an item. (8) Consumer Information Sticker--A sticker that directs consumers to registration, inspection, and complaint information regarding a device; and that must be placed on each weighing or measuring device used for commercial transactions. (9) Device--Any pump, liquid measuring device, scale, or bulk or liquefied petroleum gas meter used in a commercial transaction. Device includes any accessory which may affect accuracy. The term also includes weighing and measuring equipment in official use for the enforcement of law or for the collection of statistical information by government agencies. (10) Food for Immediate Consumption--Food or meals prepared, served or sold by restaurants, lunch counters or cafeterias that when sold requires no further preparation by the purchaser prior to consumption on the premises, except for: eating; (A) refrigerated food that is typically reheated prior to (B) sliced luncheon products such as meat, poultry or cheese when sold separately; (C) food that is only cut, repackaged or pasteurized by the seller; or (D) fruits and vegetables. (11) Handbook 44--NIST publication that sets the specifications, tolerances and other technical requirements for weighing and measuring devices. (12) Immediate Consumption Food Scales--A scale exclusively used to weigh food sold for immediate consumption on premises. (13) Inspection--The act of examining, testing, or calibrating a weighing or measuring device, or motor fuel metering device, including TDA audits, service observations and onsite facility review duties. (14) LPG Meter--A device used for the measurement of liquefied petroleum gas. (15) NCWM--National Conference on Weights and Measures. (16) NIST--National Institute of Standards and Technology, United States Department of Commerce. (17) Motor fuel metering device--a liquid measuring device used to dispense motor fuel for commercial sale at a flow rate of 20 gallons per minute or less (18) Motor fuel dispenser--a liquid measuring device used to dispense motor fuel for commercial sale at a flow rate of greater than 20 gallons per minute. (19) Official certificate--a certificate declaring the accurate weight or measure of a commodity which includes: the time and date the weight or measure was taken, signature and license number of the public weigher, and the seal of the department. (20) OIML--International Organization of Legal Metrology. (21) Operator of a Device--A person operates a device if the person collects or distributes payments for a commercial transaction for which the device is used; oversees the day-to-day operation of the device; or owns, leases, manages, or otherwise controls the physical location of the device or the device itself. (22) Out-of-Order tag--a notice attached to a device directing that the device may not be used for commercial service. (23) Person--An individual or a corporation, partnership, limited liability company, business trust, trust, association, or other organization, estate, government or governmental subdivision or agency, or other legal entity. (24) Place in service--an approval for the device to be placed into commercial operation. (25) Public Weigher--A business appointed to issue an official certificate in Texas. (26) Ranch scale--a livestock scale which is located on a private ranch and which has a capacity of 5,000 pounds or greater. (27) Representative of the Commissioner--An individual employed by the Department, authorized to perform one or more of the following: audits, reviews, inspections, and/or service observations under specified chapters of the Texas Agriculture Code. (28) Representative of the Department--A licensed service company and/or licensed technician acting on behalf of the Department to complete fuel quality sample collections, inspections, tests, and calibrations, on motor fuel metering devices as per Texas Agriculture Code, Chapter 13, Subchapter I. (29) Service Company--A person who holds a service company license issued by the Department under this chapter, also referred to as a Licensed Service Company (LSC). (30) Service report--a prescribed report, prepared by a service technician and filed with the Department by a service company, describing the services performed on a device or a set of devices by the technician. (31) Service Technician--An individual who holds a service technician license issued by the Department under this chapter, also referred to as a Licensed Service Technician (LST). (32) Sub-kit--A subdivided series of test standards that weigh a total of not less than one pound in avoirdupois units and whose smallest test standard weighs not more than one-sixteenth (1/16) ounce or five-thousandths (0.005) pound. (33) Test--A field examination of a device to determine compliance with the requirements of this chapter. (34) Test Standard--A certified weight or measure used to test a device. (35) Test kit--a collection of test standards that collectively weigh 30 pounds and that consists of one sub-kit, at least two one-pound standards, and any other combination of standards that allows a scale with a capacity of 30 pounds or less be tested in one-pound increments to capacity. (36) Service Observation--An official TDA observation completed by a Representative of the Commissioner on Service Technicians that occurs periodically to ensure LSC and LST compliance with the applicable standards of fuel quality sample collection and device inspection, testing, and calibrating. 42 TexReg 6430 November 17, 2017 Texas Register

13 The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 1, TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER B. DEVICES 4 TAC 12.11, 12.13, The new sections and amendments are proposed under Agriculture Code, , which authorizes the Department to adopt rules related to administration of the weights and measures program. The code affected by the proposal is Chapter 13 of the Texas Agriculture Code Registration of Commercial Weighing and Measuring Devices. (a) - (h) (No change.) (i) Public Notice of Registration Required. A person registering a location under this section shall prominently display at the location both the person's Weights and Measures Certificate of Registration and the required number of consumer information stickers in the manner provided by this subsection. (1) (No change.) (2) Consumer Information Sticker. A person registering a location under this section shall prominently display a consumer information sticker at the location as follows: (A) Motor Fuel Metering Devices and Motor Fuel Dispensing Devices. Except for meters on transport vehicles, a single consumer information sticker shall be affixed to each face of each dispensing unit, regardless of the number of devices incorporated into the unit, so as to be in plain sight of and legible to the average consumer accessing the unit for any purpose. A meter on a transport vehicle is exempt from the requirement to display a consumer information sticker. (B) - (F) (No change.) (j) Calibration required for device registration. Effective September 1, 2017, [Beginning January 1, 2018,] all motor fuel metering devices [meters in stationary liquid measuring devices] with a maximum flow rate of 20 gallons per minute or less and used for motor fuel sales must be calibrated by a Representative of the Department as follows: [service technician registered with the department in accordance with of this chapter (relating to Service Technician Registration Requirement and Procedure), not later than the facility's registration renewal date in calendar year 2019 and at least every two years, thereafter, from the previous calibration date.] (1) Device Registration Certificate Application: All applicants are required to submit and attach calibration documentation, conducted on behalf of the named applicant, on all motor fuel metering devices at the facility, to the device registration application submitted to the Department pursuant to and of the Code. (2) Device Registration Certificate Renewal: Not later than the facility's device registration certificate renewal date, on or after September 1, 2017, and at least every two years, thereafter from the previous calibration date, calibration documentation shall be submitted to the Department upon each annual renewal, pursuant to and of the Code Devices Subject to Registration and Inspection; Exemptions. (a) The following devices are subject to the registration requirements of of the Code; as authorized by of the Code: (1) motor fuel dispensers; (2) kerosene dispensers; (3) LPG meters; and (4) scales. (b) The following devices are subject to the inspection requirements of (a) of the Code; as authorized by of the Code: (1) motor fuel dispensers; (2) kerosene dispensers; (3) LPG meters; and (4) scales other than hopper scales, except as provided by of this chapter (related to Inspection and Testing Requirements for Hopper Scales). (c) The following devices and motor fuel metering devices, are subject to the registration and inspection requirements of of the Code: (1) all motor fuel metering device blends shall be inspected, tested, and calibrated by a Licensed Service Company at least once every two years; and (2) only the motor fuel metering device and blends indicated in a complaint shall be inspected, tested and calibrated by a Licensed Service Company at a facility, unless the device number is unknown then all meters dispensing the blend indicated in the complaint shall be inspected, tested and calibrated once the department has received three complaints at a facility within a twelve month period or a complaint is received on a facility that has not had a complete calibration of all meters and blends within the past 18 months. (d) Pursuant to of the Code, the following devices are exempt from registration and inspection requirements set forth in and of the Code: (1) pharmaceutical scales; (2) postal scales; (3) belt conveyor scales; (4) rail scales; and (5) immediate consumption food scales Records. (a) Records or other documents related to the inspection, testing and calibration of motor fuel metering devices must be maintained in accordance with Chapter 13 of the Code, and shall be submitted to the Department in the manner and time period as specified in a notice provided by a Representative of the Commissioner. (b) All records related to the inspection, testing and calibration of motor fuel metering devices shall be maintained for a period of two years by the registrant and Licensed Service Company and are subject to inspection by the Department upon request. PROPOSED RULES November 17, TexReg 6431

14 The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 1, TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TAC The repeal is proposed under Agriculture Code, , which authorizes the Department to adopt rules related to administration of the weights and measures program. The code affected by the proposal is Chapter 13 of the Texas Agriculture Code Devices Subject to Registration and Inspection; Exemptions. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 1, TRD Jessica Escobar Assistant General Counsel Texas Department of Agriculture Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 7. BANKING AND SECURITIES PART 6. CREDIT UNION DEPARTMENT CHAPTER 91. CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS SUBCHAPTER J. CHANGES IN CORPORATE STATUS 7 TAC The Credit Union Commission (the Commission) proposes new , concerning voluntary liquidations. The Commission also withdraws the previously proposed new , which was published in the July 28, 2017, issue of the Texas Register (42 TexReg 3729). The notice of withdrawal is published in the Withdrawn section of this issue of the Texas Register. The proposed new rule will provide guidance to credit unions when they are considering a voluntary liquidation of the institution. The guidelines contained in this proposed new rule will enable the board of directors or liquidating agent to conduct the liquidation of the credit union in a more orderly and expeditious manner and to arrange distribution of the assets to the members without undue delay. In general, new results from the commission's review of Chapter 91, Subchapter J, under Texas Government Code, Although no comments were received on the published proposal, the Commission has determined that certain changes were appropriate to improve readability, provide better clarity on voting requirements, and to prevent any director or senior management employee from receiving any economic benefit in connection with the voluntary liquidation. A voluntary liquidation is the dissolution of a solvent credit union with the assets being sold or collected, liabilities paid, and shares and deposits distributed under the direction of the board of directors or a duly appointed liquidating agent. Voluntary liquidation is an option only if the credit union is solvent. Texas Finance Code prescribes that the commissioner shall issue a conservatorship order and appoint a conservator to manage a credit union if the commissioner finds the credit union is insolvent or in imminent danger of insolvency. Overall, the revised proposed new rule will serve as a guide for conducting the voluntary liquidation of a credit union. The purpose for each new subsection is provided in the following paragraphs. Subsection (a) Definitions, defines the terms, "voluntary liquidation," "liquidation date," and "liquidating agent." Subsection (b) Initiating voluntary liquidation process, describes the timeframes and the required processes, once it is determined that liquidation is advisable and other alternatives are not acceptable, and the board of directors has voted to present the question of liquidation to the credit union's membership. It also provides that if the membership does not approve the recommendation to liquidate, the board of directors must request authorization from the Department before the credit union resumes business, resubmits the question to the membership, or requests the appointment of a conservator. Department review helps ensure that the credit union is properly positioned before the credit union implements whichever option the board of directors chooses. Subsection (c) Notice of liquidation, explains the initial requirements upon an affirmative vote by the membership to liquidate, including notifying the Department, members, and creditors, and the publishing of a public notice, if so directed by the Department. Subsection (d) Transaction of business during liquidation, delineates the activities that must be suspended, discontinued, or require prior approval after affirmative vote by the membership to liquidate. The subsection also prescribes that members must receive specific notice to discontinue the use of share and credit cards by a specified date. Subsection (e) Liquidation plan, imposes a requirement that the board of directors develop a formal written plan for liquidation of the credit union's assets and the payment of shares/deposit. The plan must address prescribed areas and provide for the liquidation of the credit union within one year of the liquidation date. Subsection (f) Approval of the liquidation proposal by membership, specifies that a member may vote on the liquidation proposal by submitting the ballot in person at a special meeting or by mailing in the ballot The subsection also prohibits the offering of inducements to encourage members to participate in the vote. Further the subsection requires credit unions to conduct its membership vote in a 42 TexReg 6432 November 17, 2017 Texas Register

15 fair and legal manner and hold its special meeting in a manner conducive to accommodating members wishing to attend. Subsection (g) Distribution of assets, stipulates the order upon which all legitimate creditor claims shall be paid. The subsection also specifies the action necessary after all assets have been converted to cash and the books are closed. Subsection (h) Economic benefit prohibits a director or senior management employee from receiving any economic benefit in connection with the voluntary liquidation. Subsection (i) Continued supervision of voluntary liquidation, reaffirms that a liquidating credit union continues to be subject to the regulation and supervision of the Department. The Department may require the liquidating credit union to submit reports and the Department may conduct examination of the credit union as necessary or appropriate. Subsection (j) Retention of records, provides that certain records of the liquidating credit union must be retained for a period of five years. The board of directors must designate a person to be responsible for the retained records. Subsection (k) Certificate of dissolution and liquidation, establishes a deadline of 120 days after final distribution for the board of directors to provide certification to the Department that the credit union has been successfully dissolved and liquidated. Subsection (l) Inquires after liquidation, prescribes that the person designated by the board of directors to retain the records of the liquidating credit union is also responsible for the timely response to any inquires received after the liquidation has been completed. Before action is taken to voluntarily liquidate a credit union, the Commission encourages the board of directors to determine whether liquidation is advisable by carefully considering all factors leading to the proposal and carefully considering all available options. Generally, voluntary liquidation should only be considered in extreme cases because at least a portion of a members' shares/deposits may not be available during liquidation. This inability of a members to access their funds could impose significant personal hardships on the members. Harold E. Feeney, Commissioner, has determined that for the first five year period the proposed new rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the new rule. Mr. Feeney has also determined that for each year of the first five years the proposed new rule is in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity as to what is expected of a credit union that elects to voluntarily liquidate. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of adopting the new rule. There is no economic cost anticipated to the credit union system or to individuals required to comply with the new rule as proposed. For each year of the first five years that the rule will be in effect, the rule will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; increase fees paid to the department; expand existing regulations; increase or decrease the number of individuals subject to the rule's applicability; positively or adversely affect this state's economy. For the first five years the rule will be in effect, the rule will create a new regulation related to the voluntary liquidation of a credit union. Written comments on the proposed new rule may be submitted in writing to Harold E. Feeney, Commissioner, Credit Union Department, 914 East Anderson Lane, Austin, Texas or by to CUDMail@cud.texas.gov. To be considered, a written comment must be received on or before 5:00 p.m. on the 31st day after the date the proposal is published in the Texas Register. The new rule is proposed under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under Texas Finance Code , which sets out the requirements for voluntary liquidations. The specific section affected by the proposed new rule is Texas Finance Code, Voluntary Liquidation. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Voluntary liquidation means the dissolution of a credit union with the assets being sold or collected, liabilities paid, and shares/deposits distributed under the direction of the board of directors. (2) Liquidation date means the date the membership votes to approve liquidation. (3) Liquidating agent means the person or persons appointed by the board of directors to take possession of, manage, and liquidate the credit union. (b) Initiating voluntary liquidation process. (1) Unless the commissioner has issued a liquidation order, the board of directors may, by resolution, recommend the voluntary dissolution of the credit union and direct submission of the question to the members of the credit union. (2) Within five days after the date the board adopts the resolution, the chairman of the board shall notify the commissioner, in writing, of the reasons for the proposed liquidation including a balance sheet and income statement as of the previous month-end. (3) The board shall act promptly to obtain the membership's approval in accordance with subsection (f) of this section. (4) The board's recommendation to dissolve and liquidate the credit union must be approved by the affirmative vote of a majority of members who submit ballots in person at the special membership meeting and by mail. If less than a majority vote to approve, the credit union may, subject to the commissioner's approval, resume normal business, resubmit the question of liquidation to the membership or request the appointment of a conservator under the Act and the rules adopted under it. (5) After an affirmative vote by the members to dissolve and liquidate the credit union, the board of directors shall be respon- PROPOSED RULES November 17, TexReg 6433

16 sible for conserving the assets, for expediting the liquidation, and for fair and equitable distribution of the assets to the members. (6) Within 5 days after an affirmative vote to dissolve and liquidate the credit union the chairman shall notify the commissioner in writing of the intention to liquidate together with a list of the officers and directors. (c) Notice of liquidation. (1) If the vote to dissolve and liquidate the credit union is affirmative, the credit union shall: (A) File a notice with the Department within five days after the liquidation date; and (B) Mail a copy of the notice of liquidation to shareholders/depositors, other known creditors, and known claimants of the credit union within ten days after the liquidation date. (2) A credit union shall publish public notice of liquidation, if so directed, and in the manner directed, by the Department. (3) Creditors shall be provided at least 30 days after the liquidation date to submit their claims. (d) Transaction of business during liquidation. (1) Immediately after notice of the special meeting to consider voluntary liquidation is mailed to the membership, admission of new members shall be suspended. No new extensions of credit shall be funded during the period between the board of directors' adoption of the resolution recommending voluntary liquidation and the membership meeting called to consider voluntary liquidation, except for the issuance of loans fully secured by a pledge of shares and the funding of outstanding loan commitments approved before adoption of the board resolution. Collection of loans and interest, payments of necessary expenses, clearing of share drafts and credit card charges shall continue. (2) If the membership votes to dissolve and liquidate the credit union, the credit union shall immediately discontinue payments on shares/deposits, withdrawal of shares/deposits (except for transfer of shares/deposits to loans and interest), transfer of shares/deposits to another share/deposit account, in the same credit union, granting of loans, and making of investments other than short-term investments shall be discontinued. The credit union shall continue to collect on loans with interest and shall continue to pay necessary expenses during the period of liquidation. The credit union shall direct its Members to discontinue the use of share drafts and credit cards, and shall inform Members that on and after the 15th calendar day after the liquidation date, items will no longer be cleared. (3) Approval of the Department must be obtained prior to consummating any sale of assets which would not provide sufficient funds to pay shareholders/depositors dollar-for-dollar, principal plus any interest accrued or due to the shareholder/depositor, through the liquidation date. (e) Liquidation Plan. The board of directors shall develop and approve a written plan for the liquidation of the assets and payment of shares/deposits. The liquidation plan shall provide for the liquidation of the credit union within one year of the liquidation date. At a minimum, a credit union's liquidation plan shall address the following areas: (1) Qualifications and experience of the proposed liquidating agent and the compensation and expenses attributable to the service of such person or persons; (2) Income and expense items must be projected to determine that sufficient funds will be available to finance the liquidation of the credit union; (3) Schedule for payment of all debts and liabilities owed by the credit union; (4) Partial distributions of shares/deposits should be considered as funds become available from the liquidation of assets; (5) Distribution of the credit union's assets that remain after settlement of debts and liabilities to all persons entitled to them; (6) Disposition or maintenance of any remaining or unclaimed funds, real or personal property, or other assets; (7) Surety bond coverage of all persons who will handle or have access to funds of the credit union and the proposed discovery period after final distribution of assets; and (8) Retention of the credit union's records after liquidation, and in a manner that complies with subsection (j) of this section. (f) Approval of the liquidation proposal by membership. (1) Not later than the 10th calendar day before the date of the special membership meeting to consider approval of the liquidation, the credit union shall notify, by first class mail, the Commissioner and each member who is eligible to vote on the proposal. The notice must adequately describe the purpose and subject matter of the vote and clearly inform members that they may vote at a special meeting held on the date set for the vote or by mailing in the ballot. The notice must include a clear and conspicuous disclosure of how the voluntary liquidation may affect the availability of funds on deposit and state the date, time, and place of the meeting. A ballot must be included in the same envelope as the notice. (2) No director or senior management employee may receive any economic benefit in connection with the voluntary liquidation of the credit union other than compensation and other benefits paid to directors and senior management employees in the ordinary course of business. (3) A credit union considering the question of liquidation must conduct its membership vote in a fair and legal manner. No inducements may be offered to encourage members to participate in the vote. (4) A credit union should be careful to conduct its special membership meeting in a manner conducive to accommodating all members wishing to attend, including selecting a meeting location that can accommodate the anticipated number of attendees and is conveniently located. The meeting should also be held on a day and time suitable to most members' schedules. (g) Distribution of assets. (1) The liquidating agent shall use the credit union's assets to pay, in the following order: collateral; (A) Secured creditors to the extent of the value of their (B) Liquidation expenses, including a surety bond; (C) Depositors; (D) General creditors, including secured creditors to the extent that their claims exceed the value of their collateral; and (E) Distributions to members in proportion to the shares/deposits held by each member. 42 TexReg 6434 November 17, 2017 Texas Register

17 (2) After all assets of the credit union have been converted to cash or found to be worthless, and all loans and debts owing to it have been collected or found to be uncollectible, and all obligations of the credit union have been paid/settled, except for shares/deposits due its members, the credit union shall close its books and compute the pro rata distribution to its members. The computation shall be based on the total amount in each share/deposit account as of the liquidation date or the date on which all share drafts have cleared, whichever is later. (3) Payments must be made to members promptly after the pro rata distribution has been computed. The credit union may mail a check to the member's last known address, deliver the check personally to the member, or make the payment by wire or any other electronic means authorized by the member. (4) Unclaimed share/deposit accounts, unpaid claims, and unpaid claims of members or creditors who failed to cash their final distribution checks shall be escheated in accordance with Texas laws. (5) The Department shall be notified in writing within five days after the final distribution of assets to the members begins. (h) Economic benefit. No director or senior management employee may receive any economic benefit in connection with the voluntary liquidation of the credit union other than compensation and other benefits paid to directors and senior management employees in the ordinary course of business. (i) Continued supervision of voluntary liquidation. (1) A voluntary liquidation of a credit union shall be conducted only with the continued supervision of the Department. The commissioner may conduct any examinations of the credit union the commissioner considers necessary or appropriate. (2) The credit union shall submit a report to the Department within 10 business days after the start of liquidation showing the credit union's balance sheet as of the start of liquidation. The liquidating credit union shall submit a report of progress as requested by the Department. (3) If the commissioner has reason to conclude the voluntary liquidation of a credit union is not being safely or expeditiously conducted, or is being conducted in violation of this section, the commissioner may take possession of the business and property of the credit union in the same manner, with the same effect, and subject to the same rights accorded the credit union as if the commissioner had issued a liquidation order. The commissioner may appoint a new liquidating agent and proceed to liquidate the affairs of the credit union as provided in the Finance Code, Title 3, Subtitle D, Subchapter E. (j) Retention of records. (1) The board of directors shall appoint a custodian for the credit union's records that are to be retained after the final distribution of assets. (2) The custodian shall retain all records of the liquidating credit union that are necessary to establish that the credit union paid creditors, and distributed assets to the members fairly and equitably in accordance with the approved liquidation plan. The custodian shall retain the records for a period of five years following the date the Department cancels the credit union's charter. (k) Certificate of dissolution and liquidation. Within 120 days after the credit union begins final distribution of assets to members, it shall file with the Department a duly executed Certificate of Dissolution and Liquidation. (l) Inquiries after liquidation. It will be the responsibility of the custodian for the credit union's records to respond timely to inquiries after liquidation. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER M. ELECTRONIC OPERATIONS 7 TAC The Credit Union Commission (the Commission) proposes amendments to , concerning authority to conduct electronic operations. The proposed amendments would expand the examples of electronic means or facilities to include mobile applications and eliminates the example of the World Wide Web. The proposal also institutes a new requirement that credit unions that use electronic means and facilities must employ a tested incident response to minimize the impact of a data breach or other incident on members. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter M under Texas Government Code, The notice of intention to review Chapter 91, Subchapters D, M, and N was published in the Texas Register on August 25, 2017, (42 TexReg 4313) and the amendments are proposed as a result of the Department's general rule review. The department did not receive any comments on the notice of intention to review. Incident response plans are similar to other crisis management plans credit unions should develop. A plan isn't a plan, however, until it has survived an actual test. It is important for credit unions to periodically test their response plans before an actual incident "tests" it for the credit union. Harold E. Feeney, Commissioner, has determined that for the first five year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended rule. Mr. Feeney has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will reduce reputation risk during and in the aftermath of an incident and provide greater ease of use of the rule. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of adopting the amended rule. There is no economic cost anticipated to the credit union system or to individuals required to comply with the rule amendments as proposed. For each year of the first five years that the rule will be in effect, the rule will not: PROPOSED RULES November 17, TexReg 6435

18 create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; increase fees paid to the department; create a new regulation; increase or decrease the number of individuals subject to the rule's applicability; positively or adversely affect this state's economy. For the first five years the rule will be in effect, the rule will expand existing regulations related to conducting electronic operations. Written comments on the proposed amendments may be submitted in writing to Harold E. Feeney, Commissioner, Credit Union Department, 914 East Anderson Lane, Austin, Texas or by to CUDMail@cud.texas.gov. To be considered, a written comment must be received on or before 5:00 p.m. on the 31st day after the date the proposal is published in the Texas Register. The amendments are proposed under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code. The statutory provisions affected by the proposed amendments are contained in Texas Finance Code Chapter 15 and Title Authority to Conduct Electronic Operations. (a) A credit union may use, or participate with others to use, electronic means or facilities to perform any function or provide any product or service as part of an authorized activity. Electronic means or facilities include, but are not limited to, automated teller machines, automated loan machines, mobile applications, personal computers, the Internet, the World Wide Web, telephones, and other similar electronic devices. (b) To optimize the use of its resources, a credit union may market and sell, or participate with others to market and sell, electronic capacities and by-products to others, provided the credit union acquired or developed these capacities and by-products in good faith as part of providing financial services to its members. (c) If a credit union uses electronic means and facilities authorized by this rule, the credit union's board of directors must require staff to: (1) Identify, assess, and mitigate potential risks and establish prudent internal controls, and system backup procedures; [and] (2) Implement security measures designed to ensure secure operations. Such measures should take into consideration: (A) the prevention of unauthorized access to credit union records and credit union members' records; (B) the prevention of financial fraud through the use of electronic means or facilities; and (C) compliance with applicable security device requirements for teller machines contained elsewhere in Chapter 91; and[.] (3) Employ an incident response plan, which has been subjected to reasonable testing, to minimize the impact of a data breach or other electronic incident while quickly restoring operations, credibility, and security. (d) All credit unions engaging in such electronic activities must comply with all applicable state and federal laws and regulations as well as address all safety and soundness concerns. (e) A credit union shall review, on at least an annual basis, its system backup procedures for all electronic activities. (f) A credit union shall not be considered doing business in this State solely because it physically maintains technology, such as a server, in this State, or because the credit union's product or services are accessed through electronic means by members located in this State. (g) A credit union that shares electronic space, including a co-branded web site, with a credit union affiliate, or another third-party must take reasonable steps to clearly and conspicuously distinguish between products and services offered by the credit union and those offered by the credit union's affiliate, or the third-party. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TAC The Credit Union Commission (the Commission) proposes amendments to concerning transactional web site notice requirements; and security review. The proposed amendments would require a review of the adequacy of the web site's security measures annually instead of once every two years. In addition, the proposed amendments would provide clarification, better readability, and would update the rule. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter M under Texas Government Code, The notice of intention to review Chapter 91, Subchapters D, M, and N was published in the Texas Register on August 25, 2017, (42 TexReg 4313), and the amendments are proposed as a result of the Department's general rule review. The department did not receive any comments on the notice of intention to review. As technology continues to ingrain itself into nearly all aspects of credit union operations, the threat of being hacked becomes more and more real. As a result, cyber security is a major concern for not just individuals, but also credit unions, who are trusted to securely store data that ranges from member names and addresses to even more sensitive information like credit card numbers and trade secrets. These days, data is currency, and plenty of nefarious folks are willing to spend- and risk- almost anything to get it. With all of this in mind, it's more critical now than ever before that credit unions implement a more robust approach to security testing for their websites that are capable of receiving or storing important data from members. 42 TexReg 6436 November 17, 2017 Texas Register

19 Harold E. Feeney, Commissioner, has determined that for the first five year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended rule. Mr. Feeney has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be improved practices to mitigate risk and greater ease of use of the rule. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of adopting the amended rule. There is no economic cost anticipated to the credit union system or to individuals required to comply with the rule amendments as proposed. For each year of the first five years that the rule will be in effect, the rule will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; increase fees paid to the department; create a new regulation; increase or decrease the number of individuals subject to the rule's applicability; positively or adversely affect this state's economy. For the first five years the rule will be in effect, the rule will expand existing regulations related to transactional website notice requirements and security review. Written comments on the proposed amendments may be submitted in writing to Harold E. Feeney, Commissioner, Credit Union Department, 914 East Anderson Lane, Austin, Texas or by to CUDMail@cud.texas.gov. To be considered, a written comment must be received on or before 5:00 p.m. on the 31st day after the date the proposal is published in the Texas Register. The amendments are proposed under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code. The statutory provisions affected by the proposed amendments are contained in Texas Finance Code Chapter 15 and Title Transactional Web Site Notice Requirement; and Security Review. (a) A credit union must file a written notice with the commissioner at least 30 days before it establishes a transactional web site. The notice must: (1) Include an address for and a description of the transactional features of the web site; (2) Indicate the date the transactional web site will become operational; and (3) List a contact person familiar with the deployment, operation, and security of the transactional web site. (b) For the purposes of this chapter a transactional web site is an Internet site that enables users to access an account and conduct financial transactions such as [accessing an account, obtaining an account balance,] transferring funds, processing bill payments, opening an account, applying for or obtaining a loan, or purchasing other authorized products or services. (c) Credit unions that [, which] have a transactional web site[,] must provide for a review of the adequacy of the web site's security measures annually [at least once every two years]. The scope of the review should cover the adequacy of physical and logical protection against [unauthorized access including] denial of service attacks and other attack vectors designed to gain unauthorized access to the system [and other forms of electronic access]. If the credit union outsources this technology platform, it can rely on testing or audits performed for the service provider to the extent it satisfies the scope requirements of this subsection. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER N. EMERGENCY OR PERMANENT CLOSING OF OFFICE OR OPERATION 7 TAC The Credit Union Commission (the Commission) proposes amendments to , concerning emergency closing. The proposed amendments would institute a new requirement that a credit union should post notice of an emergency closing of an office or operation on its website and any social media pages. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter N under Texas Government Code, The notice of intention to review Chapter 91, Subchapters D, M, and N was published in the Texas Register on August 27, 2017, (42 TexReg 4313) and the amendments are proposed as a result of the Department's general rule review. The department did not receive any comments on the notice of intention to review. Web sites and social media are not a fad or trend. They are enduring realities of online existence. Members are increasingly embracing these social networks as an integral part of their everyday lives. Credit union website and social media accounts are accessible 24/7/365 and are indispensable in getting the word out to members about emergency closings of offices and operations. Harold E. Feeney, Commissioner, has determined that for the first five year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended rule. PROPOSED RULES November 17, TexReg 6437

20 Mr. Feeney has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be better notice to members. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of adopting the amended rule. There is no economic cost anticipated to the credit union system or to individuals required to comply with the rule amendments as proposed. For each year of the first five years that the rule will be in effect, the rule will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; increase fees paid to the department; create a new regulation; increase or decrease the number of individuals subject to the rule's applicability; positively or adversely affect this state's economy. For the first five years the rule will be in effect, the rule will expand existing regulations related to an emergency closing of a credit union office or operation. Written comments on the proposed amendments may be submitted in writing to Harold E. Feeney, Commissioner, Credit Union Department, 914 East Anderson Lane, Austin, Texas or by to CUDMail@cud.texas.gov. To be considered, a written comment must be received on or before 5:00 p.m. on the 31st day after the date the proposal is published in the Texas Register. The amendments are proposed under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code. The statutory provisions affected by the proposed amendments are contained in Texas Finance Code Chapter 15 and Title Emergency Closing. (a) If the officer in charge of a credit union determines that an emergency that affects or may affect one or more of the credit union's offices or operations exists or is impending, the officer may determine: (1) not to conduct the involved operations or open the offices on any normal business day of the credit union until the emergency has passed; or (2) if the credit union is open, to close the offices or the involved operations for the duration of the emergency. (b) Subject to subsection (c) of this section, a closed office or operation may remain closed until the officers determine that the emergency has ended and for any additional time reasonably required to reopen. (c) A credit union that closes an office or operation under this section shall notify the commissioner of its action by any means available and as promptly as conditions permit. In addition, notice of such closure should be posted on the home page of the credit union's website and on its social media pages. An office or operation may not be closed for more than three consecutive days, excluding days on which the credit union is customarily closed, without the commissioner's written approval. (d) Each credit union shall maintain on file with the department a report of emergency contact information pertaining to its officers, directors, and committee members in such form as the commissioner may prescribe. (e) In this chapter, the following words and terms shall have the following meanings: (1) Emergency- means a condition or occurrence that physically interferes with the conduct of normal business at the offices of a credit union or of a particular credit union operation or that poses an imminent or existing threat to the safety or security of persons, property, or both. The term includes a condition or occurrence arising from: (A) fire, flood, earthquake, hurricane, tornado, or wind, rain, ice or snow storm; (B) labor dispute or strike; (C) disruption or failure of utilities, transportation, communication or information systems and any applicable backup systems; (D) shortage of fuel, housing, food, transportation, or labor; (E) robbery, burglary, or attempted robbery or burglary; (F) epidemic or other catastrophe; or (G) riot, civil commotion, enemy attack, or other actual or threatened act of lawlessness or violence. (2) Officer in charge- means the president of the credit union, or a person designated by the president, who shall have the authority to take all necessary and appropriate actions to deal appropriately with the emergency. The president of a credit union shall always have an individual designated as an officer in charge during his/her absence or unavailability. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TAC The Credit Union Commission (the Commission) proposes amendments to , concerning permanent closing of an office. The proposed amendments would institute a new requirement that a credit union post notice of the permanent closing of an office on its website and any social media pages at least 30 days prior to the proposed closing. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91, Subchapter N, under Texas Government Code, The notice of intention to review Chapter 91, Sub- 42 TexReg 6438 November 17, 2017 Texas Register

21 chapters D, M, and N was published in the Texas Register on August 25, 2017, (42 TexReg 4313) and the amendments are proposed as a result of the Department's general rule review. The department did not receive any comments on the notice of intention to review. Web sites and social media are not a fad or trend. It's an enduring reality of online existence. Members are increasingly embracing these social networks as an integral part of their everyday lives. Credit union website and social media accounts are accessible 24/7/365 and are indispensable in getting the word out to members about the permanent closings of office. Harold E. Feeney, Commissioner, has determined that for the first five year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended rule. Mr. Feeney has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be better notice to members. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of adopting the amended rule. There is no economic cost anticipated to the credit union system or to individuals required to comply with the rule amendments as proposed. For each year of the first five years that the rule will be in effect, the rule will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; increase fees paid to the department; create a new regulation; increase or decrease the number of individuals subject to the rule's applicability; positively or adversely affect this state's economy. For the first five years the rule will be in effect, the rule will expand existing regulations related to the permanent closure of credit union office. Written comments on the proposed amendments may be submitted in writing to Harold E. Feeney, Commissioner, Credit Union Department, 914 East Anderson Lane, Austin, Texas or by to CUDMail@cud.texas.gov. To be considered, a written comment must be received on or before 5:00 p.m. on the 31st day after the date the proposal is published in the Texas Register. The amendments are proposed under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code. The statutory provisions affected by the proposed amendments are contained in Texas Finance Code Chapter 15 and Title Permanent Closing of an Office. A credit union may permanently close any of its established offices or service facilities. The credit union shall provide notice to its members and the department no later than 60 days prior to the proposed closing. The credit union shall also post a notice to members in a conspicuous manner on the premises of the effected office or service facility and the homepage of the credit union's website and any social media pages at least 30 days prior to the proposed closing. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 19. EDUCATION PART 1. TEXAS HIGHER EDUCATION COORDINATING BOARD CHAPTER 4. RULES APPLYING TO ALL PUBLIC INSTITUTIONS OF HIGHER EDUCATION IN TEXAS SUBCHAPTER D. DUAL CREDIT PARTNERSHIPS BETWEEN SECONDARY SCHOOLS AND TEXAS PUBLIC INSTITUTIONS OF HIGHER EDUCATION 19 TAC The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to Chapter 4, Rules Applying to All Public Institutions of Higher Education in Texas, Subchapter D, Dual Credit Partnerships between Secondary Schools and Texas Public Colleges, , concerning college courses offered for dual credit by public institutions of higher education. The intent of the amendments is to update existing rules to align with current statute and rule references regarding limitations on college courses that can be offered for dual credit by public institutions of higher education. The amended rules will affect students enrolling in dual credit courses and early college high schools during the 2018 fall semester. The rule amendments proposed for this Subchapter were reviewed and approved by the Negotiated Rulemaking Committee on Dual Credit Course Limitations on November 2, Dr. Rex Peebles, Assistant Commissioner for Workforce, Academic Affairs and Research, has determined that for the first five years there will be no fiscal implications for state or local governments as a result of amending the rule listed above. Dr. Peebles has also determined that for the first five years the amendments are in effect, the public benefits anticipated as a result of administering the sections will be the clarification of college courses that can be offered for dual credit by public institutions of higher education. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment. PROPOSED RULES November 17, TexReg 6439

22 Finally, in accordance with Texas Administrative Code, , Dr. Peebles has determined that for the first five years the proposed rule would be in effect: 1. The proposed rule does not create or eliminate a government program; 2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions; 3. Implementation of the proposed rule does not require the increase or decrease in future legislative appropriations to the Texas Higher Education Coordinating Board; 4. The proposed rule does not require an increase of decrease in fees paid to the agency; 5. The proposed rule does not create a new regulation; 6. The proposed rule does expand, limit, or repeal an existing regulation, as specified in Senate Bill 1091, 85th Texas Legislature, Regular Session; 7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed rule positively affects this state's economy. Comments on the proposed amendments may be submitted by mail to Rex C. Peebles, Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas or via at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register. The amendments are proposed under the Texas Education Code, Chapter 28, (b-1); Chapter 51, (d-2); and Chapter 130, (a-3), which provides the Coordinating Board with the authority to adopt rules to administer the section. The amendments affect the implementation of Texas Education Code, Chapters 28, 51, and Purpose. This subchapter provides rules and regulations for public institutions of higher education [two-year associate degree-granting institutions and public universities] to engage in dual credit partnerships with secondary schools. (See Chapter 9, Subchapter H of this title relating to Partnerships Between Secondary Schools and Public Two-Year Associate Degree-Granting Institutions) for high school credit only partnerships, [Tech-Prep partnerships,] and remedial or developmental instruction for high school graduation partnerships.) Authority. Texas Education Code, (b), , , , (b)(3) - (4), , , and (d) provide the Board with the authority to regulate dual credit partnerships between public institutions of higher education and [two-year associate degree-granting institutions and public universities with] secondary schools with regard to lower division courses Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Articulated College Credit--credit earned through a high school-level course that fulfills specific requirements of an identified college-level course and provides a pathway for high school students to earn credit toward a technical certificate or technical degree at a partnering institution of higher education. (2) [(1)] Board or Coordinating Board--The Texas Higher Education Coordinating Board. (3) Career and Technical Education Course--a college-level course awarding semester credit hours and contained in the Workforce Education Course Manual (WECM) or a specified course contained in the Lower-Division Academic Course Guide manual that may be reported for state funding by institutions of higher education as a dual credit career and technical education course in the Coordinating Board Management (CBM) Reporting and Procedures Manual for Texas Community, Technical, and State Colleges. (4) [(2)] College--Public institution of higher education as defined in TEC (8) [two-year associate degree-granting institutions and public universities]. (5) College Board Advanced Placement--College-level courses and exams available to secondary students under the auspices of an approved College Board program. (6) [(3)] Commissioner--The Commissioner of Higher Education. (7) [(4)] Dual credit--a system under [process by] which an eligible [a] high school student enrolls in college course(s) [a college course] and receives [simultaneous academic] credit for the course(s) [course] from both the college and the high school. While dual credit courses are often taught on the secondary school campus to high school students only, applicable sections of these rules, 4.84(a) and 4.85(a), (b), (g), (h), (i) of this title (relating to Dual Credit Partnerships), [also] apply irrespective of location or mode of delivery [when a high school student takes a course on the college campus and receives both high school and college credit]. Dual credit is also referred to as concurrent course credit; the terms are equivalent. [However, dual (or concurrent) enrollment refers to a circumstance in which a student is enrolled in more than one educational institution (including a high school and a college).] (8) Dual or concurrent enrollment--refers to a circumstance in which a student is enrolled in more than one educational institution (including a high school and a public institution of higher education). Dual or concurrent enrollment is not equivalent to dual credit. (9) Early College Education Program--A program as defined in TEC (10) Early College Program--A program developed via an institutional agreement in partnership between a public institution of higher education and high schools or school districts in which a student enrolls in courses that are part of a defined sequence of courses leading to a Board approved certificate, AA, AS, or AAS degree program as defined in Title 19, Part 1, Chapter 9, Rule Definitions of Texas Administrative Code. [(5) College Board Advanced Placement--College-level courses and exams available to secondary students under the auspices of the College Board. A College Board-approved Advanced Placement (AP) Program must adhere to the AP course descriptions, include administration of official AP exams, foster teacher professional development, and provide access to AP courses for all students who are willing to enroll in the rigorous academic curriculum of AP courses as prescribed by the College Board.] (11) Field of Study Curriculum (FOSC)--a set of courses that satisfies the lower-division requirements for a baccalaureate degree in a specific academic area at a general academic teaching institution. A field of study curriculum affects academic degree programs at public 42 TexReg 6440 November 17, 2017 Texas Register

23 junior colleges, public technical institutes, or universities as designated within the particular field of study curriculum. (12) International Baccalaureate Diploma Program--the curriculum and examinations leading to an International Baccalaureate diploma awarded by the International Baccalaureate Organization. (13) [(6)] Public two-year associate degree-granting institution--a community college, a technical college, or a state college. [(7) Texas Assessment of Knowledge and Skills--The criterion-referenced assessment instruments required under Texas Education Code, , designed to assess essential knowledge and skills in reading, writing, mathematics, social studies, and science in grades three through twelve.] Institutional Agreements. (a) (No change.) (b) Elements of Institutional Agreements. The dual credit partnership must address the following elements: (1) Eligible Courses; (2) Student Eligibility; (3) Location of Class; (4) Student Composition of Class; (5) Faculty Selection, Supervision, and Evaluation; (6) Course Curriculum, Instruction, and Grading; (7) Academic Policies and Student Support Services; (8) Transcripting of Credit; [and] (9) Funding; and [.] (10) Defined sequences of courses, where applicable Dual Credit Requirements. (a) Eligible Courses. (1) (No change.) (2) Courses offered for dual credit by public universities must be in the approved undergraduate course inventory of the university. (3) A college course offered for dual credit must be: (A) in the core curriculum of the public institution of higher education providing the credit; (B) a career and technical education course; or (C) a foreign language course. (i) This provision does not apply to a college course for dual credit offered as part of an approved early college education program established under TEC or an early college program as defined in this subchapter. (ii) Any college course for dual credit offered as part of an early college program as defined in this subchapter must be a core curriculum course of the public institution of higher education providing the credit, a career and technical education course, a foreign language course, or a course that satisfies specific degree plan requirements leading to the completion of a Board approved certificate, AA, AS, AAS degree program, or FOSC. (4) [(3)] Public colleges may not offer remedial and developmental courses for dual credit. (b) Student Eligibility. (1) (No change) (2) A high school student is also eligible to enroll in academic dual credit courses that require demonstration of TSI college readiness in reading, writing, and/or mathematics under the following conditions: (A) Courses that require demonstration of TSI college readiness in reading and/or writing: (i) if the student achieves a Level 2 final recommended score, as defined by the Texas Education Agency (TEA), on the English II State of Texas Assessment of Academic Readiness End of Course (STAAR EOC); or (ii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the reading test; or (iii) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in English or an English score of 435 on the ACT-Aspire. (B) Courses that require demonstration of TSI college readiness in mathematics: (i) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra I STAAR EOC and passing grade in the Algebra II course; or (ii) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra II STAAR EOC; or (iii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the mathematics test; or (iv) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in mathematics or a mathematics score of 431 on the ACT-Aspire. (3) A high school student is eligible to enroll in workforce education dual credit courses contained in a Level 1 certificate program, or a program leading to a credential of less than a Level 1 certificate, at a public junior college or public technical institute and shall not be required to provide demonstration of college readiness or dual credit enrollment eligibility. (4) A high school student is eligible to enroll in workforce education dual credit courses contained in a Level 2 certificate or applied associate degree program under the following conditions: (A) Courses that require demonstration of TSI college readiness in reading and/or writing: (i) if the student achieves a Level 2 final recommended score, as defined by TEA, on the English II STAAR EOC; or (ii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the reading test; or (iii) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in English or an English score of 435 on the ACT-Aspire. (B) Courses that require demonstration of TSI college readiness in mathematics: (i) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra I STAAR EOC and passing grade in the Algebra II course; or PROPOSED RULES November 17, TexReg 6441

24 (ii) if the student achieves a Level 2 final recommended score, as defined by TEA, on the Algebra II STAAR EOC; or (iii) if the student achieves a combined score of 107 on the PSAT/NMSQT with a minimum of 50 on the mathematics test; or (iv) if the student achieves a composite score of 23 on the PLAN with a 19 or higher in mathematics or a mathematics score of 431 on the ACT-Aspire. (C) A student who is exempt from taking [TAKS or] STAAR EOC assessments may be otherwise evaluated by an institution to determine eligibility for enrolling in workforce education dual credit courses. (5) Students who are enrolled in private or non-accredited secondary schools or who are home-schooled must satisfy paragraphs (1) - (4) of this subsection. (6) To be eligible for enrollment in a dual credit course offered by a public college, students must meet all the college's regular prerequisite requirements designated for that course (e.g., minimum score on a specified placement test, minimum grade in a specified previous course, etc.). (7) An institution may impose additional requirements for enrollment in courses for dual credit that do not conflict with this section. (8) An institution is not required, under the provisions of this section, to offer dual credit courses for high school students. (c) (No change.) (d) Composition of Class. Dual credit courses may be composed of dual credit students only or of dual and college credit students. Notwithstanding the requirements of subsection (e) of this section, exceptions [Exceptions] for a mixed class, which would also include high school credit-only students, may be allowed only under one of the following conditions: (1) (No change.) (2) If the high school credit-only students are College Board Advanced Placement or International Baccalaureate students. (3) If the course is a career and technical [technology]/college workforce education course and the high school credit-only students are eligible to earn [earning] articulated college credit. (e) Faculty Selection, Supervision, and Evaluation. (1) The college shall select instructors of dual credit courses. These instructors [must be regularly employed faculty members of the college or] must meet the same standards (including minimal requirements of the Southern Association of Colleges and Schools Commission on Colleges) and approval procedures used by the college to select faculty responsible for teaching the same courses at the main campus of the college. (2) (No change.) (f) - (h) (i) Funding. (No change.) (1) The state funding for dual credit courses will be available to both public school districts and colleges based on the current funding rules of the State Board of Education (TEC (g)) and the Board (TEC (p) and (q)). (2) (No change.) (3) This provision does not apply to students enrolled in approved early college education [high school] programs under TEC (4) (No change.) The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 6, TRD Bill Franz General Counsel Texas Higher Education Coordinating Board Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER O. OPEN EDUCATIONAL RESOURCES GRANT PROGRAM 19 TAC The Texas Higher Education Coordinating Board (Coordinating Board) proposes to add new , Rules Applying to All Public Institutions of Higher Education in Texas, concerning Open Educational Resources Grant Program. The intent of the new sections is to implement Senate Bill 810, passed by the 85th Texas Legislature, Regular Session, which requires the board to establish and administer a new grant program to encourage faculty at institutions of higher education to adopt, modify, redesign, or develop courses that use only Open Educational Resources (OER). The new rules proposed for these sections were reviewed and approved by the Negotiated Rulemaking Committee on Open Educational Resources Grant Program on November 1, Dr. Rex C. Peebles, Assistant Commissioner for Academic Quality and Workforce, has determined estimated cost for the state or local governments is $100,000 in fiscal year 2018 and $100,000 in fiscal year 2019 and subsequent years as a result of amending the rules listed above to implement SB 810 requirements. The costs include estimated grant awards paid to selected Texas higher education institutions, through a competitive grant process, and time and effort of Texas Higher Education Coordinating Board staff. Appropriation of General Revenue funds was approved to implement the provisions of the bill. Dr. Peebles has also determined that the public benefits anticipated as a result of administering the sections will include professional development of faculty who participate in the transition of existing traditional courses to OER courses and cost savings to students who enroll in OER courses. There is no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment. Finally, in accordance with Texas Administrative Code, , Dr. Peebles has determined that for the first five years the proposed rule would be in effect: 42 TexReg 6442 November 17, 2017 Texas Register

25 1. The proposed rule does not create or eliminate a government program; 2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions; 3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Texas Higher Education Coordinating Board; 4. The proposed rule does not require an increase or decrease in fees paid to the agency; 5. The proposed rule does not create a new regulation; 6. The proposed rule does expand, limit, or repeal an existing regulation, as specified in Senate Bill 810, 85th Texas Legislature, Regular Session; 7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed rule positively affects this state's economy. Comments on the proposed new sections may be submitted by mail to Rex C. Peebles, Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas or via at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register. The new rules are proposed under the Texas Education Code, (l) and , which provides the Coordinating Board with the authority. The proposed new sections affect the implementation of Texas Education Code, Purpose. The purpose of this subchapter is to implement rules to establish the Open Educational Resources (OER) Grant Program, under which the Board awards grant payments to eligible institutional faculty employed by a Texas higher education institution, as defined in Texas Education Code (8), to adopt, modify, redesign, or develop one or more courses using only open educational resources Authority. The authority for this subchapter is found in Texas Education Code, Chapter 61, Subchapter , which provides the board with the authority to adopt rules to administer this grant program Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the text clearly indicates otherwise. (1) Board or THECB--The Texas Higher Education Coordinating Board. (2) Commissioner--The Commissioner of Higher Education. (3) Eligible Applicant--A faculty member as defined in Texas Education Code or group of faculty currently employed at an institution of higher education, as defined in Texas Education Code (8). (4) Institution of Higher Education--Any public technical institute, public junior college, public senior college or university, or medical or dental unit, or other agency of higher education as defined by Texas Education Code, (8). (5) Open Educational Resources (OER)--A teaching, learning, or research resource that is in the public domain or has been released under an intellectual property license that permits the free use, adaptation, and redistribution of the resource by any person. The term may include full course curricula, course materials, modules, textbooks, media, assessments, software, and any other tools, materials, or techniques, whether digital or otherwise, used to support access to knowledge. (6) Request for Applications (RFA)--A type of solicitation notice in which the THECB announces available grant funding, sets forth the guidelines governing the program, provides evaluation criteria for submitted applications, and provides instructions for eligible entities to submit applications for such funding. The guidelines governing the program may include a Letter of Intent, eligibility requirements, performance expectations, budget guidelines, reporting requirements, and other standards of accountability for this program Eligibility. Faculty employed by a Texas public institution of higher education are eligible to apply for a grant under this program Grant Application Procedures. To qualify for funding consideration, each eligible applicant must submit an application to Board staff. Each application must: (1) Be submitted electronically in a format specified in the RFA; and (2) Adhere to the grant program requirements contained in the RFA; and (3) Be submitted with proper authorization on or before the day and time specified by the RFA Award Amounts. (a) The maximum amount of funding available to the program is dependent on the legislative appropriation for each biennium. Award levels and the maximum number of awards will be specified in the RFA. (b) The Board shall delegate to the Commissioner general authority to award all OER grant program grants after receiving recommendations from qualified reviewers. (c) Award criteria may be adjusted by Board staff to best fulfill the purpose of a single request for applications if those adjusted award criteria are included in the request for applications Review Criteria. Applicants shall be selected for funding based on requirements and award criteria provided in the RFA. Award criteria will include, but may not be limited to, consideration of the following factors: (1) The number of students projected to annually enroll in the course; (2) The projected amount of money saved by a student due to the use of OER in the course; and (3) The evaluation of the application by three selected qualified reviewers of the curriculum of the course, as determined by Board staff Reporting Criteria. Grantees must file reports with Board staff as required by the RFA for each applicable course for each of the four semesters immediately following OER implementation. Grantees will provide information that includes, but is not limited to, the following: (1) The number of students who have completed the course; PROPOSED RULES November 17, TexReg 6443

26 (2) An estimate of the amount of money saved by a student due to the use of open educational resources in the course; (3) A description of the open educational resources used in the course; (4) The number of other faculty members, if any, who adopted the curriculum of the course associated with the grant; and (5) Any other information required by the RFA General Information. (a) Cancellation or Suspension of Grant Solicitations. The Board has the right to reject all applications and cancel a grant solicitation at any point. (b) Notice of Grant Award (NOGA). Before release of funds, the successful applicants must sign a NOGA issued by Board staff. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 6, TRD Bill Franz General Counsel Texas Higher Education Coordinating Board Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) CHAPTER 9. PROGRAM DEVELOPMENT IN PUBLIC TWO-YEAR COLLEGES SUBCHAPTER F. WORKFORCE CONTINUING EDUCATION COURSES 19 TAC The Texas Higher Education Coordinating Board (Coordinating Board) proposes amendments to Chapter 9, Subchapter F, Workforce Continuing Education Courses, 9.112, and proposes new that apply to Public Community Colleges regarding enrollment of certain students in continuing education courses. The intent of the subchapter is to create rules to align with HB 2994, 85th Texas Legislature, Regular Session, regarding the enrollment of certain high school students in non-credit continuing education courses. The revised Chapter 9, Subchapter F establishes rules for public community colleges concerning the enrollment of certain students under the age of 18 in non-credit courses, waiving tuition and fees for courses where a significant portion of the cost is borne by another party, and courses offered in federal prisons. The amended and new rules will affect students enrolling in higher education during the 2018 spring semester. The proposed amendments and new rules were reviewed and approved by the Negotiated Rulemaking Committee on Workforce Continuing Education on October 30, Dr. Rex Peebles, Assistant Commissioner for Academic Quality and Workforce, has determined that for the first five years there will be no fiscal implications for state or local governments as a result of amending and creating the rules listed above. Dr. Peebles has also determined that for the first five years the amendments and new rules are in effect, the public benefits anticipated as a result of administering the sections will be the clarification of the enrollment and reporting for contact hour reimbursement continuing education offered by public junior colleges. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment. Finally, in accordance with 34 Texas Administrative Code 11.1, Dr. Peebles has determined that for the first five years the proposed amendments and new rules would be in effect: 1. The proposed amendments and new rules do not create or eliminate a government program; 2. Implementation of the proposed amendments and new rules do not require the creation of new employee positions or the elimination of existing employee positions; 3. Implementation of the proposed amendments and new rules do not require an increase or decrease in future legislative appropriations to the Texas Higher Education Coordinating Board; 4. The proposed amendments and new rules do not require an increase or decrease in fees paid to the agency; 5. The proposed amendments and new rules do not create a new regulation; 6. The proposed amendments and new rules do expand, limit, or repeal an existing regulation, as specified in House Bill 2994, 85th Texas Legislature, Regular Session; 7. The proposed amendments and new rules do not increase or decrease the number of individuals subject to the rules' applicability; and 8. The proposed amendments and new rules do not affect this state's economy. Comments on the amendments and new rules may be submitted by mail to Rex C. Peebles, Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas or via at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register. The amendments and new rules are proposed under the Texas Education Code, (n), , , , , , (b)(3) - (4), (e)(4), , , and , that authorize the Coordinating Board to adopt policies, enact regulations, and establish rules for public two-year colleges for the coordination of workforce continuing education courses eligible for state appropriations. The amendments and new rules affect the implementation of Texas Education Code, Chapter Authority. The Texas Education Code, (n), , [61.051(j), ], , , , , (b)(3) - (4), (e)(4), , and , authorize the Coordinating Board to adopt policies, enact regulations, and establish rules for public two-year colleges for the coordination of [career technical/]workforce continuing education courses eligible for state appropriations Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. 42 TexReg 6444 November 17, 2017 Texas Register

27 (1) Adult-- (A) a person who has completed the person's sophomore year of high school, or (B) is 17 years of age and has been awarded a high school diploma or its equivalent, or (C) is 18 years of age or older, regardless of the person's previous educational experience. (2) Avocational course--a course of study in a subject or activity that is usually engaged in by a person in addition to the person's regular work or profession for recreation or in relation to a hobby. The term includes a community interest course. (3) Basic employability course--a course that covers topics such as conducting a job search, developing a resume, completing an application for employment, and interviewing skills. (4) Basic learning skills course--a non-college-level course that covers learning strategies such as note-taking, and test preparation. (5) Coordinating board-- the Texas Higher Education Coordinating Board. (6) Disabilities of minority--as defined in Texas Family Code, Chapter 31, Removal of the Disabilities of Minority. Applies to students over the age of 16 and not over the age of 18. (7) Learning framework course--a college-level course that is solely or primarily focused on skill acquisition related to the learning process and is not a workforce education course. (8) Workforce continuing education--non-credit instruction that is designed primarily for adults and is intended, on completion by a participant, to prepare the participant to qualify to apply for and accept an employment offer or a job upgrade within a specific occupational category or to bring the participant's knowledge or skills up to date on new developments in a particular occupation or profession. (9) Workforce continuing education course--a course of non-credit instruction in workforce continuing education that is approved by the coordinating board. The term does not include an avocational course General Provisions. (a) Any workforce continuing education program meeting or exceeding 360 contact hours shall be subject to all of the requirements for workforce education programs for state appropriations as outlined in Chapter 9, Subchapter E of this title (relating to Certificate and Associate Degree Programs). (b) Any workforce continuing education program meeting or exceeding 780 contact hours in length must result in the award of semester or quarter credit hours and be applicable to a certificate and an applied associate degree program. An exception shall be made for Emergency Medical/Paramedic continuing education programs, which may reach 800 contact hours. (c) A public junior college may offer, or may enter into an agreement with a school district, organization, or other person that operates a high school to offer, workforce continuing education courses other than learning framework courses, basic employability courses, and basic learning skills courses to a person who is: (1) enrolled in high school after the completion of the person's sophomore year; (2) is enrolled in a school that is not formally organized as a high school and is at least 16 years of age; or (3) is attending high school while incarcerated, is at least 16 years of age, and is not eligible for release from incarceration before the person's 18th birthday Application and Approval Procedures for Workforce Continuing Education Courses. (a) Any workforce continuing education course listed in the Workforce Education Course Manual (WECM) may be offered by any public two-year college without prior approval by the Board. Courses in the current WECM are valid until revised or deleted by subsequent updates of the WECM. (b) All workforce continuing education courses shall be in compliance with the guidelines outlined in the Guidelines for Instructional Programs in Workforce Education as approved by the Board, the Workforce Education Course Manual, and state law Waiver of Tuition and Fees. A public junior college may waive all or part of the tuition or fees charged to a student for a workforce continuing education course only if: (1) the student: (A) is enrolled in high school or in a school that is not formally organized as a high school, or; (B) is 16 years of age or older, who has had the disabilities of minority removed, and is not enrolled in secondary education, or; (C) is under the age of 18 and is incarcerated; and (2) the institution: (A) determines all or a significant portion of the college's costs for facilities, instructor salaries, equipment, and other expenses for the course are covered by business, industry, or other local public or private entities; or (B) offers the course in a federal correctional facility and the facilities, equipment, supplies, and other expenses for the course are funded by the federal government Funding. (a) Contact hours attributable to the enrollment of a student in a workforce continuing education course offered by a public junior college shall be included in the contact hours used to determine the college's proportionate share of state money appropriated and distributed to public junior colleges under Texas Education Code and , regardless of whether the college waives all or part of the tuition or fees for the course under (b) Workforce continuing education courses with fewer than seven (7) contact hours of instruction will not receive state funding unless the specific type and length of instruction are required by local, state, or national licensing, certifying, regulatory, or accrediting agencies. (c) No funds appropriated to any public two-year college may be expended for any workforce continuing education course which has not been approved by the Board staff. (d) A vocational courses shall not be eligible for state appropriations. This includes community interest courses. A community college can offer community interest courses using local funds. (e) Workforce Education Course Manual continuing education special topics courses that are not designed to prepare adult students for employment shall not be eligible for state appropriations. This includes basic employability courses, basic learning skills courses and learning framework courses. PROPOSED RULES November 17, TexReg 6445

28 The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 6, TRD Bill Franz General Counsel Texas Higher Education Coordinating Board Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER F. CAREER TECHNI- CAL/WORKFORCE CONTINUING EDUCATION COURSES 19 TAC The Texas Higher Education Coordinating Board proposes to repeal Chapter 9, Subchapter F, Career Technical/Workforce Continuing Education Courses, that apply to Public Community Colleges regarding enrollment of certain students in continuing education courses. The intent of the repeal of these sections is to then develop new rules to align with HB 2994, 85th Texas Legislature, Regular Session, regarding the enrollment of certain high school students in non-credit continuing education courses. The proposed repealed rules were reviewed and approved by the Negotiated Rulemaking Committee on Workforce Continuing Education on October 30, Rex Peebles, Assistant Commissioner for Academic Quality and Workforce, has determined that for the first five years there will be no fiscal implications for state or local governments as a result of repealing the rules listed above. Dr. Peebles has also determined that for the first five years the repealed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no impact on local employment. Finally, in accordance with 34 Texas Administrative Code 11.1, Dr. Peebles has determined that for the first five years the proposed repeals would be in effect: 1. The proposed repeals do not create or eliminate a government program; 2. Implementation of the proposed repeals do not require the creation of new employee positions or the elimination of existing employee positions; 3. Implementation of the proposed repeals do not require an increase or decrease in future legislative appropriations to the Texas Higher Education Coordinating Board; 4. The proposed repeals do not require an increase or decrease in fees paid to the agency; 5. The proposed repeals do not create a new regulation; 6. The proposed repeals do expand, limit, or repeal an existing regulation, as specified in House Bill 2994, 85th Texas Legislature, Regular Session; 7. The proposed repeals do not increase or decrease the number of individuals subject to the rules' applicability; and 8. The proposed repeals do not affect this state's economy. Comments on the repealed rules may be submitted by mail to Rex C. Peebles, Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas or via at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register. The repealed rules are proposed under the Texas Education Code, (n), , , , , , (b)(3) - (4), (e)(4), , , and , that authorize the Coordinating Board to adopt policies, enact regulations, and establish rules for public two-year colleges for the coordination of workforce continuing education courses eligible for state appropriations. The repealed rules affect the implementation of Texas Education Code, Chapter General Provisions Application and Approval Procedures for Career Technical/Workforce Continuing Education Courses Funding Reporting to the Board Disapproval of Courses; Noncompliance. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 7, TRD Bill Franz General Counsel Texas Higher Education Coordinating Board Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER F. WORKFORCE CONTINUING EDUCATION COURSES 19 TAC The Texas Higher Education Coordinating Board (Coordinating Board) proposes new 9.118, in Chapter 9, Subchapter F, Workforce Continuing Education Courses, of Board rules that apply to Public Community Colleges regarding enrollment of certain students in continuing education courses. The intent of the new section is to clarify the reporting of contact hours for contact hour reimbursement and to align with HB 2994, 85th Texas Legislature, Regular Session, regarding the enrollment of certain high school students in non-credit continuing education courses. The revised Chapter 9, Subchapter F establishes rules for public community colleges concerning the enrollment of certain students under the age of 18 in non-credit courses, waiving tuition and fees for courses where a significant portion of the cost is borne by another party, and courses offered in federal prisons. The new rule will affect students enrolling in higher education during 42 TexReg 6446 November 17, 2017 Texas Register

29 the 2018 spring semester. The rule proposed for this section was reviewed and approved by the Negotiated Rulemaking Committee on Workforce Continuing Education on October 30, Dr. Rex Peebles, Assistant Commissioner for Academic Quality and Workforce, has determined that for the first five years there will be no fiscal implications for state or local governments as a result of creating the rules listed above. Dr. Peebles has also determined that for the first five years the new rule is in effect, the public benefits anticipated as a result of administering the section will be the clarification of the enrollment and reporting for contact hour reimbursement continuing education offered by public junior colleges. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no impact on local employment. Finally, in accordance with Texas Administrative Code, , Dr. Peebles has determined that for the first five years the proposed rule would be in effect: 1. The proposed rule does not create or eliminate a government program; 2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions; 3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the Texas Higher Education Coordinating Board; 4. The proposed rule does not require an increase or decrease in fees paid to the agency; 5. The proposed rule does not create a new regulation; 6. The proposed rule not expand, limit, or repeal an existing regulation, as specified in House Bill 2994, 85th Texas Legislature, Regular Session; 7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability; and 8. The proposed rule does not affect this state's economy. Comments on the new rules may be submitted by mail to Rex C. Peebles, Assistant Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas, or via at AQWComments@THECB.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register. The new section is proposed under the Texas Education Code, (n), , , , , , (b)(3) - (4), (e)(4), , , and , which authorize the Coordinating Board to adopt policies, enact regulations, and establish rules for public two-year colleges for the coordination of workforce continuing education courses eligible for state appropriations. The new rule affects the implementation of Texas Education Code, Chapter Reporting to the Board. Contact hours for workforce continuing education courses from public two-year colleges must be determined and reported in compliance with Board policy as outlined in the Guidelines for Instructional Programs in Workforce Education as approved by the Board, the Workforce Education Course Manual, and state law. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 6, TRD Bill Franz General Counsel Texas Higher Education Coordinating Board Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 22. EXAMINING BOARDS PART 14. TEXAS OPTOMETRY BOARD CHAPTER 273. GENERAL RULES 22 TAC The Texas Optometry Board proposes amendments to 22 TAC to comply with House Bill 2933, Regular Session, 85th Legislature, including implementing new Texas Optometry Act The amendments provide for a Military Limited Volunteer License. The new license allows practice at a clinic that primarily treats indigent populations where the licensee does not receive compensation for providing optometric health care. Chris Kloeris, executive director of the Texas Optometry Board, estimates that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments. Chris Kloeris also has determined that for each of the first five years the amendments are in effect, the public benefit anticipated is that indigent populations will be able to receive care that might otherwise be unavailable. It is anticipated that there will be no economic costs for Military Limited Volunteer License holders, the groups affected by the amendments. ECONOMIC IMPACT STATEMENT AND REGULATORY FLEX- IBILITY ANALYSIS The agency licenses approximately 3,800 optometrists and therapeutic optometrists. A significant majority of licensees own or work in one or more of the 1,000 to 3,000 optometric practices which meet the definition of a small business. Some of these practices meet the definition of a micro business. The agency does not license these practices. ENVIRONMENT AND TAKINGS IMPACT ASSESSMENT The agency has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The agency has determined that the proposed rule does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action, and therefore does not constitute a taking under Texas Government Code GOVERNMENT GROWTH IMPACT STATEMENT PROPOSED RULES November 17, TexReg 6447

30 The rule is proposed in response to the requirements of House Bill 2933, 85th Legislature, Regular Session. During the first five years that the proposed rule will be in effect, it is anticipated that the proposed rule does not create or eliminate a government program; implementation of the proposed rule does not require the creation of new employee position or the elimination of an existing employee position; implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency; the proposed rule does not require an increase or decrease in fees paid to the agency; the proposed rule creates a new regulation as required by amendments to the Optometry Act in the 85th Legislature; the proposed rule does not expand, limit, or repeal an existing regulation; the proposed rule does not increase or decrease the number of individuals subject to the rule's applicability compared to any existing rule; and the proposed rule does not positively or adversely affect this state's economy. Comments on the proposal may be submitted to Chris Kloeris, Executive Director, Texas Optometry Board, 333 Guadalupe Street, Suite 2-420, Austin, Texas The deadline for furnishing comments is thirty days after publication in the Texas Register. The amendment is proposed under the Texas Optometry Act, Texas Occupations Code, , and No other sections are affected by the amendment. The Texas Optometry Board interprets as authorizing the adoption of procedural and substantive rules for the regulation of the optometric profession. The agency interprets , as authorizing the issuance of a Military Limited Volunteer License Licenses for a Limited Purpose [Period]. (a) Provisional License. (1) Requirements for Provisional License. On application for examination, a candidate may apply for a provisional license under the following circumstances: (A) The applicant must be licensed in good standing as a therapeutic optometrist in another state, the District of Columbia, or a territory of the United States that has licensing requirements that are substantially equivalent to the requirements of the Texas Optometry Act, and must furnish proof of such licensure on board forms provided. (B) The applicant must have passed the National Board of Examiners in Optometry (NBEO) Examination Parts I and II, after January 1, 1984, and Part III after June of 1994, as well as the Treatment and Management of Ocular Disease (TMOD) Examination after January of 1985 and must submit a true and correct copy of the applicant's score report. (C) The applicant must have satisfied the educational requirement of of this title (relating to Required Education). (D) The applicant must not have failed an examination for a license conducted by the board. (E) The applicant's license to practice optometry must not have been revoked or suspended by any jurisdiction. (2) Sponsorship. A candidate for provisional licensure must be sponsored by a therapeutic optometrist who is currently licensed by the board with the following conditions applicable. (A) Prior to practice in Texas, on forms provided by the board, the sponsor licensee will certify to the board the following: (i) that such candidate will be working within the same office as the licensee, under direct supervision of the sponsor licensee; and (ii) that such sponsor licensee is aware of the Act and rules governing provisional licensure and that the sponsorship will cease upon the invalidity of the provisional license. (B) Sponsor licensee will be held responsible for the unauthorized practice of optometry should such provisional license expire. (3) Hardship. An applicant for a provisional license may be excused from the requirements of sponsorship if the board determines that compliance constitutes a hardship to the applicant. (4) Application and fee. (A) The candidate for provisional licensure will be subject to all application requirements required by Chapter 271 of this title (relating to Examinations) and subject to the applicable examination fees established under of this title (relating to Optometry Fees). In addition, the candidate will be subject to a fee for issuance of a provisional license, as established under of this title. (B) No provisional license can be issued until all application forms and fees are received in the board office and the application is approved. (C) A provisional license expires upon the earlier to occur of the passage of 180 days or notice by the board of the candidate's successful passage or failure of all examinations required by Chapter 271 of this title. It shall be the responsibility of the candidate and sponsor to return the provisional license to the board office upon expiration. (D) The candidate's failure to sit for the first scheduled board examination following application for examination invalidates the provisional license unless in the discretion of the board sufficient and reasonable evidence regarding nonappearance exists. (E) Each candidate for provisional license shall receive only one nonrenewable license prior to the issuance of a therapeutic optometry license. (5) If at any time during the provisional licensure period it is determined that the holder of such provisional license has violated the Optometry Act or board rules, such provisional license will be subject to termination. (b) Military Limited Volunteer License. (1) Pursuant to of the Texas Optometry Act, the Board may issue a military limited volunteer license to practice optometry or therapeutic optometry to an applicant who: (A) is licensed and in good standing, or was licensed and retired in good standing, as a optometrist or therapeutic optometrist in another state; (B) is or was authorized as an optometrist or therapeutic optometrist to treat personnel enlisted in a branch of the United States armed forces or veterans; and (C) meets all other requirements prescribed by Board Rule. (2) The board may not issue a license under this section to an applicant who: (A) holds an optometry or therapeutic optometry license that: 42 TexReg 6448 November 17, 2017 Texas Register

31 (i) is currently under investigation by a state or territory of the United States, or a uniformed service of the United States; (ii) is or was restricted, cancelled, suspended, revoked, or subject to other discipline or denial of licensure by a state or territory of the United States, or a uniformed service of the United States; (B) holds a license issued by the Drug Enforcement Agency or a state public safety agency to prescribe, dispense, administer, supply, or sell a controlled substance that: (i) is currently under investigation by a state or territory of the United States, or a uniformed service of the United States; (ii) is or was restricted, cancelled, suspended, revoked, or subject to other discipline or denial by a state or territory of the United States, or a uniformed service of the United States; or (C) is currently under investigation or has been convicted of, or placed on deferred adjudication, community supervision, or deferred disposition for a felony or a misdemeanor involving moral turpitude. (3) An optometrist or therapeutic optometrist who practices optometry or therapeutic optometry under a license issued under this section may: (A) only practice at a clinic that primarily treats indigent populations; and (B) not receive direct or indirect compensation or payment of anything of monetary value in exchange for the optometric services rendered by the optometrist or therapeutic optometrist to the indigent patients at the clinic. (4) A military limited volunteer license holder is subject to board rules, including rules regarding disciplinary action, license registration and renewal. (5) A military limited volunteer license shall be issued for a period of one year and may be renewed and maintained according to registration requirements as prescribed by Board Rules. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 6, TRD Chris Kloeris Executive Director Texas Optometry Board Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 25. HEALTH SERVICES PART 1. DEPARTMENT OF STATE HEALTH SERVICES CHAPTER 133. HOSPITAL LICENSING SUBCHAPTER K. HOSPITAL LEVEL OF CARE DESIGNATIONS FOR MATERNAL CARE 25 TAC The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (DSHS), proposes new , concerning Purpose; , concerning Definitions; , concerning General Requirements; concerning Designation Process; concerning Program Requirements; , concerning Maternal Designation Level I; , concerning Maternal Designation Level II; , concerning Maternal Designation Level III; , concerning Maternal Designation Level IV; and , concerning Survey Team. BACKGROUND AND PURPOSE The purpose of the new sections is to comply with House Bill 15, 83rd Legislature, Regular Session, 2013, which added Health and Safety Code, Subchapter H, Hospital Level of Care Designations for Neonatal and Maternal Care, HB 3433, 84th Legislature, Regular Session, 2015, amended Health and Safety Code, Chapter 241 and requires the development of initial rules to create the neonatal/maternal level of care designation by March 1, This rulemaking addresses the maternal level of care designation only. The neonatal level of care designation rules were adopted in June The designation for maternal level of care is an eligibility requirement for Medicaid reimbursement. It is estimated that approximately facilities will apply for one or both designations. SECTION-BY-SECTION SUMMARY Proposed new , Purpose, describes the purpose of Maternal Level of Care Designation for Subchapter K. Proposed new , Definitions, lists the definitions of Maternal Level of Care Designation for Subchapter K. Proposed new , General Requirements, identifies the four levels of maternal care; the role of the DSHS Office of Emergency Medical Services/Trauma Services (office) in the designation process; states that facilities seeking neonatal or maternal designation for Levels II-IV shall be surveyed through a DSHS approved organization; and also establishes Perinatal Care Regions. Proposed new , Designation Process, addresses the application submittal; renewals of designations; designation fee schedule; surveyor credentials; and an appeal process. Initial applications will receive staggered designations. Renewals will be for the full three-year designation term. Proposed new , Program Requirements, provides an outline of the general requirements each hospital must meet. The criteria for the four levels of maternal designation are included in , Maternal Designation Level I; , Maternal Designation Level II; , Maternal Designation Level III; and , Maternal Designation Level IV. Conversely to the Trauma Designation requirements found in 25 TAC Chapter 157, Subchapter G, Emergency Medical Services Trauma Systems, Level IV is the highest level of care and Level I is the lowest level of care. Proposed new , Survey Team, addresses the composition of the on-site survey team, criteria for surveyor credentials, conflict of interest, and confidentiality and privilege protection. FISCAL NOTE Donna Sheppard, Chief Financial Officer, has determined that for the first year that the sections will be in effect, there will be PROPOSED RULES November 17, TexReg 6449

32 fiscal implications to the state as a result of enforcing and administering the sections as proposed. For fiscal year 2018 and in subsequent years, staffing costs will be offset by revenue generated by level of care designation fees established to recover costs associated with administering the program. It is expected that approximately facilities will apply for one or both designations and will pay the following fees: $250 for Level I (<=100 beds); $750 (>100 beds); $1,500 for Level II; $2,000 for Level III; and $2,500 for Level IV, which will be deposited to the General Revenue Dedicated Fund. For each year of the first five years that the sections will be in effect, there may be fiscal implications for local governments should that governmental entity own and operate a hospital that becomes designated. DSHS would be required to assign the appropriate level of care designations and to review the designations every three years; initial designations would be required to be completed by August 31, 2020, for maternal services. Any hospital failing to meet at least the minimum requirements at the lowest level (Level I) of care designation would be prohibited from receiving a designation and would be unable to receive Medicaid reimbursement for maternal services beginning September 1, The fiscal impact of prohibiting Medicaid reimbursement for maternal services for any hospital failing to meet the minimum requirements at the lowest level (Level I) of care designation cannot be determined. Until the system for assigning levels of care has been established, it cannot be determined whether or not any hospital would be prohibited from receiving Medicaid reimbursement. GOVERNMENT GROWTH IMPACT STATEMENT DSHS has determined that during the first five years that the sections will be in effect: (1) the proposed rules will create a government program; (2) implementation of the proposed rules will create new employee positions; (3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations; (4) the proposed rules will require an increase in fees paid to the agency; (5) the proposed rules will create new rules; (6) the proposed rules will not expand, limit, or repeal an existing rule; (7) the proposed rules will increase the number of individuals subject to the rules; and (8) DSHS has insufficient information to determine the proposed rules' effect on the state's economy. SMALL BUSINESS AND MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS AND ECONOMIC COSTS TO PERSONS Jane Guerrero, Director, Office of EMS/Trauma Systems, Consumer Protection Division, has determined that there could be an adverse impact on small businesses, micro-businesses, rural communities or persons if they operate a hospital. A hospital will be required to pay a non-refundable application fee for a three-year designation of maternal care for Levels I - IV that vary from $250 to $2,500 depending on the level of designation sought to cover the costs. There is an additional cost to the hospital for an on-site survey to verify compliance with the requirements for designation of maternal care for Levels II - IV facilities. An on-site survey is not required for the Level I hospital. Although the survey organizations must be approved by the DSHS office, the office does not determine the fee that the survey organization may charge. Anticipated costs based upon similar survey types and can range from $6,000 up to $20,000. A hospital seeking a renewal of designation will also be required to pay for the renewal application and survey fees. IMPACT ON LOCAL EMPLOYMENT There is no anticipated negative impact on local employment. COSTS TO REGULATED PERSONS Texas Government Code, does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas. PUBLIC BENEFIT Ms. Guerrero has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is that designation of hospitals will facilitate the maternal care at hospitals with the appropriate capabilities necessary to improve the maternal outcomes in Texas. REGULATORY ANALYSIS DSHS has determined that this proposal is not a "major environmental rule" as defined by Government Code, "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. TAKINGS IMPACT ASSESSMENT DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, PUBLIC HEARING A public hearing to receive comments on the proposal will be scheduled after publication in the Texas Register and will be held at 9:00 a.m. on December 20, 2017, at the Department of State Health Services, Main Campus, Room M100, 1100 West 49th Street, Austin, Texas. The meeting date will be posted on the Office of EMS and Trauma Systems website Please contact Elizabeth Stevenson at DSHS.EMS-TRAUMA@dshs.texas.gov for information. PUBLIC COMMENT Written comments on the proposal may be submitted to Elizabeth Stevenson, Designation Manager, Office of EMS/Trauma Systems, Consumer Protection Division, Department of State Health Services, Mail Code 1876, P.O. Box , Austin, Texas ; by to DSHS.EMS-TRAUMA@dshs.texas.gov; or by fax to (512) 42 TexReg 6450 November 17, 2017 Texas Register

33 Comments will be accepted for 35 days following publication of this proposal in the Texas Register. To be considered, comments must be submitted no later than 35 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Friday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; or (2) faxed or ed by midnight on the last day of the comment period. When faxing or ing comments, please indicate "Comments on Proposed Rule 25R048" in the subject line. STATUTORY AUTHORITY The new rules are authorized by Health and Safety Code, Chapter 241, which provides DSHS with the authority to adopt rules establishing the levels of care for maternal care, establish a process for assignment or amendment of the levels of care to hospitals, divide the state into perinatal care regions, and facilitate transfer agreements through regional coordination; and by Government Code, , and Health and Safety Code, , which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Health and Safety Code, Chapter The new rules are authorized by Health and Safety Code, Chapters 241 and 1001; and Government Code, Chapter Purpose. The purpose of this subchapter is to implement Health and Safety Code, Chapter 241, Subchapter H, Hospital Level of Care Designations for Neonatal and Maternal Care, which requires a level of care designation of maternal services to be eligible to receive reimbursement through the Medicaid program for maternal services Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) ACLS--Advanced Cardiovascular Life Support. A resuscitation course that was developed and is administered by the American Heart Association. (2) Antepartum--The period beginning on the date of conception and ending on delivery. (3) Attestation--A written statement, signed by the chief executive officer of the facility, verifying the results of a self-survey represent a true and accurate assessment of the facility's capabilities required in this subchapter. (4) Available--Relating to staff who can be contacted for consultation at all times without delay. (5) CAP--Corrective Action(s) Plan. A plan for the facility developed by the Office of EMS/Trauma Systems that describes the actions required of the facility to correct identified deficiencies to ensure compliance with the applicable designation requirements. (6) Commission--The Health and Human Services Commission. (7) Department--The Department of State Health Services. (8) Designation--A formal recognition by the executive commissioner of a facility's maternal care capabilities and commitment, for a period of three years. (9) Executive commissioner--the executive commissioner of the Health and Human Services Commission. (10) Immediately--Without delay. (11) Infant--A child from birth to one year of age. (12) Intrapartum--During labor and delivery or childbirth. (13) Lactation consultant--a health care professional who specializes in the clinical management of breastfeeding. (14) Maternal--Pertaining to the mother. (15) MFM--Maternal Fetal Medicine. (16) MMD--Maternal Medical Director. (17) MPM--Maternal Program Manager. (18) Neonate--An infant from birth through 28 completed days after. (19) Obstetrics--Related to pregnancy, childbirth, and the postpartum period. (20) Office--Office of Emergency Medical Services (EMS)/Trauma Systems. (21) On-site--At the facility and able to rapidly arrive at the patient bedside for urgent requests. (22) PCR--Perinatal Care Region. (23) Perinatal--Of, relating to, or being the period around childbirth, especially the five months before and one month after birth. (24) POC--Plan of Correction. A report submitted to the office by the facility detailing how the facility will correct any deficiencies cited in the survey report or documented in the self-attestation. (25) Postpartum--The six-week period following pregnancy or delivery. (26) QAPI Program--Quality Assessment and Performance Improvement Program. (27) RAC--Regional Advisory Council as described in of this title (relating to Regional Emergency Medical Services/Trauma Systems). (28) Supervision--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity. (29) TSA--Trauma Service Area as described in of this title (relating to Trauma Service Areas). (30) Urgent--Requiring immediate action or attention General Requirements. (a) The Office of Emergency Medical Services (EMS)/Trauma Systems (office) shall recommend to the Executive Commissioner of the Health and Human Services Commission (executive commissioner) the designation of an applicant/healthcare facility as a maternal facility at the level for each location of a facility, which the office deems appropriate. (b) A healthcare facility is defined under this subchapter as a single location where inpatients receive hospital services or each location if there are multiple buildings where inpatients receive hospital services and are covered under a single hospital license. (c) Each location shall be considered separately for designation and the office will determine the designation level for that location, PROPOSED RULES November 17, TexReg 6451

34 based on, but not limited to, the location's own resources and level of care capabilities; Perinatal Care Region (PCR) capabilities; and compliance with Chapter 133 of this title (relating to Hospital Licensing). (1) Level I (Basic Care). The Level I maternal designated facility will: (A) provide care for pregnant and postpartum patients who are generally healthy, and do not have medical, surgical, or obstetrical conditions that present a significant risk of maternal morbidity or mortality; and (B) have skilled personnel with documented training, competencies and annual continuing education specific for the patient population served. (2) Level II (Specialty Care). The Level II maternal designated facility will: (A) provide care for pregnant and postpartum patients with medical, surgical, and/or obstetrical conditions that present a low to moderate risk of maternal morbidity or mortality; and (B) have skilled personnel with documented training, competencies and annual continuing education specific for the patient population served. (3) Level III (Subspecialty Care). The Level III maternal designated facility will: (A) provide care for pregnant and postpartum patients with low risk conditions to significant complex medical, surgical and/or obstetrical conditions that present a high risk of maternal morbidity or mortality; (B) ensure access to consultation to a full range of medical and maternal subspecialists and surgical specialists, and behavioral health specialists; (C) ensure capability to perform major surgery on-site; (D) have physicians with critical care training available at all times to actively collaborate with Maternal Fetal Medicine physicians and/or Obstetrics and Gynecology physicians with obstetrics training and privileges in maternal care; (E) have skilled personnel with documented training, competencies and annual continuing education, specific for the population served; (F) facilitate transports; and (G) provide outreach education to lower level designated facilities, including the Quality Assessment and Performance Improvement (QAPI) process. (4) Level IV (Comprehensive Care). The Level IV maternal designated facility will: (A) provide comprehensive care for pregnant and postpartum patients with low risk conditions to the most complex medical, surgical and/or obstetrical conditions and their fetuses, that present a high risk of maternal morbidity or mortality; (B) ensure access to on-site consultation to a comprehensive range of medical and maternal subspecialists, surgical specialists and behavioral health specialists; (C) ensure capability to perform major surgery on-site; (D) have physicians with critical care training available at all times to actively collaborate with Maternal Fetal Medicine physicians and/or Obstetrics and Gynecology physicians with obstetrics training, experience and privileges in maternal care; (E) have a maternal fetal medicine critical care team with expertise and privileges to manage or co-manage highly complex, critically ill or unstable maternal patients; (F) have skilled personnel with documented training, competencies and annual continuing education, specific for the patient population served; (G) facilitate transports; and (H) provide outreach education to lower level designated facilities, including the QAPI process. (d) Facilities seeking maternal facility designation shall be surveyed through an organization approved by the office to verify that the facility is meeting office-approved relevant maternal facility requirements. The facility shall bear the cost of the survey. (e) PCRs. (1) The PCRs are established for descriptive and regional planning purposes and not for the purpose of restricting patient referral. (2) The PCRs will consider and facilitate transfer agreements through regional coordination. (3) A written plan identifies all resources available in the PCRs for perinatal care, including resources for emergency and disaster preparedness. (4) The PCRs are geographically divided by counties and are integrated into the existing 22 TSAs and the applicable Regional Advisory Council (RAC) of the TSA provided in of this title (relating to Trauma Service Areas) and of this title (relating to Regional Emergency Medical Services/Trauma Systems); will be administratively supported by the RAC; and will have fair and equitable representation on the board of the applicable RAC. (5) Multiple PCRs can meet together for the purposes of mutual collaboration Designation Process. (a) Designation application packet. The applicant shall submit the packet that includes the following documents to the Office of EMS/Trauma Systems (office) within 120 days of the facility's survey date: (1) an accurate and complete designation application form for the appropriate level of designation, including full payment of the designation fee as listed in subsection (d) of this section; (2) any subsequent documents requested by the office; (3) a completed maternal attestation and self-survey report for Level I applicants or a designation survey report, including patient case reviews if required by the office for Level II, III and IV applicants; (4) a plan of correction (POC), detailing how the facility will correct any deficiencies cited in the survey report, to include: the corrective action; the title of the person responsible for ensuring the correction(s) is implemented; how the corrective action will be monitored; and the date by which the POC will be completed; and (5) evidence of participation in the applicable Perinatal Care Region (PCR). (b) Renewal of designation. The applicant shall submit the documents described in subsection (a)(1) - (5) of this section to the office not more than 180 days prior to the designation expiration date and at least 60 days prior to the designation expiration date. 42 TexReg 6452 November 17, 2017 Texas Register

35 (c) If a facility seeking designation fails to meet the requirements in subsection (a)(1) - (5) of this section, the application shall be denied. (d) Non-refundable application fees for the three-year designation period are as follows: (1) Level I maternal facility applicants, the fees are as follows: (A) <=100 licensed beds, the fee is $250.00; or (B) >100 licensed beds, the fee is $ (2) Level II maternal facility applicants, the fee is $1, (3) Level III maternal facility applicants, the fee is $2, (4) Level IV maternal facility applicants, the fee is $2, (A) All completed applications, received on or before July 1, 2020, including the application fee, evidence of participation in the PCR, an appropriate attestation if required, survey report, and that meet the requirements of the requested designation level, will be issued a designation for the full three-year term. (B) Any facility that has not completed an on-site survey to verify compliance with the requirements for a Level II, III or IV designation at the time of application must provide a self-survey and attestation and will receive a Level I designation. The office, at its sole discretion may recommend a designation for less than the full three-year term. A designation for less than the full three-year term will have a pro-rated application fee consistent with the one, two or three-year term length. (C) A facility applying for Level I designation requiring an attestation may receive a shorter term designation at the discretion of the office. A designation for less than the full three-year term will have a pro-rated application fee. (D) The office, at its discretion, may designate a facility for a shorter term designation for any application received prior to September 1, (E) An application for a higher or lower level designation may be submitted at any time. (e) If a facility disagrees with the level(s) determined by the office to be appropriate for initial designation or re-designation, it may make an appeal in writing not later than 60 days after issuance of the level determination to the director of the office. The written appeal must include a signed letter from the facility's governing board with an explanation of how the facility meets the requirements for the designation level. (1) If the office upholds its original determination, the director of the office will give written notice of such to the facility not later than 30 days of its receipt of the applicant's complete written appeal. (2) The facility may, not later than 30 days of the office's sending written notification of its denial, submit a written request for further review. Such written appeal shall then go to the director of the office. (f) The surveyor(s) shall provide the facility with a written, signed survey report regarding their evaluation of the facility's compliance with maternal program requirements. This survey report shall be forwarded to the facility no later than 30 days of the completion date of the survey. The facility is responsible for forwarding a copy of this report to the office if it intends to continue the designation process. (g) The office shall review the findings of the survey report and any POC submitted by the facility, to determine compliance with the maternal designation program requirements. (1) A recommendation for designation shall be made to the executive commissioner based on compliance with the requirements. (2) A maternal level of care designation shall not be denied to a facility that meets the minimum requirements for that level of care designation. (3) If a facility does not meet the requirements for the level of designation requested, the office shall recommend designation for the facility at the highest level for which it qualifies and notify the facility of the requirements it must meet to achieve the requested level of designation. (4) If a facility does not comply with requirements, the office shall notify the facility of deficiencies and required corrective action(s) plan (CAP). (A) The facility shall submit to the office reports as required and outlined in the CAP. The office may require a second survey to ensure compliance with the requirements. The cost of the survey will be at the expense of the facility. (B) If the office substantiates action that brings the facility into compliance with the requirements, the office shall recommend designation to the executive commissioner. (C) If a facility disagrees with the office's decision regarding its designation application or status, it may request a secondary review by a designation review committee. (D) Membership on a designation review committee will: (i) be voluntary (ii) be appointed by the office director; (iii) be representative of maternal care providers and appropriate levels of designated maternal facilities; (iv) exclude any representative with a conflict of interest; and (v) include representation from the office and the Perinatal Advisory Council. (E) If a designation review committee disagrees with the office's recommendation for corrective action, the records shall be referred to the Associate Commissioner of the Consumer Protection Division for recommendation to the executive commissioner. (F) If a facility disagrees with the office's recommendation at the end of the secondary review, the facility has a right to a hearing, in accordance with a hearing request referenced in of this title (relating to Enforcement Action), and Government Code, Chapter Program Requirements. (a) Designated facilities shall have a family centered philosophy. The facility environment for perinatal care shall meet the physiologic and psychosocial needs of the mothers, infants, and families. Parents shall have reasonable access to their infants at all times and be encouraged to participate in the care of their infants. (b) Program Plan. The facility shall develop a written plan of the maternal program that includes a detailed description of the scope of PROPOSED RULES November 17, TexReg 6453

36 services available to all maternal patients, defines the maternal patient population evaluated and/or treated, transferred, or transported by the facility, that is consistent with accepted professional standards of practice for maternal care, and ensures the health and safety of patients. (1) The written plan and the program policies and procedures shall be reviewed and approved by the facility's governing body. The governing body shall ensure that the requirements of this section are implemented and enforced. (2) The written maternal program plan shall include, at a minimum: (i) based upon current standards of maternal practice; and (A) Program policies and procedures that are: (ii) adopted, implemented and enforced for the maternal services it provides; (B) a periodic review and revision schedule for all maternal care policies and procedures; (C) written triage, stabilization, and transfer guidelines for pregnant and postpartum patients that include consultation and transport services; (D) written guidelines or protocols for prevention, early identification, early diagnosis, and therapy for conditions that place the pregnant or postpartum patient at risk for morbidity and/or mortality; (E) provisions for unit specific disaster response to include evacuation of maternal patients and infants to appropriate levels of care; (F) a Quality Assessment and Performance Improvement (QAPI) Program as described in of this title (relating to Hospital Functions and Services). The facility shall demonstrate that the maternal program evaluates the provision of maternal care on an ongoing basis, identify opportunities for improvement, develop and implement improvement plans, and evaluate the implementation until a resolution is achieved. The maternal program shall measure, analyze, and track quality indicators and other aspects of performance that the facility adopts or develops that reflect processes of care and is outcome based. Evidence shall support that aggregate patient data is continuously reviewed for trends and data is submitted to the department as requested; (G) requirements for minimal credentials for all staff participating in the care of maternal patients; (H) provisions for providing continuing staff education, including annual competency and skills assessment that is appropriate for the patient population served; (I) a perinatal staff registered nurse as a representative on the nurse staffing committee under of this title; and (J) the availability of all necessary equipment and services to provide the appropriate level of care and support of the patient population served. (c) Medical Staff. The facility shall have an organized maternal program that is recognized by the medical staff and approved by the facility's governing body. (1) The credentialing of the maternal medical staff shall include a process for the delineation of privileges for maternal care. (2) The maternal medical staff will participate in ongoing staff and team based education and training in the care of the maternal patient. (d) Medical Director. There shall be an identified Maternal Medical Director (MMD) and/or Transport Medical Director (TMD) as appropriate, responsible for the provision of maternal care services and credentialed by the facility for the treatment of maternal patients. The responsibilities and authority of the MMD and/or TMD shall include: (1) examining qualifications of medical staff requesting maternal privileges and making recommendations to the appropriate committee for such privileges; (2) assuring maternal medical staff competency in managing obstetrical emergencies, complications and resuscitation techniques; (3) monitoring maternal patient care from transport if applicable, to admission, stabilization, operative intervention(s) if applicable, through discharge, and inclusive of the QAPI Program; (4) participating in ongoing maternal staff and team based education and training in the care of the maternal patient; (5) overseeing the inter-facility maternal transport; (6) collaborating with the MPM in areas to include: developing and/or revising policies, procedures and guidelines, assuring medical staff and personnel competency, education and training; and the QAPI Program; (7) frequently leading and participating in the maternal QAPI meetings; (8) ensuring that the QAPI Program is specific to maternal and fetal care, is ongoing, data driven and outcome based; (9) clinically active and practicing physician participating in maternal care at the facility where medical director services are provided; (10) maintaining active staff privileges as defined in the facility's medical staff bylaws; and (11) developing collaborative relationships with other MMD(s) of designated facilities within the applicable Perinatal Care Region. (e) Maternal Program Manager (MPM). The MPM responsible for the provision of maternal care services shall be identified by the facility and: (1) be a registered nurse with perinatal experience; (2) be a clinically active and practicing registered nurse participating in maternal care at the facility where program manager services are provided; (3) has the authority and responsibility to monitor the provision of maternal patient care services from admission, stabilization, operative intervention(s) if applicable, through discharge, and inclusive of the QAPI Program; (4) collaborates with the MMD in areas to include: developing and/or revising policies, procedures and guidelines; assuring staff competency, education, and training and the QAPI Program; (5) frequently leads and participates in the maternal QAPI meetings; (6) ensures that the QAPI Program is specific to maternal and fetal care, is ongoing, data driven and outcome based; and (7) develops collaborative relationships with other MPM(s) of designated facilities within the applicable Perinatal Care Region. 42 TexReg 6454 November 17, 2017 Texas Register

37 Maternal Designation Level I. (a) Level I (Basic Care). The Level I maternal designated facility will: (1) provide care for pregnant and postpartum patients who are generally healthy, and do not have medical, surgical, or obstetrical conditions that present a significant risk of maternal morbidity or mortality; and (2) have skilled personnel with documented training, competencies and annual continuing education specific for the patient population served. (b) Maternal Medical Director (MMD). The MMD shall be a physician who: (1) is a family medicine physician or an obstetrics and gynecology physician, with obstetrics training and experience, and with privileges in maternal care; (2) demonstrates administrative skills and oversight of the Quality Assessment and Performance Improvement (QAPI) program; and (3) has completed annual continuing education specific to maternal care. (c) Program Functions and Services. (1) Triage and assessment of all patients admitted to the perinatal service. (A) Pregnant patients who are identified at high risk of delivering a neonate that requires a higher level of neonatal care than the scope of their neonatal facility shall be transferred to a higher level neonatal designated facility prior to delivery unless the transfer is unsafe. (B) Pregnant or postpartum patients identified with conditions and/or complications that require a higher level of maternal care shall be transferred to a higher level maternal designated facility unless the transfer is unsafe. (2) Provide care for patients with uncomplicated pregnancies with the capability to detect, stabilize, and initiate management of unanticipated maternal-fetal or maternal problems that occur during the antepartum, intrapartum, or postpartum period until the patient can be transferred to a higher level of neonatal and/or maternal care. (3) An obstetrics and gynecology physician with obstetrics training and experience shall be available at all times. (4) Medical, surgical and behavioral health specialists shall be available at all times for consultation appropriate to the patient population served. (5) Ensure that a qualified physician or certified nurse midwife with appropriate physician back-up is available to attend all deliveries or other obstetrical emergencies. (6) The primary physician or certified nurse midwife with competence in the care of pregnant patients, whose credentials have been reviewed by the MMD and is on call: (A) shall arrive at the patient bedside within 30 minutes of an urgent request; and (B) shall complete annual continuing education, specific to the care of pregnant and postpartum patients, including complicated conditions. (7) Certified nurse midwives, physician assistants and nurse practitioners who provide care for maternal patients: (A) shall operate under guidelines reviewed and approved by the MMD; and (B) shall have a formal arrangement with a physician with obstetrics training and/or experience, and with maternal privileges who will: (i) provide back-up and consultation; (ii) arrive at the patient bedside within 30 minutes of an urgent request; and (iii) meet requirements for medical staff as described in of this title (relating to Program Requirements) respectively. (8) An on-call schedule of providers, back-up providers, and provision for patients without a physician will be readily available to facility and maternal staff and posted on the labor and delivery unit. (9) Ensure that physicians providing back-up coverage shall arrive at the patient bedside within 30 minutes of an urgent request. (10) Appropriate anesthesia, laboratory, pharmacy, radiology, respiratory therapy, ultrasonography and blood bank services shall be available on a 24-hour basis as described in of this title (relating to Hospital Functions and Services) respectively. (A) Anesthesia personnel with training and experience in obstetric anesthesia shall be available at all times and arrive to the patient bedside within 30 minutes of an urgent request. (B) Laboratory and blood bank services shall have guidelines or protocols for: (iii) management of multiple blood component therapy. (i) (ii) massive blood component transfusion; emergency release of blood components; and (C) Medical Imaging Services. (i) If preliminary reading of imaging studies pending formal interpretation is performed, the preliminary findings must be documented in the medical record. (ii) There shall be regular monitoring of the preliminary versus final reading in the QAPI Program. (iii) Basic ultrasonographic imaging for maternal or fetal assessment, including interpretation available at all times. (iv) A portable ultrasound machine immediately available at all times to the labor and delivery and antepartum unit. all times. (D) A pharmacist shall be available for consultation at (11) Obstetrical Services. (A) The ability to begin an emergency cesarean delivery and ensure the availability of a physician with the training, skills, and privileges to perform the surgery within a time period consistent with current standards of professional practice and maternal care. (B) Ensure the availability and interpretation of nonstress testing, and electronic fetal monitoring. (C) A trial of labor for patients with prior cesarean delivery shall have the capability of anesthesia, cesarean delivery, and maternal resuscitation on-site during the trial of labor. PROPOSED RULES November 17, TexReg 6455

38 (12) Resuscitation. The facility shall have written policies and procedures specific to the facility for the stabilization and resuscitation of the pregnant or postpartum patient based on current standards of professional practice. The facility: (A) ensures staff members, not responsible for the neonatal resuscitation, are immediately available on-site at all times who demonstrate current status of successful completion of ACLS and the skills to perform a complete resuscitation; and (B) ensures that resuscitation equipment, including difficult airway management equipment for pregnant and postpartum patients, is immediately available at all times to the labor and delivery, antepartum and postpartum areas. (13) The facility shall have written guidelines or protocols for various conditions that place the pregnant or postpartum patient at risk for morbidity and/or mortality, including promoting prevention, early identification, early diagnosis, therapy, stabilization, and transfer. The guidelines or protocols must address a minimum of: (A) massive hemorrhage and transfusion of the pregnant or postpartum patient in coordination of the blood bank, including management of unanticipated hemorrhage and/or coagulopathy; (B) obstetrical hemorrhage, including promoting the identification of patients at risk, early diagnosis, and therapy to reduce morbidity and mortality; (C) hypertensive disorders in pregnancy, including eclampsia and the postpartum patient to promote early diagnosis and treatment to reduce morbidity and mortality; (D) sepsis and/or systemic infection in the pregnant or postpartum patient; (E) venous thromboembolism in the pregnant and postpartum patient, including assessment of risk factors, prevention, early diagnosis and treatment; (F) shoulder dystocia, including assessment of risk factors, counseling of patient, and multi-disciplinary management; and (G) behavioral health disorders, including depression, substance abuse and addiction that includes screening, education, consultation with appropriate personnel and referral. (14) Perinatal Education. A registered nurse with experience in maternal care shall provide the supervision and coordination of staff education. Perinatal education for high risk events will be provided at frequent intervals to prepare medical, nursing, and ancillary staff for these emergencies. (15) Support personnel with knowledge and skills in breastfeeding and lactation to meet the needs of maternal patients shall be available at all times. (16) Social services, pastoral care and bereavement services shall be provided as appropriate to meet the needs of the patient population served. (17) Dietician or nutritionist available with appropriate training and experience for population served in compliance with the requirements in of this title Maternal Designation Level II. (a) Level II (Specialty Care). The Level II maternal designated facility will: (1) provide care for pregnant and postpartum patients with medical, surgical, and/or obstetrical conditions that present a low to moderate risk of maternal morbidity or mortality; and (2) have skilled personnel with documented training, competencies and annual continuing education specific for the patient population served. (b) Maternal Medical Director (MMD). The MMD shall be a physician who: (1) is a family medicine physician, an obstetrics and gynecology physician, or maternal fetal medicine physician, all with obstetrics training and experience, and with privileges in maternal care; (2) demonstrates administrative skills and oversight of the Quality Assessment and Performance Improvement (QAPI) program; and (3) has completed annual continuing education specific to maternal care, including complicated conditions. (c) Program Functions and Services. (1) Triage and assessment of all patients admitted to the perinatal service. (A) Pregnant patients identified at high risk of delivering a neonate that requires a higher level of neonatal care than the scope of their neonatal facility shall be transferred to a higher level neonatal designated facility prior to delivery unless the transfer is unsafe. (B) Pregnant or postpartum patients identified with conditions and/or complications that require a higher level of maternal care shall be transferred to a higher level maternal designated facility unless the transfer is unsafe. (2) Provide care for pregnant patients with the capability to detect, stabilize, and initiate management of unanticipated maternal-fetal or maternal problems that occur during the antepartum, intrapartum, or postpartum period until the patient can be transferred to a higher level of neonatal and/or maternal care. (3) An obstetrics and gynecology physician with obstetrics training and experience, and with maternal privileges, shall be available at all times and arrives at the patient bedside within 30 minutes of an urgent request. (4) A board certified maternal fetal medicine physician with maternal privileges shall be available at all times for consultation. (5) Medical and surgical physicians shall be available at all times and arrive at the patient bedside within 30 minutes of an urgent request. (6) Specialists, including behavioral health, shall be available at all times for consultation appropriate to the patient population served. (7) Ensure that a qualified physician or certified nurse midwife with appropriate physician back-up is available to attend all deliveries or other obstetrical emergencies. (8) The primary provider caring for a pregnant or postpartum patient who is a family medicine physician with obstetrics training and experience, obstetrics and gynecology physician, maternal fetal medicine physician, or a certified nurse midwife, physician assistant or nurse practitioner with appropriate physician back-up, whose credentials have been reviewed by the MMD and is on-call: (A) shall arrive at the patient bedside within 30 minutes of an urgent request; and (B) shall complete annual continuing education, specific to the care of pregnant and postpartum patients, including complicated conditions. 42 TexReg 6456 November 17, 2017 Texas Register

39 (9) Certified nurse midwives, physician assistants and nurse practitioners who provide care for maternal patients: (A) shall operate under guidelines reviewed and approved by the MMD; and (B) shall have a formal arrangement with a physician with obstetrics training and/or experience, and with maternal privileges who will: (i) provide back-up and consultation; (ii) arrive at the patient bedside within 30 minutes of an urgent request; and (iii) meet requirements for medical staff as described in of this title (relating to Program Requirements) respectively. (10) An on-call schedule of providers, back-up providers, and provision for patients without a physician will be readily available to facility and maternal staff and posted on the labor and delivery unit. (11) Ensure that the physician providing back-up coverage shall arrive at the patient bedside within 30 minutes of an urgent request. (12) The appropriate anesthesia, laboratory, pharmacy, radiology, respiratory therapy, ultrasonography and blood bank services shall be available on a 24-hour basis as described in of this title (relating to Hospital Functions and Services) respectively. (A) Anesthesia personnel with training and experience in obstetric anesthesia shall be available at all times and arrive to the patient bedside within 30 minutes of an urgent request. (B) An anesthesiologist with training and/or experience in obstetric anesthesia shall be available at all times for consultation. (C) Laboratory and blood bank services shall be capable of: (i) providing ABO-Rh specific or O-Rh negative blood, fresh frozen plasma and/or cryoprecipitate, and platelet products on-site at all times; (ii) implementing a massive transfusion protocol; (iii) ensuring guidelines for emergency release of blood components; and (iv) managing multiple blood component therapy. (D) Medical Imaging Services. (i) If preliminary reading of imaging studies pending formal interpretation is performed, the preliminary findings must be documented in the medical record. (ii) There shall be regular monitoring of the preliminary versus final reading in the QAPI Program. (iii) Computed Tomography (CT) imaging and interpretation available at all times. (iv) Basic ultrasonographic imaging for maternal or fetal assessment, including interpretation shall be available at all times. (v) A portable ultrasound machine immediately available at all times to the labor and delivery and antepartum unit. all times. (E) A pharmacist shall be available for consultation at (13) Obstetrical Services. (A) The ability to begin an emergency cesarean delivery and ensure the availability of a physician with the training, skills, and privileges to perform the surgery within a time period consistent with current standards of professional practice and maternal care. (B) Ensure the availability and interpretation of nonstress testing, and electronic fetal monitoring. (C) A trial of labor for patients with prior cesarean delivery shall have the capability of anesthesia, cesarean delivery, and maternal resuscitation on-site during the trial of labor. (14) Resuscitation. The facility shall have written policies and procedures specific to the facility for the stabilization and resuscitation of the pregnant or postpartum patient based on current standards of professional practice. The facility: (A) ensures staff members, not responsible for the neonatal resuscitation, are immediately available on-site at all times who demonstrate current status of successful completion of ACLS and the skills to perform a complete resuscitation; and (B) ensures that resuscitation equipment, for pregnant and postpartum patients, is readily available in the labor and delivery, antepartum and postpartum areas. Difficult airway management equipment shall be immediately available at all times to these areas. (15) The facility shall have written guidelines or protocols for various conditions that place the pregnant or postpartum patient at risk for morbidity and/or mortality, including promoting prevention, early identification, early diagnosis, therapy, stabilization, and transfer. The guidelines or protocols must address a minimum of: (A) massive hemorrhage and transfusion of the pregnant or postpartum patient in coordination of the blood bank, including management of unanticipated hemorrhage and/or coagulopathy; (B) obstetrical hemorrhage, including promoting the identification of patients at risk, early diagnosis, and therapy to reduce morbidity and mortality; (C) hypertensive disorders in pregnancy, including eclampsia and the postpartum patient to promote early diagnosis and treatment to reduce morbidity and mortality; (D) sepsis and/or systemic infection in the pregnant or postpartum patient; (E) venous thromboembolism in the pregnant and postpartum patient, including assessment of risk factors, prevention, early diagnosis and treatment; (F) shoulder dystocia, including assessment of risk factors, counseling of patient, and multi-disciplinary management; and (G) behavioral health disorders, including depression, substance abuse and addiction that includes screening, education, consultation with appropriate personnel and referral. (16) The facility shall have nursing leadership and staff with training and experience in the provision of maternal nursing care who will coordinate with respective neonatal services. (17) Perinatal Education. A registered nurse with experience in maternal care, including moderately complex and ill obstetric patients, shall provide the supervision and coordination of staff education. Perinatal education for high risk events will be provided at frequent intervals to prepare medical, nursing, and ancillary staff for these emergencies. PROPOSED RULES November 17, TexReg 6457

40 (18) Support personnel with knowledge and skills in breastfeeding and lactation to meet the needs of maternal patients shall be available at all times. (19) Social services, pastoral care and bereavement services shall be provided as appropriate to meet the needs of the patient population served. (20) Dietician or nutritionist available with appropriate training and experience for population served in compliance with the requirements in of this title Maternal Designation Level III. (a) A Level III (Subspecialty Care). The Level III maternal designated facility will: (1) provide care for pregnant and postpartum patients with low risk conditions to significant complex medical, surgical and/or obstetrical conditions that present a high risk of maternal morbidity or mortality; (2) ensure access to consultation to a full range of medical and maternal subspecialists, surgical specialists, and behavioral health specialists; (3) ensure capability to perform major surgery on-site; (4) have physicians with critical care training available at all times to actively collaborate with Maternal Fetal Medicine physicians and/or Obstetrics and Gynecology Physicians with obstetrics training and privileges in maternal care; (5) have skilled personnel with documented training, competencies and annual continuing education, specific for the population served; (6) facilitate transports; and (7) provide outreach education to lower level designated facilities, including the Quality Assessment and Performance Improvement (QAPI) process. (b) Maternal Medical Director (MMD). The MMD shall be a physician who: (1) is a board certified obstetrics and gynecology physician with obstetrics training and experience, or a board certified maternal fetal medicine physician, both with privileges in maternal care; (2) demonstrates administrative skills and oversight of the QAPI Program; and (3) has completed annual continuing education specific to maternal care, including complicated conditions. (c) If the facility has its own transport program, there shall be an identified Transport Medical Director (TMD). The TMD shall be a physician who is a board/certified maternal fetal medicine specialist or board certified obstetrics and gynecology physician with privileges and experience in obstetrical care and maternal transport. (d) Program Functions and Services. (1) Triage and assessment of all patients admitted to the perinatal service. (A) Pregnant patients who are identified at high risk of delivering a neonate that requires a higher level of neonatal care than the scope of their neonatal facility shall be transferred to a higher level neonatal designated facility prior to delivery unless the transfer is unsafe. (B) Pregnant or postpartum patients identified with conditions and/or complications that require a higher level of maternal care shall be transferred to a higher level maternal designated facility unless the transfer is unsafe. (2) Provide care for pregnant patients with the capability to detect, stabilize, and initiate management of unanticipated maternal-fetal or maternal problems that occur during the antepartum, intrapartum, or postpartum period until the patient can be transferred to a higher level of neonatal and/or maternal care. (3) Supportive and emergency care shall be delivered by appropriately trained personnel for unanticipated maternal-fetal problems that occur requiring a higher level of maternal care, until the patient is stabilized or transferred; (4) An obstetrics and gynecology physician with maternal privileges shall be on-site at all times and available for urgent situations. (5) Maternal Fetal Medicine physician with inpatient privileges shall be available at all times for consultation and arrives at the patient bedside to co-manage patients. (6) Intensive Care Services. The facility shall provide critical care services for critically ill pregnant or postpartum patients, including fetal monitoring in the Intensive Care Unit (ICU), respiratory failure and ventilator support, procedure for emergency cesarean, coordination of nursing care, and consultative or co-management roles to facilitate collaboration. (7) Medical and surgical physicians, including critical care specialists, shall be available at all times and arrive at the patient bedside within 30 minutes of an urgent request. (8) Consultation by a behavioral health professional, with training and/or experience in maternal counseling shall be available at all times and arrive for in-person visits when requested within a time period consistent with current standards of professional practice and maternal care. (9) Ensure that a qualified physician, or a certified nurse midwife with appropriate physician back-up, is available to attend all deliveries or other obstetrical emergencies. (10) The primary provider caring for a pregnant or postpartum patient who is a family medicine physician with obstetrics training and experience, obstetrics and gynecology physician, maternal fetal medicine physician, or a certified nurse midwife, physician assistant or nurse practitioner with appropriate physician back-up, whose credentials have been reviewed by the MMD and is on call: (A) shall arrive at the patient bedside within 30 minutes for an urgent request; and (B) shall complete annual continuing education, specific to the care of pregnant and postpartum patients, including complicated and critical conditions. (11) Certified nurse midwives, physician assistants and nurse practitioners who provide care for maternal patients: (A) shall operate under guidelines reviewed and approved by the MMD; and (B) shall have a formal arrangement with a physician with obstetrics training and/or experience, and with maternal privileges who will: (i) provide back-up and consultation; (ii) arrive at the patient bedside within 30 minutes of an urgent request; and 42 TexReg 6458 November 17, 2017 Texas Register

41 (iii) meet requirements for medical staff as described in of this title (relating to Program Requirements) respectively. (12) An on-call schedule of providers, back-up providers, and provision for patients without a physician will be readily available to facility and maternal staff and posted on the labor and delivery unit. (13) Ensure that the physician providing back-up coverage shall arrive at the patient bedside within 30 minutes for an urgent request. (14) Anesthesia Services shall comply with the requirements found at of this title (relating to Hospital Functions and Services) and shall have: (A) anesthesia personnel with experience and expertise in obstetric anesthesia shall be available on-site at all times; (B) a board certified anesthesiologist with training or experience in obstetric anesthesia in charge of obstetric anesthesia services; (C) an anesthesiologist with training and/or experience in obstetric anesthesia, including critically ill obstetric patients available for consultation at all times, and arrive at the patient bedside within 30 minutes for urgent requests; and (D) anesthesia personnel on call, including back-up contact information, posted and readily available to the facility and maternal staff and posted in the labor and delivery area. (15) Laboratory Services shall comply with the requirements found at of this title and shall have: (A) laboratory personnel on-site at all times; (B) a blood bank capable of: (i) providing ABO-Rh specific or O-Rh negative blood, fresh frozen plasma, cryoprecipitate, and platelet components on-site at the facility at all times; (ii) implementing a massive transfusion protocol; (iii) ensuring guidelines for emergency release of blood components; and and (iv) managing multiple blood component therapy; (C) perinatal pathology services available. (16) Medical Imaging Services shall comply with the requirements found at of this title and shall have: (A) personnel appropriately trained in the use of x-ray equipment available on-site at all times; (B) advanced imaging, including computed tomography (CT), magnetic resonance imaging (MRI), and echocardiography available at all times; (C) interpretation of CT, MRI and echocardiography within a time period consistent with current standards of professional practice and maternal care; (D) basic ultrasonographic imaging for maternal or fetal assessment, including interpretation available at all times; and (E) a portable ultrasound machine available in the labor and delivery and antepartum unit. (17) Pharmacy services shall comply with the requirements found in of this title and shall have a pharmacist with experience in perinatal pharmacology available at all times. (18) Respiratory Therapy Services shall comply with the requirements found at of this title and have a respiratory therapist immediately available on-site at all times. (19) Obstetrical Services. (A) The ability to begin an emergency cesarean delivery within a time period consistent with current standards of professional practice and maternal care. (B) Ensure the availability and interpretation of nonstress testing, and electronic fetal monitoring. (C) A trial of labor for patients with prior cesarean delivery shall have the capability of anesthesia, cesarean delivery, and maternal resuscitation on-site during the trial of labor. (20) Resuscitation. The facility shall have written policies and procedures specific to the facility for the stabilization and resuscitation of the pregnant or postpartum patient based on current standards of professional practice. The facility: (A) ensures staff members, not responsible for the neonatal resuscitation, are immediately available on-site at all times who demonstrate current status of successful completion of ACLS and the skills to perform a complete resuscitation; and (B) ensures that resuscitation equipment, including difficult airway management equipment for pregnant and postpartum patients, is readily available in the labor and delivery, antepartum and postpartum areas. (21) The facility shall have written guidelines or protocols for various conditions that place the pregnant or postpartum patient at risk for morbidity and/or mortality, including promoting prevention, early identification, early diagnosis, therapy, stabilization, and transfer. The guidelines or protocols must address a minimum of: (A) massive hemorrhage and transfusion of the pregnant or postpartum patient in coordination of the blood bank, including management of unanticipated hemorrhage and/or coagulopathy; (B) obstetrical hemorrhage, including promoting the identification of patients at risk, early diagnosis, and therapy to reduce morbidity and mortality; (C) hypertensive disorders in pregnancy, including eclampsia and the postpartum patient to promote early diagnosis and treatment to reduce morbidity and mortality; (D) sepsis and/or systemic infection in the pregnant or postpartum patient; (E) venous thromboembolism in the pregnant and postpartum patient, including assessment of risk factors, prevention, early diagnosis and treatment; (F) shoulder dystocia, including assessment of risk factors, counseling of patient, and multi-disciplinary management; and (G) behavioral health disorders, including depression, substance abuse and addiction that includes screening, education, consultation with appropriate personnel and referral. (22) The facility shall have nursing leadership and staff with training and experience in the provision of maternal nursing care who will coordinate with respective neonatal services. PROPOSED RULES November 17, TexReg 6459

42 (23) The facility shall have a program for genetic diagnosis and counseling for genetic disorders, or a policy and process for consultation referral to an appropriate facility. (24) Perinatal Education. A registered nurse with experience in maternal care, including moderately complex and ill obstetric patients, shall provide the supervision and coordination of staff education. Perinatal education for high risk events will be provided at frequent intervals to prepare medical, nursing, and ancillary staff for these emergencies. (25) Support personnel with knowledge and skills in breastfeeding to meet the needs of maternal patients shall be available at all times. times. (26) A certified lactation consultant shall be available at all (27) Social services, pastoral care and bereavement services shall be provided as appropriate to meet the needs of the patient population served. (28) Dietician or nutritionist available with training and experience in maternal nutrition and can plan diets that meet the needs of the pregnant and postpartum patient shall comply with the requirements in of this title Maternal Designation Level IV. (a) A Level IV (Comprehensive Care). The Level IV maternal designated facility will: (1) provide comprehensive care for pregnant and postpartum patients with low risk conditions to the most complex medical, surgical and/or obstetrical conditions and their fetuses, that present a high risk of maternal morbidity or mortality; (2) ensure access to on-site consultation to a comprehensive range of medical and maternal subspecialists, surgical specialists and behavioral health specialists; (3) ensure capability to perform major surgery on-site; (4) have physicians with critical care training available at all times to actively collaborate with Maternal Fetal Medicine physicians and/or Obstetrics and Gynecology physicians with obstetrics training, experience and privileges in maternal care; (5) have a maternal fetal medicine critical care team with expertise and privileges to manage or co-manage highly complex, critically ill or unstable maternal patients; (6) have skilled personnel with documented training, competencies and annual continuing education, specific for the patient population served; (7) facilitate transports; and (8) provide outreach education to lower level designated facilities, including the Quality Assessment and Performance Improvement (QAPI) process. (b) Maternal Medical Director (MMD). The MMD shall be a physician who: (1) is a board certified obstetrics and gynecology physician with expertise in the area of critical care obstetrics; or a board certified maternal fetal medicine physician, both with privileges in maternal care; (2) demonstrates administrative skills and oversight of the QAPI Program; and (3) has completed annual continuing education specific to maternal care, including complicated conditions. (c) If the facility has its own transport program, there shall be an identified Transport Medical Director (TMD). The TMD shall be a physician who is a board certified maternal fetal medicine physician or board certified obstetrics and gynecology physician with obstetrics privileges, with expertise and experience in critically ill maternal transport. (d) Program Functions and Services. (1) Triage and assessment of all patients admitted to the perinatal service. (A) Pregnant patients who are identified at high risk of delivering a neonate that requires a higher level of neonatal care shall be transferred to a higher level neonatal designated facility prior to delivery unless the transfer is unsafe. (B) Pregnant or postpartum patients identified with conditions and/or complications that require a service not available at the facility, shall be transferred to an appropriate maternal designated facility unless the transfer is unsafe. (2) Supportive and emergency care shall be delivered by appropriately trained personnel, for unanticipated maternal-fetal problems that occur during labor and delivery, through the disposition of the patient. (3) A board certified obstetrics and gynecology physician with maternal privileges shall be on-site at all times and available for urgent situations. (4) Ensure that a qualified physician, or a certified nurse midwife with appropriate physician back-up, is available to attend all deliveries or other obstetrical emergencies. (5) Intensive Care Services. The facility shall have an adult Intensive Care Unit (ICU) and critical care capabilities for maternal patients, including: (A) a comprehensive range of medical and surgical critical care specialists and advanced subspecialists on the medical staff; (B) a maternal fetal medicine critical care team with experience and expertise in the care of complex or critically ill maternal patients available to co-manage maternal patients; and (C) availability of obstetric nursing and support personnel with experience in care for critically ill maternal patients. (6) Maternal Fetal Medicine Critical Care Team. The facility shall have a Maternal Fetal Medicine (MFM) critical care team with expertise to assume responsibility for pregnant or postpartum patients who are in critical condition or have complex medical conditions, including; (A) co-management of ICU-admitted obstetric patients; (B) an MFM team member with full obstetrical privileges available at all times for on-site consultation and management; and (C) a board-certified MFM with expertise in critical care obstetrics to lead the team. (7) Management of critically ill pregnant or postpartum patients, including fetal monitoring in the ICU, respiratory failure and ventilator support, procedure for emergency cesarean, coordination of nursing care, and consultative or co-management roles to facilitate collaboration. 42 TexReg 6460 November 17, 2017 Texas Register

43 (8) Behavioral Health Services. (A) Consultation by a behavioral health professional, with experience in maternal and/or neonatal counseling shall be available on-site at all times for in-person visits when requested for prenatal, peri-operative, and postnatal needs of the patient within a time period consistent with current standards of professional practice and maternal care. (B) Consultation by a psychiatrist, with experience in maternal and/or neonatal counseling shall be available for in-person visits when requested within a time period consistent with current standards of professional practice and maternal care. (9) The primary provider caring for a pregnant or postpartum patient who is a family medicine physician with obstetrics training and experience, obstetrics and gynecology physician, maternal fetal medicine physician, or a certified nurse midwife, physician assistant or nurse practitioner with appropriate physician back-up, whose credentials have been reviewed by the MMD and is on call: (A) shall arrive at the patient bedside within 30 minutes for an urgent request; and (B) shall complete annual continuing education, specific to the care of pregnant and postpartum patients, including complicated and critical conditions. (10) Certified nurse midwives, physician assistants and nurse practitioners who provide care for maternal patients: (A) shall operate under guidelines reviewed and approved by the MMD; and (B) shall have a formal arrangement with a physician with obstetrics training and/or experience, and with maternal privileges who will: (i) provide back-up and consultation; (ii) arrive at the patient bedside within 30 minutes of an urgent request; and (iii) meet requirements for medical staff as described in of this title (relating to Program Requirements) respectively. (11) An on-call schedule of providers, back-up providers, and provision for patients without a physician will be readily available to facility and maternal staff and posted on the labor and delivery unit. (12) Ensure that the physician providing back-up coverage shall arrive at the patient bedside within 30 minutes for an urgent request. (13) Anesthesia Services shall comply with the requirements found at of this title (relating to Hospital Functions and Services) and shall have: (A) anesthesia personnel with experience and expertise in obstetric anesthesia shall be available on-site at all times; (B) a board certified anesthesiologist with training and/or experience in obstetric anesthesia in charge of obstetric anesthesia services; (C) a board certified anesthesiologist with training and/or experience in obstetric anesthesia, including critically ill obstetric patients available for consultation at all times, and arrive at the patient bedside within 30 minutes for urgent requests; and (D) anesthesia personnel on call, including back-up contact information, posted and readily available to the facility and maternal staff and posted in the labor and delivery area. (14) Laboratory Services shall comply with the requirements found at of this title and shall have: (A) laboratory personnel on-site at all times; (B) a blood bank capable of: (i) providing ABO-Rh specific or O-Rh negative blood, fresh frozen plasma, cryoprecipitate, and platelet components on-site at all times; (ii) implementing a massive transfusion protocol; (iii) ensuring guidelines for emergency release of blood components; and (iv) managing multiple blood component therapy; and (C) perinatal pathology services available. (15) Medical Imaging Services shall comply with the requirements found at of this title and shall have: (A) personnel appropriately trained in the use of x-ray equipment available on-site at all times; (B) advanced imaging, including computed tomography (CT), magnetic resonance imaging (MRI), and echocardiography available at all times; (C) interpretation of CT, MRI and echocardiography within a time period consistent with current standards of professional practice and maternal care; (D) a radiologist with critical interventional radiology skills available at all times; (E) advanced ultrasonographic imaging for maternal or fetal assessment, including interpretation available at all times; and (F) a portable ultrasound machine available in the labor and delivery and antepartum unit. (16) Pharmacy services shall comply with the requirements found in of this title and shall have a pharmacist with experience in perinatal pharmacology available at all times. (17) Respiratory Therapy Services shall comply with the requirements found at of this title and shall have a respiratory therapist immediately available on-site at all times. (18) Obstetrical Services. (A) The ability to begin an emergency cesarean delivery within a time period consistent with current standards of professional practice and maternal care. (B) Ensure the availability and interpretation of nonstress testing, and electronic fetal monitoring. (C) A trial of labor for patients with prior cesarean delivery shall have the capability of anesthesia, cesarean delivery, and maternal resuscitation on-site during the trial of labor. (19) Resuscitation. The facility shall have written policies and procedures specific to the facility for the stabilization and resuscitation of the pregnant or postpartum patient based on current standards of professional practice. The facility: (A) ensures staff members, not responsible for the neonatal resuscitation, are immediately available on-site at all times PROPOSED RULES November 17, TexReg 6461

44 who demonstrate current status of successful completion of ACLS and the skills to perform a complete resuscitation; and (B) ensures that resuscitation equipment, including difficult airway management equipment for pregnant and postpartum patients, is readily available in the labor and delivery, antepartum and postpartum areas. (20) The facility shall have written guidelines or protocols for various conditions that place the pregnant or postpartum patient at risk for morbidity and/or mortality, including promoting prevention, early identification, early diagnosis, therapy, stabilization, and transfer. The guidelines or protocols must address a minimum of: (A) massive hemorrhage and transfusion of the pregnant or postpartum patient in coordination of the blood bank, including management of unanticipated hemorrhage and/or coagulopathy; (B) obstetrical hemorrhage, including promoting the identification of patients at risk, early diagnosis, and therapy to reduce morbidity and mortality; (C) hypertensive disorders in pregnancy, including eclampsia and the postpartum patient to promote early diagnosis and treatment to reduce morbidity and mortality; (D) sepsis and/or systemic infection in the pregnant or postpartum patient; (E) venous thromboembolism in the pregnant and postpartum patient, including assessment of risk factors, prevention, early diagnosis and treatment; (F) shoulder dystocia, including assessment of risk factors, counseling of patient, and multi-disciplinary management; and (G) behavioral health disorders, including depression, substance abuse and addiction that includes screening, education, consultation with appropriate personnel and referral. (21) The facility shall have nursing leadership and staff with training and experience in the provision of maternal critical care who will coordinate with respective neonatal services. (22) The facility shall have a program for genetic diagnosis and counseling for genetic disorders, or a policy and process for consultation referral to an appropriate facility. (23) Perinatal Education. A registered nurse with experience in maternal care, including moderately complex and ill obstetric patients, shall provide the supervision and coordination of staff education. Perinatal education for high risk events will be provided at frequent intervals to prepare medical, nursing, and ancillary staff for these emergencies. (24) Support personnel with knowledge and skills in breastfeeding to meet the needs of maternal patients shall be available at all times. times. (25) A certified lactation consultant shall be available at all (26) Social services, pastoral care and bereavement services shall be provided as appropriate to meet the needs of the patient population served. (27) Dietician or nutritionist available with training and experience in maternal nutrition and can plan diets that meet the needs of the pregnant and postpartum patient and critically ill maternal patient shall comply with the requirements in of this title Survey Team. (a) The survey team composition shall be as follows: (1) Level I facilities maternal program staff shall conduct a self-survey, documenting the findings on the approved office survey form. The office may periodically require validation of the survey findings, by an on-site review conducted by department staff. (2) Level II facilities shall be surveyed by a team that is multi-disciplinary and includes at a minimum one obstetrics and gynecology physician and one maternal nurse, all approved in advance by the office and currently active in the management of maternal patients at a facility providing the same or a higher level of maternal care. (3) Level III facilities shall be surveyed by a team that is multi-disciplinary and includes at a minimum one obstetrics and gynecology physician or maternal fetal medicine physician and one maternal nurse, all approved in advance by the office and currently active in the management of maternal patients at a facility providing the same or a higher level of maternal care. An additional surveyor may be requested by the facility or at the discretion of the office. (4) Level IV facilities shall be surveyed by a team that is multi-disciplinary and includes at a minimum one obstetrics and gynecology physician, a maternal fetal medicine physician and one maternal nurse, all approved in advance by the office and currently active in the management of maternal patients at a facility providing the same level of maternal care. Office-credentialed surveyors must meet the following criteria: (b) (1) have at least three years of experience in the care of maternal patients; (2) be currently employed and practicing in the coordination of care for maternal patients; (3) have direct experience in the preparation for and successful completion of maternal facility verification and/or designation; (4) have successfully completed an office-approved maternal facility site surveyor course and be successfully re-credentialed every four years; and (5) have current credentials as follows: (A) a registered nurse who has successfully completed an office-approved site survey internship; or (B) a physician who is board certified in the respective specialty, and has successfully completed an office-approved site survey internship. (c) All members of the survey team, except department staff, shall come from a Perinatal Care Region outside the facility's location and at least 100 miles from the facility. There shall be no business or patient care relationship or any potential conflict of interest between the surveyor or the surveyor's place of employment and the facility being surveyed. (d) The survey team shall evaluate the facility's compliance with the designation criteria by: (1) reviewing medical records; staff rosters and schedules; documentation of QAPI Program activities, including peer review; the program plan; policies and procedures; and other documents relevant to maternal care; (2) reviewing equipment and the physical plant; (3) conducting interviews with facility personnel and surveyors may meet privately with individuals or groups of personnel; and (4) evaluating appropriate use of telemedicine capabilities where applicable. 42 TexReg 6462 November 17, 2017 Texas Register

45 (e) All information and materials submitted by a facility to the office under Health and Safety Code, (d), are subject to confidentiality as articulated in Health and Safety Code, , Confidentially; Privilege, and are not subject to disclosure under Government Code, Chapter 552, or discovery, subpoena, or other means of legal compulsion for release to any person. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Barbara L. Klein Interim General Counsel Department of State Health Services Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER L. CENTERS OF EXCELLENCE FOR FETAL DIAGNOSIS AND THERAPY 25 TAC The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (DSHS), proposes new , concerning Purpose; , concerning Definitions; , concerning General Requirements; , concerning Designation Process; new , concerning Program Requirements; and , Surveyors. BACKGROUND AND PURPOSE The purpose of the new sections is to comply with House Bill (HB) 2131, 84th Legislature, Regular Session, 2015, which added Health and Safety Code, Chapter 32, Subchapter D, Centers of Excellence for Fetal Diagnosis and Therapy, HB 2131 requires the development of rules to create a designation program for Centers of Excellence for Fetal Diagnosis and Therapy by March 1, The Centers of Excellence for Fetal Diagnosis and Therapy designation is voluntary and will be awarded to a facility that is a Level IV Neonatal Level of Care designated facility, is a Level IV Maternal Level of Care designated facility, is verified by the American College of Surgeons as a Pediatric Surgery Center, and has met the Centers of Excellence for Fetal Diagnosis and Therapy criteria in these rules. The Centers of Excellence for Fetal Diagnosis and Therapy designation would include comprehensive maternal, fetal, and neonatal health care for pregnant women with high risk medical complications and fetuses with congenital anomalies and genetic conditions. DSHS would be required to review the designations every three years. It is estimated that approximately 2-4 Texas facilities will apply for the designation. SECTION-BY-SECTION SUMMARY Proposed new , Purpose, describes the purpose of the Centers of Excellence for Fetal Diagnosis and Therapy designation for Subchapter L. Proposed new , Definitions, lists the definitions of the Centers of Excellence for Fetal Diagnosis and Therapy designation for Subchapter L. Proposed new , General Requirements, identifies requirements for the Centers of Excellence for Fetal Diagnosis and Therapy designation; the role of the Office of Emergency Medical Services (EMS)/Trauma Systems (office) in the designation process; and states that facilities seeking the Centers of Excellence for Fetal Diagnosis and Therapy designation shall be surveyed through a DSHS approved organization. Proposed new , Designation Process, addresses the application submittal; designation fee schedule; and an appeal process. Proposed new , Program Requirements, provides an outline of the general requirements each facility must meet. Proposed new , Surveyors, addresses the composition of the on-site surveyors; criteria for surveyor credentials; conflict of interest; and confidentiality and privilege protection. FISCAL NOTE Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the sections will be in effect, there will be no additional fiscal impact for state government as duties can be performed within existing resources for the proposed sections. It is anticipated that one hospital per year will be designated at a cost of $2,500 and that hospitals will not become designated until the beginning of fiscal year The fees are established to recover costs associated with administering the Centers of Excellence for Fetal Diagnosis and Therapy Program. For each year of the first five years that the sections will be in effect, there may be fiscal implications for local governments should that governmental entity own and operate a facility that becomes designated. The number of designations for government owned facilities cannot be determined at this time. GOVERNMENT GROWTH IMPACT STATEMENT DSHS has determined that during the first five years that the sections will be in effect: (1) the proposed rules will create a government program and participation in this program is voluntary; (2) implementation of the proposed rules will not affect the number of employee positions; (3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations; (4) the proposed rules will require an increase in fees paid to the agency; (5) the proposed rules will create new rules; (6) the proposed rules will not expand, limit, or repeal an existing rule; (7) the proposed rules will increase the number of individuals subject to the rules; and (8) DSHS has insufficient information to determine the proposed rules' effect on the state's economy. SMALL BUSINESS AND MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS PROPOSED RULES November 17, TexReg 6463

46 Jane Guerrero, Director, Office of EMS/Trauma Systems, Consumer Protection Division, has determined that there will be no adverse impact on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. Participation in the Centers of Excellence for Fetal Diagnosis and Therapy Designation is voluntary and not linked to Medicaid reimbursement for services. These rules are expected to impact two to four of the largest hospitals in Texas, if they choose to designate, which are considered neither small nor micro-businesses. ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT There are anticipated economic costs to persons who comply with the sections as proposed. Although the survey organizations must be approved by the DSHS office, the office does not determine the fee that the survey organization may charge. There is a cost to the applicant for an on-site survey to verify compliance with the requirements for designation of Centers of Excellence for Fetal Diagnosis and Therapy. The cost of the on-site survey(s) can range from $20,000 - $30,000. There is no anticipated negative impact on local employment. COSTS TO REGULATED PERSONS Texas Government Code, does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas. PUBLIC BENEFIT Ms. Guerrero has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections is that designation of hospitals will facilitate healthy fetal outcomes in this state. REGULATORY ANALYSIS DSHS has determined that this proposal is not a "major environmental rule" as defined by Government Code, "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. TAKINGS IMPACT ASSESSMENT DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, PUBLIC HEARING A public hearing to receive comments on the proposal will be scheduled after publication in the Texas Register and will be held on December 20, 2017, at 1:00 p.m. at the Department of State Health Services, Main Campus, M100, 1100 West 49th Street, Austin, Texas. The meeting date will be posted on the Office of EMS and Trauma Systems website Please contact Elizabeth Stevenson at DSHS.EMS-TRAUMA@dshs.texas.gov for information. PUBLIC COMMENT Written comments on the proposal may be submitted to Elizabeth Stevenson, Designation Manager, Office of EMS/Trauma Systems, Consumer Protection Division, Department of State Health Services, Mail Code 1876, P.O. Box , Austin, Texas ; by to DSHS.EMS-TRAUMA@dshs.texas.gov; or by fax to (512) Comments will be accepted for 35 days following publication of this proposal in the Texas Register. To be considered, comments must be submitted no later than 35 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Friday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; or (2) faxed or ed by midnight on the last day of the comment period. When faxing or ing comments, please indicate "Comments on Proposed Rule 25R047" in the subject line. STATUTORY AUTHORITY The new rules are authorized by Health and Safety Code, , which establishes authority to adopt rules; Health and Safety Code, Chapter 241, which provides DSHS with the authority to adopt rules establishing the levels of care for maternal care, establish a process for assignment or amendment of the levels of care to hospitals, divide the state into perinatal care regions, and facilitate transfer agreements through regional coordination; and by Government Code, , and Health and Safety Code, , which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Health and Safety Code, Chapter The new rules are authorized by Health and Safety Code, Chapters 32, 241 and Chapter 1001; and Government Code, Chapter Purpose. The purpose of this subchapter is to implement Health and Safety Code, Chapter 32, Subchapter D, Centers of Excellence for Fetal Diagnosis and Therapy designation, to achieve healthy fetal outcomes in this state Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Antenatal--Occurring or existing before birth, referring to both the care of the woman during pregnancy and the growth and development of the fetus. (2) Available--Relating to staff who can be contacted for consultation at all times without delay. (3) CEFDT--A facility designated as a Center of Excellence for Fetal Diagnosis and Therapy. (4) Commission--The Health and Human Services Commission. (5) Department--The Department of State Health Services. (6) Designation--A formal recognition by the department of a facility's fetal diagnosis and therapy care capabilities and commitment, for a period of three years. 42 TexReg 6464 November 17, 2017 Texas Register

47 (7) Executive Commissioner--The Executive Commissioner of the Health and Human Services Commission. (8) Fetal--Of, relating to, or being a fetus. (9) CEFDTMD--CEFDT Medical Director. (10) CEFDTPM--CEFDT Program Manager. (11) Innovation--A new method of investigation or an experiment undertaken to benefit an individual patient. (12) Level I evidence-based metrics--evidence from a systematic review of all relevant randomized controlled trials (RCTs) or evidence-based clinical practice guidelines from major national perinatal organizations, based on systematic reviews of RCTs. mother. (13) Maternal--Pertaining to the pregnant patient or (14) Maternal-Fetal Patient--Pertaining to the pregnant patient and her fetus(es). (15) Office--Office of Emergency Medical Services (EMS)/Trauma Systems. (16) On-site--At the facility and able to rapidly arrive at the patient bedside for urgent requests. (17) PCR--Perinatal Care Region. (18) Perinatal--Of, relating to, or being the period around childbirth, especially the five months before and one month after birth. (19) Research--An investigation or experiment undertaken to create generalized knowledge about a particular subject. (20) Urgent--Requiring immediate action or attention General Requirements. (a) The Office of EMS/Trauma Systems (office) shall recommend to the Executive Commissioner of the Health and Human Services Commission (executive commissioner) the designation of an applicant/healthcare facility as a Center of Excellence for Fetal Diagnosis and Therapy for each location of a facility, which the office deems appropriate. (b) A healthcare facility is defined under this subchapter as a single location where inpatients receive hospital services or each location if there are multiple buildings where inpatients receive hospital services and are covered under a single hospital license. (c) Each location shall be considered separately for designation and the office will determine the designation for that location, based on, but not limited to, the location's own resources and level of care capabilities; Perinatal Care Region (PCR) capabilities; and compliance with Chapter 133 of this title, (relating to Hospital Licensing). (d) A CEFDT shall: (1) provide the highest level of maternal, fetal, and neonatal care for patients with the least to most complex fetal conditions; (2) provide at a minimum, all fetal therapies and interventions proven effective antenatally based on level I evidence-based metrics; (3) have skilled medical staff and personnel with documented training, competencies and continuing education specific for the patient population served; (4) offer fetal diagnosis and therapy through an extensive multi-specialty clinical program that is affiliated and collaborates extensively with a medical school in this state; (5) demonstrate a significant commitment to research in and advancing the field of fetal diagnosis and therapy; therapy; (6) offer advanced training programs in fetal diagnosis and (7) provide appropriate long-term monitoring and follow-up care for patients, including measuring short-term and long-term patient diagnostic and therapeutic outcomes; (8) provide outreach and education to maternal and/or neonatal designated facilities, including the Quality Assessment and Performance Improvement (QAPI) process; (9) hold current verification for maternal-fetal surgical care from an organization approved by the department; (10) hold current verification from the American College of Surgeons as a Level I Children's Surgery Center; (11) be designated by the department as a Level IV Maternal Level of Care facility; (12) be designated by the department as a Level IV Neonatal Level of Care facility; (13) participate in CEFDT meetings twice a year as determined by the department: (A) for the purposes of mutual collaboration; (B) to discuss inclusion criteria for fetal intervention and biopsychosocial outcome variables both short-term and long-term; and (C) to participate in a multi-disciplinary performance improvement process; and (14) have facility specific treatment outcomes vetted and approved by the department for public posting on the facility website for public access and/or redirect the public to the facility specific outcomes posted on the department's website. (e) Facilities seeking designation shall be surveyed through an organization approved by the office to verify that the facility is meeting office-approved relevant requirements. The facility shall bear the cost of the survey Designation Process. (a) Designation application packet. The applicant shall submit the packet that includes the following documents, to the Office of EMS/Trauma Systems (office) within 120 days of the facility's verification for maternal-fetal surgical care: (1) an accurate and complete designation application form for designation, including full payment of the designation fee as listed in subsection (d) of this section; (2) evidence of current Level IV Neonatal designation; (3) evidence of current Level IV Maternal designation; (4) evidence of current verification for maternal-fetal surgical care, including patient case reviews; (5) evidence of current verification from the American College of Surgeons as a Level I Children's Surgery Center, including patient case reviews; (6) a letter of support from the facility's governing board supporting provisions for the collection and evaluation of short-term and long-term outcomes; (7) evidence of participation in the CEFDT meetings twice a year; PROPOSED RULES November 17, TexReg 6465

48 (8) evidence of outcomes posted for public access; and (9) any subsequent documents requested by the office. (b) Renewal of designation. The applicant shall submit the documents described in subsection (a)(1) - (9) of this section to the office not more than 180 days prior to the designation expiration date and at least 60 days prior to the designation expiration date. (c) If a facility seeking designation fails to meet the requirements in subsection (a)(1) - (9) of this section, the application shall be denied. (d) Non-refundable application fee of $2, for the threeyear designation period shall be submitted with the application or renewal. (e) If a facility disagrees with the designation determination by the office for initial designation or renewal of designation, it may make an appeal in writing not later than 60 days after issuance of the determination to the director of the office. The written appeal must include a signed letter from the facility's governing board with an explanation of the basis for its appeal. (1) If the office upholds its original determination, the director of the office will give written notice of such to the facility not later than 30 days of its receipt of the applicant's complete written appeal. (2) The facility may, not later than 30 days of the office's issuance of written notification of its denial, submit a written request for further review. Such written appeal shall be submitted to the Associate Commissioner of the Consumer Protection Division (associate commissioner). (f) The survey organization shall provide the facility with a written, signed survey report regarding their evaluation of the facility's compliance with the Centers of Excellence for Fetal Diagnosis and Therapy designation requirements. This survey report shall be forwarded to the facility no later than 30 days of the completion date of the survey. The facility is responsible for forwarding a copy of this report to the office if it intends to continue the designation process. (g) The office shall review the application packet documents submitted by the facility, to determine compliance with the Centers of Excellence for Fetal Diagnosis and Therapy designation requirements. (1) A recommendation for designation shall be made to the executive commissioner based on compliance with the designation requirements. (2) A Centers of Excellence for Fetal Diagnosis and Therapy designation shall not be denied to a facility that meets the minimum requirements for designation. (A) If a facility disagrees with the office's decision regarding its designation application or status, it may request a secondary review by a designation review committee. (B) Membership on a designation review committee will: (i) be voluntary; (ii) be appointed by the office director; (iii) be representative of fetal diagnosis and therapy providers, and the highest levels of neonatal and maternal care designated facilities; (iv) exclude any representative with a conflict of interest; and (v) include representation from the office. (C) If a designation review committee disagrees with the office's recommendation, the records shall be referred to the associate commissioner for recommendation. (D) If a facility disagrees with the office's recommendation at the end of the secondary review, the facility has a right to a hearing, in accordance with a hearing request referenced in (9) of this title (relating to Enforcement Action), and Government Code, Chapter Program Requirements. (a) A CEFDT shall provide patient-centered and family-centered health care. The environment for maternal-fetal care shall comprehensively meet the physiologic and psychosocial needs of the pregnant patient, their infants, and families. (b) Program Plan. The CEFDT shall develop a written plan of an organized program that includes a detailed description of the scope of services available to the maternal-fetal patient, defines the maternal-fetal patient population evaluated and/or treated by the CEFDT, which is consistent with accepted professional standards of practice for maternal-fetal care, and ensures the health and safety of patients. (1) The written plan and the program policies and procedures shall be reviewed and approved by the facility's governing body. The governing body shall ensure that the requirements of this section are implemented and enforced. (2) The written program plan shall include, at a minimum: (A) program policies and procedures that are: (i) based upon current standards of fetal diagnosis and therapy practice; and (ii) adopted, implemented and enforced for the maternal-fetal services it provides; (B) a periodic review and revision schedule for all maternal-fetal care policies and procedures; (C) a Quality Assessment/Performance Improvement (QAPI) Program as described in of this title (relating to Hospital Functions and Services). The CEFDT shall demonstrate that the QAPI Program evaluates the provision of maternal-fetal care on an ongoing basis, identify opportunities for improvement, develop and implement improvement plans, and evaluate the implementation until a resolution is achieved. The QAPI Program shall measure, analyze, and track quality indicators or other aspects of performance that the CEFDT adopts or develops that reflect processes of care and is outcome based. Aggregate patient data must be continuously reviewed for trends. QAPI data must be submitted to the department as requested; (D) appropriate follow up for all infants through an established referral process; (E) short-term and long-term outcomes of the pregnant patient and her fetus(es) after fetal interventions will be monitored by the CEFDT; (F) requirements for minimal credentials for all staff participating in the care of maternal-fetal patients; (G) provisions for providing continuing staff education, including annual competency and skills assessment that is appropriate for the patient population served; and 42 TexReg 6466 November 17, 2017 Texas Register

49 (H) procedures to ensure the availability of all necessary equipment and services to provide the appropriate level of care and support of the patient population served. (c) Medical Staff. The facility shall have an organized fetal therapy and diagnosis program that is recognized by the medical staff and approved by the facility's governing body. The credentialing of the medical staff shall include a process for the delineation of privileges for maternal-fetal care. (d) CEFDT Medical Director (CEFDTMD). There shall be an identified CEFDTMD responsible for the provision of fetal therapy and diagnosis services and credentialed by the facility for the treatment of maternal-fetal patients. (1) The CEFDTMD shall be a physician who: (A) is a board certified maternal-fetal medicine (MFM) physician or a board certified pediatric surgeon, with additional training and expertise in maternal-fetal care and fetal interventions; (B) demonstrates administrative skills and oversight of the CEFDT QAPI Program; (C) completes annual continuing medical education specific to fetal medicine and/or fetal interventions; (D) is a clinically active and practicing physician participating in maternal-fetal care and fetal interventions at the facility where medical director services are provided; and (E) maintains active staff maternal-fetal privileges as defined in the facility's medical staff bylaws. (2) The CEFDTMD shall have the authority and responsibility to monitor maternal-fetal patient care from outpatient navigation, admission, stabilization, operative intervention(s) if applicable, through discharge, and inclusive of the QAPI Program. (3) The responsibilities and authority of the CEFDTMD shall include: (A) examining qualifications of medical staff requesting fetal diagnosis and therapy privileges and making recommendations to the appropriate committee for such privileges; (B) collaborating with the CEFDTPM in areas to include: developing and/or revising policies, procedures and guidelines for maternal-fetal care, assuring medical staff and personnel competency, education and training in maternal-fetal care; and directing the QAPI Program that is specific to maternal-fetal care and fetal interventions, is ongoing, data driven and outcome based; (C) frequently leading and participating in the CEFDT QAPI meetings; (D) participating in CEFDT meetings twice a year as determined by the department; and (E) providing an annual report of aggregate short-term and long-term outcomes data as requested by the department. (e) CEFDT Program Manager (CEFDTPM). There shall be an identified CEFDTPM responsible for the provision of fetal diagnosis and therapy clinical care services for maternal-fetal patients. (1) The CEFDTPM shall be a registered nurse who: (A) has experience and/or training in maternal-fetal care and fetal interventions; (B) demonstrates administrative skills and oversight of the CEFDT QAPI Program; (C) completes annual continuing education specific to maternal-fetal care and fetal interventions; and (D) is a clinically active and practicing registered nurse participating in maternal-fetal care at the facility where program manager services are provided. (2) The CEFDTPM shall have the authority and responsibility to monitor maternal-fetal patient care from outpatient navigation, admission, stabilization, operative intervention(s) if applicable, through discharge, and inclusive of the QAPI Program. (3) The responsibilities and authority of the CEFDTPM shall include: (A) examining qualifications of staff providing maternal-fetal care services; (B) collaborating with the CEFDTMD in areas to include: developing and/or revising policies, procedures and guidelines for maternal-fetal care, assuring medical staff and personnel competency, education and training in maternal-fetal care; and directing the QAPI Program that is specific to maternal-fetal care and fetal interventions, is ongoing, data driven and outcome based; (C) frequently leading and participating in the CEFDT QAPI meetings; (D) participating in CEFDT meetings twice a year as determined by the department; and (E) providing an annual report of aggregate short-term and long-term outcomes data as requested by the department. (f) The facility shall identify medical staff responsible for the provision of maternal-fetal care services, available for in person consultation, and credentialed by the facility for the treatment of maternal-fetal patients, to include: (1) a board certified MFM physician, who shall: (A) have primary responsibility for the direct, comprehensive, and coordinated medical care of patients undergoing fetal interventions; and (B) be available at all times to the bedside within a time period consistent with current standards of professional practice and maternal-fetal care; and (2) a board certified pediatric surgeon with training and expertise in fetal intervention; (3) a board certified pediatric neurosurgeon with training and expertise in fetal intervention; (4) a board certified neonatologist with training and expertise in the care of neonates following fetal interventions; (5) a board certified pediatric cardiologist with expertise in the performance and interpretation of fetal echocardiography shall be available and provide interpretation within a time period consistent with current standards of professional practice and maternal-fetal care; (6) a board certified anesthesiologist with expertise in maternal-fetal physiology and uterine relaxation methods shall be available at all times for consultation and to arrive at the bedside if anesthesia is required for fetal interventions; (7) a board certified pediatric urologist; (8) a board certified pediatric nephrologist; (9) a board certified pediatric palliative care medicine physician; and PROPOSED RULES November 17, TexReg 6467

50 (10) other board certified pediatric subspecialists, including cardiovascular surgery, craniofacial surgery, gastroenterology, orthopedic surgery, plastic surgery and rehabilitative medicine. (g) The identified medical staff responsible for the provision of maternal-fetal care services shall: (1) complete annual continuing medical education specific to maternal-fetal care and fetal interventions; (2) be a clinically active and practicing physician participating in maternal-fetal care and fetal interventions at the CEFDT; and (3) maintain active staff fetal diagnosis and therapy privileges as defined in the facility's medical staff bylaws. (h) Medical Ethicist. A medical ethicist with expertise in clinical perinatal medical ethics shall be an active member of the fetal diagnosis and therapy program, including frequent participation in conferences, and providing in person ethical consultations and participation in research. (i) Genetic Counseling. Board eligible/certified genetic counselors or a board eligible/certified physician with specialized training in prenatal genetic counseling shall be available for in person prenatal consultation as requested. (j) Palliative Care. Personnel with training and/or experience in palliative care shall be available on-site at all times for prenatal and postnatal counseling of families. (1) Personnel shall have perinatal-specific training in the support of maternal and/or pediatric patients and families. (2) Personnel shall be trained to organize clinical protocols, birth plans, and to provide staff education. (k) Child Life Specialist. A child life specialist shall be available for in person consultation as requested and be licensed as a Certified Child Life Specialist. (l) Clinical Coordinators shall be identified as the primary point of contact for the family. (1) At least one Clinical Coordinator shall be a registered nurse with experience in maternal or neonatal care. (2) Clinical Coordinators engaged in research shall have completed the research ethics training/human subjects' protection training as appropriate. (m) Research Support. (1) Identify a research coordinator who shall have a Certified Clinical Research Professional or a Certified Clinical Research Associate credential or equivalent. (2) A research coordinator shall collect, analyze, and abstract data as needed for research and follow up of perinatal outcomes. (n) Medical Imaging Services. (1) A board certified pediatric radiologist with expertise in the interpretation of fetal Magnetic Resonance Imaging (MRI) shall be available and provide interpretation within 24 hours upon completion of study. (2) A Perinatal Sonographer shall: (A) be registered through the American Registry for Diagnostic Medical Sonography, Cardiovascular Credentialing International, American Registry for Radiologic Technologists, or an organization approved by the department; and (B) have documented continuing education as required for advanced certifications, and demonstrate competence in mainstream fetal diagnostic ultrasounds and new diagnostic modalities as available. (3) Ultrasound Imaging. The ultrasound unit shall be accredited by The American Institute of Ultrasound in Medicine or the American College of Radiology or an organization approved by the department. (4) Fetal Echocardiography. The facility's Fetal Echocardiography program shall be accredited by The American Institute of Ultrasound in Medicine or the Intersocietal Accreditation Commission or an organization approved by the department. (5) Magnetic Resonance Imaging (MRI). The facility's MRI program shall be accredited by The American College of Radiology or an organization approved by the department. (o) Laboratory Services. (1) Perinatal pathology services shall be available on-site. (2) Reference lab capabilities, or agreements with specialized testing centers, shall be available for specialized testing for perinatal genetic testing, fetal conditions, and infections. (p) CEFDT Innovation Committee (committee). A multidisciplinary, objective committee will review fetal interventions that are innovative, but not mainstream medicine or research. (1) The committee shall include medical and nursing personnel with maternal-fetal knowledge and expertise, ethicists, genetic counselors, and non-medical patient advocates, as appropriate for the proposed study. (2) The chair of the committee shall have an independent objective view of the proposed intervention. (3) The members of the committee may or may not be directly involved with the CEFDT, but shall not be directly involved in the proposed innovation. (4) The committee decisions shall be independent and without conflict of interest, either due to direct care of the patient or by affiliation or financial gain. (5) Documentation of in-depth discussions and actions implemented will be maintained by the CEFDT. (6) All non-standard fetal interventions shall have formal approval by the committee prior to the intervention. (7) The committee has the final authority to approve or disapprove the innovative intervention. (q) The CEFDT shall provide a monthly multidisciplinary conference, involving CEFDT medical staff, nurses, ethicists, and ancillary staff, to discuss the options for prenatal and postnatal management of fetal anomalies and other conditions. Emergent fetal interventions performed prior to the conference will be discussed at the next monthly meeting after the procedure. The facility shall maintain documentation of meetings, in depth discussion of the options, and plan for management for all fetal therapy patients Surveyors. (a) A CEFDT shall be surveyed by a team, approved by the office, which is multi-disciplinary and includes at a minimum one board certified physician that is active in the management of maternal-fetal patients and/or performs fetal interventions; and a nurse active in the management of maternal-fetal patients, at a facility providing the same 42 TexReg 6468 November 17, 2017 Texas Register

51 level of maternal-fetal care. An additional surveyor may be requested by the facility or at the discretion of the office. (b) Office-credentialed surveyors must meet the following criteria: (1) have at least three years of experience in the care of maternal-fetal patients and/or fetal interventions; (2) be currently employed and clinically practicing in the coordination of care for maternal-fetal patients and fetal interventions; (3) have direct experience in the preparation for and successful completion of a Centers of Excellence for Fetal Diagnosis and Therapy verification and/or designation; (4) have successfully completed an office-approved Centers of Excellence for Fetal Diagnosis and Therapy site surveyor course and be successfully re-credentialed every four years; and (5) have current credentials as: (A) a registered nurse with maternal-fetal experience who has successfully completed an office-approved site survey internship; or (B) a physician who is board certified in the respective specialty, and has successfully completed an office-approved site survey internship. (c) All surveyors, except department staff, shall come from a Perinatal Care Region outside the facility's location and at least 100 miles from the facility. There shall be no business or patient care relationship or any potential conflict of interest between the surveyor or the surveyor's place of employment and the facility being surveyed. (d) The surveyors shall evaluate the facility's compliance with the designation criteria by: (1) reviewing medical records; staff rosters and schedules; documentation of QAPI Program activities, including peer review; the program plan; policies and procedures; and other documents relevant to fetal diagnosis and therapy services; (2) reviewing equipment and the physical plant; and (3) conducting interviews with facility personnel; surveyors may meet privately with individuals or groups of personnel. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Barbara L. Klein Interim General Counsel Department of State Health Services Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) CHAPTER 138. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS 25 TAC The Health and Human Services Commission (HHSC) proposes new rules for concerning Purpose; concerning Definitions; concerning Scope, Exemptions; concerning Application of this Chapter; concerning Approved Methods of Treatment and Disposition; concerning Storage, Handling, and Transport Authorization; concerning Storage, Handling, and Transport Requirements; and concerning Burial or Cremation Assistance Registry. BACKGROUND AND PURPOSE The proposed rules are required by Senate Bill 8, 85th Legislature, 2017, Regular Session, which added Texas Health and Safety Code, Chapter 697, relating to the disposition of embryonic and fetal tissue remains. This legislation requires HHSC to adopt rules to implement Chapter 697. SECTION-BY-SECTION SUMMARY New explains the purpose of the rules is to implement Texas Health and Safety Code, Chapter 697, which requires the dignified disposition of embryonic and fetal tissue remains. New contains the definitions that apply to this chapter, including the definitions of embryonic and fetal tissue remains, cremation, incineration, and interment. New explains the scope of this chapter and exemptions, including fetal tissue donated under Texas Health and Safety Code, Chapter 173; embryonic and fetal tissue required to be released to the parent of an unborn child under Texas Health and Safety Code, ; and embryonic and fetal tissue expelled or removed from the human body once the person is outside of a health care facility. New describes the application of this chapter to types of health care facilities including abortion facilities, ambulatory surgical centers, and hospitals; prohibits disclosure of confidential information; and states that this chapter does not require a birth or death certificate or a burial transit permit. New lists the authorized methods of treatment and disposition of embryonic and fetal tissue remains as interment, cremation, incineration followed by interment, or steam disinfection followed by interment and includes cremation standards and recordkeeping requirements. New allows anyone authorized by the Texas Commission on Environmental Quality or the Texas Funeral Services Commission to store or transport embryonic and fetal tissue remains and describes the required methods of storage, handling, and transport of embryonic and fetal tissue remains. New lists the requirements for the proper storage, handling and transport of embryonic and fetal tissue remains. New establishes a registry of entities willing to provide or assist with free common burials or free or low-cost private burials of embryonic and fetal tissue remains. This section also includes the procedures for inclusion and removal from the registry list and how to request the registry list. FISCAL NOTE Greta Rymal, HHSC Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed. GOVERNMENT GROWTH IMPACT STATEMENT HHSC has determined that during the first five years that the sections will be in effect: PROPOSED RULES November 17, TexReg 6469

52 (1) the proposed rules will not create or eliminate a government program; (2) implementation of the proposed rules will not affect the number of employee positions; (3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations; (4) the proposed rules will not affect fees paid to the agency; (5) the proposed rules will not create new rules; (6) the proposed rules will expand existing rules; (7) the proposed rules will not change the number of individuals subject to the rules; and (8) The rules are unlikely to have a significant impact on the state's economy because fetal tissue disposition is currently regulated. Although these rules are likely to have neutral impact on the state's economy, HHSC lacks sufficient data to predict the impact with certainty. SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COM- MUNITY IMPACT ANALYSIS AND ECONOMIC COSTS TO PERSONS Ms. Rymal estimates that 236 health care facilities may be small or micro-businesses, handle tissue resulting from induced or spontaneous abortions, and may be affected by these requirements. Based on the current rules and information available to HHSC, health care facilities required to comply with the rules, currently provide for or contract for the disposition of embryonic and fetal tissue. The proposed rules prescribe alternative methods of disposition of embryonic and fetal tissue. These proposed alternatives may have a small incremental cost but that cost is expected to be off-set by the cost currently being expended for disposition. Different costs may arise based on a health care facility's decisions regarding the use of burial or cremation. The proposed rules allow the disposition of remains together, thereby reducing costs to an amount estimated to be commensurate with current methods used for disposition. HHSC notes that in comments submitted previously, private parties have offered to bury embryonic and fetal remains without charge. Other parties may also offer discounted or free services associated with the disposition of embryonic and fetal tissue. For these reasons, HHSC estimates little to no fiscal impact. The previous fiscal impact review identified a per facility, per year cost of $425 for cremation and burial. Costs of burial ranged between $300 and $1,500 and costs of cremation were estimated at $125. Common cremation and/or burial are permissible under these rules, so these costs will not be a per procedure cost. If there is a realized increased cost to small businesses or rural communities, HHSC has determined that there are no alternatives of achieving the purpose of the proposed rule because new Chapter 697 requires each health care facility to comply with state law. Further, there are multiple low-cost alternatives that a small or micro business may use to achieve compliance with the law and rules. In testimony submitted in Whole Woman's Health v Hellerstedt, Case No. A-16-CA-1300-SS, US District Court, Western District of Texas, Austin Division, witnesses stated that they identified a provider who could comply with the revised embryonic and fetal disposition rules at an anticipated increased cost of between $.52 and $1.56 per patient. Additionally, the testimony in that case demonstrated that there was at least one private and one charitable organization that stated that they would provide disposition in compliance with these rules throughout the state. IMPACT ON LOCAL EMPLOYMENT There is no anticipated negative impact on local employment. COSTS TO REGULATED PERSONS Texas Government Code, does not apply to these rules because the rules are necessary to implement Senate Bill 8, 85th Legislature, 2017, Regular Session. PUBLIC BENEFIT David Kostroun, HHSC Deputy Executive Commissioner of Regulatory Services, has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of adopting and enforcing these rules will express the state's profound respect for the life of the unborn by providing for the dignified disposition of embryonic and fetal tissue remains. REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES HHSC has determined that this proposal is not a "major environmental rule" as defined by Texas Government Code, "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. TAKINGS IMPACT ASSESSMENT HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, PUBLIC COMMENT Comments on the proposal may be submitted to the Health and Human Services Commission, Mail Code 1065, P.O. Box 13247, Austin, Texas 78711, or by to Regulatory_Rules_Comments@hhsc.state.tx.us. Please specify "Comments on Chapter 697 Proposed Rules" in the subject line. HHSC intends by this section to invite public comment on each of the new rules. Comments are accepted for 30 days following publication of the proposal in the Texas Register. To be considered, comments must be submitted no later than 30 days following publication of the proposal in the Texas Register. The last day to submit comments falls on a Sunday; however, comments postmarked, shipped, or ed before midnight on the following Monday will be accepted. STATUTORY AUTHORITY Texas Health and Safety Code, Chapter 697, as adopted in Senate Bill 8, 85th Legislature, 2017, Regular Session, requires the dignified disposition of embryonic and fetal tissue remains. New Texas Health and Safety Code, , requires the Executive Commissioner to adopt rules governing new Chapter 697. Texas Government Code, , authorizes the Executive Commissioner to adopt rules and policies necessary for the operation and provision of health and human services. 42 TexReg 6470 November 17, 2017 Texas Register

53 The new rules are authorized by Texas Health and Safety Code, Chapter 697, and Texas Government Code, Chapter 531. In addition to the express authority of Chapter 697 of the Health and Safety Code, HHSC took into consideration a variety of statutes that express the Legislature's will to afford the level of protection and dignity to unborn children as state law affords to adults and children. See, e.g., Texas Penal Code, 1.07(26) (defining "individual" to include "an unborn child at every stage of gestation from fertilization until birth"); Texas Civil Practice and Remedies Code, (4) (defining "individual" in the wrongful death statute to include "an unborn child at every stage of gestation from fertilization until birth"); Texas Estates Code, (allowing for appointment of attorney ad litem for an unborn person in a guardianship proceeding); Texas Health and Safety Code, (requiring hospitals to release to a parent remains of an unborn child who dies as a result of an unintended, intrauterine death). The rules carry out the agency's duty to protect public health in a manner that is consonant with the State's respect for life and dignity of the unborn. The agency accomplished this through amendments to the rules and inclusion of new provisions in the rules, including prohibiting the disposal of fetal tissue in a landfill and eliminating grinding as a method of fetal tissue disposition, that afford protection and dignity to the unborn consistent with the Legislature's expression of its intent. These rules provide a comparable level of protection to public health, while eliminating disposition options that are clearly incompatible with the Legislature's articulated objective of protecting the dignity of the unborn. The adopted rules meet the HHSC's duties under law, while properly weighing considerations regarding public health, overall public benefit, and costs. Additional provisions considered include: Texas Penal Code, 1.07(26) relating to criminal penalties for harm to unborn person; Texas Civil Practice and Remedies Code, (4) relating to civil liability for killing unborn person; Texas Estates Code, relating to guardianship representation for unborn persons in a guardianship proceeding; Texas Estates Code, regarding the definition of "attorney ad litem" which includes representation of an "unborn person;" Texas Property Code, relating to authority of a court to appoint a guardian ad litem to represent the interest of an unborn; Texas Health and Safety Code, relating to requirement that hospitals release to a parent remains of an unborn child who dies as a result of an unintended, intrauterine death; Preamble of House Bill (HB) 2, 83rd Legislature, Second Called Session, 2013, effective October 29, 2013, relating to the compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that an unborn child is capable of feeling pain is intended to be separate from and independent of the compelling state interest in protecting the lives of unborn children from the stage of viability, and neither state interest is intended to replace the other; Texas Health and Safety Code, relating to the prohibition against a person intentionally or knowingly performing an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy; and Texas Health and Safety Code, relating to requirement for sonograms of pre-viable unborn children before abortion Purpose. The purpose of this chapter is to implement the Health and Safety Code, Chapter 697, which requires the dignified disposition of embryonic and fetal tissue remains Definitions. The following words and terms, when used in this chapter, must have the following meanings unless the context clearly indicates otherwise. (1) Burial--The act of depositing embryonic and fetal tissue remains in a grave, crypt, vault, or tomb, or at sea. (2) Burial park--a tract of land that is used or intended to be used for the interment of embryonic and fetal tissue remains in graves. (3) Cemetery--A tract of land that is used or intended to be used for the permanent interment of embryonic and fetal tissue remains, and includes: (A) a burial park for earth interments; (B) a mausoleum for crypt or vault interments; (C) a columbarium for cinerary interments; or (D) a combination of one or more of subparagraphs (A) - (C) of this paragraph. (4) Columbarium--A structure or room or other space in a building or structure of most durable and lasting fireproof construction; or a plot of earth, containing niches, used, or intended to be used, to contain cremated embryonic and fetal tissue remains. (5) HHSC--The Texas Health and Human Services Commission. (6) Cremation--The irreversible process of reducing tissue or remains to ashes or bone fragments through direct flame, extreme heat, and evaporation. (7) Crematory--A building or structure containing one or more furnaces used, or intended to be used, for the reduction (by burning) of human remains or embryonic and fetal tissue remains to cremated remains. (8) Crypt or vault--the chamber in a mausoleum of sufficient size to inter the uncremated embryonic and fetal tissue remains. (9) Entombment--The permanent interment of embryonic and fetal tissue remains in a crypt or vault. (10) Embryonic and fetal tissue remains--an embryo, a fetus, body parts, or organs from a pregnancy that terminates in the death of the embryo or fetus and for which the issuance of a fetal death certificate is not required by state law. The term does not include the umbilical cord, placenta, gestational sac, blood, or body fluids. (11) Executive Commissioner--The Executive Commissioner of the Health and Human Services Commission. (12) Grave--A space of ground in a burial park that is used, or intended to be used for the permanent interment in the ground of embryonic and fetal tissue remains. (13) Health care facilities--include the following: (A) ambulatory surgical centers; (B) abortion clinics; (C) birthing centers; (D) clinics; (E) emergency medical services; (F) freestanding emergency medical care facilities; (G) hospitals; (H) professional offices, including the offices of physicians; and PROPOSED RULES November 17, TexReg 6471

54 (I) other health care-related facilities that provide health or medical care to a pregnant woman. (14) Incineration--The process of burning embryonic and fetal tissue remains in an incinerator as defined in Title 30, Texas Administrative Code, Chapter 101 under conditions in conformance with standards prescribed in Title 30, Texas Administrative Code, Chapter 111 by the Texas Commission on Environmental Quality. (15) Interment--The disposition of embryonic and fetal tissue remains by entombment, burial, or placement in a niche. (16) Mausoleum--A structure or building of most durable and lasting fireproof construction used, or intended to be used, for the entombment of embryonic and fetal tissue remains. (17) Niche--A recess or space in a columbarium used, or intended to be used, for the permanent interment of the cremated remains of embryonic and fetal tissue remains. (18) Steam disinfection--the act of subjecting embryonic and fetal tissue remains to steam under pressure under those conditions which effect disinfection Scope, Exemptions. (a) Unless specifically exempted, all embryonic and fetal tissue remains from health care facilities must be treated as provided in this chapter. (b) To the extent this chapter conflicts with Title 25, Texas Administrative Code, Chapter 1, Subchapter K, this chapter prevails. (c) This chapter does not apply to: (1) placentas designated for sale and obtained from a licensed hospital or a licensed birthing center; (2) in vitro tissue cultures; (3) human fetal tissue donated in accordance with Texas Health and Safety Code, Chapter 173; (4) disposition of embryonic and fetal tissue remains of a single pregnancy, body parts, or tissue (including bulk blood), transferred for disposition to a licensed funeral director in accordance with Texas Health and Safety Code, Chapter 711, and Title 25, Texas Administrative Code Chapter 181 (relating to Vital Statistics), with the consent of the person or persons authorized to consent to the disposition of the fetal remains, body parts, or tissue (including bulk blood). (5) human tissue, including embryonic and fetal tissue, that is expelled or removed from the human body once the person is outside of a health-care facility; (6) embryonic and fetal tissue required to be released to the parent of an unborn child pursuant to Texas Health and Safety Code, ; and (7) a placenta removed from a hospital or birthing center pursuant to Texas Health and Safety Code, Chapter 172. (d) Notwithstanding any other law or rule, the umbilical cord, placenta, gestational sac, blood, or body fluids from a pregnancy terminating in the death of the embryo or fetus for which the issuance of a fetal death certificate is not required by state law may be disposed of in the same manner as and with the embryonic and fetal tissue remains from that same pregnancy as authorized by this chapter Application of this Chapter. (a) This chapter may not be used to require or authorize disclosure of confidential information, including personally identifiable or personally sensitive information, not permitted to be disclosed by state or federal privacy or confidentiality laws. (b) This chapter does not require the issuance of a birth or death certificate or a burial transit permit for the proper disposition of embryonic and fetal tissue remains from health care facilities. (c) This chapter does not extend or modify requirements of Texas Health and Safety Code, Chapters 711 and 716, or Texas Occupations Code, Chapter 651, to disposition of embryonic and fetal tissue remains. (d) This chapter applies to embryonic and fetal tissue remains from health care facilities Approved Methods of Treatment and Disposition. (a) Embryonic and fetal tissue remains, regardless of the period of gestation, except as provided by of this chapter (relating to Scope, Exemptions), must be subjected to one of the following methods of treatment and disposal: (1) interment; (2) cremation; (3) incineration followed by interment; or (4) steam disinfection followed by interment. (b) Embryonic and fetal tissue remains that undergo cremation must be placed in a cremation container that: (1) is made of combustible materials suitable for cremation; (2) provides a complete covering of the remains; (3) is resistant to leakage or spillage; and (4) protects the health and safety of crematory personnel. (c) The ashes resulting from the cremation or incineration of embryonic and fetal tissue remains: (1) may be interred or scattered in any manner authorized by law for human remains; and (2) may not be placed in a landfill or sewer system. (d) The facility treating the embryonic and fetal tissue remains must maintain records to document the treatment of the embryonic and fetal tissue remains from health care facilities processed at the facility as to method and conditions of treatment in accordance with Title 30, Texas Administrative Code, Chapter 326. (e) The facility treating the embryonic and fetal tissue remains is responsible for establishing the conditions necessary for operation of each method used at the facility to ensure the reduction of microbial activity of any embryonic and fetal tissue remains. (f) A health care facility responsible for disposing of embryonic and fetal tissue remains may coordinate with an entity in the registry established under of this chapter, (relating to Burial or Cremation Assistance Registry), in an effort to reduce the cost associated with burial or cremation of the embryonic and fetal tissue remains Storage, Handling, and Transport Authorization. (a) Any person or entity that is licensed, permitted or otherwise authorized by the Texas Funeral Services Commission to store, handle or transport human remains is authorized to store, handle or transport embryonic and fetal tissue remains. (b) Any person or entity that is licensed, permitted or otherwise authorized by the Texas Commission on Environmental Quality to store, handle or transport special waste from health care facilities is authorized to store, handle or transport embryonic and fetal tissue remains. 42 TexReg 6472 November 17, 2017 Texas Register

55 Storage, Handling, and Transport Requirements. (a) A container which contains untreated embryonic and fetal tissue remains must be placed in an outer container that is leak resistant, impervious to moisture, of sufficient strength to prevent tearing and bursting under normal conditions of use and handling, and sealed to prevent leakage. (b) The outer container holding untreated embryonic and fetal tissue remains must be labeled with a warning legend in English and in Spanish, along with the international symbol for biohazardous material on the sides of the container. The wording of the warning legend must be substantially similar to the following: "CAUTION, contains material which may be biohazardous" and "PRECAUCIÓN, contiene material que pueden ser peligro biológico." (c) Untreated embryonic and fetal tissue remains may be transported by the generating facility or must be released only to transporters using transportation units that: (2) protect the remains from mechanical stress or compaction; must: (1) have a fully enclosed, leak-proof remains storage area; (3) carry spill cleanup equipment; and (4) have a compartment where remains are transported that (A) be maintained in a sanitary condition; (B) be locked when the vehicle or trailer is in motion; (C) be locked or secured when remains are present in the compartment except during loading or unloading of remains; have a floor and sides made of an impervious, non- (D) porous material; (E) have all discharge openings securely closed during operation of the vehicle or trailer; (F) maintain a temperature of 45 degrees Fahrenheit or less for remains transported for longer than 72 hours during post-collection storage period; and (G) be disinfected before being used to transport any material other than remains or untreated medical waste. (d) Cremated embryonic and fetal tissue remains may be transported in any manner in this state and must be disposed of in accordance with this chapter Burial or Cremation Assistance Registry. The registry is created to identify persons or entities who choose to provide financial or other assistance for the cremation or burial of embryonic or fetal tissue remains. (1) The following persons or entities may apply for inclusion on the registry by submitting an application on a form prescribed by HHSC: (A) participating funeral homes and cemeteries willing to provide free common burials or free or low-cost private burials that certify that they will do so in compliance with applicable law; and (B) private nonprofit organizations that will provide financial assistance for the costs associated with burial or cremation of embryonic and fetal tissue remains. (2) An application will be approved if the applicant meets the requirements of paragraph (1) of this section. (3) An application will be disapproved if the applicant has: (A) not met the requirements in paragraph (1) of this section; or (B) failed or refused to properly complete or submit any application form, or deliberately presented false information on any form or document required by HHSC. (4) Upon approval of an application, the applicant's name will be placed on the registry. HHSC will provide notice of placement on the registry to each approved applicant. (5) A person or entity may be removed from the registry at the sole discretion of HHSC upon evidence that a registrant has failed to provide the services for which it was placed on the registry. HHSC will notify, in writing, a registrant of its removal from the registry. The denial or removal from the registry is not subject to Texas Government Code, Chapter (6) A request under this section will not be considered a petition for the adoption of rules. (7) Obtaining Registry Information. (A) HHSC will make the registry information available upon request to a physician, a health care facility, or the agent of a physician or health care facility. (B) A request from a physician, a health care facility, or the agent of a physician or health care facility must be submitted to HHSC on a form prescribed by HHSC. The agency certifies that l egal counsel h as reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 6, TRD Karen Ray Chief Counsel of Health and Human Services Department of State Health Services Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 30. ENVIRONMENTAL QUALITY PART 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY CHAPTER 220. REGIONAL ASSESSMENTS OF WATER QUALITY SUBCHAPTER A. PROGRAM FOR MONITORING AND ASSESSMENT OF WATER QUALITY BY WATERSHED AND RIVER BASIN 30 TAC 220.4, The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes amendments to and Background and Summary of the Factual Basis for the Proposed Rules PROPOSED RULES November 17, TexReg 6473

56 House Bill 3618 (HB 3618 or bill), 85th Texas Legislature (2017), repealed Texas Water Code (TWC), which required, to the greatest extent practicable, that all Texas Pollutant Discharge Elimination System (TPDES) permits within a single watershed contain the same expiration date (known as basin permitting). The bill also amended TWC, (d) to remove language that coordinated submittal of summary reports by river authorities with the existing "basin permitting rules" previously required under TWC, TWC, was created by the 72nd Texas Legislature (1991). Also known as "the Texas Clean Rivers Act," the legislation provided a framework for river authorities and TCEQ's predecessor agency to establish a public input process, strategic monitoring, and the periodic assessment of water quality within each river basin of the state. Since 1991, river authorities and other partners in TCEQ's Clean Rivers Program have continued to provide surface water quality monitoring and assessments of waterbodies in Texas' river basins. TCEQ uses this information in water quality management programs such as the Texas Integrated Report of Surface Water Quality, the Texas Surface Water Quality Standards, total maximum daily loads, watershed protection plans, and wastewater permitting. TWC, was created by the 75th Texas Legislature (1997) to create the basin permitting program. State and federal rules allow permits to be issued for five-year terms. In order to comply with basin permitting rules, a substantial number of TPDES permits were required to be issued for terms between two and four years. This rulemaking will implement HB 3618 changes related to TWC, (d). In a corresponding rulemaking, published in this issue of the Texas Register, the commission also proposes the repeal of 30 TAC , Basin Permitting, to implement HB 3618 changes to TWC, Section by Section Discussion 220.4, Responsibilities of River Authorities and Designated Local Governments Proposed changes to are to ensure consistency between statute and rule. Proposed revisions remove the requirement to coordinate data collection efforts with the permitting cycle referenced in TWC, , which was repealed by HB , Reporting Requirements Proposed changes to revise the frequency of submission for summary reports that are based on the basin permitting cycle referenced in TWC, The change is needed due to the repeal of TWC, by HB The proposed changes specify a report to be submitted once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance, as amended. Fiscal Note: Costs to State and Local Government Maribel Montalvo, analyst in the Chief Financial Officer Division, determined that for the first five-year period the proposed rules are in effect, no significant fiscal implications are anticipated for the agency or for other units of state or local government as a result of the administration or enforcement of the proposed rules. The proposed rules would implement portions of HB HB 3618 repeals TWC, regarding "basin permitting rules," and amends TWC, (d) to remove language that coordinated submittal of summary reports by river authorities with the existing "basin permitting rules" previously required under TWC, The proposed revisions to Chapter 220 replace cross-references to basin permitting with an established frequency for submittal of summary reports. River authorities are the primary participants in the Texas Clean Rivers Program (CRP), however, local governments may enter into direct agreement with the commission to participate in the CRP. In addition to the current 12 river authorities, there is one water district, one council of government, and one federal agency that partners with TCEQ through the CRP. Each of these governmental entities will be affected by the proposed rulemaking. Under the proposed rules, partners in the CRP will be required to submit summary reports on a less frequent basis than currently required. The proposed rules would change the frequency of submission for summary reports from the five-year basin permitting cycle, to once every six years, on average. With a reduced frequency of submission of the summary reports, TCEQ anticipates that for each year in the three biennia' cycle, beginning in the first even-numbered fiscal year after the proposed rules are in effect, each governmental entity participating in the CRP will save approximately $300 per year. The savings are not considered significant and it is assumed that any savings would be reallocated to support other program tasks. Public Benefits and Costs to Businesses and Individuals Ms. Montalvo also determined that for each year of the first five years the proposed rules are in effect, the public benefits anticipated from the changes seen in the proposed rules would be more efficient reporting by CRP participants. Although summary reports would be submitted less frequently as a result of the amendment to 220.6(a), the revised frequency can adequately capture changes in water quality detected in monitoring and assessment to support the agency's water quality management programs. No fiscal implications are anticipated for businesses or individuals. Businesses and individuals are not direct participants in a CRP, and will not be impacted by the proposed amendments to Chapter 220. The proposed rules would change reporting requirements for CRP participants and would not affect regulatory or oversight responsibilities of governmental entities. Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or microbusinesses due to the implementation or administration of the proposed rules for the first five-year period the proposed rules are in effect. The proposed changes correct rule references and require governmental partners in the CRP to submit summary reports on a less frequent basis than currently required. Small Business Regulatory Flexibility Analysis The commission reviewed this proposed rulemaking and determined that a Small Business Regulatory Flexibility Analysis is not required because the proposed rules do not adversely affect small or micro-businesses for the first five-year period the proposed rules are in effect. Local Employment Impact Statement The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rules do not adversely affect a local economy in a material way for the first five years that the proposed rules are in effect. 42 TexReg 6474 November 17, 2017 Texas Register

57 Rural Communities Impact Assessment The commission reviewed this proposed rulemaking and determined that the proposed rules do not adversely affect a rural community in a material way for the first five years that the proposed rules are in effect. These state-wide rules will not affect rural communities or non-rural communities in any way. Governmental entities in the CRP will be required to submit summary reports on a less frequent basis than currently required. Government Growth Impact Assessment The commission prepared a Government Growth Impact Statement Assessment for this proposed rulemaking. The proposed rules do not create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; create a new regulation; expand, limit or repeal an existing regulation; nor increase or decrease the number of individuals subject to the rule's applicability. During the first five years that the proposed rules would be in effect, it is not anticipated that there will be an adverse impact on the state's economy. The proposed rulemaking is administrative in nature and will correct rule references and require partners in the CRP to submit summary reports on a less frequent basis than currently required. Draft Regulatory Impact Analysis Determination The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, , and determined that the rulemaking action is not subject to Texas Government Code, because it does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" is defined as a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This rulemaking does not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This rulemaking deletes the reference in 220.4(a)(2)(C) and 220.6(a) to TWC, The reference in 220.4(a)(2)(C) was used to coordinate water quality monitoring with the basin permitting cycle specified in TWC, The reference in 220.6(a) was used to set a schedule for submitting summary reports by each participant in TCEQ's Clean Rivers Program based on the basin permitting cycle. The proposed change to 220.6(a) would specify that summary reports be submitted once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance. These changes are proposed because the 85th Texas Legislature repealed TWC, making it no longer applicable as a reference for compliance in 220.4(a)(2)(C) and 220.6(a). The rulemaking does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. Therefore, the commission finds that this rulemaking is not a "major environmental rule." Furthermore, the rulemaking does not meet any of the four applicability requirements listed in Texas Government Code, (a). Texas Government Code, only applies to a state agency's adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopts a rule solely under the general powers of the agency instead of under a specific state law. Specifically, the rulemaking does not exceed federal standards because no applicable federal standards exist regarding the timeline for submitting river basin reports and the amendment is proposed for the purpose of clarifying when river basin reports should be submitted. Also, the rulemaking does not exceed an express requirement of state law nor exceed a requirement of a delegation agreement. Finally, the rulemaking was not developed solely under the general powers of the agency; but as a result of the repeal of TWC, Under Texas Government Code, , only a major environmental rule requires a regulatory impact analysis. Because the proposed rules do not constitute a major environmental rule, a regulatory impact analysis is not required. The commission invites public comment on the Draft Regulatory Impact Analysis Determination. Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Takings Impact Assessment The commission performed an assessment of these rules in accordance with Texas Government Code, The specific purpose of the rulemaking is to clarify when river basin reports are submitted given the repeal of TWC, , previously referenced to identify when reports should be submitted for their respective river basin cycle. Amendment of these rules will constitute neither a statutory nor a constitutional taking of private real property. This rulemaking will impose no burdens on private real property because the proposed rule neither relates to, nor has any impact on the use or enjoyment of private real property, and there is no reduction in value of the property as a result of this rulemaking. Consistency with the Coastal Management Program The commission reviewed the proposed rules and found that they are neither identified in Coastal Coordination Act Implementation Rules, 31 TAC (b)(2) or (4), nor will they affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC (a)(6). Therefore, the proposed rules are not subject to the Texas Coastal Management Program. Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Announcement of Hearing The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 2:00 p.m. in Building E, Room 201S, at the commission's central office located at Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present PROPOSED RULES November 17, TexReg 6475

58 oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) or (800) RELAY-TX (TDD). Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Derek Baxter, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas , or faxed to (512) Electronic comments may be submitted at: File size restrictions may apply to comments being submitted via the ecomments system. All comments should reference Rule Project Number OW. The comment period closes on December 18, Copies of the proposed rulemaking can be obtained from the commission's website at For further information, please contact Jill Csekitz, Water Quality Planning Division, (512) Statutory Authority The amendments are proposed under Texas Water Code (TWC), and 5.105, which provide the commission with the authority to adopt any rules necessary to carry out the powers and duties under the TWC and other laws of the state. The amendments implement House Bill 3618, 85th Texas Legislature, 2017, which repealed TWC, Responsibilities of River Authorities and Designated Local Governments. (a) Each river authority and designated local government that has entered into an agreement with the commission to perform duties under this chapter shall: (1) Organize [organize] and lead a basin-wide steering committee to assist with the development of water quality objectives and priorities for the basin and to fulfill responsibilities described in of this title (relating Responsibilities of Steering Committees). Membership of the committee will reflect a diversity of interests in the basin and will include persons paying fees described under Chapter 21 of this title (relating to Water Quality Fees), the Texas State Soil and Water Conservation Board and other appropriate state agencies (for example, Texas Parks and Wildlife Department, Texas Water Development Board, Texas General Land Office, Texas Department of Health, Texas Department of Agriculture, Texas Railroad Commission, and the Texas Department of Transportation), private citizens, representatives from political subdivisions, and other persons with an interest in water quality matters in the watershed or river basin.[;] (2) Develop [develop] and maintain a basin-wide water quality monitoring program that eliminates duplicative monitoring, facilitates the assessment process to identify problem areas and support long-term trend analyses, and targets monitoring to support the wastewater discharge permitting and standards process. (A) A quality assurance project plan must be developed and approved to support all data collection activities. Data collected by subcontractors and others under this program must conform to the approved quality assurance project plans. (B) The water quality monitoring program shall address collection of baseline water quality data to support trend analyses and development of the statewide water quality inventory required under federal Clean Water Act, 305(b). (C) The water quality monitoring program shall include site-specific data collection to support the wastewater discharge permitting process for fee payers in the basin. [Data collection efforts for this aspect of the program should be coordinated with the permitting cycle developed in accordance with Texas Water Code, (relating to permitting by basin).] (D) The water quality monitoring program shall include watershed specific data collection to address priority water quality problem areas identified by river authority trends analyses or steering committee input. (3) Establish [establish] and maintain a watershed and river basin water quality database and/or clearinghouse composed of qualityassured data, river authority programs, wastewater discharge permit holders, state and federal agencies, and other relevant data sources. This data shall be submitted to the commission for inclusion in the State of Texas Surface Water Quality Monitoring database and shall be made available to any interested person. (A) Each river authority and designated local government shall establish and maintain the technology to aid in the electronic dissemination of water quality data and information for their basin. Water quality data for the basin shall be submitted to the commission at a minimum of once every six months in an agreed format for inclusion in the statewide water quality database. (B) River authorities and designated local governments shall participate in task force meetings to establish, review, and update data management procedures to reflect changes in information management technology. (4) Identify [identify] water quality problems and known pollution sources and set priorities for taking appropriate actions to eliminate those problems and sources. (A) Each river authority shall utilize the commission's procedures for data evaluation and analyses to the maximum extent possible. If alternative evaluation processes are necessary, the procedure must be presented in writing to the commission for approval by the executive director prior to its application. (B) In order to assure inclusion in the development of the statewide water quality inventory, the analytical procedures shall be comparable to those used by the commission. (C) Steering committees shall be provided the opportunity to actively participate in the identification of priority problem areas and the development of appropriate actions to address the problems and pollutant sources. Steering committees shall have the opportunity to determine the priority of maintaining or protecting watersheds with existing good quality water. (5) Develop [develop] a process for public participation that includes the basin steering committee and that provides for meaningful review and comments by private citizens and organizations in the local watersheds.[;] (6) Recommend [recommend] water quality management strategies for correcting identified water quality problems and pollution sources.[;] (7) Develop [develop] work plans which include priorities of the state and regional water quality management program. Upon agreement between the commission, the river authority, and/or desig- 42 TexReg 6476 November 17, 2017 Texas Register

59 nated local government, the provisions of the work plan become the scope of work of the program contract or cooperative agreement. (b) Each local government or other agency that collects water quality data within the watershed shall cooperate with the river authority or designated local government in developing the basin monitoring plan and assessment by providing to the river authority all of the information available to that organization about water quality within its jurisdiction, including the extraterritorial jurisdiction of a municipality. Data collected by local governments must be consistent with an approved quality assurance plan to be included for wastewater discharge permitting and standards decisions. (c) Monitoring and assessment is a continuing duty and shall be revised periodically with appropriate amendments and updates to the quality assurance plans to reflect changes in procedures and factors subject to the assessment Reporting Requirements. (a) Summary reports. Once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance, as amended, [In the appropriate year of the permitting cycle developed in accordance with Texas Water Code, (30 TAC ) relating to Basin Permitting,] each river authority will submit a written summary report to the commission, the State Soil and Water Conservation Board, and Texas Parks and Wildlife Department on the water quality of the watershed or river basin. (1) The summary report must identify concerns relating to the watershed or bodies of water, including an identification of bodies of water with impaired or potentially impaired uses, the cause and possible source or use impairment, and recommended actions that may be taken to address those concerns. (2) The summary report must discuss the public benefits from the water quality monitoring and assessment program, including efforts to increase public input in activities related to water quality and the effectiveness of targeted monitoring in assisting the permitting process. (3) Prior to submittal of the report to the agencies listed in subsection (a) of this section, the river authority will present the report to the basin steering committee for approval and will also make the report available to water right holder and wastewater permit holders for review and comment. (4) All comments regarding satisfaction with or suggestions for modification of the report for the watershed, the operation and/or effectiveness of the monitoring and assessment program, and the use of funds shall be considered, summarized, and submitted, along with the approved summary report, to the governor, the lieutenant governor, and the speaker of the house of representatives not later than 90 days after submission to the commission and other agencies listed in paragraphs (1) - (3) of this subsection. (b) Basin highlight reports. Each river authority and designated local government will develop a basin highlight report annually to be provided to each member of the basin steering committee and all fee payers within the basin. This report should summarize Texas Clean Rivers Program activities conducted in the basin. Procedures for electronic distribution should be developed to ensure most efficient availability to the public. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) CHAPTER 305. CONSOLIDATED PERMITS SUBCHAPTER D. AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS 30 TAC The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes the repeal of Background and Summary of the Factual Basis for the Proposed Rule House Bill 3618 (HB 3618 or bill), 85th Texas Legislature (2017), repealed Texas Water Code (TWC), which required, to the greatest extent practicable, that all Texas Pollutant Discharge Elimination System (TPDES) permits within a single watershed contain the same expiration date (known as basin permitting). The bill also amended TWC, (d) to remove language that coordinated submittal of summary reports by river authorities with the existing "basin permitting rules" previously required under TWC, TWC, was created by the 72nd Texas Legislature (1991). Also known as "the Texas Clean Rivers Act," the legislation provided a framework for river authorities and TCEQ's predecessor agency to establish a public input process, strategic monitoring, and the periodic assessment of water quality within each river basin of the state. Since 1991, river authorities and other partners in TCEQ's Clean Rivers Program have continued to provide surface water quality monitoring and assessments of waterbodies in Texas' river basins. TCEQ uses this information in water quality management programs such as the Texas Integrated Report of Surface Water Quality, the Texas Surface Water Quality Standards, total maximum daily loads, watershed protection plans, and wastewater permitting. TWC, was created by the 75th Texas Legislature (1997) to create the basin permitting program. State and federal rules allow permits to be issued for five-year terms. In order to comply with basin permitting rules, a substantial number of TPDES permits were required to be issued for terms between two and four years. This rulemaking will implement HB 3618 changes related to TWC, In a corresponding rulemaking, published in this issue of the Texas Register, the commission also proposes amendments to 30 TAC 220.4, Responsibilities of River Authorities and Designated Local Governments, and 220.6, Reporting Requirements, to implement HB 3618 changes to TWC, (d). Section Discussion PROPOSED RULES November 17, TexReg 6477

60 305.71, Basin Permitting The proposed rulemaking would implement HB 3618 by repealing , which requires basin permitting for wastewater discharges. Repealing will allow TPDES permits to be issued for five-year terms, as allowed by (1)(C)(i). Fiscal Note: Costs to State and Local Government Maribel Montalvo, analyst in the Chief Financial Officer Division, determined that for the first five-year period the proposed rulemaking is in effect, fiscal implications are anticipated for the agency which may be significant, and no fiscal implications are expected for units of state or local government unless they have been applicants for wastewater discharge permits for terms between two and four years to correspond to a river basin cycle. Those that currently apply for such permits may experience cost savings as a result of the administration or enforcement of the proposal. The proposed rulemaking would implement HB HB 3618 repealed TWC, which required, to the greatest extent practicable, that all TPDES permits within a single watershed contain the same expiration date (known as basin permitting). The proposed rulemaking implements these changes by repealing Federal rules allow TPDES permits to be issued for five-year terms. However, current agency Basin Permitting rules require a significant number of wastewater discharge permits to be issued for terms between two and four years to correspond to a river basin/segment cycle. Permit amendments are often sought by permittees during the permit term and often result in the amended permit being re-issued "off cycle". It typically requires two-permit terms to sync a permit which is "off cycle" to expire on its designated basin expiration date. Likewise, new permits must be set to expire on the basin expiration date. Repealing will allow wastewater discharge permits to be issued for five-year terms. The proposed rulemaking is expected to reduce workload for the TCEQ's Water Quality Division staff because over time, fewer wastewater discharge permits will be processed and issued. The proposed timing of the expiration of the permits reduces the frequency of reviewing and processing permit applications. Over the past five years, 1,553 permits were issued with a reduced (less than five-year) permit term. This averages to approximately 310 permits that were issued each year with a reduced permit term. The reduced workload will allow resources to be reallocated to other agency water program priorities and therefore any cost savings are not expected to be significant. The proposed rulemaking will reduce the number of permit applications submitted to the agency and therefore the associated permit application fees that are received by the agency and deposited to the Water Resource Management Account 153. Permit application fees range from $350 to $2,050 each, depending on factors such as effluent flow volume and the United States Environmental Protection Agency (EPA) facility classification. TCEQ databases do not store the application fee for each application received, so staff cannot provide an exact number for the decrease in revenue. If, on average, approximately 310 permits were issued each year with a reduced permit term then revenue losses could be estimated to be between $108,500 and $635,500 each year. Depending upon future water program obligations and appropriations from Account 153, this loss in revenue may be significant. State agencies that apply for a new wastewater discharge permit or that choose to amend their existing permit prior to its expiration date may experience cost savings by allowing these permits to be issued for a five-year term. Approximately 20 reduced term permits were issued to state agencies over the past five years. Local government entities (such as cities, counties, school districts, and utility districts) that apply for a new wastewater discharge permit or that choose to amend their existing permit prior to its expiration date are affected by the proposed rulemaking. Over the past five years, approximately 804 reduced term permits were issued to local governments. Affected local governments are likely to experience cost savings similar to affected state agencies. Affected state and local governments may experience cost savings due to the proposed change for wastewater discharge permits to be issued for five-year terms. The commission estimates that wastewater discharge permit application preparation costs range from $7,000 to $30,000. For each wastewater permit application submitted to TCEQ, applicants will pay application preparation costs, application fees (between $350 and $2,050 each, depending on factors such as effluent flow volume and EPA facility classification), and costs for the publication of public notices. Newspaper publication costs are estimated to range from $500 to $8,800. Exact cost savings are difficult to estimate due to the complexities of applications and site specific criteria for each permit. Public Benefits and Costs Ms. Montalvo also determined that for each year of the first five years the proposed rulemaking is in effect, the public benefit anticipated from the changes seen in the proposed rulemaking will be more efficient and cost effective administration of wastewater discharge permits. The proposed rulemaking will have fiscal implications only for those businesses and individuals that reduce the submittal frequency of wastewater discharge permit applications due to the proposed change for wastewater discharge permits to be issued for five-year terms. Approximately 592 businesses and 29 individuals were issued a reduced term permit, over the past five years. Depending on the specific factors surrounding each permit, the cost savings may or may not be significant. These affected businesses and individuals are likely to experience cost savings. The commission estimates that wastewater discharge permit application preparation costs range from $7,000 to $30,000. For each wastewater permit application submitted to TCEQ, applicants will pay application preparation costs, application fees (between $350 and $2,050 each, depending on factors such as effluent flow volume and EPA facility classification), and costs for the publication of public notices. Newspaper publication costs are estimated to range from $500 to $8,800. Exact cost savings are difficult to estimate due to the complexities of applications and site specific criteria for each permit. Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or micro-businesses due to the implementation or administration of the proposed rules for the first five-year period the proposed rules are in effect. Approximately 179 small businesses and 119 micro-businesses were issued a reduced term permit, over the past five years. These affected small and micro-businesses are likely to experience cost savings if they reduce the submittal fre- 42 TexReg 6478 November 17, 2017 Texas Register

61 quency of wastewater discharge permit applications due to the proposed change for wastewater discharge permits to be issued for five-year terms. The cost savings for small and micro-businesses is expected to be the same as those savings for larger businesses. Small Business Regulatory Flexibility Analysis The commission reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not necessary because the proposed rulemaking will not adversely affect small or micro-businesses for the first five-year period the proposal is in effect and the proposed rulemaking is required by state law. Local Employment Impact Statement The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rulemaking does not adversely affect a local economy in a material way for the first five-year period that the proposal is in effect. Rural Communities Impact Assessment The commission reviewed this proposed rulemaking and determined that the proposal does not adversely affect a rural community in a material way for the first five-year period that the proposed rulemaking is in effect. These state-wide rules will not affect rural communities or non-rural communities differently in any way. The proposed rulemaking is expected to result in cost savings for affected rural communities who reduce the submittal frequency of wastewater discharge permit applications due to the proposed change for wastewater discharge permits to be issued for five-year terms. Government Growth Impact Assessment The commission prepared a Government Growth Impact Statement Assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase or decrease in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency (although there is a decrease in the frequency of the wastewater discharge permit application fee for some entities); create a new regulation; nor increase or decrease the number of individuals subject to the rule's applicability. During the first five years that the proposal would be in effect, it is not anticipated that there will be an adverse impact on the state's economy. Entities who apply for a new wastewater discharge permit or that choose to amend their existing permit prior to its expiration date may experience cost savings by allowing these permits to be issued for a five-year term. Draft Regulatory Impact Analysis Determination The commission reviewed the proposed rulemaking in light of the regulatory analysis requirements of Texas Government Code, , and determined that the rulemaking action is not subject to Texas Government Code, because it does not meet the definition of a "major environmental rule" as defined in that statute. "Major environmental rule" is defined as a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This rulemaking does not adversely affect, in a material way, the economy, a section of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This rulemaking will repeal a rule that required wastewater discharge permits be issued on its respective river basin cycle. This rule resulted in TPDES permits often being issued for less than five years duration, which is the maximum permit term allowed under the TPDES program. This change is proposed because the 85th Texas Legislature repealed TWC, , which required wastewater discharge permit terms, to the greatest extent practicable, to correspond with their respective river basin cycle. Repeal of this rule will allow TCEQ to issue TPDES wastewater discharge permits for full five-year terms, which will result in overall less processing time for these types of permits by TCEQ and less frequent renewals by permittees. The rulemaking does not meet the definition of "major environmental rule" because it is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. Therefore, the commission finds that this rulemaking is not a "major environmental rule." Furthermore, the rulemaking does not meet any of the four applicability requirements listed in Texas Government Code, (a). Texas Government Code, only applies to a state agency's adoption of a major environmental rule that: 1) exceeds a standard set by federal law, unless the rule is specifically required by state law; 2) exceeds an express requirement of state law, unless the rule is specifically required by federal law; 3) exceeds a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopts a rule solely under the general powers of the agency instead of under a specific state law. Specifically, the rulemaking does not exceed federal standards because no applicable federal standards exist regarding river basin permitting. Also, the rulemaking does not exceed an express requirement of state law nor exceed a requirement of a delegation agreement. The memorandum of agreement between EPA and TCEQ regarding delegation of the National Pollutant Discharge Elimination System program allows wastewater discharge permits to be issued in accordance with the river basin cycle or a five-year renewal cycle. Finally, the rulemaking was not developed solely under the general powers of the agency; but as a result of the repeal of TWC, Under Texas Government Code, , only a major environmental rule requires a regulatory impact analysis. Because the proposed rules do not constitute a major environmental rule, a regulatory impact analysis is not required. The commission invites public comment on the Draft Regulatory Impact Analysis Determination. Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this. Takings Impact Assessment The commission performed an assessment of this rule in accordance with Texas Government Code, The specific purpose of the rulemaking is to repeal the rule that requires wastewater discharge permits to be issued in conjunction with their respective basin cycle. Repeal of this rule will constitute neither a statutory nor a constitutional taking of private real property. This rulemaking will impose no burdens on private real property PROPOSED RULES November 17, TexReg 6479

62 because the proposed rule neither relates to, nor has any impact on the use or enjoyment of private real property, and there is no reduction in value of the property as a result of this rulemaking. Consistency with the Coastal Management Program The commission reviewed the proposed rulemaking and found that it is subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act, Texas Natural Resources Code, et seq., and therefore, it must be consistent with all applicable CMP goals and policies. The commission conducted a consistency determination for the proposed rulemaking in accordance with Coastal Coordination Act Implementation Rules at 31 TAC and found the proposed rulemaking is consistent with the applicable CMP goals and policies. CMP goals applicable to the proposed rulemaking includes: to protect, preserve, restore, and enhance the diversity, quality, quantity, functions, and values of coastal natural resource areas and to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone. Promulgation and enforcement of this rulemaking will not violate or exceed any standards identified in the applicable CMP goals and policies because the proposed rulemaking is consistent with these CMP goals and policies, and because this rulemaking does not create or have a direct or significant adverse effect on any coastal natural resource areas. Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Announcement of Hearing The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 2:00 p.m. in Building E, Room 201S, at the commission's central office located at Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) or (800) RELAY-TX (TDD). Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Derek Baxter, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas , or faxed to (512) Electronic comments may be submitted at: File size restrictions may apply to comments being submitted via the ecomments system. All comments should reference Rule Project Number OW. The comment period closes on December 18, Copies of the proposed rulemaking can be obtained from the commission's website at For further information, please contact Laurie Fleet, Wastewater Permitting Section, at (512) Statutory Authority This repeal is proposed under Texas Water Code (TWC), and 5.105, which provide the commission with the authority to adopt rules necessary to carry out the powers and duties under the TWC and other laws of the state. The proposed repeal implements House Bill 3618, 85th Texas Legislature, 2017, which repealed TWC, Basin Permitting. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) CHAPTER 336. RADIOACTIVE SUBSTANCE RULES SUBCHAPTER B. RADIOACTIVE SUBSTANCE FEES 30 TAC The Texas Commission on Environmental Quality (TCEQ, agency, or commission) proposes an amendment to Background and Summary of the Factual Basis for the Proposed Rule House Bill 2662 (HB 2662 or bill), 85th Texas Legislature, 2017, repeals the 5% gross receipts fee on all compact and federal waste disposal for the biennium beginning September 1, The 5% fee is deposited into the State's General Revenue. In Fiscal Years (FYs) 2015 and 2016, the agency collected $4.3 million in revenue from the 5% surcharge. The revenue is anticipated to return to the current level once the fee is re-established on September 1, The bill was effective immediately. Section Discussion The commission proposes an amendment to remove the 5% gross receipts fee in (f). Subsection (f) is proposed to be removed and subsection (g) is proposed to be re-lettered accordingly. Fiscal Note: Costs to State and Local Government Maribel Montalvo, analyst in the Chief Financial Officer Division, determined that for the first five-year period the proposed rule is in effect, no significant fiscal implications are anticipated for the agency and no fiscal implications are expected for units of local government as a result of the administration or enforcement of the proposed rule. Fiscal implications are anticipated for the State of Texas as there would be a two-year loss of revenue for the General Revenue Account which is used to fund state government operations. These fiscal implications are not expected to be significant. 42 TexReg 6480 November 17, 2017 Texas Register

63 The proposed rule would implement portions of HB HB 2662 repeals the 5% gross receipts fee on all compact and federal waste disposed at the Texas Low Level Radioactive Waste facility for the biennium beginning September 1, HB 2662 reinstates the 5% gross receipts fee beginning September 1, Revenue from the 5% gross receipts fee has been deposited into the state's General Revenue Fund. For FYs 2015 and 2016, the agency collected and deposited to the General Revenue Fund approximately $4.3 million (approximately $2.15 million each year) in revenue from the 5% surcharge. The revenue is anticipated to return to this level again once the fee is re-established on September 1, Public Benefits and Costs Ms. Montalvo also determined that, for each year of the first five years the proposed rule is in effect, the public benefit anticipated from the changes in the proposed rule will be compliance with state law. No fiscal implications are anticipated for individuals as a result of the implementation or administration of the proposed rule. The proposed rule is expected to result in cost savings for party state and nonparty state compact as well as federal waste generators who use the Texas Low Level Radioactive Waste facility for disposal. Cost savings could be expected for generators located both inside and outside the State of Texas. These generators will see a reduction in fees assessed to them for the disposal of low-level radioactive waste totaling approximately $2.1 million each year until September 1, The fee reduction may result in attracting more waste generators to use the facility for waste disposal. Local Employment Impact Statement The commission reviewed this proposed rulemaking and determined that a local employment impact statement is not required because the proposed rule does not adversely affect a local economy in a material way for the first five years that the proposed rule is in effect. Rural Communities Impact Assessment The commission reviewed this proposed rulemaking and determined that a rural community impact statement is not required because the proposed rule does not adversely affect a rural community in a material way for the first five years that the proposed rule is in effect. Small Business and Micro-Business Assessment No adverse fiscal implications are anticipated for small or micro-businesses due to the implementation or administration of the proposed rule for the first five-year period the proposed rule is in effect. The proposed rule is expected to result in cost savings for compact and federal waste generators who use the Texas Low Level Radioactive Waste facility for disposal. None of these generators are thought to be small or micro-businesses, but if they are, these generators will see a reduction in fees for the disposal of low-level waste at the compact facility until September 1, Small Business Regulatory Flexibility Analysis The commission reviewed this proposed rulemaking and determined that a small business regulatory flexibility analysis is not required because the proposed rule does not adversely affect small or micro-businesses for the first five-year period the proposed rule is in effect and is required by state law. Government Growth Impact Statement The commission reviewed this proposed rulemaking and determined that a Government Growth Impact Statement Assessment is not required because the proposed rule is required by state law. Draft Regulatory Impact Analysis Determination The commission proposes the rulemaking action under the regulatory analysis requirements of Texas Government Code, , and determined that the action is not subject to Texas Government Code, , because it does not meet the definition of a "major environmental rule" as defined in the statute. A "major environmental rule" means a rule, the specific intent of which, is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The amendment to Chapter 336 is not anticipated to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state, because these revisions are required for TCEQ to comply with legislation requiring a two-year suspension of this fee for the biennium beginning September 1, Furthermore, the proposed rulemaking action does not meet any of the four applicability requirements listed in Texas Government Code, (a). Texas Government Code, , only applies to a major environmental rule, the result of which is to: 1) exceed a standard set by federal law, unless the rule is specifically required by state law; 2) exceed an express requirement of state law, unless the rule is specifically required by federal law; 3) exceed a requirement of a delegation agreement or contract between the state and an agency or representative of the federal government to implement a state and federal program; or 4) adopt a rule solely under the general powers of the agency instead of under a specific state law. The proposed rulemaking action does not exceed a standard set by federal law, an express requirement of state law, a requirement of a delegation agreement, nor does it adopt a rule solely under the general powers of the agency. Written comments on the Draft Regulatory Impact Analysis Determination may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Takings Impact Assessment The commission evaluated this proposed rulemaking and performed a preliminary assessment of whether the proposed rulemaking constitutes a taking under the Private Real Property Rights Preservation Act, Texas Government Code, Chapter The proposed rule does not affect a landowner's rights in private real property because this rulemaking action does not constitutionally burden, restrict, or limit the owner's right to property nor reduce the value of an owner's property by 25% or more. Therefore, promulgation and enforcement of this proposed rulemaking would be neither a statutory nor a constitutional taking of private real property in accordance with Texas Government Code, Chapter Consistency with the Coastal Management Program The commission reviewed the proposed rule and found it is neither identified in Coastal Coordination Act Implementation Rules, PROPOSED RULES November 17, TexReg 6481

64 31 TAC (b)(2) or (4), nor will it affect any action/authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC (a)(6). Therefore, the proposed rule is not subject to the Texas Coastal Management Program. Written comments on the consistency of this rulemaking may be submitted to the contact person at the address listed under the Submittal of Comments section of this preamble. Announcement of Hearing The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 10:00 a.m., in Building E, Room 201S, at the commission's central office located at Park 35 Circle in Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) or 800) RELAY-TX (TDD). Requests should be made as far in advance as possible. Submittal of Comments Written comments may be submitted to Ms. Kris Hogan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas , or faxed to (512) Electronic comments may be submitted at: File size restrictions may apply to comments being submitted via the ecomments system. All comments should reference Rule Project Number WS. The comment period closes on December 22, Copies of the proposed rulemaking can be obtained from the commission's website at For further information, please contact Hans Weger, Radioactive Materials Unit, (512) Statutory Authority The amendment is proposed under the Texas Radiation Control Act, Texas Health and Safety Code (THSC), Chapter 401; THSC, , which provides the commission authority to regulate and license the disposal of radioactive substances; THSC, , which provides for the commission to adopt rules and guidelines relating to control of sources of radiation; THSC, (b), which requires the commission to adopt rules and guidelines that provide for licensing and registration for the control of sources of radiation; THSC, , which provides for general and specific licensing by rule with a few exceptions; THSC, , which requires the commission to directly regulate the disposal of low-level radioactive waste; and THSC, , which requires a disposal facility license holder to transfer a percentage of gross receipts to the state general revenue fund. The proposed rule is also authorized by Texas Water Code (TWC), which provides the commission with the authority to adopt rules necessary to carry out its power and duties under the TWC and other laws of the state. The proposed amendment will implement House Bill 2662, 85th Texas Legislature, 2017, which removes the 5% gross receipts fee on all compact and federal waste disposal for the biennium beginning September 1, Schedule of Fees for Subchapter H Licenses. (a) An application for a low-level radioactive waste disposal site license under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall be accompanied by a nonrefundable application processing fee of $500,000. If the commission's costs in processing an application under Subchapter H of this chapter exceed the $500,000 application processing fee, the commission may assess and collect additional fees from the applicant to recover the costs. Recoverable costs include costs incurred by the commission for administrative review, technical review, and hearings associated with the application. (b) An applicant shall submit an annual fee for the actual costs incurred by the commission for hearings associated with an application for a low-level radioactive waste disposal site under Subchapter H of this chapter. The executive director shall send an invoice for the amount of the costs incurred during the period September 1 through August 31 of each year. Payment shall be made within 30 days following the date of the invoice. (c) A holder of a license for a low-level radioactive waste disposal site issued under Subchapter H of this chapter shall submit an annual license fee for the services received. This fee shall recover for the state the actual expenses arising from the regulatory activities associated with the license. This fee shall include reimbursement for the salary and other expenses of the resident inspectors as provided by of this title (relating to Resident Inspector). The executive director shall invoice for the amount of the costs incurred. Payment shall be made within 30 days following the date of the invoice. (d) An application for a major amendment of a license issued under Subchapter H of this chapter must be accompanied by an application fee of $50,000. (e) An application for renewal of a license issued under Subchapter H of this chapter must be accompanied by an application fee of $300,000. [(f) The compact waste disposal facility license holder shall remit to the commission 5% of the gross receipts from compact waste received at the compact waste disposal facility and any federal facility waste received at the federal facility waste disposal facility. Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August.] (f) [(g)] The compact waste disposal facility license holder shall remit directly to the host county 5% of the gross receipts from compact waste received at the compact waste disposal facility and any federal facility waste received at the federal facility waste disposal facility as required in Texas Health and Safety Code, Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 3, TRD TexReg 6482 November 17, 2017 Texas Register

65 Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 34. PUBLIC FINANCE PART 1. COMPTROLLER OF PUBLIC ACCOUNTS CHAPTER 3. TAX ADMINISTRATION SUBCHAPTER V. FRANCHISE TAX 34 TAC The Comptroller of Public Accounts proposes the repeal of 3.595, concerning Margin: Transition. This section is being repealed because it covers the transition from using taxable capital and earned surplus as the basis for calculating the franchise tax to calculating the franchise tax based on taxable margin. The section specifically addresses franchise tax reports originally due on May 15, This report year is now outside the four-year statute of limitations for assessments and refund claims. See Tax Code, (a) (When Refund or Credit Is Permitted) and (Assessment Limitation). Tom Currah, Chief Revenue Estimator, has determined that repeal of the rule will not result in any fiscal implications to the state or to units of local government. Mr. Currah also has determined the repeal would benefit the public by removing obsolete rules from the administrative code. There would be no anticipated significant economic cost to the public. This repeal is adopted under Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There are no additional costs to persons who are required to comply with the repeal. During the first five years that the proposed repeal is in effect, the repeal: will not create or eliminate a government program; will not require the creation or elimination of employee positions; will not require an increase or decrease in future legislative appropriations to the agency; will not require an increase or decrease in fees paid to the agency; will not increase or decrease the number of individuals subject to the rules' applicability; and will not positively or adversely affect this state's economy. This proposal repeals a current rule. Comments on the repeal may be submitted to Teresa G. Bostick, Director, Tax Policy Division, P.O. Box 13528, Austin, Texas Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The repeal is proposed under Tax Code, (Comptroller's Rules; Compliance; Forfeiture), which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of Tax Code, Title 2 (State Taxation) Margin: Transition. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 1, TRD Don Neal Chief Deputy General Counsel Comptroller of Public Accounts Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TITLE 37. PUBLIC SAFETY AND CORREC- TIONS PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY CHAPTER 4. COMMERCIAL VEHICLE REGULATIONS AND ENFORCEMENT PROCEDURES SUBCHAPTER A. REGULATIONS GOVERNING HAZARDOUS MATERIALS 37 TAC 4.1 The Texas Department of Public Safety (the department) proposes amendments to 4.1, concerning Transportation of Hazardous Materials. The proposed amendments are necessary to harmonize updates to Title 49, Code of Federal Regulations with those laws adopted by Texas. Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies. Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment. Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be maximum efficiency of the Motor Carrier Safety Assistance Program. The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal. PROPOSED RULES November 17, TexReg 6483

66 Pursuant to Texas Government Code, , the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will not have any impact as described by Texas Government Code, This proposal merely changes dates in order to incorporate Federal Hazardous Materials Regulations through January 1, The Texas Department of Public Safety, in accordance with the Administrative Procedures Act, Texas Government Code, 2001, et seq., and Texas Transportation Code, Chapter 644, will hold a public hearing on Tuesday, November 28, 2017, at 9:00 a.m., at the Texas Department of Public Safety, Texas Highway Patrol Division, Building G Annex, 5805 North Lamar, Austin, Texas. The purpose of this hearing is to receive comments from all interested persons regarding adoption of the proposed amendments to Administrative Rule 4.1 regarding Transportation of Hazardous Materials, proposed for adoption under the authority of Texas Transportation Code, Chapter 644, which provides that the director shall, after notice and a public hearing, adopt rules regulating the safe operation of commercial motor vehicles. Persons interested in attending this hearing are encouraged to submit advance written notice of their intent to attend the hearing and to submit a written copy of their comments. Correspondence should be addressed to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas Persons with special needs or disabilities who plan to attend this hearing and who may need auxiliary aids or services are requested to contact Major Chris Nordloh at (512) at least three working days prior to the hearing so that appropriate arrangements can be made. Other comments on this proposal may be submitted to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas , (512) Comments must be received no later than thirty (30) days from the date of publication of this proposal. These amendments are proposed pursuant to Texas Transportation Code, , which authorizes the director to adopt rules regulating the safe transportation of hazardous materials and the safe operation of commercial motor vehicles; and authorizes the director to adopt all or part of the federal safety regulations, by reference. Texas Transportation Code, is affected by this proposal Transportation of Hazardous Materials. (a) The director of the Texas Department of Public Safety incorporates, by reference, the Federal Hazardous Materials Regulations, Title 49, Code of Federal Regulations, Parts 107 (Subpart G), , 177, 178, 179 (Subpart E), and 180, including all interpretations thereto, for commercial vehicles operated in intrastate, interstate, or foreign commerce, as amended through January 1, 2018 [February 1, 2016]. All other references in this section to the Code of Federal Regulations also refer to amendments and interpretations issued through January 1, 2018 [February 1, 2016]. (b) (No change.) The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on October 31, TRD D. Phillip Adkins General Counsel Texas Department of Public Safety Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER B. REGULATIONS GOVERNING TRANSPORTATION SAFETY 37 TAC 4.11 The Texas Department of Public Safety (the department) proposes amendments to 4.11, concerning General Applicability and Definitions. The proposed amendments are necessary to harmonize updates to Title 49, Code of Federal Regulations with those laws adopted by Texas. Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies. Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment. Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be maximum efficiency of the Motor Carrier Safety Assistance Program. The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal. Pursuant to Texas Government Code, , the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will not have any impact as described by Texas Government Code, This proposal merely changes dates in order to incorporate Federal Motor Carrier Safety Regulations through January 1, The Texas Department of Public Safety, in accordance with the Administrative Procedures Act, Texas Government Code, 2001, et seq., and Texas Transportation Code, Chapter 644, 42 TexReg 6484 November 17, 2017 Texas Register

67 will hold a public hearing on Tuesday, November 28, 2017, at 9:00 a.m., at the Texas Department of Public Safety, Texas Highway Patrol Division, Building G Annex, 5805 North Lamar, Austin, Texas. The purpose of this hearing is to receive comments from all interested persons regarding adoption of the proposed amendments to Administrative Rule 4.11 regarding General Applicability and Definitions, proposed for adoption under the authority of Texas Transportation Code, Chapter 644, which provides that the director shall, after notice and a public hearing, adopt rules regulating the safe operation of commercial motor vehicles. Persons interested in attending this hearing are encouraged to submit advance written notice of their intent to attend the hearing and to submit a written copy of their comments. Correspondence should be addressed to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas Persons with special needs or disabilities who plan to attend this hearing and who may need auxiliary aids or services are requested to contact Major Chris Nordloh at (512) at least three working days prior to the hearing so that appropriate arrangements can be made. Other comments on this proposal may be submitted to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas , (512) Comments must be received no later than thirty (30) days from the date of publication of this proposal. These amendments are proposed pursuant to Texas Transportation Code, , which authorizes the director to adopt rules regulating the safe transportation of hazardous materials and the safe operation of commercial motor vehicles; and authorizes the director to adopt all or part of the federal safety regulations, by reference. Texas Transportation Code, is affected by this proposal General Applicability and Definitions. (a) General. The director of the Texas Department of Public Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations, Title 49, Code of Federal Regulations, Parts 40, 380, 382, 385, 386, 387, , and including all interpretations thereto, as amended through January 1, 2018 [May 1, 2016]. All other references in this subchapter to the Code of Federal Regulations also refer to amendments and interpretations issued through January 1, 2018 [May 1, 2016]. The rules adopted herein are to ensure that: (1) - (5) (No change.) (b) - (c) (No change.) The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on October 31, TRD D. Phillip Adkins General Counsel Texas Department of Public Safety Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TAC 4.13 The Texas Department of Public Safety (the department) proposes amendments to 4.13, concerning Authority to Enforce, Training and Certificate Requirements. The proposed amendments are necessary to ensure this section is consistent with the Texas Transportation Code, which establishes which peace officers are eligible to enforce Chapter 644 of the Texas Transportation Code. Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period this rule is in effect there will be no fiscal implications for state or local government, or local economies. Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the section as proposed. There is no anticipated economic cost to individuals who are required to comply with the rule as proposed. There is no anticipated negative impact on local employment. Ms. Whittenton has determined that for each year of the first five-year period the rule is in effect the public benefit anticipated as a result of enforcing the rule will be maximum efficiency of the Motor Carrier Safety Assistance Program. The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal. Pursuant to Texas Government Code, , the department has prepared a Government Growth Impact Statement and determined for each year of the first five-year period the rule is in effect, the proposed rule will expand the number of municipal officers authorized to enforce Chapter 644 of the Texas Transportation Code. The change in rule is necessary due to amendments to Texas Transportation Code, made during the 85th Legislative Session by HB 1355 and HB The Texas Department of Public Safety, in accordance with the Administrative Procedures Act, Texas Government Code, 2001, et seq., and Texas Transportation Code, Chapter 644, will hold a public hearing on Tuesday, November 28, 2017, at 9:00 a.m., at the Texas Department of Public Safety, Texas Highway Patrol Division, Building G Annex, 5805 North Lamar, Austin, Texas. The purpose of this hearing is to receive comments from all interested persons regarding adoption of the proposed amendments to Administrative Rule 4.13 regarding Authority to Enforce, Training and Certificate Requirements, proposed for adoption under the authority of Texas Transportation Code, Chapter 644, which provides that the director shall, after notice and a public hearing, adopt rules regulating the safe operation of commercial motor vehicles. PROPOSED RULES November 17, TexReg 6485

68 Persons interested in attending this hearing are encouraged to submit advance written notice of their intent to attend the hearing and to submit a written copy of their comments. Correspondence should be addressed to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas Persons with special needs or disabilities who plan to attend this hearing and who may need auxiliary aids or services are requested to contact Major Chris Nordloh at (512) at least three working days prior to the hearing so that appropriate arrangements can be made. Other comments on this proposal may be submitted to Major Chris Nordloh, Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas , (512) Comments must be received no later than thirty (30) days from the date of publication of this proposal. These amendments are proposed pursuant to Texas Transportation Code, , which authorizes the director to adopt rules regulating the safe transportation of hazardous materials and the safe operation of commercial motor vehicles; and authorizes the director to adopt all or part of the federal safety regulations, by reference. Texas Transportation Code, is affected by this proposal Authority to Enforce, Training and Certificate Requirements. (a) Authority to Enforce. (1) - (3) (No change.) (4) Municipal police officers from any of the Texas cities meeting the training and certification requirements contained in subsection (b) of this section and certified by the department may stop, enter or detain on a highway or at a port of entry within the municipality a motor vehicle subject to Texas Transportation Code, Chapter 644: (A) - (H) (No change.) (I) a municipality located in a county with a population between 60,000 and 66,000 adjacent to a bay connected to the Gulf of Mexico; [or] (J) a municipality with a population of more than 40,000 and less than 50,000 that is located in a county with a population of more than 285,000 and less than 300,000 that borders the Gulf of Mexico;[.] (K) a municipality with a population between 18,000 and 18,500 that is located entirely in a county that: (i) has a population of less than 200,000; (ii) is adjacent to two counties that each have a population of more than 1.2 million; and (iii) contains two highways that are part of the national system of interstate and defense highways. (L) a municipality with a population of more than 3,000 and less than 10,000 that: (i) contains a highway that is part of the national system of interstate and defense highways; and (ii) is located in a county with a population between 150,000 and 155,000. (5) - (6) (No change.) (b) - (c) (No change.) The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on October 31, TRD D. Phillip Adkins General Counsel Texas Department of Public Safety Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) PART 11. TEXAS JUVENILE JUSTICE DEPARTMENT CHAPTER 353. SUBSTANCE ABUSE TREATMENT PROGRAMS The Texas Juvenile Justice Department (TJJD) proposes new , , , , , , , , , , and , relating to Substance Abuse Treatment Programs. The new chapter is required due to newly created (a)(6), Human Resources Code. This section, which was added by SB 1314 (85th Texas Legislature), requires TJJD to adopt minimum standards for juvenile justice facilities and programs that offer substance abuse treatment to juveniles. Prior to the passage of this law, these substance abuse treatment programs were licensed and regulated by the Department of State Health Services (DSHS). SECTION-BY-SECTION SUMMARY Section establishes definitions of terms used in the chapter. Section sets out the purpose of the chapter. Section establishes the scope of applicability for the chapter. Section requires all substance abuse treatment programs operated by juvenile boards to be registered with TJJD. The section also requires a juvenile board to obtain approval prior to beginning operation of a substance abuse treatment program if that program begins operation on or after September 1, Section requires prior notice to TJJD, and in some case prior approval, before a substance abuse program makes certain changes in the types of services provided or makes changes in the program's name or location. Section addresses scheduled and unannounced inspections by TJJD. Section addresses waivers and variances of the standards. Sections establish standards of conduct for providers, including requirements that address how, where, and to whom services are provided. These sections also address 42 TexReg 6486 November 17, 2017 Texas Register

69 the scope of practice, documentation requirements, reporting requirements, confidentiality requirements, and prohibited acts. Section addresses the facility or program's operational plan and the policy and procedure manual. Section lists certain information that the facility or program must report annually to TJJD. Section addresses the requirement for the facility or program to implement a quality management process. Section addresses general documentation requirements for the facility or program. Section addresses requirements relating to client records. Section addresses hiring practices, job descriptions, and personnel files. Section addresses requirements relating to students and volunteers. Section addresses training requirements for staff assigned to the substance abuse treatment program. Section establishes the rights that must be included in the facility's client bill of rights. Section addresses the establishment and enforcement of a set of program rules governing client behavior. Section addresses requirements relating to the admission screening process. Section establishes requirements relating to authorization and consent to provide services. The section also lists specific types of information that must be provided to the client and consenter. Section addresses requirements relating to the assessment process. Section addresses requirements relating to developing, implementing, reviewing, updating, and revising a treatment plan. Section includes requirements for developing and updating a discharge plan, completing a discharge summary, and making post-discharge contact with each client. Section establishes certain general requirements for all treatment services in areas such as program elements, staffing levels and qualifications, and group size. Section establishes program requirements for detoxification services. Section establishes program requirements for residential services. Section establishes requirements for outpatient treatment programs. Section establishes requirements for programs that provide residential services to juveniles. Sections address requirements for providing services to clients with co-occurring psychiatric and substance use disorders. FISCAL NOTE Mike Meyer, Chief Financial Officer, has determined that for each year of the first five years the new sections are in effect, there will be no significant fiscal impact for the state or for local governments as a result of enforcing or administering the sections. PUBLIC BENEFIT/COSTS Lou Serrano, Senior Director of Probation and Community Services, has determined that for each year of the first five years the new sections are in effect, the public benefit anticipated as a result of administering the sections will be that juvenile justice facilities and programs providing substance abuse treatment to juveniles will be required to provide those services in a manner consistent with other substance abuse treatment programs in this state and will be subject to state oversight. Mike Meyer, Chief Financial Officer, has also determined that there will be no effect on small businesses, micro-businesses, or rural communities. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. No private real property rights are affected by adoption of these sections. GOVERNMENT GROWTH IMPACT TJJD has determined that, during the first five years the proposed rules are in effect, the rules will have the following impacts. (1) The proposed rules do not create or eliminate a government program. While the proposed rules appear to create a new government program in that the regulation of substance abuse facilities and programs is new for TJJD, the regulations are not new to the entities being regulated. A change in the law that took effect on September 1, 2017, now places the obligation to regulate substance abuse treatment programs in juvenile justice facilities and programs with TJJD. This obligation formerly rested with the Department of State Health Services (DSHS). Juvenile justice facilities and programs are already regulated by TJJD; this change adds the regulation of one particular type of program to the regulatory functions performed by TJJD. (2) The proposed rules do not require the creation or elimination of employee positions at TJJD. (3) The proposed rules do not require an increase or decrease in future legislative appropriation to TJJD. (4) The proposed rules do not impact fees paid to TJJD. (5) While the rules are new to TJJD, they reflect the transfer of oversight from DSHS to TJJD and therefore do not create new regulations. (6) For the most part, the proposed rules maintain the regulations that DSHS had in place for the impacted entities. However, those regulations have been limited in that the regulations that conflicted with or otherwise addressed areas governed by TJJD's regulations for juvenile justice facilities, such as physical plant requirements, are not included in these proposed rules. (7) The proposed rules do not increase or decrease the number of individuals subject to the area of regulation covered by the rules; they simply reflect that a different state agency is responsible for the regulation. (8) The proposed rules have a neutral effect on the economy. PUBLIC COMMENTS Comments on the proposal may be submitted within 30 days after publication of this notice to Steve Roman, Policy Coordinator, Texas Juvenile Justice Department, P.O. Box 12757, Austin, Texas 78711, or to policy.proposals@tjjd.texas.gov. PROPOSED RULES November 17, TexReg 6487

70 SUBCHAPTER A. DEFINITIONS AND GENERAL PROVISIONS 37 TAC STATUTORY AUTHORITY The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal Definitions. The following words and terms have the following meanings when used in this chapter unless the context clearly indicates otherwise. (1) Advanced Practice Nurse Practitioner--A registered nurse currently licensed in Texas who is approved by the Texas Board of Nursing to engage in advanced practice. (2) Assessment--An ongoing process through which the counselor collaborates with the client and others to gather and interpret information necessary for developing and revising a treatment plan and evaluating client progress toward achievement of goals identified in the treatment plan, resulting in comprehensive identification of the client's strengths, weaknesses, and problems/needs. (3) ATOD--Alcohol, tobacco, and other drugs collectively. (4) Authorized Representative--An attorney authorized to practice law in the State of Texas or, if authorized by applicable law, a person designated in writing by a party to represent the party. (5) Behavioral Health Integrated Provider System (BHIPS)--The Department of State Health Services' Internet-based computer system for contracted service providers that offers contractors the tools to meet state and federal requirements for reporting, including capturing required client and billing data. (6) Chemical Dependency--In addition to the statutory provisions defining chemical dependency as abuse of, dependence on, or addiction to alcohol or a controlled substance (as defined by Chapter 481, Health and Safety Code, and related statutory provisions in Chapters 461 and 464, Health and Safety Code), chemical dependency is also defined as substance-related disorders, as that term is used in the most recent published edition of the Diagnostic and Statistical Manual of Mental Disorders (See DSM). (7) Chemical Dependency Counseling--See Practice of Chemical Dependency Counseling Services. (8) Chemical Dependency Counselor--See Licensed Chemical Dependency Counselor (LCDC). (9) Chemical Dependency Counselor Intern--A person registered with the Department of State Health Services who is pursuing a course of training in chemical dependency counseling at a registered clinical training institution. (10) Chemical Dependency Treatment--A planned, structured, and organized chemical dependency program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. It includes, but is not limited to, the application of planned procedures to identify and change patterns of behavior related to or resulting from substance-related disorders that are maladaptive, destructive, or injurious to health, or to restore appropriate levels of physical, psychological, or social functioning. (11) Client--An individual who receives or has received services, including admission authorization or assessment or referral, from a chemical dependency treatment provider, counselor, counselor intern, or applicant for licensure as a counselor or from an organization where the counselor, intern, or applicant is working on a paid or voluntary basis. (12) Clinical Training Institution--An individual or legal entity registered with the Department of State Health Services to supervise a counselor intern. (13) Consenter--The individual legally responsible for giving informed consent for a client. Unless otherwise provided by law, a legally competent adult is his or her own consenter and the consenter for an adolescent or child is the parent, guardian, or conservator. Texas law allows a person 16 or 17 years of age to consent to his or her own treatment. (14) Counseling--A collaborative process that facilitates the client's progress toward mutually determined treatment goals and objectives. Counseling includes methods that are sensitive to individual client characteristics and to the influence of significant others, as well as the client's cultural and social context. Competence in counseling is built upon the understanding of, appreciation of, and ability to appropriately use the modalities of care for individuals, groups, families, couples, and significant others. (15) Counselor--A qualified credentialed counselor, graduate, or counselor intern working towards licensure that would qualify them to be a qualified credentialed counselor (QCC). (16) Crisis Intervention--Actions designed to intervene in situations that require immediate attention to avert potential harm to self or others. Services include face-to-face individual, family, or group interviews/interactions and/or telephone contacts to identify needs. (17) Digital Authentication Key--Identification data (that includes user identification and a time stamp) that is digitally stamped on electronic documents identifying the specific user that created the document. The identification data must be controlled by a unique user ID and an encrypted password. (18) Direct Care Staff--Staff responsible for providing treatment, care, supervision, or other direct client services that involve face-to-face contact with a client. (19) Discharge--Formal, documented termination of services. (20) Document (noun)--a written or electronic record. (21) Diagnostic and Statistical Manual of Mental Disorders (DSM)--The Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. Any reference to DSM constitutes a reference to the most recent edition then published, unless the context clearly indicates otherwise. (22) Facility--See Juvenile Justice Facility. (23) Graduate--An individual who has successfully completed the 270 hours of education, 300-hour practicum, and 4,000 hours of supervised work experience and who is still registered with the Department of State Health Services as a counselor intern. (24) Human Immunodeficiency Virus (HIV)--The virus that causes Acquired Immune Deficiency Syndrome (AIDS). Infection is determined through a testing and counseling process overseen by the Department of State Health Services. Being infected with HIV is not necessarily equated with having a diagnosis of AIDS, which can only be diagnosed by a physician using criteria established by the National Centers for Disease Control and Prevention. 42 TexReg 6488 November 17, 2017 Texas Register

71 (25) Intake--The process for gathering information about a prospective client and giving a prospective client information about treatment and services. (26) Intervention--The interruption of the onset or progression of chemical dependency in the early stages. Intervention strategies target indicated populations. (27) Juvenile Justice Facility--A facility operated wholly or partly by the juvenile board, by another governmental unit, or by a private vendor under a contract with the juvenile board, county, or other governmental unit that serves juveniles under juvenile court jurisdiction. The term includes: (A) a public or private juvenile pre-adjudication secure detention facility, including a holdover facility; (B) a public or private juvenile post-adjudication secure correctional facility except for a facility operated solely for children committed to the Texas Juvenile Justice Department; and (C) a public or private non-secure juvenile post-adjudication residential treatment facility that is not licensed by the Department of Family and Protective Services or the Department of State Health Services. (28) Juvenile Justice Program--A program or department operated wholly or partly by the juvenile board or by a private vendor under a contract with a juvenile board that serves juveniles under juvenile court jurisdiction. The term includes: (A) a juvenile justice alternative education program; (B) a non-residential program that serves juvenile offenders under the jurisdiction of the juvenile court; and (C) a juvenile probation department. (29) License--The whole or part of any agency permit, certificate, approval, registration, or similar form of permission authorized by law. (30) Licensed Chemical Dependency Counselor (LCDC)--A counselor licensed by the Department of State Health Services pursuant to Chapter 504, Occupations Code. (31) Life Skills Training (Treatment)--A structured program of training, based upon a written curriculum and provided by qualified staff designed to help clients with social competencies such as communication and social interaction, stress management, problem solving, decision making, and management of daily responsibilities. (32) Person--An individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity. (33) Personnel--The members of the governing body of a provider and, without limitation, its staff, employees, contractors, consultants, agents, representatives, volunteers, or other individuals working for or on behalf of the provider through a formal or informal agreement. (34) Practice of Chemical Dependency Counseling Services--Providing or offering to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency counseling profession as defined by the activities listed in the domains of Technical Assistance Publication 21 "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice" published by the Center for Substance Abuse Treatment. (35) Prevention--A proactive process that uses multiple strategies to preclude the illegal use of alcohol, tobacco, and other drugs and to foster safe, healthy, drug-free environments. (36) Program--See Juvenile Justice Program. (37) Provider--A person who performs or offers to perform substance abuse services in a program offered by a juvenile justice facility or juvenile justice program. The term includes but is not limited to, a qualified credentialed counselor, applicant for counselor licensure, and counselor intern. (38) Qualified Credentialed Counselor (QCC)--A licensed chemical dependency counselor or one of the practitioners listed below who is licensed and in good standing in the State of Texas and has at least 1,000 hours of documented experience treating substance-related disorders: (A) licensed professional counselor (LPC); (B) licensed master social worker (LMSW); (C) licensed marriage and family therapist (LMFT); (D) licensed psychologist; (E) licensed physician; (F) licensed physician assistant; (G) certified addictions registered nurse (CARN); or (H) advanced practice registered nurse recognized by the Texas Board of Nursing as a clinical nurse specialist or nurse practitioner with a specialty in psych-mental health (APN-P/MH). (39) Recovery Maintenance--A level of treatment designed to maintain and support a client's continued recovery. (40) Referral--The process of identifying appropriate services and providing the information and assistance needed to access them. (41) Residential Site--A physical location owned, leased, or operated by a provider where clients reside in a supervised treatment environment. (42) Screening--The process through which a qualified staff, client or participant, and available significant others determine the most appropriate initial course of action, given the individual's needs and characteristics and the available resources within the community. In a treatment program, screening includes determining whether an individual is appropriate and eligible for admission to a particular program. (43) Services--Substance abuse treatment services. (44) Staff--Individuals working for a person in exchange for money or other compensation. (45) Substance Abuse--A maladaptive pattern of substance use leading to clinically significant impairment or distress, as defined by the most recently published version of the DSM. (46) Substance Abuse Services (Services)--A comprehensive term intended to describe activities undertaken to address any substance-related disorder as well as prevention activities. The term includes the provision of screening, assessment, referral, treatment for chemical dependency, and chemical dependency counseling. (47) Substance-Related Disorders--Defined by the most recently published version of the DSM. (48) Treatment--See Chemical Dependency Treatment. PROPOSED RULES November 17, TexReg 6489

72 (49) Treatment Planning--A collaborative process through which the provider and client develop desired treatment outcomes and identify the strategies for achieving them. At a minimum, the treatment plan addresses the identified substance use disorder(s), as well as issues related to treatment progress, including relationships with family and significant others, employment, education, spirituality, health concerns, and legal needs. (50) Unethical Conduct--Conduct prohibited by the ethical standards adopted by state or national professional organizations or by rules established by a profession's state licensing agency. (51) Utilization Review--The process of evaluating the necessity, appropriateness, and efficiency of the use of chemical dependency treatment services, procedures, and facilities Purpose. The purpose of these rules is to ensure that juveniles receiving substance abuse treatment services offered by juvenile justice facilities or programs are afforded an efficient, effective, and appropriate continuum of services that will enable the juveniles to be productive members of society. These rules further serve to protect the health, safety, and welfare of those receiving substance abuse treatment services Applicability. (a) This chapter applies to a substance abuse facility or program offered by a juvenile justice facility or program. (b) All providers must comply with the provisions of this chapter in all matters related to the provision of services. (c) The provisions of this chapter apply in addition to other chapters relevant to the juvenile justice facility or program Program Approval and Registration. (a) A juvenile board must obtain approval from TJJD prior to operating a substance abuse treatment program. This provision does not apply to programs in operation prior to September 1, (b) All substance abuse treatment programs offered by a juvenile justice facility or program must be registered with TJJD Change in Status. (a) A juvenile justice facility or program operating a substance abuse program must notify TJJD and receive written approval before: (1) adding a new detoxification service; (2) adding a new residential site; (3) moving to a new residential site; (4) increasing the number of beds in a residential substance abuse program; (5) adding a new residential service; (6) adding a new day-treatment service; (7) adding a new outpatient service; (8) adding a new outpatient site or moving an outpatient site to a new location; or (9) providing services to a new age group or gender. (b) A juvenile justice facility or program operating a substance abuse treatment program must notify TJJD prior to a change in the name of the facility or program, closure of a residential or outpatient location, decrease in the number of residential beds in the substance abuse program, or discontinuation of a service related to the substance abuse program Inspection. TJJD may conduct a scheduled or unannounced inspection or request materials for review at reasonable times, including any time treatment services are provided. The facility or program must allow TJJD staff to access the grounds, buildings, and records of the facility or program. The facility or program must allow TJJD staff to interview members of the governing body, staff, and clients. The facility or program must make all property, records, and documents available upon request for examination, copy, or reproduction, on or off premises Waiver or Variance to Standards. Unless expressly prohibited by another standard, an application for a waiver or variance of any standard in this chapter may be submitted in accordance with of this title. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER B. STANDARD OF CARE APPLICABLE TO ALL PROVIDERS 37 TAC , STATUTORY AUTHORITY The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal General Standard. (a) Providers must provide adequate and appropriate services consistent with best practices and industry standards. (b) Providers must maintain objectivity. (c) Providers must respect each individual's dignity, must not engage in any action that may cause injury, and must always act with integrity in providing services Scope of Practice. (a) Providers must recognize the limitations of their abilities and must not offer services outside their scope of practice or use techniques that exceed their professional competence. (b) Providers must not make any claim, directly or by implication, that they possess professional qualifications or affiliations that they do not possess Competence and Due Care. (a) Providers must plan, adequately supervise, and evaluate all activities for which they are responsible. 42 TexReg 6490 November 17, 2017 Texas Register

73 (b) Providers must render services carefully and promptly. (c) Providers must follow the technical and ethical standards related to the provision of services, strive continually to improve personal competence and quality of service delivery, and discharge their professional responsibilities to the best of their abilities. (d) Providers are responsible for assessing the adequacy of their own competence for the responsibility to be assumed. (e) Services must be designed and administered as to do no harm to recipients. (f) Providers must always act in the best interest of the individual being served. (g) Providers must terminate any professional relationship that is not beneficial, or is in any way detrimental, to the individual being served Appropriate Services. (a) Services must be appropriate for the individual's needs and circumstances, including age and developmental level, and must be culturally sensitive. (b) Providers must possess an understanding of the cultural norms of the individuals receiving services. (c) Services must be respectful and non-exploitative Accuracy. (a) Providers must report information fairly, professionally, and accurately when providing services and when communicating with other professionals, TJJD, and the general public. (b) Each provider must document and assign credit to all contributing sources used in published material or public statements. (c) Providers must not misrepresent, either directly or by implication, professional qualifications or affiliations Documentation. Providers must maintain required documentation of services provided and related transactions, including financial records Discrimination. Providers must not discriminate against any individual on the basis of gender, race, religion, age, national origin, disability (physical or mental), sexual orientation, or medical condition, including HIV diagnosis or because an individual is perceived as being HIV-infected Access to Services. Providers must provide access to services, including providing information about other services and alternative providers, taking into account an individual's special needs Location. Providers may not offer or provide services in settings or locations that are inappropriate or harmful to individuals served or others Confidentiality. (a) The provider must protect the privacy of individuals served and may not disclose confidential information except as permitted by law. (b) The provider must remain knowledgeable of and follow all state and federal laws and regulations relating to confidentiality of juvenile records and of records relating to the provision of services. (c) The provider is prohibited from discussing or divulging information obtained in clinical or consulting relationships except in appropriate settings and for professional purposes that demonstrably relate to the case. (d) Confidential information acquired during delivery of services must be safeguarded from illegal or inappropriate use, access, and disclosure and from loss, destruction, and tampering. These safeguards must protect against verbal disclosure and prevent unsecured maintenance of records or recording of an activity or presentation without appropriate releases Environment. (a) Services must be provided in an appropriate, safe, clean, and well-maintained environment. (b) Private space must be provided and used for confidential interactions, including all group counseling sessions Communications. The provider must inform the individual receiving services about all relevant and important aspects of the service relationship Exploitation. The provider must not exploit relationships with individuals receiving services for personal or financial gain of the provider or its personnel. The provider may not charge exorbitant or unreasonable fees for any service. The provider may not pay or receive any commission, consideration, or benefit of any kind related to the referral of an individual for services Duty to Report. (a) When a provider or program staff has knowledge of unethical conduct or practice on the part of a person or provider, the individual with the knowledge must report the conduct or practices to the appropriate funding or regulatory bodies. (b) Any provider or provider personnel who receives an allegation of, or has reason to suspect that an individual has been, is, or will be subject to, abuse, neglect, or exploitation must report that information as provided by Chapter 358 of this title Ethics. Providers must adhere to established professional codes of ethics. These codes of ethics define the professional context within which the provider works in order to maintain professional standards and safeguard the client or participant Specific Acts Prohibited. In addition to the provider's general duty to provide services in a professional manner, failure to adhere to the following rules constitutes a violation: (1) Providers must not provide services, interact with individuals receiving services, or perform any job duties while under the influence of or impaired by alcohol or mood altering substances, including prescription medications not used in accordance with a physician's order. (2) Providers must not commit an illegal, unprofessional, or unethical act (including acts constituting abuse, neglect, or exploitation). (3) Providers must not assist or knowingly allow another person to commit an illegal, unprofessional, or unethical act. (4) Providers must not falsify, alter, destroy, or omit significant information from required reports and records or interfere with their preservation. (5) Providers must not retaliate against anyone who reports a violation of these rules or cooperates during a review, inspection, investigation, hearing, or other related activity. PROPOSED RULES November 17, TexReg 6491

74 (6) Providers must not interfere with probation department, facility, or TJJD reviews, inspections, investigations, hearings, or related activities. This includes taking action to discourage or prevent someone else from cooperating with the activity. (7) Providers must not enter into a personal or business relationship of any type with an individual receiving services until at least two years after the last date an individual receives services from the provider. (8) Providers must not discourage, intimidate, harass, or retaliate against individuals who try to exercise their rights or file a grievance. (9) Providers must not restrict, discourage, or interfere with any communication with law enforcement, an attorney, the probation department, the facility, or TJJD for the purposes of filing a grievance. (10) Providers must not allow unqualified persons or entities to provide services. (11) Providers must not hire or utilize known sex offenders in adolescent programs or programs that house children. (12) Providers must prohibit adolescent clients and participants from using tobacco products on the program site. Staff and other adults (volunteers, clients, participants, and visitors) must not use tobacco products in the presence of adolescent clients or participants Standards of Conduct. (a) The program and program personnel must protect clients' rights and provide competent services. (b) Any person associated with the program who receives an allegation of, or has reason to suspect that a person associated with the program has been, is, or will be engaged in illegal, unethical, or unprofessional conduct must immediately inform the facility administrator or chief administrative officer of the juvenile probation department. If the person suspected of misconduct holds a license or certification from a state agency or other licensing entity, a report must also be made to the appropriate agency or entity. (c) There must be written policies on program personnel conduct that are consistent with this section. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER E. SUBSTANCE ABUSE PROGRAM REQUIREMENTS 37 TAC , , STATUTORY AUTHORITY The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal Operational Plan, Policies, and Procedures. (a) The facility or program must operate the substance abuse program according to an operational plan. The operational plan must reflect: (1) program purpose or mission statement; (2) services and how they are provided; (3) a description of the population to be served; and (4) goals and objectives of the program. (b) The facility or program must adopt and implement written policies and procedures as deemed necessary by the facility or program and as required herein. The policies and procedures must contain sufficient detail to ensure compliance with all applicable TJJD rules. (c) The policy and procedure manual must be current, consistent with program practices, individualized to the program, and easily accessible to all staff at all times Reporting Measures. For each facility or program, the following information must be submitted to TJJD annually in a format provided by TJJD: (1) total number of clients served by diagnosis; (2) gender of clients served; (3) ethnicity of clients served; (4) ages of clients served; (5) primary and secondary drug at admission; (6) discharge reason per treatment episode, including length of stay at time of discharge; and (7) average percent of occupancy for each residential substance abuse program Quality Management. The facility or program must develop procedures and implement a quality management process. The procedures must address, at a minimum: (1) goals and objectives that relate to the program purpose or mission statement; (2) methods to review the progress toward the goals and a documented process to implement corrections or changes; (3) mechanisms to: (A) review and analyze incident reports; (B) monitor compliance with rules and other requirements; (C) identify areas where quality is not optimal and analyze identified issues; (D) implement corrections and evaluate and monitor their ongoing effectiveness; (4) methods of utilization review to ensure appropriate client placement, adequacy of services provided, and length of stay in the substance abuse program; and (5) documentation of the activities of the quality management process. 42 TexReg 6492 November 17, 2017 Texas Register

75 General Documentation Requirements. (a) The facility or program must keep complete, current documentation. (b) All documents must be factual and accurate. (c) All documents and entries must be dated and authenticated by the person responsible for the content. (1) Authentication of paper records must be an original signature that includes at least the first initial, last name, and credentials. Initials may be used if the client record includes a document that identifies all individuals initialing entries, including the full printed name, signature, credentials, and initials. (2) Authentication of electronic records must be by a digital authentication key. (d) Documentation must be permanent and legible. (e) When it is necessary to correct a client record, incident report, or other document, the error must be marked through with a single line, dated, and initialed by the writer. (f) Records must contain only those abbreviations included on the facility's or program's list of approved abbreviations Client Records. (a) The facility or program must establish and maintain a single record for every client beginning at the time of admission. The content of client records must be complete, current, and well-organized. (b) The facility or program is required to protect all client records and other client-identifying information from destruction, loss, or tampering and from unauthorized access, use, or disclosure. (1) All active client records must be stored at the facility. Inactive records, if stored off-site, must be fully protected. All original client records must be maintained in the State of Texas. (2) Information that identifies those seeking services must be protected to the same degree as information that identifies clients. (3) Electronic client information must be protected to the same degree as paper records and must have a reliable backup system. (c) Only personnel whose job duties require access to client records may have such access. (d) Personnel must keep records locked at all times unless authorized staff is continuously present in the immediate area. (e) The facility or program must ensure that all client records can be located and retrieved upon request at all times. (f) The facility or program must comply with federal and state confidentiality laws and regulations, including 42 CFR part 2 (federal regulations on the confidentiality of substance use disorder patient records), Chapter 611, Texas Health and Safety Code (relating to mental health records), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The program must also protect the confidentiality of HIV information as required in , Texas Health and Safety Code (relating to confidentiality; criminal penalty). (g) The facility or program may not deny clients access to the content of their records except as provided by , Texas Health and Safety Code, and HIPAA or other law. (h) Client records must be maintained for at least five years after the client turns 18. (i) If client records are microfilmed, scanned, or destroyed, the facility must take steps to protect confidentiality. The facility must maintain a record of all client records destroyed on or after September 1, 1999, including the client's name, record number, birth date, and dates of admission and discharge. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER F. PERSONNEL PRACTICES AND DEVELOPMENT 37 TAC STATUTORY AUTHORITY The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal Hiring Practices. (a) A facility or program whose personnel includes counselor interns must be registered with the Department of State Health Services as a clinical training institution and comply with all applicable requirements. (b) The facility or program must verify by Internet, telephone, or letter and document the current status of all required credentials with the credentialing authority. (c) The facility or program must comply with its obligations under , Texas Civil Practices and Remedies Code. (d) The facility or program must develop a job description that outlines job duties and minimum qualifications for all personnel. (e) The facility or program must maintain a personnel file for each contractor, student, and volunteer having any direct contact with a client and for each employee. The file must contain documentation demonstrating compliance with this section Students and Volunteers. (a) The facility must ensure that students and volunteers comply with all applicable rules. (b) Students and volunteers may not be assigned to perform duties for which they are not qualified. (c) Students and volunteers must receive orientation and training appropriate to their qualifications and responsibilities. (d) Students and volunteers must be appropriately supervised Training. (a) This section applies only to staff assigned to the substance abuse treatment program. PROPOSED RULES November 17, TexReg 6493

76 (b) Unless otherwise specified, video, manual, or computerbased training is acceptable if the supervisor discusses and documents the material with the staff person in a face-to-face session to highlight key issues and answer questions. (c) The facility or program must maintain documentation of all required training. (1) Documentation of external training must include: (A) date; (B) number of hours; (C) topic; (D) instructor's name; and (E) signature of the instructor (or equivalent verification). (2) The facility or program must maintain documentation of all internal training. For each topic, the documentation must include: (A) an outline of the contents; (B) the name, credentials, and relevant qualifications of the person providing the training; and (C) the method of delivery. (3) For each group training session, the facility must maintain a dated attendee sign-in sheet with signatures of the trainer and the attendees. (d) The facility or program must provide an orientation to staff, volunteers, and students before they perform their duties and responsibilities. This orientation must include information addressing: (1) substance abuse program policies and procedures; (2) client rights; (3) client grievance procedures; (4) confidentiality of client-identifying information (42 CFR Part 2; HIPAA); (5) standards of conduct; and (6) emergency and evacuation procedures. (e) The following initial training(s) must be received within the first 90 days of employment and must be completed before the employee may perform a function to which the specific training is applicable. Subsequent training must be completed as specified. (1) Abuse, Neglect, and Exploitation. All substance abuse program personnel with any direct client contact must receive this training. (2) HIV, Hepatitis B and C, Tuberculosis, and Sexually Transmitted Diseases. All personnel with any direct client contact must receive this training. (A) The initial training must be three hours in length. (B) Staff must receive updated information about these diseases annually. (3) Cardiopulmonary Resuscitation (CPR). All direct-care staff in a residential substance abuse program must maintain current CPR and first-aid certifications. (4) Nonviolent Crisis Intervention. The face-to-face training must teach staff how to use verbal and other non-physical methods for prevention, early intervention, and crisis management. The instructor must have documented successful completion of a course for crisis intervention instructors or have equivalent documented training and experience. (A) The initial training must be four hours in length. (B) Staff must complete two hours of annual training thereafter. (5) Intake, Screening, and Admission Authorization. All staff who conduct intake and screening and who authorize admission for applicants to receive program services must complete training in the substance abuse program's screening and admission procedures. The training must include two hours of DSM diagnostic criteria for substance-related disorders and other mental health diagnoses. (A) The initial training must be eight hours in length. (B) Staff must complete eight hours of annual training thereafter. (C) The training must be completed before staff screen or authorize applicants for admission. (6) Self-administration of Medication. All personnel responsible for supervising clients in self-administration of medication who are not credentialed to administer medication must complete this training before performing this task. (A) The training must be two hours in length and is required only one time. (B) The training must be provided by a physician, pharmacist, physician assistant, or registered nurse before administering medication and must include: (i) prescription labels; (ii) medical abbreviations; (iii) routes of administration; (iv) use of drug reference materials; (v) storage, maintenance, handling, and destruction of medication; (vi) documentation requirements; and (vii) procedures for medication errors, adverse reactions, and side effects. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER G. CLIENT RIGHTS 37 TAC , STATUTORY AUTHORITY 42 TexReg 6494 November 17, 2017 Texas Register

77 The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal Client Bill of Rights. The facility or program must respect, protect, implement, and enforce each client right that is required to be contained in the facility's Client Bill of Rights The Client Bill of Rights for all facilities must include: (1) You have the right to accept or refuse treatment after receiving this explanation. (2) If you agree to treatment or medication, you have the right to change your mind at any time (unless specifically restricted by law). (3) You have the right to a humane environment that provides reasonable protection from harm and appropriate privacy for your personal needs. (4) You have the right to be free from abuse, neglect, and exploitation. (5) You have the right to be treated with dignity and respect. (6) You have the right to appropriate treatment in the least restrictive setting available that meets your needs. (7) You have the right to be told about the program's rules and regulations before you are admitted, including, without limitation, the rules and policies related to restraints and seclusion. Your legally authorized representative, if any, also has the right to be and shall be notified of the rules and policies related to restraints and seclusion. (8) You have the right to be told before admission in the substance abuse program: (A) the condition to be treated; (B) the proposed treatment; (C) the risks, benefits, and side effects of all proposed treatment and medication; (D) the probable health and mental health consequences of refusing treatment; (E) other treatments that are available and which ones, if any, might be appropriate for you; and program. (F) the expected length of stay in the substance abuse (9) You have the right to a treatment plan designed to meet your needs, and you have the right to take part in developing that plan. (10) You have the right to meet with staff to review and update the plan on a regular basis. (11) You have the right to refuse to take part in research without affecting your regular care. (12) You have the right not to receive unnecessary or excessive medication. (13) You have the right to have information about you kept private and to be told about the times when the information can be released without your permission. (14) You have the right to be told in advance of all estimated charges and any limitations on the length of services of which the facility is aware. (15) You have the right to receive an explanation of your treatment or your rights if you have questions while you are in treatment. (16) You have the right to make a complaint and receive a fair response from the facility within a reasonable amount of time. (17) You have the right to complain directly to the Texas Juvenile Justice Department at any reasonable time. (18) You have the right to get a copy of these rights before you are admitted, including the address and phone number of the Texas Juvenile Justice Department. (19) You have the right to have your rights explained to you in simple terms, in a way you can understand, within 24 hours of being admitted Program Rules. (a) The facility must establish therapeutically sound written program rules addressing client behavior that are designed to protect the health, safety, and welfare of clients. (b) The consequences for violating program rules must be defined in writing and must include clear identification of violations that may result in discharge. The consequences must be reasonable and take into account the client's diagnosis and progress in treatment and may not include: (1) physical discipline; (2) measures involving the denial of food, water, sleep, or bathroom privileges; or (3) discipline that is authorized, supervised, or carried out by clients. (c) At the time of admission, every client must be informed verbally and in writing of the program rules and consequences for violating the rules. (d) The facility must enforce the rules fairly and objectively and may not implement consequences for the convenience of staff. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER H. ASSESSMENT 37 TAC STATUTORY AUTHORITY SCREENING AND PROPOSED RULES November 17, TexReg 6495

78 The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal Screening. (a) To be eligible for admission to a treatment program, an individual must meet the DSM criteria for a substance use disorder (or substance withdrawal or intoxication in the case of a detoxification program). The facility must use a screening process appropriate for the target population, individual's age, developmental level, culture, and gender. (b) The screening process must include the collection of other information as necessary to determine the type of services that are required to meet the individual's needs. This may necessitate the administration of all or part of validated assessment instruments. (c) Sufficient documentation must be maintained in the client record to support the diagnosis and justify the referral/placement decision. Documentation must include the date of the screening and the signature and credentials of the qualified credentialed counselor (QCC) supervising the screening process. (d) For admission to a detoxification program, the screening will be conducted by a physician, physician assistant, nurse practitioner, registered nurse, or licensed vocational nurse (LVN). An LVN may conduct a screening under the following conditions: (1) the LVN has completed detoxification training and demonstrated competency in the detoxification process; (2) the training and competency verification is documented in the LVN's personnel file; (3) the LVN must convey the medical data obtained during the screening process to a physician in person or via telephone. The physician must determine the appropriateness of the admission and authorize the admission or give instructions for an alternative course of action; and (4) the physician must examine the client in person and sign the admission order within 24 hours of authorizing admission. (e) For admission to all other treatment programs, the screening will be conducted by a counselor or counselor intern Admission Authorization and Consent to Treatment. (a) A QCC must authorize each admission in writing and specify the level of care to be provided. If the screening counselor or intern is not qualified to authorize admission, the QCC must review the results of the screening with the applicant, directly or indirectly, before authorizing admission. The authorization must be documented in the client record and must contain sufficient documentation to support the diagnosis and the placement decision. (b) The facility must obtain written authorization from the consenter before providing any treatment or medication. The consent form must be dated and signed by the client, the consenter, and the staff person providing the information and must include documentation that the client and consenter received and understood the following information: (1) the specific condition to be treated; (2) the recommended course of treatment; (3) the expected benefits of treatment; (4) the probable health and mental health consequences of not consenting; (5) the side effects and risks associated with the treatment; (6) any generally accepted alternatives and whether an alternative might be appropriate; (7) the qualifications of the staff who will provide the treatment; (8) the name of the primary counselor; (9) the client grievance procedure; (10) the Client Bill of Rights as specified in of this title; (12) violations that can lead to disciplinary action or discharge; rules; (11) the program rules; (13) any consequences or searches used to enforce program (14) the facility's services and treatment process; and (15) opportunities for family to be involved in treatment. (c) This information must be explained to the client and consenter in simple, non-technical terms. If an emergency or the client's physical or mental condition prevents the explanation from being given or understood by the client within 24 hours, staff must document the circumstances in the client record and present the explanation as soon as possible. Documentation of the explanation must be dated and signed by the client, the consenter, and the staff person providing the explanation. (d) The client record must include a copy of the Client Bill of Rights dated and signed by the client and consenter. (e) If possible, all information must be provided in the consenter's primary language. (f) When an applicant is screened and determined to be eligible for services but denied admission, the facility must maintain documentation signed by the examining QCC that includes the reason for the denial Assessment. (a) A counselor or counselor intern must conduct and document a comprehensive psychosocial assessment with the client admitted to the facility. The assessment must elicit and document enough information about the client's past and present status to provide a thorough understanding of the following areas: (1) presenting problems resulting in admission; (2) alcohol and other drug use; (3) psychiatric and chemical dependency treatment; (4) medical history and current health status, to include an assessment of risk behaviors for tuberculosis (TB), HIV, and other sexually transmitted disease (STD), as permitted by law; (5) relationships with family; (6) social and leisure activities; (7) education and vocational training; (8) employment history; (9) legal problems; 42 TexReg 6496 November 17, 2017 Texas Register

79 (10) mental/emotional functioning; and (11) strengths and weaknesses. (b) A comprehensive listing of the client's problems, needs, and strengths must be prepared based on the results of the assessment. (c) A comprehensive diagnostic impression must be prepared based on the results of the assessment. (d) If the assessment identifies a potential mental health problem, the facility or program must obtain a mental health assessment and seek appropriate mental health services when resources for mental health assessments and/or services are available internally or through referral at no additional cost to the program. These services must be provided by a facility or person authorized to provide such services or a qualified professional as described in of this title. (e) The assessment must be signed by a QCC and filed in the client record within three individual service days of admission. (f) The program may accept an evaluation from an outside source if: (1) it meets the criteria set forth herein; (2) it was completed during the 30 days preceding admission or is received directly from a facility that is transferring the client; and (3) a counselor reviews the information with the client and documents an update Treatment Planning, Implementation, and Review. (a) The counselor and client work together to develop and implement an individualized, written treatment plan that identifies the services and support needed to address the problems and needs identified in the assessment. When appropriate, the client's family must also be involved. (1) When the client needs services not offered by the facility, appropriate referrals must be made and documented in the client record. When feasible, other QCCs or mental health professionals serving the client from a referral agency should participate in the treatment planning process. (2) The client record must contain justification when identified needs are temporarily deferred or not addressed during treatment. (b) The treatment plan must include goals, objectives, and strategies. (1) Goals must be based on the client's problems/needs, strengths, and preferences. (2) Objectives must be individualized, realistic, measurable, time-specific, appropriate to the level of treatment, and clearly stated in behavioral terms. (3) Strategies must describe the type and frequency of the specific services and interventions needed to help the client achieve the identified goals and must be appropriate to the level of intensity of the program in which the client is receiving treatment. (c) The treatment plan must identify discharge criteria and include initial plans for discharge. (d) The treatment plan must include a projected length of stay in the program. (e) The treatment plan must identify the client's primary counselor and must be dated and signed by the client and the counselor. When the treatment plan is conducted by an intern or graduate, a QCC must review and sign the treatment plan. (f) The treatment plan must be completed and filed in the client record within five individual service days of admission. (g) The treatment plan must be evaluated on a regular basis and revised as needed to reflect the ongoing reassessment of the client's problems, needs, and response to treatment. (h) The primary counselor must meet with the client to review and update the treatment plan at appropriate intervals, as defined in writing by the program. At a minimum, treatment plans must be reviewed midway through the projected duration of treatment, and no less frequently than monthly in residential substance abuse programs. (i) The treatment plan review must include: (1) an evaluation of the client's progress toward each goal and objective; (2) revision of the goals and objectives; and (3) justifications of continued length of stay in the program. (j) Treatment plan reviews must be dated and signed by the client, the counselor, and the supervising QCC, if applicable. (k) When a client's intensity of service is changed, the client record must contain: (1) clear documentation of the decision signed by a QCC, including the rationale and the effective date; (2) a revised treatment plan; and (3) documentation of coordination activities with the receiving treatment provider. (l) Program staff must document all treatment services (counseling, chemical dependency education, and life skills training) in the client record within 72 hours, including the date, nature, and duration of the contact and the signature and credentials of the person providing the service. (1) Education, life skills training, and group counseling notes must also include the topic/issue addressed. (2) Individual counseling notes must include the goals addressed, clinical observations, and new issues or needs identified during the session Discharge. (a) The counselor and client/consenter must develop and implement an individualized discharge plan. (b) Discharge plans must be updated as the client progresses through treatment and must address the continued appropriateness of the current treatment level. (c) The discharge plan must address continuity of services to the client. (1) When a client is referred or transferred to another chemical dependency or mental health service provider for continuing care, the substance abuse program must contact the receiving program before the client is discharged to make arrangements for the transfer. (2) Coordination activities must be documented in the client record, including a timeframe for the client to have access to needed services and any constraints associated with the referral. (3) With proper client consent, the facility must provide the receiving program with copies of relevant parts of the client's record. (d) The substance abuse program must involve the client's family or an alternate support system in the discharge planning process when appropriate. PROPOSED RULES November 17, TexReg 6497

80 (e) Discharge planning must be completed before the client's scheduled discharge from the substance abuse program. (f) A written discharge plan must be developed and must address ongoing client needs, including: (1) individual goals or activities to sustain recovery; (2) referrals; and (3) recovery maintenance services, if applicable. (g) The completed discharge plan must be dated and signed by the counselor, the client, and the consenter (if applicable). (h) The facility or program must give the client and consenter a copy of the plan and file the original signed plan in the client record. (i) The facility or program must complete a discharge summary for each client within 30 days of discharge. The discharge summary must be signed by a QCC and must include: (1) dates of admission and discharge; (2) needs and problems identified at admission, during treatment, and at discharge; (3) services provided; (4) assessment of the client's progress towards goals; (5) reason for discharge; and (6) referrals and recommendations, including arrangements for recovery maintenance. (j) The facility or program must contact each client between 60 and 90 days after discharge from the substance abuse program and must document the individual's current status or the reason the contact was unsuccessful. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) SUBCHAPTER I. TREATMENT PROGRAM SERVICES 37 TAC STATUTORY AUTHORITY The new sections are proposed under (a)(6), Human Resources Code, which requires TJJD to adopt reasonable rules that provide minimum standards for the operation of substance abuse facilities or programs that are juvenile justice facilities or juvenile justice programs. No other statute, code, or article is affected by this proposal Requirements Applicable to All Treatment Services. (a) Each client's treatment must be based on a treatment plan developed from the client's comprehensive assessment. (b) Group counseling sessions must be limited to a maximum of 16 clients. Group education and life skills training sessions must be limited to a maximum of 35 clients. This limit does not apply to multi-family educational groups, seminars, outside speakers, or other events designed for a large audience. (c) Chemical dependency education and life skills training must follow a written curriculum. All educational sessions must include client participation and discussion of the material presented. (d) The substance abuse program must include education about tuberculosis (TB), HIV, hepatitis B and C, and sexually transmitted diseases (STDs). (e) The substance abuse program must provide education about the health risks of tobacco products and nicotine addiction. (f) The substance abuse program must provide access to screening for TB and testing for HIV antibody, hepatitis C, and STDs. (1) HIV antibody testing must be carried out by an entity approved by the Department of State Health Services. (2) If a client tests positive, the facility or program must refer the client to an appropriate health care provider. (g) The substance abuse program must facilitate access to physical health, mental health, and ancillary services if those services are not available through the program and are necessary to meet treatment goals; the facilitation efforts must be documented. (h) Individuals may not be denied admission or discharged from treatment because they are taking prescribed medication. (i) The facility must maintain an adequate number of qualified staff to comply with these standards, provide appropriate and individualized treatment, and protect the health, safety, and welfare of clients. (j) All personnel must receive the training and supervision necessary to ensure compliance with these rules, provision of appropriate and individualized treatment, and protection of client health, safety, and welfare. (k) Residential direct care staff included in staff-to-client ratios may not have job duties that prevent ongoing and consistent client supervision. (l) Residential substance abuse programs must have at least one counselor on duty at least eight hours a day, six days a week. (m) Individuals responsible for planning, directing, or supervising treatment programs must be QCCs. The clinical program director must have at least two years of post-licensure experience providing chemical dependency treatment. (n) Chemical dependency counseling must be provided by a QCC, graduate, or counselor intern. Chemical dependency education and life skills training must be provided by counselors or individuals who have the appropriate specialized education and expertise. (o) All counselor interns must be under the direct supervision of a QCC as required in Texas Administrative Code, Title 40, Chapter 140 (relating to Counselor Licensure) Requirements Applicable to Detoxification Services. (a) A facility providing detoxification services must ensure every individual admitted to a detoxification program meets the DSM criteria for substance intoxication or withdrawal. 42 TexReg 6498 November 17, 2017 Texas Register

81 (b) All detoxification programs must ensure continuous access to emergency medical care. (c) The program must have a medical director who is a licensed physician. The medical director must be responsible for admission, diagnosis, medication management, and client care. (d) The medical director or designee must approve all medical policies, procedures, guidelines, tools, and the medical content of all forms, which must include: (1) screening instruments and procedures; (2) protocol or standing orders for each major drug category of abusable drugs (opiates, alcohol and other sedative-hypnotic/anxiolytics, inhalants, stimulants, hallucinogens) that are consistent with guidelines published by nationally recognized organizations (e.g., Substance Abuse and Mental Health Services Administration, American Society of Addiction Medicine, American Academy of Addiction Psychology); (3) procedures to deal with medical emergencies; (4) medication and monitoring procedures for pregnant women that address effects of detoxification and medications used on the fetus; and (5) special consent forms for pregnant women identifying risks inherent to mother and fetus. (e) The medical director or designee must authorize all admissions, conduct a face-to-face examination to include both a history and physical examination of each applicant for services to establish the diagnosis, assess level of intoxication or withdrawal potential, and determine the need for treatment and the type of treatment to be provided to reach a placement decision. (1) The examination must identify potential physical and mental health problems and/or diagnoses that warrant further assessment. (2) The authorization and examination must be documented in the client record and must contain sufficient documentation to support the diagnoses and the placement decision. If the physician determines an admission is not appropriate, the client must be transferred to an appropriate service provider. (3) The face-to-face examination (history and physical examination) and signed orders of admission must occur within 24 hours of admission. (4) The program may accept an examination completed during the 24 hours preceding admission if it is approved by the program's medical director or designee and includes the elements in paragraphs (1) and (2) of this subsection. The program may not require a client to obtain a history and physical as a condition of admission. (5) Detoxification programs must have a licensed vocational nurse or registered nurse on duty for at least eight hours every day and a physician or designee on call 24 hours a day. (6) Detoxification programs must ensure that detoxification services are accessible at least 16 hours per day, seven days per week. (f) Providers must develop and implement a mechanism to ensure that all direct care staff in detoxification programs have the knowledge, skills, and abilities to provide detoxification services, as they relate to the individual's job duties. Providers must be able to demonstrate through documented training, credentials, and experience that all direct care staff are proficient in areas pertaining to detoxification, including, but not limited to areas, regarding: (1) signs of withdrawal; (2) observation and monitoring procedures; (3) pregnancy-related complications (if the program admits women); (4) complications requiring transfer; (5) appropriate interventions; and (6) frequently used medications including purpose, precautions, and side effects. (g) Residential and ambulatory (outpatient) detoxification programs must provide monitoring to manage the client's physical withdrawal symptoms. Monitoring must be conducted at a frequency consistent with the degree of severity of the client's withdrawal symptoms, the drug(s) from which the client is withdrawing, and/or the level of intoxication of the client. This information will be documented in the client's record and reflected in the client's orders. Residential detoxification programs must have a licensed vocational nurse or registered nurse on duty for at least eight hours every day and a physician or designee on call 24 hours a day. Ambulatory detoxification programs must have a licensed vocational nurse or registered nurse on duty for at least two hours every day and a physician or designee on call 24 hours a day. (1) Monitoring must include: (A) changes in mental status; (B) vital signs; and (C) response of the client's symptoms to the prescribed detoxification medications. (2) It is recommended that providers use instruments such as the Clinical Institute Withdrawal Assessment-Alcohol, revised (CIWA-Ar) for alcohol and sedative hypnotic withdrawal, and the "clinician's assessment" in the Behavioral Health Integrated Provider System (BHIPS). (3) More intensive monitoring is required for clients with a history of severe withdrawal symptoms (e.g., a history of hallucinosis, delirium tremors, seizures, uncontrolled vomiting/dehydration, psychosis, inability to tolerate withdrawal symptoms, and self-harming attempts) or the presence of current severe withdrawal symptoms and/or co-occurring medical and psychiatric disorders. (4) At a minimum, monitoring must be done every four hours in residential detoxification programs for the first 72 hours and as ordered by the medical director or designee thereafter, dependent on the client's signs and symptoms. (5) Medication must be available to manage withdrawal/intoxication from all classes of abusable drugs. (6) While medication regimens, protocols, or standing orders may be used, detoxification must be tailored to each client's need based on vital signs and symptom severity (objective and subjective), which must be noted in the client's record. (7) Ambulatory detoxification must have clear documentation by the physician or designee that the client's symptoms are or are expected to be of a severity that necessitates monitoring once a day at a minimum. (h) In addition to the management of withdrawal and intoxicated states, detoxification programs must provide services, including counseling, which are designed to: (1) assess the client's readiness for change; PROPOSED RULES November 17, TexReg 6499

82 (2) offer general and individualized information on substance abuse and dependency; (3) enhance client motivation; (4) engage the client in treatment; and (5) include a detoxification plan that contains the goals of successful and safe detoxification and details the process for transferring to another treatment intensity. At least one daily individual session by a registered nurse, QCC, or counselor intern with the client must be conducted. (i) Ambulatory detoxification may not be a stand-alone service; services must be provided in conjunction with outpatient treatment services. When treatment services are not available in conjunction with ambulatory detoxification services, the ambulatory detoxification program must arrange for them. (j) Bunk beds may not be used in residential detoxification programs. (k) In residential substance abuse programs, direct care staff must be on duty where the clients are located 24 hours a day. (1) During day and evening hours, at least two staff must be on duty for the first 12 clients, with one more staff on duty for each additional one to 16 clients. (2) At night, at least one staff member with detoxification training must be on duty for the first 12 clients with one more staff on duty for each additional one to 16 clients. (l) Clients who are not in withdrawal but meet the DSM criteria for substance dependence may be admitted to detoxification services for 72 hours for crisis stabilization. (m) Crisis stabilization is appropriate for clients who have diagnosed conditions that result in current emotional or cognitive impairment such that they would not be able to participate in a structured and rigorous schedule of formal chemical dependency treatment. (1) The specific client signs and symptoms that meet the DSM or other medical criteria for the disorder must be documented in the client record. (2) Documentation must also include what symptoms are precluding the client from participating in treatment and the manner in which they are to be resolved Requirements Applicable to Residential Services. (a) Residential treatment provides 24-hour per day, 7 days per week multidisciplinary, professional clinical support to facilitate recovery from addiction. Clients are housed in a residential site. Comprehensive chemical dependency treatment services offer a structured therapeutic environment. (b) The facility must ensure access to the full continuum of treatment services and sufficient treatment intensity to achieve treatment plan goals. Intensity and content of treatment must be appropriate to the client's needs and consistent with generally accepted placement guidelines and standards of care. (c) Each individual admitted to intensive residential services must be appropriately suited to this type of treatment setting, and there must be written justification to support the admission. (d) Intensive residential substance abuse programs must provide an average of at least 30 hours of services per week for each client, comprised of at least: (1) 10 hours of chemical dependency counseling (one hour of which must be individual counseling); (2) 10 hours of additional counseling, chemical dependency education, life skills training, and relapse prevention education; and (3) 10 hours of planned, structured activities monitored by staff (five hours of which must occur on weekends and evenings). (e) In intensive residential substance abuse programs, counselor caseloads may not exceed 10 clients for each counselor. (f) Supportive residential substance abuse programs must provide at least six hours of treatment services per week for each client, comprising at least: (1) three hours of chemical dependency counseling (one hour per month of which must be individual counseling); and (2) three hours of additional counseling, chemical dependency education, life skills training, and relapse prevention education. (g) Each supportive residential substance abuse program must set limits on caseload size that ensure effective, individualized treatment. The program must justify the caseload size in writing based on the program design, characteristics and needs of the population served, and any other relevant factors Requirements for Outpatient Treatment Programs. (a) Outpatient programs are designed for clients who do not require the more structured environment of residential treatment to maintain sobriety. (b) Outpatient programs must ensure access to a full continuum of care and ensure sufficiency of treatment intensity to achieve treatment plan goals. Intensity and content of treatment must be appropriate to the client's needs and consistent with generally accepted placement guidelines and standards of care. (c) Each individual admitted to an outpatient program must be appropriately suited to this type of treatment setting, and there must be written justification to support the admission. (d) Treatment must include individualized treatment planning based on a comprehensive assessment, educational and process groups, and individual counseling. (e) Each client's progress must be assessed regularly by clinical staff to help determine the length and intensity of the program for that client Requirements for Programs for Juveniles. (a) Facilities providing residential services for juveniles must: (1) provide access to education approved by the Texas Education Agency within three school days of admission when treatment is expected to last more than 14 days; (2) in addition to the service requirements set forth in (d)(3) of this title, provide five hours of planned, structured activities during evenings and weekends. Recreational and leisure activities must be included in the structured time. The total number of hours of planned, structured activities must be at least 15. Attendance in school may be counted toward this requirement; (3) ensure the direct care staff-to-client ratio is at least 1:8 during waking hours (including program-sponsored activities away from the facility) and 1:16 during sleeping hours; (4) facilitate regular communication between an adolescent client and the client's family and may not arbitrarily restrict any communications without clear individualized clinical justification documented in the client record; and 42 TexReg 6500 November 17, 2017 Texas Register

83 (5) have written procedures addressing notification of parents or guardians in the event an adolescent leaves a residential substance abuse program without authorization. (b) Facilities or programs providing outpatient services must provide access to education approved by the Texas Education Agency within three school days of admission when treatment is expected to last more than 14 days, if required by law. (c) Facilities or programs providing day treatment must provide at least 15 hours of services per week, comprised of at least: (1) one hour of individual counseling; and (2) 14 hours of additional counseling, chemical dependency education, life skills training, and relapse prevention education. Attendance in school may not be counted toward this requirement. (d) All facilities and programs must: (1) ensure the program's treatment services, lectures, and written materials are age-appropriate and easily understood by clients; (2) involve the client's family or an alternate support system in the treatment process or document why this is not possible; and (3) develop and implement a mechanism to ensure that all direct care staff in adolescent programs have the knowledge, skills, and abilities to provide services to adolescents, as they relate to the individual's job duties. Providers must be able to demonstrate through documented training, credentials, and experience that all direct care staff are proficient in areas pertaining to adolescent services, including, but not limited to, areas regarding: (A) chemical dependency problems specific to adolescent treatment; (B) appropriate treatment strategies, including family engagement strategies; and (C) emotional, developmental, and mental health issues for adolescents. (e) Adolescent programs may serve children 13 to 17 years of age. However, young adults aged 18 to 21 may be admitted to an adolescent program when the screening process indicates the individual's needs, experiences, and behavior are similar to those of adolescent clients. (f) Every exception to the general age requirements must be clinically justified and documented and approved in writing by a QCC Access to Services for Co-Occurring Psychiatric and Substance Use Disorders (COPSD) Clients. (a) In determining an individual's initial and ongoing eligibility for any service, an entity may not exclude an individual based on the following factors: (1) the individual's past or present mental illness; (2) medications prescribed to the individual in the past or present; (3) the presumption of the individual's inability to benefit from treatment; or (4) the individual's level of success in prior treatment episodes. (b) Providers must ensure that a client's refusal of a particular service does not preclude the client from accessing other needed mental health or substance abuse services. (c) Providers must establish and implement procedures to ensure the continuity between screening, assessment, treatment, and referral services provided to clients Additional Requirements for COPSD Programs. (a) The services provided to a client with COPSD must: (1) address both psychiatric and substance use disorders; (2) be provided within established practice guidelines for this population; and (3) help individuals to access the available services they need and choose, including self-help groups. (b) The services provided to a client with COPSD must be provided by staff who are competent in the areas identified in of this title Specialty Competencies for COPSD Programs. (a) Providers must ensure that services to clients are age-appropriate and are provided by staff within their scope of practice who have the following minimum knowledge, technical, and interpersonal competencies prior to providing services. (1) Knowledge competencies: (A) knowledge of the fact that psychiatric and substance use disorders are potentially recurrent relapsing disorders and that, although abstinence is the goal, relapses can be opportunities for learning and growth; (B) knowledge of the impact of substance use disorders on developmental, social, and physical growth and development of children and adolescents; (C) knowledge of interpersonal and family dynamics and their impact on individuals; (D) knowledge of the current Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnostic criteria for psychiatric disorders and substance use disorders and the relationship between psychiatric disorders and substance use disorders; (E) knowledge regarding the increased risks of self-harm, suicide, and violence in individuals; (F) knowledge of the elements of an integrated treatment plan and community support plan for individuals; (G) basic knowledge of pharmacology as it relates to individuals with a mental disorder; (H) basic understanding of the neurophysiology of addiction; (I) knowledge of the phases of recovery for individuals; (J) knowledge of the relationship between substance abuse disorders and psychiatric disorders; and (K) knowledge of self-help in recovery. (2) Technical competencies: (A) ability to perform age-appropriate assessments of clients; and (B) ability to formulate an individualized treatment plan and community support plan for clients. (3) Interpersonal competencies: (A) ability to tailor interventions to the process of recovery for clients; PROPOSED RULES November 17, TexReg 6501

84 (B) ability to tailor interventions with readiness to change; and (C) ability to engage and support clients who choose to participate in 12-step recovery programs. (b) Providers must ensure that staff who provide services to clients with COPSD have demonstrated the competencies described in subsection (a) of this section. These competencies may be evidenced by compliance with current licensure requirements of the governing or supervisory boards for the respective disciplines involved in serving clients with COPSD or by documentation regarding the attainment of the competencies described in subsection (a) of this section Treatment Planning of Services to Clients with COPSD. (a) The treatment plan must identify services to be provided and must include measurable outcomes that address COPSD. (b) The treatment plan must identify the family members' need for education and support services related to the client's mental illness and substance abuse and a method to facilitate the family members' receipt of the needed education and support services. (c) The client and, if requested, the client's family member, must be given a copy of the treatment plan as permitted by law. The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt. Filed with the Office of the Secretary of State on November 2, TRD Jill Mata General Counsel Texas Juvenile Justice Department Earliest possible date of adoption: December 17, 2017 For further information, please call: (512) TexReg 6502 November 17, 2017 Texas Register

85 TITLE 7. BANKING AND SECURITIES PART 6. CREDIT UNION DEPARTMENT CHAPTER 91. CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS SUBCHAPTER J. CHANGES IN CORPORATE STATUS 7 TAC The Credit Union Commission withdraws proposed new , which appeared in the July 28, 2017, issue of the Texas Register (42 TexReg 3729). Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 3, 2017 For further information, please call: (512) TITLE 37. PUBLIC SAFETY AND CORREC- TIONS PART 16. TEXAS CIVIL COMMITMENT OFFICE CHAPTER 810. CIVIL COMMITMENT SUBCHAPTER A. CIVIL COMMITMENT GENERAL PROVISIONS 37 TAC Proposed amended , published in the April 28, 2017, issue of the Texas Register (42 TexReg 2327), is automatically withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, , and 1 TAC 91.38(d).) Published by the Office of the Secretary of State on October 31, TRD SUBCHAPTER B. CIVIL COMMITMENT 37 TAC Proposed amended , published in the April 28, 2017, issue of the Texas Register (42 TexReg 2328) is automatically withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, , and 1 TAC 91.38(d).) Published by the Office of the Secretary of State on October TRD SUBCHAPTER E. MISCELLANEOUS PROVISIONS 37 TAC Proposed amended , published in the April 28, 2017, issue of the Texas Register (42 TexReg 2328), is automatically withdrawn. The agency failed to adopt the proposal within six months of publication. (See Government Code, , and 1 TAC 91.38(d).) Published by the Office of the Secretary of State on October 31, TRD WITHDRAWN RULES November 17, TexReg 6503

86

87 TITLE 1. ADMINISTRATION PART 10. DEPARTMENT OF INFORMATION RESOURCES CHAPTER 201. GENERAL ADMINISTRATION 1 TAC The Texas Department of Information Resources (the Department) adopts amendments to 1 TAC Chapter 201, 201.6, concerning General Administration, to clarify the processes and policies of current practices. The amendment is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4719). The amended rule will not be republished. The Department adopts amendments to clarify the definition for significant statewide impact. The definition provides clearer criteria for which types of contract documents the Board will be required to approve and those that can be approved by DIR management without board approval. The proposed rules were submitted to the Information Technology Council for Higher Education (ITCHE) for review and comment prior to bringing the rule to the Board. It has been determined the proposed rules have no effect on Higher Education as institutions. DIR did not receive any comments on the proposed amendment within the comment period. The amendments are adopted pursuant to (a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054, Texas Government Code. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. CHAPTER 203. MANAGEMENT OF ELECTRONIC TRANSACTIONS AND SIGNED RECORDS SUBCHAPTER A. DEFINITIONS 1 TAC The Texas Department of Information Resources (Department) hereby adopts amendments to 1 TAC Chapter 203, 203.1, concerning Applicable Terms and Technologies for Management of Electronic Transactions and Signed Records, to clarify the difference between electronic and digital signatures. The new definitions provide the clarity needed for state agencies and institutions of higher education. The amendment is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4720) and will not be republished. The proposed rules were submitted to the Information Technology Council for Higher Education (ITCHE) and external state agency stakeholders for review and comment prior to bringing the proposed rule to the Board. DIR did not receive any comments on the proposed amendment within the comment period. The amendments are adopted under (a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054; (a) and (b), Texas Government Code, which reference rules created by the department regarding digital signatures; and et seq., Texas Business and Commerce Code, which allows the department to specify the management of electronic records. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Martin Zelinsky General Counsel Department of Information Resources Effective date: November 23, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) Filed with the Office of the Secretary of State on November 3, TRD Martin Zelinsky General Counsel Department of Information Resources Effective date: November 23, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) ADOPTED RULES November 17, TexReg 6505

88 SUBCHAPTER B. STATE AGENCY USE OF ELECTRONIC TRANSACTIONS AND SIGNED RECORDS 1 TAC The Texas Department of Information Resources (Department) hereby adopts amendments to 1 TAC Chapter 203, , concerning Digital Signatures, to clarify the difference between electronic and digital signatures. The new definitions provide the clarity needed for state agencies and institutions of higher education. The amendment is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4720) and will not be republished. The proposed rules were submitted to the Information Technology Council for Higher Education (ITCHE) and external state agency stakeholders for review and comment prior to bringing the proposed rule to the Board. DIR did not receive any comments on the proposed amendment within the comment period. The amendments are adopted under (a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054; (a) and (b), Texas Government Code, which reference rules created by the department regarding digital signatures; and et seq., Texas Business and Commerce Code, which allows the department to specify the management of electronic records. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Martin Zelinsky General Counsel Department of Information Resources Effective date: November 23, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) SUBCHAPTER C. INSTITUTIONS OF HIGHER EDUCATION USE OF ELECTRONIC TRANSACTIONS AND SIGNED RECORDS 1 TAC The Texas Department of Information Resources (Department) hereby adopts amendments to 1 TAC Chapter 203, , concerning Digital Signatures, to clarify the difference between electronic and digital signatures. The new definitions provide the clarity needed for state agencies and institutions of higher education. The amendment is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4720) and will not be republished. The proposed rules were submitted to the Information Technology Council for Higher Education (ITCHE) and external state agency stakeholders for review and comment prior to bringing the proposed rule to the Board. DIR did not receive any comments on the proposed amendment within the comment period. The amendments are adopted under (a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054; (a) and (b), Texas Government Code, which reference rules created by the department regarding digital signatures; and et seq., Texas Business and Commerce Code, which allows the department to specify the management of electronic records. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Martin Zelinsky General Counsel Department of Information Resources Effective date: November 23, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 212. PURCHASES OF COMMODITY ITEMS SUBCHAPTER B. REQUIRED PURCHASES 1 TAC The Texas Department of Information Resources (Department) hereby adopts an amendment to 1 TAC Chapter 212, , concerning purchases of commodity items, to modify the thresholds and cap for purchases via DIR's cooperative contracts program. The amended rule is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4724) and will not be republished. The amendment is necessary to modify the thresholds and cap for purchases via DIR's cooperative contracts program, to comply with the thresholds and cap set forth in SB 533, 85th Legislature, Regular Session (2017). The proposed amendment applies to all state agencies. The proposed amendment was submitted to the Information Technology Council for Higher Education (ITCHE) for review and input before bringing the proposed amendment to the rule to the Board for consideration. The proposed amendment was also reviewed with representatives from state agencies for comments. The Department received no comment during the 30-day comment period. The amended rule is adopted pursuant to (f), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2157, Texas Government Code. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. 42 TexReg 6506 November 17, 2017 Texas Register

89 Filed with the Office of the Secretary of State on October 31, TRD Martin Zelinsky General Counsel Department of Information Resources Effective date: November 20, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 216. PROJECT MANAGEMENT PRACTICES SUBCHAPTER B. PROJECT MANAGEMENT PRACTICES FOR STATE AGENCIES 1 TAC The Texas Department of Information Resources (the Department) adopts amendments to 1 TAC Chapter 216, , concerning Requirements, to clarify the processes and policies of current quality assurance team practices. The amendment is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4724) and will not be republished. The amended rule is necessary as a result of the passage of House Bill 3275 (85R). In 1 TAC Chapter 216, the Department approves adding a subsection requiring the department to monitor and report on performance indicators for each major information resources project for state agencies to ensure compliance with Texas Government Code The changes to the chapter only apply to state agencies and not institutions of higher education. The proposed rules were submitted to the Information Technology Council for Higher Education (ITCHE) for an impact assessment review. DIR did not receive any comments on the proposed amendment within the comment period. The amendments are adopted pursuant to (a), Texas Government Code, which authorizes the department to adopt rules as necessary to implement its responsibilities under Chapter 2054, Texas Government Code. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on October 30, TRD Martin Zelinsky General Counsel Department of Information Resources Effective date: November 19, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) TITLE 7. BANKING AND SECURITIES PART 6. CREDIT UNION DEPARTMENT CHAPTER 91. CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS SUBCHAPTER A. GENERAL RULES 7 TAC The Credit Union Commission (the Commission) adopts amendments to concerning definitions and interpretations, without changes to the proposal as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3719). The amended rule will not be republished. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter A under Texas Government Code, The amendments add one new definition, modify four definitions, and delete two definitions. Interactive teller machine is now defined in this section, while the definitions of catastrophic act and construction or development loan have been deleted as no longer necessary. The definitions of "improved residential property", "loan-to-value ratio", and "loan and extension of credit" have been expanded to enhance consistency with federal regulations. Finally, the definition of "office" was modified to include interactive teller machines. The department received no comments regarding the proposed amendments. The amendments are adopted under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 23, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) TAC The Credit Union Commission (the Commission) adopts amendments to concerning user safety at unmanned teller machines, without changes to the proposal as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3722). The amended rule will not be republished. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter A under Texas Government Code, The adopted amendments will reduce regulatory burden by authorizing delivery of notice by electronic means in certain circumstances. In addition, the adopted amendments ADOPTED RULES November 17, TexReg 6507

90 would provide clarification, better readability, and technical corrections. The department received no comments regarding the proposed amendments. The amendments are adopted under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code and under Texas Finance Code , which provides that the commission shall adopt rules to implement Subchapter D of Finance Code, Chapter 59. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 23, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) TAC The Credit Union Commission (the Commission) adopts amendments to , concerning the form of consumer complaint notification, without changes to the proposal as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3724). The amended rule will not be republished. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter A under Texas Government Code, The proposed amendment will allow the required notice to be in a form that is substantially similar to the current required notice. In addition, the proposed changes will alter the content of the required notice to include the department's facsimile number and an address as well as provide clarification and better readability. The department received no comments regarding the proposed amendments. The amendments are adopted under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under Texas Finance Code which requires the Commission to adopt rules for directing complaints to the Department. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 23, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) SUBCHAPTER B. ORGANIZATION PROCEDURES 7 TAC The Credit Union Commission (the Commission) adopts amendments to concerning the name of a credit union, without changes to the proposal as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3725). The amended rule will not be republished. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91, Subchapter B, under Texas Government Code, The adopted amendment further expounds on the point that credit unions are solely responsible for any unauthorized use or infringement on a business trade name. In addition, the adopted changes will emphasize the need for appropriate due diligence in selecting a credit union name. The department received no comments regarding the proposed amendments. The amendments are adopted under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15, and Title 3, Subchapter D, of the Texas Finance Code, and under Texas Finance Code which sets out requirements for a credit union name. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 23, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) TAC The Credit Union Commission (the Commission) adopts amendments to , concerning the submission of call reports and other information requests, with changes to the proposal as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3725). The amended rule will be republished. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91 Subchapter B under Texas Government Code, The adopted amendment would eliminate the spe- 42 TexReg 6508 November 17, 2017 Texas Register

91 cific due date for submission of call reports to avoid any conflict or confusion should the National Credit Union Administration (NCUA) establish a different date for submitting its Form The department received no comments regarding the proposed amendments. The amendments are adopted under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under Texas Finance Code , which directs credit unions to submit call reports to the commissioner Call Reports and Other Information Requests. (a) Each credit union shall prepare and submit, in a manner prescribed by the commissioner, a quarterly financial and statistical report. Unless the commissioner orders otherwise, call reports (Form 5300) timely filed with the National Credit Union Administration will comply with the reporting requirements of this subsection. If a credit union fails to file the quarterly report on time, the commissioner may charge the credit union a penalty of $100 for each day or fraction of a day the report is in arrears. (b) Any credit union that makes, files, or submits a false or misleading financial and statistical report required by subsection (a) of this section, is subject to an enforcement action pursuant to the Finance Code, Chapter 122, Subchapter F. (c) A credit union shall prepare and forward to the Department any supplemental report or other document that the Commissioner may, from time to time require, and must comply with all instructions relating to completing and submitting the supplemental report or document. For the purposes of this section, the Commissioner's request may be directed to all credit unions or to a group of credit unions affected by the same or similar issue, shall be in writing, and must specifically advise the credit union that the provisions of this section apply to the request. If a credit union fails to file a supplemental report or provide a requested document within the timeframe specified in the instruction, after notice of non-receipt, the commissioner may levy a penalty of $50 for each day or fraction of a day such report or document is in arrears. (d) If a credit union fails to file any report or provide the requested information within the specified time, the commissioner, or any person designated by the commissioner, may examine the books, accounts, and records of the credit union, prepare the report or gather the information, and charge the credit union a supplemental examination fee as prescribed in of this title (relating to Fees and Charges). The credit union shall pay the fee to the department within thirty days of the assessment. (e) Any penalty levied under this section shall be paid within 30 days of the levy. Penalties received after the due date will be subject to a monthly 10% fee unless waived by the commissioner for good cause shown. (f) The Department may, in lieu of imposing the penalty authorized by subsection (a) of this section, order a credit union to pay an amount, fixed by the Commissioner, that is minimally sufficient to cause the NCUA to reduce or negate its own penalty assessment against the credit union under Section 202 of the Federal Credit Union Act (12 U.S.C. 1782) for late or false/misleading filing of a quarterly call report (Form 5300). The Department shall abate the penalty, in part if the National Credit Union Administration exercises its authority to impose a civil money penalty for the same late or false/misleading filing. The penalty, assessed by the Department, however, shall not be decreased below the amount authorized to be assessed under subsection (a) of this section. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 23, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) SUBCHAPTER J. CHANGES IN CORPORATE STATUS 7 TAC The Credit Union Commission (the Commission) adopts amendments to concerning voluntary mergers and consolidations, without changes to the proposal as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3726). The amended rule will not be republished. In general, the purpose of the amendments to is to implement changes resulting from the commission's review of Chapter 91, Subchapter J under Texas Government Code, The proposed amendment would require credit unions to include in their merger plan a description of any arrangements providing a substantial increase in compensation or benefits, of any sort, to a board member or senior management employee in connection with the merger/consolidation. The amendments also defined the term "substantial" to be an amount that exceeds $1,000 in total. The Commission received one comment regarding the proposed amendments. The commenter, Texas Trust Credit Union, supported the concept that some reporting may be appropriate but suggested that some type of materiality threshold should be established to avoid the need to disclose small or minimal amounts for such things as appreciation plaques or awards. The Commission agrees that a de minimis reporting exception is appropriate, and as originally published the amendments provide that only amounts that exceed $1,000 are required to be reported. It is not the intention of the Commission to substitute its business judgment for that of the boards of the credit unions on reasonable compensation arrangements. The amendments are strictly focused on transparency and the principle that full disclosure usually results in more informed and better credit union decisions. The amendments are adopted under Texas Finance Code, , which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under Texas Finance Code , which sets out the requirements for rules adopted for mergers or consolidations. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. ADOPTED RULES November 17, TexReg 6509

92 Filed with the Office of the Secretary of State on November 3, TRD Harold E. Feeney Commissioner Credit Union Department Effective date: November 23, 2017 Proposal publication date: July 28, 2017 For further information, please call: (512) TITLE 22. EXAMINING BOARDS PART 9. TEXAS MEDICAL BOARD CHAPTER 163. LICENSURE The Texas Medical Board (TMB) adopts amendments to 163.2, 163.4, 163.6, and the repeal of 163.7, concerning Licensure, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4751) and will not be republished. TMB sought stakeholder input at a meeting held on August 4, The comments were incorporated into the proposed rules as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4751). The amendment to 163.2, concerning Full Texas Medical License, deletes language under subsection (d)(5)(a) that sets forth requirements related to of this title (relating to 10 Year Rule). The amendments are adopted to reflect the repeal of 22 TAC of this title. The amendment to 163.4, concerning Procedural Rules for Licensure Applicants, deletes language under subsection (d)(5)(d) related to The amendments are adopted to reflect the repeal of of this title. The amendment to 163.6, concerning Examinations Accepted for Licensure, deletes language under subsection (e)(1) requiring that an applicant pass the jurisprudence examination within three attempts. The changes are made pursuant to the passage of Senate Bill 674 (85th Legislature, Regular Session), which amended of the Texas Occupations Code. The repeal of 163.7, concerning Ten Year Rule, repeals requirements that an applicant have passed an examination listed in 163.6(a) of this title (relating to Examinations Accepted for Licensure) for licensure within the ten-year period prior to the filing date of the application. The repeal is adopted to remove an unnecessary impediment to licensure for physicians who have maintained competency through the active practice of medicine, and otherwise meet all general eligibility requirements. The amendment to , concerning Expedited Licensure Process, adds a new subsection (b), creating an expedited licensing process for out-of-state psychiatrists. The amendments are adopted in accordance with the passage of Senate Bill 674, 85th Legislative Regular Session, which added Texas Occupations Code, and requires the Board to create an expedited licensing process for applicants who hold an unrestricted license to practice medicine issued in another state, are board certified in psychiatry, and meet other general eligibility requirements. The amended sections are adopted in order to have rules that comport with applicable statutes and are clear and consistent, and expedite the licensure of qualified out-of-state psychiatrists and remove unnecessary impediments to licensure for qualified and experienced physicians, addressing Texas' continued population growth and increasing need for qualified physicians. The following entities furnished written comments in response to the proposed repeal of 163.7: Texas Medical Association (TMA) and a private consulting firm located in Austin. No one appeared to testify at the public hearing held on October 20, Comment No. 1: TMA supports the repeal of 163.7, stating that repealing the rule will enhance the recruitment of qualified physicians and remove one impediment to addressing a shortage of physicians that affect certain areas of Texas. Comment No. 2: The private consulting firm opposes the repeal of 163.7, stating that the rule is necessary to ensure that physicians demonstrate current competency in order to obtain licensure. The firm recommended that, as an alternative to repeal, the rule be amended with added language allowing for applicants to show current competency through the maintenance of hospital privileges for at least five of the prior 10 years to the date of the application. TMB Response: TMB disagrees that is necessary to ensure that physicians demonstrate current competency in order to obtain licensure, or that creating alternative eligibility through the showing of continuous hospital privileges is a better option than repeal. Current competency is sufficiently addressed under , Active Practice of Medicine, which requires that applicants for medical licensure demonstrate that they have, "on a full-time basis, actively diagnosed or treated persons or has been on the active teaching faculty of an acceptable approved medical school, within either of the last two years preceding receipt of an Application for licensure." Therefore, the Board declines to make the firm's proposed changes and adopts the repeal of as published. TMB received no comments on the remaining sections. 22 TAC 163.2, 163.4, 163.6, The amendments are adopted under the authority of the Texas Occupations Code Annotated, , which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendments are further adopted under the authority of Texas Occupations Code Annotated, Chapter 155, as amended by Senate Bill 674 (85th Leg., R.S.). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD TexReg 6510 November 17, 2017 Texas Register

93 Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) TAC The repeal is adopted under the authority of the Texas Occupations Code Annotated, , which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The repeal is further adopted under the authority of Texas Occupations Code Annotated, Chapter 155, as amended by Senate Bill 674 (85th Leg. R.S.)(2017). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 171. POSTGRADUATE TRAINING PERMITS 22 TAC The Texas Medical Board (Board) adopts an amendment to 171.3, concerning Physician-in-Training Permits, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4753) and will not be republished. The amendment to adds language to subsection (d)(2)(c), clarifying that a physician-in-training permit shall expire not only upon the date the permit holder obtains full licensure, but temporary or limited licensure as well. The purpose of the amendment is to align the language of with of this title (relating to Only One License), which provides that a person may not have more than one license or permit at the same time, and that upon the issuance of any license or permit, all previously issued licenses and permits, including postgraduate training permits, shall be considered to be terminated. No comments were received regarding adoption of the amendment. The amendment is adopted under the authority of the Texas Occupations Code Annotated, , which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendment is further adopted under the authority of Texas Occupations Code Annotated, Chapter 155. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 172. TEMPORARY AND LIMITED LICENSES SUBCHAPTER B. TEMPORARY LICENSES 22 TAC 172.4, The Texas Medical Board (TMB) adopts amendments to 172.4, concerning State Health Agency Temporary License and 172.8, concerning Faculty Temporary License, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4754) and will not be republished. The amendment to deletes language under paragraphs (1)(C) and (2)(A) referencing of this title (relating to Ten Year Rule). The amendments are made to reflect the adoption of the repeal of of this title, which is also published in this issue of the Texas Register. The amendment to deletes language under subsection (a)(2), requiring that an applicant pass the jurisprudence examination within three attempts. The changes are made pursuant to Senate Bill 674 (85th Legislature, Regular Session). Further amendments are made to subsection (k), deleting language referencing of this title. The amendments are made to reflect the adoption of the repeal of of this title, which is also published in this issue of the Texas Register. The following entities submitted written comments on the proposed amendments: Texas Medical Association (TMA). TMA expressed support of amendments proposed for No comments were received regarding the adoption of The amendments are adopted under the authority of the Texas Occupations Code Annotated, , which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendments are further adopted under the authority of Texas Occupations Code Annotated, Chapter 155, as amended by Senate Bill 674 (85th Leg. R.S.)(2017). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. ADOPTED RULES November 17, TexReg 6511

94 Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 174. TELEMEDICINE AND MENTAL HEALTH SERVICES The Texas Medical Board (TMB) adopts amendments to , and new 174.4, concerning Mental Health Services and adopts the repeal of , concerning Telemedicine. Sections and are adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4756) and will not be republished. Sections and are adopted with non-substantive changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4756). The text of the rules will be republished. TMB sought stakeholder input through its Telemedicine Stakeholder Group, which met on July 17, At the meeting, all the members of the Stakeholder Group expressed support for the proposed rules. There were several comments made at that meeting concerning relatively minor changes to the proposed rules. These minor changes were incorporated into the proposed rules published for notice and comment. All the changes proposed are made to insure the rules comport with statutory changes by virtue of Senate Bill The amendment to 174.1, concerning Purpose, adds language stating that the purpose of the telemedicine rules is to clarify the requirements of Chapter 111 of the Texas Occupations Code related to the provision of telemedicine medical services. Other language referring to the "standards for the use of the Internet" is deleted as it is no longer relevant and is too vague. The amendment to 174.2, concerning Definitions, deletes multiple definitions pertaining to telemedicine that are no longer valid or necessary, while adding new definitions of "Prescription," "Store and Forward Technology," "Telehealth Services," Telemedicine Medical Services," and Ultimate User." All these changes are adopted to comport with the new definitions in Senate Bill 1107 dealing with telemedicine and telehealth services. The amendment to 174.3, concerning Prevention of Fraud and Abuse, deletes language outlining a list of written protocols required in order to establish that a physician has made a good faith effort to prevent fraud and abuse through the use of telemedicine medical services, and substitute with new language requiring that the physician adopt protocols to prevent fraud and abuse that are consistent with standards established by the Health and Human Services Commission Pursuant to of the Government Code. These changes clarify requirements for adopting protocols related to preventing fraud and abuse, and comport with the language in Senate Bill New 174.4, concerning Notice to Patients, adds language setting forth two subsections outlining requirements for physicians who communicate with patients by electronic communications other than telephone or facsimile. Paragraph (1) provides that such physicians must provide patients with written or electronic notification of privacy practices prior to evaluation or treatment via a telemedicine medical service and that in addition, a good faith effort be made to obtain the patient's written or electronic acknowledgement. Paragraph (2) requires that the notices of privacy practices include language that is consistent with federal standards under 45 CFR Parts 160 and 164. Paragraph (3) sets forth language requiring that physicians who utilize telemedicine medical services provide patients with notice of how to file a complaint with the Board. These changes were made to comport with Senate Bill The amendment to 174.5, concerning Issuance of Prescriptions, deletes language related to requirements for notification of privacy practices and moves it to new of this title (relating to Notice to Patients). Other language related to other notification requirements, including the necessity of an in-person evaluation, is repealed. New language is added that sets out minimum requirements for the validity of prescriptions issued as a result of a telemedicine medical service. The amendments add language limiting the treatment of chronic pain through telemedicine medical services. The Texas Medical Board consulted with Texas Board of Pharmacy to insure the amendments to this section comport with statutes and rules related to pharmacies and pharmacists. These changes were also made to comport with Senate Bill The amendment to 174.6, concerning Minimum Standards for the Provision of Telemedicine Medical Services, deletes multiple requirements for providing telemedicine services through an "established medical site." New language is added setting forth simplified minimum requirements for providing a health care service or procedure through telemedicine that comport with Senate Bill This amendment addresses requirements related to the standard of care, medical record keeping, and patient communications. The amendment to 174.7, concerning Enforcement Authority, deletes requirements related to providing telemedicine services at locations other than "established medical sites." Language is added clarifying the Board's enforcement authority to investigate and discipline physicians for violations of statutes and rules related to telemedicine services. These changes were made to comport with Senate Bill The amendment to 174.8, concerning State Licensure, deletes language related to requirements for the evaluation and treatment of a patient by telemedicine that was superseded by Senate Bill The amendment further adds language clarifying that physicians providing telemedicine services must possess a full Texas medical license when treating residents of Texas. The amendment to 174.9, concerning Provision of Mental Health Services, deletes language regarding technology and security requirements and adds language setting forth requirements related to the provision of mental health services. These requirements include: a requirement of licensure or certification; establishment of a provider/patient relationship; and a requirement to meet the standard of care. The amendment makes clear that technology may be used to provide mental health services to patients in a different location from the licensed or certified provider. The amendment also recognizes that mental health services can be provided by a number of different providers who are not physicians. Many of these providers have their own licensing requirements and defined scope of practices. The rule insures these mental health providers may continue 42 TexReg 6512 November 17, 2017 Texas Register

95 services as long as in compliance with all applicable laws and rules. The amendment also makes clear that the Board may investigate and discipline Board licensees for violations of rules related to the providing of mental health services, or refer those not subject to Medical Board authority to the proper regulatory agency. These changes were made to comport with Senate Bill Section , concerning Medical Records for Telemedicine Medical Services, is repealed, as the language under this rule was moved to of this title (relating to Minimum Standards for the Provision of Telemedicine Medical Services). Section , concerning On Call Services, is repealed, as call coverage rules are now located under Chapter 177 of this title (relating to Business Organizations and Agreements). Section , concerning State Licensure, is repealed, as the language was added to of this title (relating to State Licensure). TMB received public written comments regarding proposed rules in Chapter 174 from the following commenters: Teladoc; Texas e-health Alliance; Texas Medical Association; Coalition for Nurses in Advanced Practice; Erisa Industry Committee; Texas Nurses Association; Texas Nurse Practitioners; Texas Psychological Association; Texas Society for Clinical Social Work; Texas Association for Marriage and Family Therapy; National Association of Social Workers; Texas Counseling Association; Texas State Board Examiners of Marriage and Family Therapists, Texas State Board of Examiners of Professional Counselors; Texas State Board of Social Work Examiners; Texas Council of Community Centers; Texas EMS Alliance; City of Houston Fire Department, Texas Academy of Physician Assistants, the Texas Hospital Association, and approximately 65 individuals. The individual commenters included were almost exclusively mental health providers other than physicians, and the comments were provided through primarily a standardized form letter. In addition, oral comments on the proposed amendments were received from three individuals at a public hearing on Friday, October 20, The following is a summary of the comments and the TMB responses: Commenter: Teladoc Teladoc is a telemedicine provider in Texas and fully supported the proposed revisions. They were also a stakeholder and involved in the drafting of SB Teladoc recommended making the following non-substantive changes: fixing one typographical comma error found in and deleting text published as remaining under 174.8(a). The Board agrees with the recommendations. The text under 174.8(a) contained formatting errors and was not published accurately. Accordingly, the Board adopts with non-substantive changes to the published amendments. The amendments to the rule will be republished. Commenter: Texas e-health Alliance Texas e-health Alliance represents a number of telemedicine providers in Texas. Texas e-health Alliance fully supported the proposed revisions. It was also a stakeholder and involved in the drafting of SB Commenter: Texas Academy of Physician Assistants (TAPA) TAPA represents approximately 8,000 physician assistants practicing in Texas. TAPA expressed full support for the proposed amendments. Commenter: Texas Hospital Association (THA) THA represents over 450 hospitals and health care systems in Texas. THA expressed full support for the proposed amendments. Commenter: Texas Medical Association (TMA) TMA is a professional association representing 50,000 physicians in Texas. It was also a stakeholder and involved in the drafting of SB The TMA physician stakeholder who attended the meeting on July 17, 2017, fully supported the proposed amendment. TMA legal staff submitted written comments that generally supported the proposed rules as a major proponent of SB Although, in support of rules, certain TMA legal staff comments seem to be in conflict with the TMA physician representative's comments of full support made at the July meeting, and recommendation of no changes. 1. This comment concerned the striking of rules and asked that detailed requirements related to the physician-patient relationship be maintained as set out in the previous rule. TMB Response: TMB disagrees with TMA's assertion of the necessity of keeping any of the defined terms or elements to comprise a physicianpatient relationship. SB 1107 clearly states what is required to establish a physician-patient relationship. Further, Senate Bill 1107 applies the same standard of care as that of an in-person setting and limits TMB from requiring any higher standard of care than specified in Senate Bill This comment concerned the issuing of prescriptions, stating that the amendments will result in a lack of clarity for the requirements related to the establishment of a physician-patient relationship prior to issuing prescriptions in a non-telemedicine setting and telemedicine settings. In addition, TMA asserted the amendments lack sufficient guidance to physicians on what is required for telemedicine encounters not resulting in issuance of a prescription. TMB Response: TMB disagrees with the TMA comments. SB 1107 requires rules that define a valid prescription, but that does not mean that a telemedicine encounter has to result in a prescription. The bill does not impact a non-telemedicine prescription. Any encounter whether by telemedicine or in-person, whether resulting in the issuance of a prescription, is held to the same standard of care. 3. This comment stated TMB should not just rely on the standard of care in regulating telemedicine. TMB Response: TMB disagrees with the TMA comments. Any encounter whether by telemedicine or in-person is held to the same standard of care. This standard is long recognized in Texas as the legal standard utilized to evaluate patient care and complaints concerning a physician's care to a patient. 4. This comment requested clarity on Privacy Notice Requirements. TMB Response: ADOPTED RULES November 17, TexReg 6513

96 TMB disagrees with the TMA comments. The privacy notice provision is flexible, as long as the notice is provided. There are any number of ways to provide said notice, and TMB does not believe it is necessary to be overly prescriptive. Additionally, TMA asks about an instance where previous notice has been given. The rule does not intend duplicate notices, but rather insure that a patient when initially utilizing telemedicine is informed of privacy practice related to this delivery method. 5. This comment requested consistency in use of terms, practitioner, physician and health professional. TMB Response: TMB disagrees with the TMA comments that the terms as used are confusing or inconsistent. None of the stakeholders or subsequently received comments expressed any confusion over the use of these terms. 6. This comment requested clarity on amendments adding language related to licensing requirements set forth under TMB Response: TMB agrees with the TMA comments, and removed the term "advanced." Accordingly, the Board adopts with non-substantive changes to the published amendments. The amendments to the rule will be republished. 7. This comment requested clarity on related to mental health services. TMB Response: TMB agrees with the TMA comments. TMB is adopting the amendments striking the phrase, "practice of medicine" to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Non-substantive changes are also adopted to the amendments published, to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Any action related to these mental health providers will be under the jurisdiction of the respective state regulatory authority and agency. Commenters: Texas Nurses Association (TNA) TNA generally supported the proposed rules but expressed concern over the language in stating that mental health services are the practice of medicine. The concern was that this would limit access to mental health services, and expanded TMB's regulatory authority. TMB agrees with the TNA's comments. TMB is adopting the amendments striking the phrase, "practice of medicine", to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Accordingly, TMB adopts with non-substantive changes to the published amendments. The amendments to the rule will be republished. Commenter: Coalition for Nurses in Advanced Practice (CNAP) CNAP opposed the proposed definition under setting forth the definition for "telehealth", stating that TMB does not have the authority to regulate telehealth. CNAP expressed concern over the language in stating that mental health services are the practice of medicine. The concern was that this would limit access to mental health services, and expanded TMB's regulatory authority. TMB disagrees that the definition under is unnecessary, as including it will provide better clarity to TMB's licensees on the distinction between telehealth and telemedicine. TMB agrees with the CNAP's comment as to TMB is adopting the amendments striking the phrase, "practice of medicine" to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Commenters: Erisa Industry Committee (ERIC) ERIC expressed concerns that the proposed amendments are vague, and recommended retaining language requiring written protocols to address fraud and abuse, notice to patients about the limitations of telemedicine and steps to take if there is a need for in-person follow up care, adding language clarifying that an in-person evaluation is not required to establish a physician-patient relationship, and retain language required under the unamended rule for the evaluation and treatment of a patient by telemedicine, including the discussion of a diagnosis and the evidence for it, as well of a discussion of the need for an in-person follow up care should the need arise. TMB declines to adopt the recommended changes and disagrees that the amendments to the rules are vague. TMB disagrees that retaining language under the unamended rule would comport with Senate Bill 1107's requirements. Commenters: The Texas Psychological Association; Texas Society for Clinical Social Work; Texas Association for Marriage and Family Therapy; National Association of Social Workers; Texas Counseling Association; Texas State Board of Examiners of Professional Counselors; Texas State Board of Examiners of Marriage and Family Therapists, Texas State Board of Social Work Examiners; Texas Council of Community Centers and approximately 65 individuals. All of these comments centered on proposed and expressed concern over the proposed language that stated providing mental health services is the practice of medicine. The concern was that this would severely limit access to mental health services, and expanded TMB's regulatory authority. TMB Response: TMB agrees, and adopts the rule with non-substantive amendments striking the language related to the "practice of medicine," to recognize other mental health providers provide mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. The rule is further amended to recognize other mental health providers, and their allowed scope for providing mental health services according to their licensure or certification, and the scope of their practice as defined in law and rule. Any action related to these mental health providers will be under the jurisdiction of the respective state regulatory authority and agency. Commenters: Texas EMS Alliance and City of Houston Fire Department: These two commenters were concerned that the proposed rules would somehow supersede or interfere with ability of EMS providers to continue operating under their current statutory and regulatory scheme. 42 TexReg 6514 November 17, 2017 Texas Register

97 TMB Response: TMB disagrees. The regulation of EMS is under a completely different statutory provision and rules, and are not affected or changed in any way by these rules. A written letter to that affect has also been provided to the City of Houston Fire Department in response. SUBCHAPTER A. TELEMEDICINE 22 TAC The amendments and new rule are adopted under the authority of the Texas Occupations Code Annotated, , which provide authority for TMB to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The rules are also authorized by Chapter 111 of the Texas Occupations Code, as amended by Senate Bill 1107 (Regular Session, 2017) State Licensure. Physicians who treat and prescribe through communications technology are practicing medicine and must possess a full Texas medical license when treating residents of Texas. An out-of-state physician may provide episodic consultations without a Texas medical license, as provided in Texas Occupations Code, , 172.2(g)(4) of this title (relating to Construction and Definitions), and (f) of this title (relating to Out-of-State Telemedicine License). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, 2017 TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) SUBCHAPTER B. MENTAL HEALTH SERVICES 22 TAC The amendment is adopted under the authority of the Texas Occupations Code Annotated, , which provide authority for TMB to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The rules are also authorized by Chapter 111 of the Texas Occupations Code, as amended by Senate Bill 1107 (Regular Session, 2017) Provision of Mental Health Services. The Board recognizes that mental health services are expressly exempt from the provisions of Section 111, Texas Occupations Code. Pursuant to , and of the Medical Practice Act, the Board has authority to promulgate rules concerning mental health services. Given that many areas of the state lack access to mental health services and providers, the use of technology can help alleviate this shortage. Therefore, the following rules are enacted to provide greater access to care, while insuring patient safety: (1) Licensure or Certification Required--Any individual providing mental health services must be properly licensed or certified in this state to perform health care services, or be a qualified mental health professional-community services (QMHP-CS) as defined in 25 TAC (48) (relating to Definitions) and only perform tasks and activities within the scope of the individual's licensure or certification. (2) Use of Technology to Provide Mental Health Services- -Mental health services may be provided to a patient at a different location from the location of the licensed or certified provider using telecommunications or information technology. (3) Establishing the Provider/Patient Relationship--When providing mental health services, the provider must establish the provider-patient relationship, which can be established through use of telecommunications or information technology. (4) Standard of Care--When providing mental health services, such services must be conducted in the same manner as those in a traditional in-person setting. This includes keeping of proper medical records, performing observations and evaluations, and treatment. If treatment involves the use of prescription medication, all applicable federal and state laws and rules apply. (5) Investigations and Discipline--Complaints regarding violations of rules related to mental health services may result in an investigation and discipline under the Medical Practice Act and applicable board rules and procedures, or referral to the proper regulatory authority of the practitioner providing the mental health services. (6) Chronic Pain Treatment Prohibited--Treatment of chronic pain with scheduled drugs through use of telecommunications or information technology is prohibited, unless otherwise allowed under federal and state law. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) TAC The repeals are adopted under the authority of the Texas Occupations Code Annotated, , which provide authority for TMB to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The rules are also authorized by Chapter 111 of the Texas Occupations Code, as amended by Senate Bill 1107 (Regular Session, 2017). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. ADOPTED RULES November 17, TexReg 6515

98 Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 175. FEES AND PENALTIES 22 TAC 175.1, The Texas Medical Board (Board) adopts amendments to 175.1, concerning Application and Administrative Fees, and 175.2, concerning Registration and Renewal Fees, without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4760). The amended rules will not be republished. The amendment to deletes language tying fee calculation for the Prescription Drug Monitoring Program (PMP) to Article IX, of House Bill 1, 84th Legislature, and adds language requiring fee calculation to be made in accordance with the Texas General Appropriations Act. The amendment will increase flexibility under the rules for any future PMP fee changes necessitated by amendments made to the Medical Board's cost allocation for PMP administration through the General Appropriations Act. The amendment to deletes language tying fee calculation for the Prescription Drug Monitoring Program to Article IX, of House Bill 1, 84th Legislature, and adds language requiring fee calculation to be in accordance with the Texas General Appropriations Act. The amendment will increase flexibility under the rules for any future PMP fee changes necessitated by amendments made to the Medical Board's cost allocation for PMP administration through the General Appropriations Act. No comments were received regarding adoption of the rules. The amendments are adopted under the authority of the Texas Occupations Code Annotated, , which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendments are also authorized by Texas Occupations Code Annotated, and , and Article VIII, Senate Bill 1, 85th Legislature, Regular Session (2017). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) CHAPTER 187. PROCEDURAL RULES The Texas Medical Board (TMB) adopts amendments to , concerning Informal Show Compliance Proceedings (ISC) Information and Notices, , concerning ISC Scheduling, Process and Procedures and , concerning Proceedings for Cease and Desist Orders. Sections and are adopted with non-substantive changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762). The text of the rules will be republished. Section is adopted without changes to the proposed text as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4765) and will not be republished. The Board sought stakeholder input through Stakeholder Groups which made comments on the suggested changes to the rules at a meeting held on August 4, The comments were incorporated into the proposed rules as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762). The amendment to sets out a finding that the statutory minimum requirements related to the Informal Show Compliance Proceedings (ISCs), as set out in the Texas Occupations Code, 164 et seq., are comprehensive and complete. The amendments state that rules related to ISC proceedings will be promulgated only as necessary to be consistent with statutory requirements. The amendment deletes provisions duplicative of 164 of the Texas Occupations Code and deletes an incorrect reference to providing 30 rather than 45 days' notice prior to an ISC. The amendment to deletes ISC requirements duplicative of those set out in and of the Texas Occupations Code and clarifies the procedures for conducting an ISC. The amendment to corrects an erroneous citation to Texas Occupations Code to reflect the correct citation to Comments : The Board received written comments from the Texas Medical Association (TMA) and two individuals appeared to testify at the public hearing held on October 20, 2017, regarding Comment 1: TMA disagrees with the proposed deletion of the requirement that the Board provide the licensee with the rules governing the proceedings and guidelines to assist the licensee to prepare for the ISC, including requirements regarding requests to reschedule the ISC. TMA further urges the Board to adopt a requirement that the Board provide the licensee a comprehensive description of the ISC process, in addition to the rules and guidelines governing the ISC along with a description of the requirements for requesting rescheduling of the ISC. Board Response: The Board determined that the information relating to the rules and guidelines designed to assist a licensee in preparation for an ISC and requirements for requesting rescheduling of the ISC are set out in Board Rule. Additionally, 42 TexReg 6516 November 17, 2017 Texas Register

99 such information may be compiled into a FAQ and posted on the Board's website. Comment 2: Two individuals echoed TMA's concerns in that licensees are not fully apprised of the process and procedures prior to coming to an ISC and urged the Board to better inform licensees about the process to include information regarding the complaint, alleged violations and applicable statutes. Board Response: The Board disagrees with this commenter's assertions and explained that the licensees are fully apprised of the complaint, alleged violations and the applicable statutes prior to and ISC. Furthermore, the Board reiterated that the procedural information, rules and guidelines that will assist a licensee in preparation for an ISC, including requirements for requesting rescheduling of the ISC are set out in Board Rules. Additionally, such information may be compiled into a FAQ and posted on the Board's website. The Board declines to make additional changes to based on such comments. However, based on TMA stakeholder input, the Board adopts a change to the title of to read "Informal Show Compliance (ISC) Information and Notices," as this change is non-substantive and will accurately reflect the contents of the rule which contains notice requirements and delineates the information that will be provided to licensees. The Board further adopts non-substantive changes in to abbreviate the references to "informal meetings" and "Informal Show Compliance Proceedings" to "ISC." The Board adopts the amendments to the title published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762) with non-substantive changes. Comments : The Board received written comments from the Texas Medical Association (TMA) and no one appeared to testify at the public hearing held on October 20, 2017, regarding Comment 1: TMA urges the Board to change the title of to eliminate the words "Based on Personal Appearance" and consolidate and into one rule stating that the titles of these two rules are confusing to licensees who may be unable to discern or locate the rules applicable to ISC notice requirements and procedures. Board Response: The Board declines to consolidate and into one rule. The Board agrees that the title of , pertaining to "Informal Show Compliance Proceedings and Settlement Conferences Based on Personal Appearance" should be changed to reflect the purpose and contents of the rule and should be renamed "ISC Scheduling, Process and Procedures." Comment 2: TMA states that proposed subsection (d) which states "Informal proceedings shall be conducted in accordance with and of the Act. The board representative may:" should be changed to read "ISCs shall be conducted in accordance with and of the Act. In addition to ISC requirements under these laws, the board representative may also:" TMA maintains that the words "Informal Proceedings" should be replaced with "ISCs" in the first sentence of subsection (d) and that the proposed rule as published does not clearly establish that the mandatory elements for ISCs, as described in statute, are in addition to the discretionary elements that are listed in subsection (d). TMA asserts that changing the preamble in subsection (d) as described above would clarify this subsection. Board Response: The Board agrees with TMA's comment and suggested changes to the first sentence, relating to (d). Specifically, the Board agrees that "Informal Proceedings" should be changed to "ISCs." The Board further determines that TMA's suggested clarification of the first sentence in (d) is non-substantive and agrees that changing the first sentence of subsection (d) to read "ISCs shall be conducted in accordance with and of the Act. In addition to ISC requirements under these laws, the board representative may also:" would clarify that the statutory and discretionary elements apply during ISC proceedings. Comment 3: TMA comments that subsection (d)(1), as published, may place licensees on unequal footing in that the rule, as published, affords Board staff the opportunity to ask clarifying questions during the ISC, but not the licensee. TMA maintains that the licensee should also be afforded the opportunity to ask clarifying questions and make clarifying statements. Board Response: The Board disagrees with TMA's assertion. Licensees who appear at an ISC are always afforded an opportunity to ask questions about the ISC process, after it is explained to them at the beginning of the conference. Licensees are also afforded an opportunity to engage in a dialogue with the board representatives regarding the matters at issue in the case. They are also afforded an opportunity to clarify any statements previously made. Additionally, they are also afforded an opportunity to make introductory remarks and closing remarks in response to the allegations as presented by the board staff. Should the licensee need to clarify statements, references or actions referenced during the ISC, they are afforded an opportunity to do so before the conclusion of the ISC. Comment 4: TMA states that subsection (d)(2) should be further revised to clearly establish that both the licensee and board staff are allowed to make closing remarks at the conclusion of the ISC. They suggest changing the proposed rule to state "allow closing summaries, and if allowed, it must be allowed by both the licensee or the licensee's representative and board staff," as opposed to the rule as published which states "allow a closing summary by both the licensee or the licensee's authorized representative and board staff." Board Response: The Board disagrees with TMA's assertion that the (d)(2), as published, does not clearly articulate that the licensee (or authorized representative) and board staff are allowed to make a closing summary statement. Notwithstanding this provision as published, closing remarks by board staff and licensee or authorize representative at the conclusion of an ISC is an established procedure and each side is afforded the opportunity to make a closing statement. Comment 5: TMA proposes changes to subsection (k) because it fails to require dismissal upon a determination by the board representatives that there was no violation by the licensee. Further, TMA asserts that the rule fails to clearly establish that the board representatives must make a determination that the licensee has violated the Act prior to disposing of the case via enumerated actions (k)(2) through (k)(8). Board Response: The Board disagrees with TMA's assertion that the rule, as published, lacks clarity. The board representatives are constrained by the statute and rules and cannot take disciplinary action without a determination that a violation occurred. Naturally, dismissal occurs when the board representatives find no violation. ADOPTED RULES November 17, TexReg 6517

100 Accordingly, the Board takes the following actions with regard to as published: The Board adopts a non-substantive change in the title of to read "ISC Scheduling, Process and Procedures." The Board adopts a non-substantive change in the first sentence of subsection (d) to read "ISCs shall be conducted in accordance with and of the Act. In addition to ISC requirements under these laws, the board representative may also." The Board adopts the amendments to those sections, with non-substantive changes. The amendments will be republished. The Board declines to make further changes to (d)(1), (d)(2) and (k) and adopts the remaining amendments, as published in the September 15, 2017, issue of the Texas Register (42 TexReg 4762) without additional changes. Comments : No comments were received regarding adoption of and no one appeared to testify at the public hearing held on October 20, SUBCHAPTER B. INFORMAL BOARD PROCEEDINGS 22 TAC , The amendments are adopted under the authority of the Texas Occupations Code Annotated, , which provide authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendments are also adopted under the authority of Texas Occupations Code Chapter Informal Show Compliance (ISC) Information and Notices. (a) Texas Medical Board finds that statutory minimum requirements related to the Informal Show Compliance Proceedings (ISCs) as set out in the Texas Occupations Code, 164 et seq. are comprehensive and complete. Pursuant to and of the Medical Practice Act, the Board is authorized to adopt rules relating to the ISCs and how they are to be conducted. These rules are promulgated to clarify the ISC process and procedures only as necessary to be consistent with the statutory requirements. (b) Notice of the time, date and place of the ISC shall be extended to the licensee and the complainant(s) in writing, by hand delivery, regular mail, certified mail -- return receipt requested, overnight or express mail, courier service, or registered mail, to the address of record of the complainants and the address of record of the licensee or the licensee's authorized representative to be sent at least 45 days prior to the date of the ISC. The notice to the licensee or the licensee's authorized representative shall also include: (1) a statement that the licensee has the opportunity to attend and participate in the ISC; (2) a written statement of the nature of the allegations; and (3) a copy of the information the board intends to use at the ISC. If the complaint includes an allegation that the licensee has violated the standard of care, the notice shall also include a copy of the Expert Physician Reviewers' Report, prepared in accordance with , Texas Occupations Code. The information required by this section may be given in separate communications at different times, provided all of the information has been provided at least 45 days prior to the date of the ISC. (c) All information provided by the board staff and the licensee shall be provided to the board representatives for review prior to the board representatives making a determination of whether the licensee has violated the Act, board rules, remedial plan, or board order. (d) All ISC proceedings shall be scheduled not later than the 180th day after the date the board's official investigation of the complaint is commenced, unless good cause is shown by the board for scheduling the ISC after that date. For purposes of this subsection: (1) "Scheduled" means the act of the agency to reserve a date for the ISC. (2) "Good cause" shall have the meaning set forth in of this title (relating to Time Limits) ISC Scheduling, Process and Procedures. (a) After referral of an investigation to the agency's legal division, the Hearings Coordinator of the board shall schedule an ISC before an ISC Panel in accordance with the requirements set forth in (b)(4) and of the Act. (b) Requests to reschedule the ISC by a licensee must be in writing and shall be referred to the Hearings Counsel for consideration. To avoid undue disruption of the ISC schedule, the Hearings Counsel should grant a request applying the following guidelines: (1) A request by a licensee to reschedule an ISC must be in writing and may be granted only if the licensee provides satisfactory evidence of the following requirements: (A) A request received by the agency within five business days after the licensee received notice of the date of the ISC, must provide details showing that: (i) the licensee has a conflicting event that had been scheduled prior to receipt of notice of the ISC; (ii) the licensee has made reasonable efforts to reschedule such event but a conflict cannot reasonably be avoided. (B) A request received by the agency more than five business days after the licensee received notice of the date of the ISC must provide details showing that an extraordinary event or circumstance has arisen since receipt of the notice that will prevent the licensee from attending the ISC. The request must show that the request is made within five business days after the licensee first becomes aware of the event or circumstance. (2) A request by a licensee to reschedule an ISC based on the failure of the agency to send timely notice before the date scheduled for the ISC, as required by of the Act, shall be granted, provided the request is received by the agency within five business days after the late notice is received by the licensee. (c) Prior to the ISC, the board representatives shall be provided with the information sent to the licensee by the board staff and any responses received in accordance with (f) of the Act. (d) ISCs shall be conducted in accordance with and of the Act. In addition to the requirements under these laws, the board representatives may: (1) ask questions of the licensee and staff, and allow clarifying questions by staff; (2) allow a closing summary by both the licensee or the licensee's authorized representative and board staff. (e) The board representatives may allow a complainant, to make an oral statement. Such statement may be given outside the physical presence of the licensee for a demonstrated and legitimate 42 TexReg 6518 November 17, 2017 Texas Register

101 need. If such statement is allowed, arrangements will be made to allow the licensee to listen to the statement contemporaneously as it is given. (f) The board representatives may refuse to consider any information not submitted in a timely manner without good cause. If the board representatives allow the licensee to submit late information, the representatives may reschedule. (g) A board attorney, who has not been involved with the preparation of the case, shall be designated as the Hearings Counsel, and act in accordance with and of the Act. (h) A request by a licensee to make a recording of the ISC, as allowed by (i) of the Act, must be submitted in writing, and received by the Board at least 15 days prior to the date of the ISC. Deliberations of the ISC panel shall be excluded from any such recording. The recording is part of the investigative file and may not be released to a third party unless authorized under the Act. The licensee may be charged a fee to cover the cost of recording the proceeding. Licensees and their representatives may not independently record an ISC. (i) The ISC shall be informal and shall not follow the procedures established under this title for formal board proceedings. (j) At the conclusion of the presentations, the board representatives shall deliberate in order to make recommendations for the disposition of the complaint or allegations. (k) The board representatives may: (1) make recommendations to dismiss the complaint or allegations. The dismissal of any matter is without prejudice to additional investigation and/or reconsideration of the matter at any time; (2) make recommendations regarding an agreed order and propose resolution of the issues to the licensee to be reduced to writing and processed in accordance with of this title (relating to Resolution by Agreed Order); (3) defer the ISC, pending further investigation; (4) direct that a formal Complaint be filed with SOAH; (5) recommend to the President of the board that a Disciplinary Panel be convened to consider the temporary suspension or restriction of the licensee's license; (6) recommend the imposition of an administrative penalty pursuant to of this chapter (relating to Procedural Rules); or (7) recommend that a remedial plan be issued to resolve the complaint pursuant to of this chapter (relating to Board Actions). The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) SUBCHAPTER I. PROCEEDINGS FOR CEASE AND DESIST ORDERS 22 TAC The amendment is adopted under the authority of the Texas Occupations Code Annotated, , which provides authority for the Board to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; enforce this subtitle; and establish rules related to licensure. The amendments are also adopted under the authority of Texas Occupations Code, Chapter 164. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on November 6, TRD Scott Freshour Interim Executive Director Texas Medical Board Effective date: November 26, 2017 Proposal publication date: September 15, 2017 For further information, please call: (512) TITLE 37. PUBLIC SAFETY AND CORREC- TIONS PART 13. TEXAS COMMISSION ON FIRE PROTECTION CHAPTER 423. FIRE SUPPRESSION The Texas Commission on Fire Protection (the commission) adopts amendments to Chapter 423, Fire Suppression, concerning, Subchapter A, Minimum Standards For Structure Fire Protection Personnel Certification, 423.1, Minimum Standards for Structure Fire Protection Personnel, 423.3, Minimum Standards for Basic Structure Fire Protection Personnel Certification, 423.5, Minimum Standards for Intermediate Structure Fire Protection Personnel Certification, 423.7, Minimum Standards for Advanced Structure Fire Protection Personnel Certification, 423.9, Minimum Standards for Master Structure Fire Protection Personnel Certification, , Higher Levels of Certification, and , International Fire Service Accreditation Congress (IFSAC) Seal; Subchapter B, Minimum Standards for Aircraft Rescue Fire Fighting Personnel, concerning , Minimum Standards for Aircraft Rescue Fire Fighting Personnel, , Minimum Standards for Basic Aircraft Rescue Fire Fighting Personnel Certification, , Minimum Standards for Intermediate Aircraft Rescue Fire Fighting Personnel Certification, , Minimum Standards for Advanced Aircraft Rescue Fire Fighting Personnel Certification, , Minimum Standards for Master Aircraft Rescue Fire Fighting Personnel Certification, and , International Fire Service Accreditation Congress (IFAC) Seal; and Subchapter C, Minimum Standards For Marine Fire Protection Personnel, , Minimum Standards for Marine Fire Protection Personnel, , Minimum Standards for Basic Marine Fire Protection Personnel Certification, , Minimum ADOPTED RULES November 17, TexReg 6519

102 Standards for Intermediate Marine Fire Protection Personnel Certification, , Minimum Standards for Advanced Marine Fire Protection Personnel Certification, and , Minimum Standards for Master Marine Fire Protection Personnel Certification. The amendments are adopted without changes to the proposed text as published in the August 18, 2017, Texas Register (42 TexReg 4113) and will not be republished. The amendments are adopted to update and clarify language for consistency. The adopted amendments will provide clear and consistent rules regarding the minimum qualifications for structure, aircraft and marine certifications. No comments were received from the public regarding adoption of the amendments. SUBCHAPTER A. MINIMUM STANDARDS FOR STRUCTURE FIRE PROTECTION PERSONNEL CERTIFICATION 37 TAC 423.1, 423.3, 423.5, 423.7, 423.9, , The amendments are adopted under Texas Government Code, Chapter 419, , which provides the commission the authority to adopt rules for the administration of its powers and duties, and , which allows the commission to appoint fire protection personnel. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on October 31, TRD Tim Rutland Executive Director Texas Commission on Fire Protection Effective date: November 20, 2017 Proposal publication date: August 18, 2017 For further information, please call: (512) SUBCHAPTER B. MINIMUM STANDARDS FOR AIRCRAFT RESCUE FIRE FIGHTING PERSONNEL 37 TAC , , , , , The amendments are adopted under Texas Government Code, Chapter 419, , which provides the commission the authority to adopt rules for the administration of its powers and duties, and ; which allows the commission to appoint fire protection personnel. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on October 31, TRD Tim Rutland Executive Director Texas Commission on Fire Protection Effective date: November 20, 2017 Proposal publication date: August 18, 2017 For further information, please call: (512) SUBCHAPTER C. MINIMUM STANDARDS FOR MARINE FIRE PROTECTION PERSONNEL 37 TAC , , , , The amendments are adopted under Texas Government Code, Chapter 419, , which provides the commission the authority to adopt rules for the administration of its powers and duties, and , which allows the commission to appoint fire protection personnel. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on October 31, TRD Tim Rutland Executive Director Texas Commission on Fire Protection Effective date: November 20, 2017 Proposal publication date: August 18, 2017 For further information, please call: (512) CHAPTER 433. DRIVER/OPERATOR The Texas Commission on Fire Protection (the commission) adopts amendments to Chapter 433, Driver/Operator, concerning, Subchapter A, Minimum Standards For Driver/Operator-Pumper, 433.3, Minimum Standards for Driver/Operator-Pumper Certification; and Subchapter B, Minimum Standards for Driver/Operator-Aerial Apparatus, concerning , Driver/Operator-Aerial Apparatus Certification, and , Minimum Standards for Driver/Operator-Aerial Apparatus Certification. The amendments are adopted without changes to the proposed text as published in the August 18, 2017, Texas Register (42 TexReg 4119) and will not be republished. The amendments are adopted to extend the end date for the initial certification period to one full year from the effective date of the new rule. The adopted amendments will allow individuals seeking to obtain this certification one full year from the effective date of the new rule to do so. No comments were received from the public regarding adoption of the amendments. SUBCHAPTER A. MINIMUM STANDARDS FOR DRIVER/OPERATOR-PUMPER 42 TexReg 6520 November 17, 2017 Texas Register

103 37 TAC The amendments are adopted under Texas Government Code, Chapter 419, , which provides the commission the authority to adopt rules for the administration of its powers and duties, and , which allows the commission to appoint fire protection personnel. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. 37 TAC , The amendments are adopted under Texas Government Code, Chapter 419, , which provides the commission the authority to adopt rules for the administration of its powers and duties, and , which allows the commission to appoint fire protection personnel. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on October 31, TRD Tim Rutland Executive Director Texas Commission on Fire Protection Effective date: November 20, 2017 Proposal publication date: August 18, 2017 For further information, please call: (512) Filed with the Office of the Secretary of State on October 31, TRD Tim Rutland Executive Director Texas Commission on Fire Protection Effective date: November 20, 2017 Proposal publication date: August 18, 2017 For further information, please call: (512) SUBCHAPTER B. MINIMUM STANDARDS FOR DRIVER/OPERATOR-AERIAL APPARATUS ADOPTED RULES November 17, TexReg 6521

104

105 Adopted Rule Reviews Credit Union Department Title 7, Part 6 Chapter 91. Chartering, Operations, Mergers, Liquidations Subchapter D. Powers of Credit Unions Subchapter M. Electronic Operations Subchapter N. Emergency or Permanent Closing of Office or Operation The Credit Union Commission (Commission) has completed its review of Chapter 91, Subchapters D (relating to Powers of Credit Unions), Subchapter M (relating to Electronic Operations), and Subchapter N (relating to Closing of Office or Operation) of the Texas Administrative Code, Title 7, Part 6, consisting of , , , , , and The Commission readopts these rules. The rules were reviewed as a result of the Department's general rule review under Texas Government Code Notice of the review of 7 TAC, Part 6, Chapter 91, Subchapters D, M, and N was published in the Texas Register as required on August 25, 2017 (42 TexReg 4313). The Department received no comments on the notice of intention to review. As a result of its internal review, the Commission has determined that certain revisions are appropriate and necessary. The Commission is concurrently proposing amendments to Chapter 91 Subchapters M and N as published elsewhere in this issue of the Texas Register. Subject to the concurrently proposed amendments to Chapter 91, Subchapters M and N, the Commission finds that the reasons for initially adopting these rules continue to exist, and readopts Chapter 91, Subchapter D, M, and N in accordance with the requirements of Texas Government Code, This concludes the review of 7 TAC, Part 6, Chapter 91, Subchapters D, M, and N. TRD Harold E. Feeney Commissioner Credit Union Department Filed: November 3, 2017 RULE REVIEW November 17, TexReg 6523

106

107 Office of Consumer Credit Commissioner Correction of Error The Office of Consumer Credit Commissioner proposed amendments to 7 TAC in the November 3, 2017, issue of the Texas Register (42 TexReg 6082). Due to an error by the Texas Register, the figures in the proposed amendments were not included in the issue. The following six figures should have been published in the Tables and Graphics section of the November 3 issue: IN ADDITION November 17, TexReg 6525

108 42 TexReg 6526 November 17, 2017 Texas Register

109 TRD Notice of Rate Ceilings The Consumer Credit Commissioner of Texas has ascertained the following rate ceilings by use of the formulas and methods described in , and , Texas Finance Code. The weekly ceiling as prescribed by and for the period of 11/13/17-11/19/17 is 18% for Consumer 1 /Agricultural/Commercial 2 credit through $250,000. The weekly ceiling as prescribed by and for the period of 11/13/17-11/19/17 is 18% for Commercial over $250,000. IN ADDITION November 17, TexReg 6527

110 The monthly ceiling as prescribed by and for the period of 11/01/17-11/30/17 is 18% or Consumer/Agricultural/Commercial credit through $250,000. The monthly ceiling as prescribed by and for the period of 11/01/17-11/30/17 is 18% for Commercial over $250, Credit for personal, family or household use. 2 Credit for business, commercial, investment or other similar purpose. 3 For variable rate commercial transactions only. TRD Leslie L. Pettijohn Commissioner Office of Consumer Credit Commissioner Filed: November 7, 2017 State Board for Educator Certification Correction of Error The Texas Education Agency, on behalf of the State Board for Educator Certification, proposed new 19 TAC Chapter 235, Subchapter B, in the November 3, 2017, issue of the Texas Register (42 TexReg 6084). Due to error by the Texas Education Agency, the phrase "Early Childhood-Grade 3" should read, "Early Childhood: Prekindergarten-Grade 3." This phrase should be corrected in the Division 1 title, in the section title for 19 TAC , in the first paragraph of subsections (a) - (g) of 19 TAC , and in the section title of 19 TAC TRD Texas Commission on Environmental Quality Agreed Orders The Texas Commission on Environmental Quality (TCEQ, agency, or commission) staff is providing an opportunity for written public comment on the listed Agreed Orders (AOs) in accordance with Texas Water Code (TWC), TWC, requires that before the commission may approve the AOs, the commission shall allow the public an opportunity to submit written comments on the proposed AOs. TWC, requires that notice of the proposed orders and the opportunity to comment must be published in the Texas Register no later than the 30th day before the date on which the public comment period closes, which in this case is December 20, TWC, also requires that the commission promptly consider any written comments received and that the commission may withdraw or withhold approval of an AO if a comment discloses facts or considerations that indicate that consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules within the commission's jurisdiction or the commission's orders and permits issued in accordance with the commission's regulatory authority. Additional notice of changes to a proposed AO is not required to be published if those changes are made in response to written comments. A copy of each proposed AO is available for public inspection at both the commission's central office, located at Park 35 Circle, Building C, 1st Floor, Austin, Texas 78753, (512) and at the applicable regional office listed as follows. Written comments about an AO should be sent to the enforcement coordinator designated for each AO at the commission's central office at P.O. Box 13087, Austin, Texas and must be received by 5:00 p.m. on December 20, Written comments may also be sent by facsimile machine to the enforcement coordinator at (512) The commission's enforcement coordinators are available to discuss the AOs and/or the comment procedure at the listed phone numbers; however, TWC, provides that comments on the AOs shall be submitted to the commission in writing. (1) COMPANY: Apple Incorporated; DOCKET NUMBER: EAQ-E; IDENTIFIERS: RN and RN ; LOCATION: Austin, Travis County; TYPE OF FACILITY: commercial properties; RULE VIOLATED: 30 TAC 213.4(a)(1), by failing to obtain approval of an Edwards Aquifer Protection Plan prior to commencing a regulated activity over the Edwards Aquifer Recharge Zone; PENALTY: $2,063; ENFORCEMENT COORDINATOR: Steven Van Landingham, (512) ; REGIONAL OFFICE: Park 35 Circle, Building A, Austin, Texas 78753, (512) (2) COMPANY: Billy D. Barnett; DOCKET NUMBER: WOC-E; IDENTIFIER: RN ; LOCATION: Joaquin, Shelby County; TYPE OF FACILITY: public water supply; RULES VIO- LATED: 30 TAC 30.5(a) and (b), TWC, , and Texas Health and Safety Code, (b), by failing to have a current, valid water system operator's license prior to performing process control duties in production or distribution of public drinking water; PENALTY: $1,096; ENFORCEMENT COORDINATOR: Larry Butler, (512) ; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas , (409) (3) COMPANY: City of Bryan; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LOCATION: Bryan, Brazos County; TYPE OF FACILITY: aircraft refueling facility; RULES VIO- LATED: 30 TAC 334.8(c)(5)(A)(i) and TWC, (a), by failing to make available to a common carrier a valid, current TCEQ delivery certificate before accepting delivery of a regulated substance into the underground storage tanks (USTs); 30 TAC 334.8(c)(4)(A)(vii) and (5)(B)(ii), by failing to timely renew a previously issued UST delivery certificate by submitting a properly completed UST registration and self-certification form at least 30 days before the expiration date; PENALTY: $4,500; ENFORCEMENT COORDINATOR: Margarita Dennis, (817) ; REGIONAL OFFICE: 6801 Sanger Avenue, Suite 2500, Waco, Texas , (254) (4) COMPANY: City of Devine; DOCKET NUMBER: PWS-E; IDENTIFIER: RN ; LOCATION: Devine, Medina County; TYPE OF FACILITY: public water system; RULES VIO- LATED: 30 TAC (f)(3)(C) and Texas Health and Safety Code, (c), by failing to comply with the maximum contaminant level of seven million fibers/liter for asbestos based on the locational running annual average; PENALTY: $873; ENFORCEMENT COOR- DINATOR: Carol McGrath, (210) ; REGIONAL OFFICE: Judson Road, San Antonio, Texas , (210) (5) COMPANY: City of Liberty Hill; DOCKET NUMBER: MWD-E; IDENTIFIER: RN ; LOCATION: Leander, Williamson County; TYPE OF FACILITY: wastewater treatment facility; RULES VIOLATED: TWC, (a)(1), 30 TAC (1), and Texas Pollutant Discharge Elimination System (TPDES) Permit Number WQ , Permit Conditions Number 2.g, by failing to prevent the unauthorized discharge of wastewater into or adjacent to any water in the state; 30 TAC (1) and (9)(A), and TPDES Permit Number WQ , Monitoring and Reporting Requirements Number 7.c, by failing to report any effluent violation which deviates from the permitted effluent limitation by more than 40% in writing to the TCEQ's Austin Regional Office and the TCEQ's Enforcement Division within five working days of becoming aware of the noncompliance; 30 TAC (1) and (9)(A), and TWC, (b), and TPDES Permit Number WQ , Monitoring and Reporting Requirements Numbers 7.a and 7.b, by failing to report any noncompliance which may endanger human health 42 TexReg 6528 November 17, 2017 Texas Register

111 or safety, or the environment within 24 hours of becoming aware of the noncompliance and provide a written notification within five days of becoming aware of the noncompliance to the TCEQ's Austin Regional Office and the TCEQ's Enforcement Division; 30 TAC 317.4(a)(8), by failing to annually test the reduced-pressure principal backflow prevention assembly located at the front of the facility; 30 TAC 317.7(i), by failing to equip the hose bib with an atmospheric vacuum breaker; 30 TAC (1) and (17) and TPDES Permit Number WQ , Sludge Provisions, Section II.F, Reporting Requirements, by failing to timely submit the annual sludge report for the monitoring period ending July 31, 2016, to the TCEQ's Austin Regional Office and the TCEQ Enforcement Division's Compliance Monitoring Team; and 30 TAC (1), TWC, (a)(1), and TPDES Permit Number WQ , Interim I Effluent Limitations and Monitoring Requirements Number 1, by failing to comply with permitted effluent limitations; PENALTY: $18,714; Supplemental Environmental Project offset amount of $14,972; EN- FORCEMENT COORDINATOR: Cheryl Thompson, (817) ; REGIONAL OFFICE: Park 35 Circle, Building A, Austin, Texas 78753, (512) (6) COMPANY: City of Tioga; DOCKET NUMBER: MWD-E; IDENTIFIER: RN ; LOCATION: Tioga, Grayson County; TYPE OF FACILITY: wastewater treatment facility; RULES VIOLATED: TWC, (a)(1), 30 TAC (1), and Texas Pollutant Discharge Elimination System Permit Number WQ , Effluent Limitations and Monitoring Requirements Number 1, by failing to comply with permitted effluent limitations; PENALTY: $3,000; ENFORCEMENT COORDINATOR: Ariel Ramirez, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (7) COMPANY: City of Tulia; DOCKET NUMBER: PWS-E; IDENTIFIER: RN ; LOCATION: Tulia, Swisher County; TYPE OF FACILITY: public water supply; RULES VIOLATED: 30 TAC (c)(2)(C), (h), and (i)(1) and (c)(2)(A) and (f), by failing to collect lead and copper tap samples at the required 20 sample sites, have the samples analyzed, and report the results to the executive director (ED) for the January 1, December 31, 2016, monitoring period, and failing to provide public notification and submit a copy of the public notification to the ED regarding the failure to collect lead and copper tap samples for the January 1, December 31, 2016, monitoring period; 30 TAC (d)(4)(B) (formerly 30 TAC (c)(4)(B)) and (a)(2)(A) and (f), by failing to collect one raw groundwater source Escherichia coli (E.coli) sample from the facility's eight active sources within 24 hours of notification of a distribution total coliform-positive result for a routine sample during the month of May 2015, and failing to provide public notification and submit a copy of the public notification to the ED regarding the failure to collect one raw groundwater source E.coli sample from all active sources during the month of May 2015; 30 TAC (b) and (a) and (c), by failing to mail or directly deliver one copy of the Consumer Confidence Report (CCR) to each bill paying customer by July 1st for each year, and failing to submit a copy of the annual CCR and certification that the CCR has been distributed to the customers of the facility and that the information in the CCR is correct and consistent with compliance monitoring data to the TCEQ for the year 2014; 30 TAC and (a), by failing to meet the adequacy, availability, and/or content requirements for the CCR for the year 2015; and 30 TAC (c)(2)(A) and (f), by failing to provide public notification and submit a copy of the public notification to the ED regarding the failure to conduct increased distribution coliform sampling for the month of May 2013; PENALTY: $1,103; ENFORCEMENT COOR- DINATOR: Yuliya Dunaway, (210) ; REGIONAL OFFICE: 3918 Canyon Drive, Amarillo, Texas , (806) (8) COMPANY: Corn Warrior LLC dba Warriors Mart; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LO- CATION: Grand Prairie, Dallas County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (b)(1)(A) and TWC, (c)(1), by failing to monitor the underground storage tank for releases at a frequency of at least once every month; PENALTY: $3,750; ENFORCEMENT COORDINATOR: Jonathan Nguyen, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (9) COMPANY: E. R. Carpenter, L.P.; DOCKET NUMBER: AIR-E; IDENTIFIER: RN ; LOCATION: Pasadena, Harris County; TYPE OF FACILITY: chemical manufacturing; RULES VIOLATED: 30 TAC (4) and (2)(A), Federal Operating Permit (FOP) Number O1443, General Terms and Conditions (GTC), and Texas Health and Safety Code (THSC), (b), by failing to report all instances of deviations; 30 TAC (a) and THSC, (b), by failing to submit an application to revise a FOP to include all applicable rules; and 30 TAC (4) and (2)(A), FOP Number 01443, GTC, and THSC, (b), by failing to incorporate permit by rule registration number into New Source Review Permit Number when amended or renewed; PENALTY: $11,790; ENFORCEMENT COORDINATOR: Shelby Orme, (512) ; REGIONAL OF- FICE: 5425 Polk Street, Suite H, Houston, Texas , (713) (10) COMPANY: Enbridge Pipelines (Texas Gathering) L.P.; DOCKET NUMBER: AIR-E; IDENTIFIER: RN ; LOCATION: Briscoe, Wheeler County; TYPE OF FACILITY: compressor station; RULES VIOLATED: 30 TAC (4) and (2), Texas Health and Safety Code, (b), and Federal Operating Permit Number O2861/Oil and Gas General Operating Permit Number 514, Site-wide requirements (b)(2) and (3), by failing to submit a Permit Compliance Certification no later than 30 days after the end of the certification period; PENALTY: $3,525; ENFORCEMENT COORDINATOR: Shelby Orme, (512) ; REGIONAL OFFICE: 3918 Canyon Drive, Amarillo, Texas , (806) (11) COMPANY: Fayette County Water Control and Improvement District Monument Hill; DOCKET NUMBER: PWS-E; IDENTIFIER: RN ; LOCATION: La Grange, Fayette County; TYPE OF FACILITY: public water supply; RULES VIO- LATED: 30 TAC (f)(1) and Texas Health and Safety Code, (c), by failing to comply with the maximum contaminant level of milligrams per liter for total trihalomethanes, based on the locational running annual average; PENALTY: $405; EN- FORCEMENT COORDINATOR: Melissa Castro, (512) ; REGIONAL OFFICE: Park 35 Circle, Building A, Austin, Texas 78753, (512) (12) COMPANY: H. C. BLAKEWELL, INCORPORATED dba Red Carpet Car Wash; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LOCATION: Fort Worth, Tarrant County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (b)(1)(A) and TWC, (c)(1), by failing to monitor the underground storage tanks for releases at a frequency of at least once every month; PENALTY: $3,375; ENFORCEMENT COORDINATOR: Ariel Ramirez, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) IN ADDITION November 17, TexReg 6529

112 (13) COMPANY: HI AND S INCORPORATED dba Rochelle Fuel Center; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LOCATION: Irving, Dallas County; TYPE OF FACILITY: convenience store with retail sales of gas; RULES VI- OLATED: 30 TAC 334.8(c)(4)(A)(vii) and (5)(B)(ii), by failing to renew a previously issued underground storage tank (UST) delivery certificate by submitting a properly completed UST registration and self-certification form at least 30 days before the expiration date; 30 TAC 334.8(c)(5)(A)(i) and TWC, (a), by failing to make available to a common carrier a valid, current TCEQ delivery certificate before accepting delivery of a regulated substance into the USTs; and 30 TAC (a) and (b), by failing to demonstrate acceptable financial assurance for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of the petroleum USTs; PENALTY: $14,193; ENFORCEMENT COORDINATOR: Ken Moller, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (14) COMPANY: KAMIRA PROPERTY OWNERS ASSOCIATION, INCORPORATED dba Kamira Water System; DOCKET NUMBER: PWS-E; IDENTIFIER: RN ; LOCATION: Kerrville, Kerr County; TYPE OF FACILITY: public water supply; RULES VIOLATED: 30 TAC (m)(4), by failing to maintain all water treatment units, storage and pressure maintenance facilities, distribution system lines, and related appurtenances in a watertight condition and free of excessive solids; 30 TAC (h)(1) and (j) and Texas Health and Safety Code, , by failing to submit plans and specifications to the executive director and obtain approval prior to making any significant change or addition to the system's production, treatment, storage, pressure maintenance, or distribution facilities; 30 TAC (i), by failing to adopt an adequate plumbing ordinance, regulations, or service agreement with provisions for proper enforcement to ensure that neither cross-connections nor other unacceptable plumbing practices are permitted; 30 TAC (c)(1)(F), by failing to obtain a sanitary control easement for all land within 150 feet of the facility's Well Number 2; and 30 TAC (n)(1), by failing to maintain accurate and up-to-date detailed as-built plans or record drawings and specifications for each treatment plant, pump station, and storage tank at the facility; PENALTY: $412; ENFORCEMENT COORDINATOR: Yuliya Dunaway, (210) ; REGIONAL OFFICE: Judson Road, San Antonio, Texas , (210) (15) COMPANY: KORT'S KORNER, INCORPORATED; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LOCA- TION: La Grange, Fayette County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (b)(1)(A) and TWC, (c)(1), by failing to monitor the underground storage tanks for releases at a frequency of at least once every month; PENALTY: $3,375; ENFORCEMENT COORDINA- TOR: James Baldwin, (512) ; REGIONAL OFFICE: Park 35 Circle, Building A, Austin, Texas 78753, (512) (16) COMPANY: Little Nutt Oil Co. dba Tiger Stop; DOCKET NUM- BER: PST-E; IDENTIFIER: RN ; LOCATION: Tenaha, Shelby County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (a) and (b), by failing to demonstrate acceptable financial assurance for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum underground storage tanks (USTs); 30 TAC (b)(2) and TWC, (a), by failing to provide release detection for the pressurized piping associated with the UST system; 30 TAC (b), (e)(1), and , by failing to maintain UST records and make them immediately available for inspection upon request by agency personnel; PENALTY: $8,792; ENFORCEMENT COORDINATOR: Stephanie McCurley, (512) ; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas , (409) (17) COMPANY: Lufkin Industries, LLC; DOCKET NUMBER: AIR-E; IDENTIFIER: RN ; LOCATION: Lufkin, Angelina County; TYPE OF FACILITY: surface coating and artificial lift manufacturing plant; RULES VIOLATED: 30 TAC (4) and (2), Texas Health and Safety Code, (b), and Federal Operating Permit Number O1852, General Terms and Conditions, by failing to submit a permit compliance certification no later than 30 days after the end of the certification period; PENALTY: $3,750; EN- FORCEMENT COORDINATOR: Shelby Orme, (512) ; RE- GIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas , (409) (18) COMPANY: Ray Huffines Chevrolet Incorporated; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LO- CATION: Plano, Collin County; TYPE OF FACILITY: fleet refueling facility for a car automobile dealership; RULES VIOLATED: 30 TAC , by failing to investigate a suspected release of a regulated substance within 30 days of discovery; 30 TAC (d)(9)(A)(v) and , by failing to report a suspected release within 72 hours of discovery; and 30 TAC (b)(1)(B) and (c)(1), by failing to maintain underground storage tank records and make them immediately available for inspection upon request by agency personnel; PENALTY: $12,106; ENFORCEMENT COORDINATOR: James Baldwin, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (19) COMPANY: Red Ewald, Incorporated; DOCKET NUMBER: AIR-E; IDENTIFIER: RN ; LOCATION: Karnes City, Karnes County; TYPE OF FACILITY: fiberglass tank manufacturing plant; RULES VIOLATED: 30 TAC (4) and (2)(C), Federal Operating Permit Number O3616, General Terms and Conditions, and Texas Health and Safety Code, (b), by failing to submit a deviation report no later than 30 days after the end of the reporting period; PENALTY: $4,313; ENFORCEMENT COORDINATOR: Shelby Orme, (512) ; REGIONAL OFFICE: Judson Road, San Antonio, Texas , (210) (20) COMPANY: REDBIRD SUPPLY, INCORPORATED; DOCKET NUMBER: IHW-E; IDENTIFIER: RN ; LO- CATION: Bridge City, Orange County; TYPE OF FACILITY: manufacturing facility that stores and manages hazardous materials; RULES VIOLATED: 30 TAC 335.2(b), by failing to cause, suffer, allow, or permit the disposal of industrial hazardous waste (IHW) at an unauthorized facility; and 30 TAC 335.4, by failing to cause, suffer, allow, or permit the unauthorized disposal of IHW; PENALTY: $3,438; ENFORCEMENT COORDINATOR: Danielle Porras, (713) ; REGIONAL OFFICE: 3870 Eastex Freeway, Beaumont, Texas , (409) (21) COMPANY: S AND M INCORPORATED dba Quick Stop Food Store; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LOCATION: Savoy, Fannin County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (b)(1)(A) and TWC, (c)(1), by failing to monitor the underground storage tank (UST) for releases at a frequency of at least once every month; and 30 TAC (c)(2)(C) and (4)(C) and TWC, (d), by failing to inspect the corrosion protection system at least once every 60 days to ensure that the rectifier and other system components are operating properly, and failing to test the corrosion protection system for operability and adequacy of protection at a frequency of at least once every three years; PENALTY: 42 TexReg 6530 November 17, 2017 Texas Register

113 $7,437; ENFORCEMENT COORDINATOR: Ken Moller, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (22) COMPANY: Sunrise Valley Properties Incorporated dba Taylor Food Mart 81; DOCKET NUMBER: PST-E; IDENTI- FIER: RN ; LOCATION: Dublin, Erath County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (b)(1)(A) and (2) and TWC, (b) and (c)(1), by failing to monitor the underground storage tanks (USTs) for releases at a frequency of at least once every month, and failing to provide release detection for the suction piping associated with the UST system; PENALTY: $3,891; ENFORCEMENT COORDINA- TOR: James Baldwin, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (23) COMPANY: Trent Water Works, Incorporated; DOCKET NUMBER: PWS-E; IDENTIFIER: RN ; LO- CATION: Jones Creek, Brazoria County; TYPE OF FACILITY: public water supply; RULES VIOLATED: 30 TAC (f)(1) and Texas Health and Safety Code, (c), by failing to comply with the maximum contaminant level of milligrams per liter for total trihalomethanes, based on a locational running annual average; PENALTY: $172; ENFORCEMENT COORDINATOR: Margarita Dennis, (817) ; REGIONAL OFFICE: 5425 Polk Street, Suite H, Houston, Texas , (713) (24) COMPANY: VEER GANESH INCORPORATED dba Lavon Beer and Wine Food Store; DOCKET NUMBER: PST-E; IDENTIFIER: RN ; LOCATION: Garland, Dallas County; TYPE OF FACILITY: convenience store with retail sales of gasoline; RULES VIOLATED: 30 TAC (b)(1)(A) and TWC, (c)(1), by failing to monitor the underground storage tanks for releases at a frequency of at least once every month; PENALTY: $4,125; ENFORCEMENT COORDINATOR: Steven Van Landingham, (512) ; REGIONAL OFFICE: 2309 Gravel Drive, Fort Worth, Texas , (817) (25) COMPANY: Vopak Logistics Services USA Incorporated; DOCKET NUMBER: IWD-E; IDENTIFIER: RN ; LOCATION: Deer Park, Harris County; TYPE OF FACILITY: a bulk chemical storage facility; RULES VIOLATED: TWC, (a)(1), 30 TAC (1), and Texas Pollutant Discharge Elimination System Permit Number WQ , Effluent Limitations and Monitoring Requirements Number 1, by failing to comply with permitted effluent limitations; PENALTY: $28,500; ENFORCEMENT COORDINATOR: Steven Van Landingham, (512) ; REGIONAL OFFICE: 5425 Polk Street, Suite H, Houston, Texas , (713) (26) COMPANY: Westwind Enterprises, Limited; DOCKET NUM- BER: MWD-E; IDENTIFIER: RN ; LOCA- TION: Copperas Cove, Coryell County; TYPE OF FACILITY: mobile home community; RULE VIOLATED: TWC, (a)(1), by failing to prevent the unauthorized discharge of wastewater into or adjacent to any water in the state; PENALTY: $1,000; ENFORCEMENT COORDINATOR: Melissa Castro, (512) ; REGIONAL OFFICE: 6801 Sanger Avenue, Suite 2500, Waco, Texas TRD Charmaine Backens Director, Litigation Division Texas Commission on Environmental Quality Filed: November 7, 2017 Enforcement Orders An agreed order was adopted regarding LaraBerry5 Corporation dba Crossroads Convenience Store, Docket No PST-E on November 7, 2017, assessing $4,500 in administrative penalties with $900 deferred. Information concerning any aspect of this order may be obtained by contacting Jonathan Nguyen, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Parker Distributing Co., Docket No MLM-E on November 7, 2017, assessing $7,500 in administrative penalties with $1,500 deferred. Information concerning any aspect of this order may be obtained by contacting James Baldwin, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding City of Rockwall, Docket No PST-E on November 7, 2017, assessing $2,438 in administrative penalties with $487 deferred. Information concerning any aspect of this order may be obtained by contacting Steven Stump, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding South Texas Council, Inc., Boy Scouts of America, Docket No PWS-E on November 7, 2017, assessing $1,600 in administrative penalties with $320 deferred. Information concerning any aspect of this order may be obtained by contacting Michaelle Garza, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Jose H. Rodriguez, Docket No WQ-E on November 7, 2017, assessing $3,937 in administrative penalties. Information concerning any aspect of this order may be obtained by contacting Amanda Patel, Staff Attorney at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding WINNIE WELDING WORKS & CONSTRUCTION, INC., Docket No WQ-E on November 7, 2017, assessing $5,750 in administrative penalties with $1,150 deferred. Information concerning any aspect of this order may be obtained by contacting Larry Butler, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding BA PROPERTIES MANAGE- MENT, INC. dba Sunmart 318, Docket No PST-E on November 7, 2017, assessing $3,036 in administrative penalties with $607 deferred. Information concerning any aspect of this order may be obtained by contacting Carlos Molina, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Houston Refining LP, Docket No AIR-E on November 7, 2017, assessing $7,500 in administrative penalties with $1,500 deferred. Information concerning any aspect of this order may be obtained by contacting Jo Hunsberger, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding R.N.A. CORPORATION dba RNA Chevron, Docket No PST-E on November 7, 2017, assessing $5,564 in administrative penalties with $1,112 deferred. Information concerning any aspect of this order may be obtained by contacting John Paul Fennell, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas IN ADDITION November 17, TexReg 6531

114 An agreed order was adopted regarding FORTEEN M ENTERPRISES INC dba Quick Car Lube & Tune, Docket No PST-E on November 7, 2017, assessing $7,227 in administrative penalties with $1,445 deferred. Information concerning any aspect of this order may be obtained by contacting Ken Moller, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding PANJTAN, INC. dba Pardners General Store, Docket No PST-E on November 7, 2017, assessing $6,750 in administrative penalties with $1,350 deferred. Information concerning any aspect of this order may be obtained by contacting Carlos Molina, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Michael D. Emery, Docket No OSI-E on November 7, 2017, assessing $188 in administrative penalties with $37 deferred. Information concerning any aspect of this order may be obtained by contacting Farhaud Abbaszadeh, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding LONE STAR CORRUGATED CONTAINER CORPORATION, Docket No PST-E on November 7, 2017, assessing $3,000 in administrative penalties with $600 deferred. Information concerning any aspect of this order may be obtained by contacting Margarita Dennis, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Shlok Krishna Ronak LLC dba Seagoville Chevron, Docket No PST-E on November 7, 2017, assessing $3,938 in administrative penalties with $787 deferred. Information concerning any aspect of this order may be obtained by contacting Carlos Molina, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding NHB Corporation dba EZ Mart 2, Docket No PST-E on November 7, 2017, assessing $3,128 in administrative penalties with $625 deferred. Information concerning any aspect of this order may be obtained by contacting Margarita Dennis, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding BARRERA INVESTMENTS, INC., Docket No PST-E on November 7, 2017, assessing $1,188 in administrative penalties with $237 deferred. Information concerning any aspect of this order may be obtained by contacting Carlos Molina, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Hays Consolidated Independent School District, Docket No PWS-E on November 7, 2017, assessing $900 in administrative penalties with $180 deferred. Information concerning any aspect of this order may be obtained by contacting Ronica Rodriguez, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Colt Moss, Docket No LII-E on November 7, 2017, assessing $1,161 in administrative penalties with $232 deferred. Information concerning any aspect of this order may be obtained by contacting Danielle Porras, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding RSI Home Products Manufacturing, Inc., Docket No AIR-E on November 7, 2017, assessing $7,313 in administrative penalties with $1,462 deferred. Information concerning any aspect of this order may be obtained by contacting Trina Grieco, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Planter's Grain Cooperative Of Odem, Texas, Docket No AIR-E on November 7, 2017, assessing $2,500 in administrative penalties with $500 deferred. Information concerning any aspect of this order may be obtained by contacting Jo Hunsberger, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding VILLE D'ALSACE WATER SUPPLY, LLC, Docket No PWS-E on November 7, 2017, assessing $52 in administrative penalties with $10 deferred. Information concerning any aspect of this order may be obtained by contacting Ross Luedtke, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Stephen Joel Friedman, Docket No MWD-E on November 7, 2017, assessing $1,125 in administrative penalties with $225 deferred. Information concerning any aspect of this order may be obtained by contacting Claudia Corrales, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding CHIRAGH ENTERPRISE INC dba Fraley's Store, Docket No PST-E on November 7, 2017, assessing $3,750 in administrative penalties with $750 deferred. Information concerning any aspect of this order may be obtained by contacting Epifanio Villarreal, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding CHRISTIAN LIFE CENTER OF LUBBOCK, Docket No PWS-E on November 7, 2017, assessing $265 in administrative penalties with $53 deferred. Information concerning any aspect of this order may be obtained by contacting Ronica Rodriguez, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas An agreed order was adopted regarding Consolidated Metal Technologies, Inc., Docket No MLM-E on November 7, 2017, assessing $2,288 in administrative penalties with $457 deferred. Information concerning any aspect of this order may be obtained by contacting Sandra Douglas, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas A field citation was adopted regarding Turner, Heath D., Docket No OSI-E on November 7, 2017, assessing $175 in administrative penalties. Information concerning any aspect of this citation may be obtained by contacting Cheryl Thompson, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas A field citation was adopted regarding Mark Stewart, Docket No WOC-E on November 7, 2017, assessing $175 in administrative penalties. Information concerning any aspect of this citation may be obtained by contacting Abigail Lindsey, Enforcement 42 TexReg 6532 November 17, 2017 Texas Register

115 Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas A field citation was adopted regarding Kristinek, Josh, Docket No WOC-E on November 7, 2017, assessing $175 in administrative penalties. Information concerning any aspect of this citation may be obtained by contacting Abigail Lindsey, Enforcement Coordinator at (512) , Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas TRD Bridget C. Bohac Chief Clerk Texas Commission on Environmental Quality Filed: November 8, 2017 Notice of Opportunity to Comment on Agreed Orders of Administrative Enforcement Actions The Texas Commission on Environmental Quality (TCEQ or commission) staff is providing an opportunity for written public comment on the listed Agreed Orders (AOs) in accordance with Texas Water Code (TWC), TWC, requires that before the commission may approve the AOs, the commission shall allow the public an opportunity to submit written comments on the proposed AOs. TWC, requires that notice of the opportunity to comment must be published in the Texas Register no later than the 30th day before the date on which the public comment period closes, which in this case is December 20, TWC, also requires that the commission promptly consider any written comments received and that the commission may withdraw or withhold approval of an AO if a comment discloses facts or considerations that indicate that consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules within the commission's jurisdiction or the commission's orders and permits issued in accordance with the commission's regulatory authority. Additional notice of changes to a proposed AO is not required to be published if those changes are made in response to written comments. A copy of each proposed AO is available for public inspection at both the commission's central office, located at Park 35 Circle, Building A, 3rd Floor, Austin, Texas 78753, (512) and at the applicable regional office listed as follows. Written comments about an AO should be sent to the attorney designated for the AO at the commission's central office at P.O. Box 13087, MC 175, Austin, Texas and must be received by 5:00 p.m. on December 20, Comments may also be sent by facsimile machine to the attorney at (512) The designated attorneys are available to discuss the AOs and/or the comment procedure at the listed phone numbers; however, TWC, provides that comments on an AO shall be submitted to the commission in writing. (1) COMPANY: AMPM ENTERPRISES, INC. and POINT TAR- GET ENTERPRISES INC dba Super Stop; DOCKET NUMBER: PST-E; TCEQ ID NUMBER: RN ; LOCA- TION: State Highway 64 East, Tyler, Smith County; TYPE OF FACILITY: underground storage tank (UST) system and a convenience store with retail sales of gasoline; RULES VIOLATED: TWC, (c)(1) and 30 TAC (b)(1)(A), by failing to monitor the USTs for releases at a frequency of at least once every month (not to exceed 35 days between each monitoring); 30 TAC (3), by failing to file a release determination report with the commission within 45 days after a suspected release was observed; and 30 TAC (d)(9)(A)(iv) and , by failing to report a suspected release to the TCEQ within 24 hours of discovery; PENALTY: $6,975; STAFF ATTORNEY: Eric Grady, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Tyler Regional Office, 2916 Teague Drive, Tyler, Texas , (903) (2) COMPANY: City of Bartlett; DOCKET NUMBER: MLM-E; TCEQ ID NUMBERS: RN and RN ; LOCATIONS: approximately 0.5 miles northeast of the intersection of State Highway 95 and Farm-to-Market Road 487, Bell County (Facility 1); and approximately two blocks west of State Highway 95 on West Jackson Street, Bartlett, Williamson County (Facility 2); TYPE OF FACILITIES: wastewater treatment plant (Facility 1) and public water system (Facility 2); RULES VIOLATED: 30 TAC (1) and Texas Pollutant Discharge Elimination System Permit Number WQ (the "Permit"), Monitoring and Reporting Requirement Number 4, by failing to indicate an increased frequency of sampling on the self-reported discharge monitoring report for Facility 1; 30 TAC (d) and (1) and the Permit, Operational Requirements Number 9 and Other Requirements Number 1, by failing to employ or contract with one or more licensed wastewater treatment facility operators for Facility 1; 30 TAC (1), (a), and 319.8(1) and the Permit, Monitoring and Reporting Requirements Number 10, by failing to provide an authorized signature on all reports requested by permits for Facility 1; 30 TAC (1) and (11)(B) and 319.7(c) and the Permit, Monitoring and Reporting Requirements Number 3.b. and Sludge Provisions II.E., by failing to maintain records of monitoring activities and sludge documents at Facility 1 and make them readily available for review by a TCEQ representative; 30 TAC (1) and the Permit, Other Requirements Number 7, by failing to submit a quarterly progress report for Facility 1 to the TCEQ's Waco Regional Office and the TCEQ's Enforcement Division in accordance with the progress report dates established in the Permit; 30 TAC 317.7(i), by failing to provide potable water to the plant site at Facility 1; 30 TAC 317.7(e), by failing to provide the required plant protection at Facility 1; 30 TAC (1) and (17) and 319.7(d) and the Permit, Monitoring and Reporting Requirements Number 1, by failing to submit discharge monitoring reports at the intervals specified in the permit for Facility 1; Texas Health and Safety Code, (a) and 30 TAC (e)(4)(B), by failing to operate Facility 2 under the direct supervision of a water works operator who holds a minimum of a Class "C" or higher license; 30 TAC (c)(3)(I), by failing to fine grade the well site at Facility 2 so that the site is free from depressions, reverse grades, or areas too rough for proper ground maintenance so as to ensure that surface water will drain away from the well; 30 TAC (c)(3)(K), by failing to properly seal the well head at Facility 2 with a gasket or sealing compound and provide a well casing vent with an opening that is covered with a 16-mesh or finer corrosion-resistant screen, facing downward, elevated and located so as to minimize the drawing of contaminants into the well; 30 TAC (m), by failing to use maintenance and housekeeping practices at Facility 2 to ensure the good working condition and general appearance of the facility and its equipment; 30 TAC (m)(4), by failing to maintain all distribution system lines, storage, and pressure maintenance facilities, water treatment units, and all related appurtenances at Facility 2 in a watertight condition; and 30 TAC (f), by failing to maintain water works operation and maintenance records for Facility 2 and make them available to the executive director for review during the investigation; PENALTY: $32,661; Supplemental Environmental Project offset amount of $32,661 applied to Establish Potable Water Supply; STAFF ATTORNEY: Elizabeth Carroll Harkrider, Litigation Division, MC 175, (512) ; REGIONAL OFFICES: Waco Regional Office, 6801 Sanger Avenue, Suite 2500, Waco, Texas , (254) ; and Austin Regional Office, Park 35 Circle, Building A, Room 179, Austin, Texas 78753, (512) IN ADDITION November 17, TexReg 6533

116 (3) COMPANY: JALBHE INVESTMENT INC. dba Go Fast Food 1; DOCKET NUMBER: PST-E; TCEQ ID NUMBER: RN ; LOCATION: 4700 Judson Road, Longview, Gregg County; TYPE OF FACILITY: underground storage tank (UST) system and a convenience store with retail sales of gasoline; RULES VIOLATED: TWC, (d) and 30 TAC (a)(2), by failing to ensure the UST's corrosion protection system is operated and maintained in a manner that will ensure continuous corrosion protection; TWC, (c)(1) and 30 TAC (b)(1)(A), by failing to monitor the USTs for releases at a frequency of at least once every month (not to exceed 35 days between each monitoring); and 30 TAC (a), by failing to ensure that a certified Class A and B operator is retrained within three years of their last training date; PENALTY: $9,900; STAFF ATTORNEY: Elizabeth Lieberknecht, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Tyler Regional Office, 2916 Teague Drive, Tyler, Texas , (903) (4) COMPANY: MARQUIS CONSTRUCTION SERVICES, LLC; DOCKET NUMBER: MLM-E; TCEQ ID NUMBER: RN ; LOCATION: Farm-to-Market Road 2004 near Angleton, Brazoria County; TYPE OF FACILITY: surface coating and abrasive cleaning operations site; RULES VIOLATED: Texas Health and Safety Code (THSC), (a) and (b), and 30 TAC 101.4, by failing to prevent nuisance conditions; THSC, (b), 30 TAC 106.6(b) and (2)(A), and Permit by Rule Registration Number , by failing to comply with the abrasive usage rate of one ton per day during dry abrasive cleaning operations; THSC, (b) and 30 TAC , by causing, suffering, allowing, or permitting outdoor burning within the State of Texas; and 30 TAC (a) and (c), by causing, suffering, allowing, or permitting the unauthorized disposal of municipal solid waste; PENALTY: $10,621; STAFF ATTORNEY: Jess Robinson, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Houston Regional Office, 5425 Polk Street, Suite H, Houston, Texas , (713) (5) COMPANY: North Texas Municipal Water District; DOCKET NUMBER: MWD-E; TCEQ ID NUMBERS: RN and RN ; LOCATIONS: 3020 Orr Road, Lucas, Collin County (Facility 1) and 2219 Lakeshore Drive, approximately 1.2 miles south-southwest of the intersection of State Highway 205 and Farm-to-Market Road 552, Rockwall, Rockwall County (Facility 2); TYPE OF FACILITIES: two wastewater treatment facilities; RULES VIOLATED: TWC, (a)(1), 30 TAC (1), and Texas Pollutant Discharge Elimination System (TPDES) Permit Number WQ , Permit Condition Number 2.g., by failing to prevent an unauthorized discharge of wastewater into or adjacent to any water in the state; TWC, (a)(1), 30 TAC (1), and TPDES Permit Number WQ , Permit Condition Number 2.g., by failing to prevent an unauthorized discharge of wastewater into or adjacent to any water in the state; TWC, (a)(1), 30 TAC (1), and TPDES Permit Number WQ , Effluent Limitations and Monitoring Requirements Number 1, by failing to comply with permitted effluent limitations, as shown in the effluent violation table Facility 1; TWC, (a)(1), 30 TAC (1), and TPDES Permit Number WQ , Effluent Limitations and Monitoring Requirement Number 1, by failing to comply with permitted effluent limitations, as shown in the effluent violation table Facility 2; and TWC, (a)(1), 30 TAC (1), and TPDES Permit Number WQ , Effluent Limitations and Monitoring Requirement Number 4 and Permit Condition Number 2.d., by failing to prevent an unauthorized discharge of wastewater into or adjacent to any water in the state; PENALTY: $93,837; Supplemental Environmental Project offset amount of $93,837 applied to Feed Pump Replacement and Relocation Project; STAFF ATTORNEY: Adam Taylor, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Dallas-Fort Worth Regional Office, 2309 Gravel Drive, Fort Worth, Texas , (817) (6) COMPANY: TAAS Corporation; DOCKET NUMBER: PST-E; TCEQ ID NUMBER: RN ; LOCA- TION: 1098 East State Highway 114, Grapevine, Tarrant County; TYPE OF FACILITY: underground storage tank (UST) system and a convenience store with retail sales of gasoline; RULES VIOLATED: TWC, (a) and 30 TAC (b)(2), by failing to provide release detection for the pressurized piping associated with the UST system; PENALTY: $7,254; STAFF ATTORNEY: Jess Robinson, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Dallas-Fort Worth Regional Office, 2309 Gravel Drive, Fort Worth, Texas , (817) TRD Charmaine Backens Director, Litigation Division Texas Commission on Environmental Quality Filed: November 7, 2017 Notice of Opportunity to Comment on Default Orders of Administrative Enforcement Actions The Texas Commission on Environmental Quality (TCEQ or commission) staff is providing an opportunity for written public comment on the listed Default Orders (DOs). The commission staff proposes a DO when the staff has sent the executive director's preliminary report and petition (EDPRP) to an entity outlining the alleged violations, the proposed penalty, and the proposed technical requirements necessary to bring the entity back into compliance; and the entity fails to request a hearing on the matter within 20 days of its receipt of the EDPRP or requests a hearing and fails to participate at the hearing. Similar to the procedure followed with respect to Agreed Orders entered into by the executive director of the commission, in accordance with Texas Water Code (TWC), 7.075, this notice of the proposed order and the opportunity to comment is published in the Texas Register no later than the 30th day before the date on which the public comment period closes, which in this case is December 20, The commission will consider any written comments received, and the commission may withdraw or withhold approval of a DO if a comment discloses facts or considerations that indicate that consent to the proposed DO is inappropriate, improper, inadequate, or inconsistent with the requirements of the statutes and rules within the commission's jurisdiction, or the commission's orders and permits issued in accordance with the commission's regulatory authority. Additional notice of changes to a proposed DO is not required to be published if those changes are made in response to written comments. A copy of each proposed DO is available for public inspection at both the commission's central office, located at Park 35 Circle, Building A, 3rd Floor, Austin, Texas 78753, (512) and at the applicable regional office listed as follows. Written comments about the DO should be sent to the attorney designated for the DO at the commission's central office at P.O. Box 13087, MC 175, Austin, Texas and must be received by 5:00 p.m. on December 20, Comments may also be sent by facsimile machine to the attorney at (512) The commission's attorneys are available to discuss the DOs and/or the comment procedure at the listed phone numbers; however, TWC, provides that comments on the DOs shall be submitted to the commission in writing. 42 TexReg 6534 November 17, 2017 Texas Register

117 (1) COMPANY: Dominic Walton dba Dominic Waltons Divine Quarterhorse Training and Breeding Facility; DOCKET NUMBER: MLM-E; TCEQ ID NUMBER: RN ; LOCA- TION: Old Richmond Road, Sugar Land, Fort Bend County; TYPE OF FACILITY: facility for boarding and breeding horses; RULES VIOLATED: Texas Health and Safety Code, (b) and 30 TAC , by causing, suffering, allowing, or permitting outdoor burning within the State of Texas; and 30 TAC (a) and (c), by causing, suffering, allowing, or permitting the unauthorized disposal of municipal solid waste; PENALTY: $2,547; STAFF ATTORNEY: Clayton Smith, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Houston Regional Office, 5425 Polk Street, Suite H, Houston, Texas , (713) (2) COMPANY: IZZ Transport Inc; DOCKET NUMBER: MSW-E; TCEQ ID NUMBER: RN ; LOCA- TIONS: 202 Windcastle Drive, Apartment 1211, Arlington, Tarrant County (headquarters), and 300 South General Bruce Drive, Temple, Bell County (discharged municipal solid waste); TYPE OF FACIL- ITY: transport company; RULE VIOLATED: 30 TAC 327.5(c), by failing to submit written information, describing the details of the discharge or spill and supporting the adequacy of the response action, to the appropriate TCEQ regional manager within 30 working days of the reportable discharge or spill; PENALTY: $1,312; STAFF ATTOR- NEY: Adam Taylor, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Waco Regional Office, 6801 Sanger Avenue, Suite 2500, Waco, Texas , (254) (3) COMPANY: Mildred Fowler; DOCKET NUMBER: MSW-E; TCEQ ID NUMBER: RN ; LOCATION: 4668 Spillers Road, Lumberton, Hardin County; TYPE OF FACILITY: unauthorized municipal solid waste (MSW) site; RULE VIOLATED: 30 TAC (a) and (c), by causing, suffering, allowing, or permitting the unauthorized disposal of MSW; PENALTY: $1,687; STAFF ATTORNEY: Isaac Ta, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Beaumont Regional Office, 3870 Eastex Freeway, Beaumont, Texas , (409) (4) COMPANY: Reyna A. Martinez; DOCKET NUMBER: PWS-E; TCEQ ID NUMBER: RN ; LOCA- TION: 3100 South County Road 1210 near Midland, Midland County; TYPE OF FACILITY: public water system; RULES VIOLATED: 30 TAC (f)(4) and (e), by failing to provide the results of quarterly nitrate sampling to the executive director (ED); and 30 TAC (c)(2)(A) and (f), by failing to issue public notifications and submit copies of public notifications to the ED regarding the failure to conduct routine coliform monitoring during the months of August, September, and November of 2014, and February, June, and September of 2015, the failure to conduct repeat coliform monitoring during the month of December 2014, and the failure to conduct increased coliform monitoring during the month of January 2015; PENALTY: $832; STAFF ATTORNEY: Eric Grady, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Midland Regional Office, 9900 West Interstate Highway 20, Suite 100, Midland, Texas 79706, (432) (5) COMPANY: W R J CLEANERS,INC dba Fashion Cleaners; DOCKET NUMBER: DCL-E; TCEQ ID NUMBER: RN ; LOCATION: 8925 Fallbrook Drive, Suite 1200, Houston, Harris County; TYPE OF FACILITY: dry cleaning facility; RULES VIOLATED: Texas Health and Safety Code, and 30 TAC (a), by failing to complete and submit the required registration form to the TCEQ for a dry cleaning facility or dry cleaning drop station; 30 TAC (e)(6)(B), by failing to visually inspect each installed secondary containment structure weekly to ensure that the structure is not damaged and keep a log of the inspections; and 30 TAC (1), by failing to maintain documentation of invoices of dry cleaning solvent purchases showing the name, type, and quantity of the dry cleaning solvent purchased, the name and address of the seller, and the date of purchase; PENALTY: $1,397; STAFF ATTOR- NEY: Clayton Smith, Litigation Division, MC 175, (512) ; REGIONAL OFFICE: Houston Regional Office, 5425 Polk Street, Suite H, Houston, Texas , (713) TRD Charmaine Backens Director, Litigation Division Texas Commission on Environmental Quality Filed: November 7, 2017 Notice of Public Hearing on Proposed Revisions to 30 TAC Chapter 336 The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 336, Radioactive Substance Rules, , under the requirements of Texas Government Code, Chapter 2001, Subchapter B. The proposed rulemaking will implement House Bill 2662, 85th Texas Legislature, 2017, to remove the 5% gross receipts fee on all compact and federal waste disposal for the biennium beginning September 1, The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 10:00 a.m. in Building E, Room 201S, at the commission's central office located at Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) or (800) RELAY-TX (TDD). Requests should be made as far in advance as possible. Written comments may be submitted to Kris Hogan, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas , or faxed to (512) Electronic comments may be submitted at: File size restrictions may apply to comments being submitted via the ecomments system. All comments should reference Rule Project Number WS. The comment period closes December 22, Copies of the proposed rulemaking can be obtained from the commission's website at For further information, please contact Hans Weger, Radioactive Materials Unit, and (512) TRD Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: November 3, 2017 Notice of Public Hearing on Proposed Revisions to 30 TAC Chapters 220 and 305 IN ADDITION November 17, TexReg 6535

118 The Texas Commission on Environmental Quality (commission) will conduct a public hearing to receive testimony regarding proposed revisions to 30 Texas Administrative Code (TAC) Chapter 220, Regional Assessments of Water Quality, and 220.6; and the repeal of 30 TAC Chapter 305, Consolidated Permits, , under the requirements of Texas Government Code, Chapter 2001, Subchapter B. The proposed rulemaking would implement House Bill 3618, 85th Texas Legislature, 2017, relating to the timing of the expiration of water quality permits. The commission will hold a public hearing on this proposal in Austin on December 12, 2017, at 2:00 p.m. in Building E, Room 201S, at the commission's central office located at Park 35 Circle. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion will not be permitted during the hearing; however, commission staff members will be available to discuss the proposal 30 minutes prior to the hearing. Persons who have special communication or other accommodation needs who are planning to attend the hearing should contact Sandy Wong, Office of Legal Services at (512) or (800) RELAY-TX (TDD). Requests should be made as far in advance as possible. Written comments may be submitted to Derek Baxter, MC 205, Office of Legal Services, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas , or faxed to (512) Electronic comments may be submitted at: File size restrictions may apply to comments being submitted via the ecomments system. All comments should reference Rule Project Number OW. The comment period closes on December 18, Copies of the proposed rulemaking can be obtained from the commission's website at For further information, please contact Jill Csekitz, Water Quality Planning Division, (512) TRD Robert Martinez Director, Environmental Law Division Texas Commission on Environmental Quality Filed: November 3, 2017 Notice of Water Quality Applications The following notices were issued on October 25, 2017, through November 2, The following does not require publication in a newspaper. Written comments or requests for a public meeting may be submitted to the Office of the Chief Clerk, Mail Code 105, P.O. Box 13087, Austin Texas WITHIN (30) DAYS OF THE ISSUED DATE OF THE NOTICE. INFORMATION SECTION BLUE SKY FARMS, LLC for a minor amendment of Texas Pollutant Discharge Elimination System (TPDES) Permit No. WQ , for a Concentrated Animal Feeding Operation (CAFO) to authorize the applicant to decrease the acreage of land management units (LMUs) LMU #9 from 29 to 25 acres and LMU #11 from 83 to 51 acres; change the location of Well #9, and provide best management practices that will be implemented to protect groundwater. In addition, the area identified on the Site Map as proposed heifer pens in the permit that was issued on February 22, 2017, has been removed from the drainage area of retention control structure (RCS) #1, and the location will be used for storing manure and compost. The total LMU acreage has decreased from 718 to 682 acres. The currently authorized headcount of 7,100 total head, of which 3,100 are milking cows, remains unchanged. The facility is located on the east side of Farm-to-Market Road 219 approximately 2.25 miles south of the intersection of Farm-to-Market Road 219 and Farm-to-Market Road 1702 in Dublin, Erath County, Texas. ERATH COUNTY DAIRY SALES, INC. AND JIMMY GAY- LON BEYER for a minor amendment of TPDES Permit No. WQ , for a CAFO, to authorize the applicant to add roofed areas to the livestock auction barn facility, and reduce the drainage area of retention control structure #1. The currently authorized maximum capacity of 1,838 head, and land application area of 30.4 acres remain unchanged. The facility is located on the northwest side of U.S. Highway 377, approximately three miles southwest of the intersection of U.S. Highway 377 and Farm-to-Market Road 988 in Dublin, Erath County, Texas. If you need more information about these permit applications or the permitting process, please call the TCEQ Public Education Program, Toll Free, at (800) General information about the TCEQ can be found at our web site at Si desea información en español, puede llamar al (800) TRD Bridget C. Bohac Chief Clerk Texas Commission on Environmental Quality Filed: November 8, 2017 Revised Notice of Public Meeting for TPDES Permit for Industrial Wastewater New Permit No. WQ APPLICATION. GCGV Asset Holding LLC, Springwoods Village Parkway, Spring, Texas 77389, which proposes to operate a chemical manufacturing facility that will produce ethylene, monoethylene glycol, and polyethylene, has applied to the Texas Commission on Environmental Quality (TCEQ) for a new permit, Texas Pollutant Discharge Elimination System (TPDES) Permit No. WQ , to authorize the discharge of treated process wastewater, cooling tower blowdown, maintenance wastewater, water treatment wastewater, railcar wash water, miscellaneous wastewater, wastewater from commissioning activities, and stormwater at a daily average flow not to exceed 9,030,000 gallons per day via Outfall 001 and stormwater and allowable non-stormwater on an intermittent and flow-variable basis via Outfalls 002, 003, 004, and 005. The facility will be located on the south side of State Highway 181 and on the west side of Farm-to-Market Road 2986, approximately one mile west of the City of Gregory, in San Patricio County, Texas The effluent will be discharged from the plant site via pipe to Corpus Christi Bay via Outfall 001, in Segment No of the Bays and Estuaries; via Outfalls 002 and 003 to drainage ditches, thence to mud flats, thence to Copano Bay/Port Bay/Mission Bay in Segment No of the Bays and Estuaries; and via Outfalls 004 and 005 to drainage ditches, thence to Green Lake Ditch, thence to Green Lake, thence to a tidal channel, thence to Corpus Christi Bay in Segment No of the Bays and Estuaries. The unclassified receiving water uses are minimal aquatic life use for the drainage ditches, limited aquatic life use for Green Lake Ditch, high aquatic life use for Green Lake, and exceptional aquatic life use for the tidal channel. The designated uses for Segment No and Segment No are primary contact recreation, oyster waters, and exceptional aquatic life use. This link to an electronic map of the site or facility's general location is provided as a public courtesy and is 42 TexReg 6536 November 17, 2017 Texas Register

119 not part of the application or notice. For the exact location, refer to the application: 833&lng= &zoom=13&type=r In accordance with Title 30 Texas Administrative Code and TCEQ's Procedures to Implement the Texas Surface Water Quality Standards (June 2010), an antidegradation review of the receiving waters was performed. A Tier 1 antidegradation review has preliminarily determined that existing water quality uses will not be impaired by this permit action. Numerical and narrative criteria to protect existing uses will be maintained. A Tier 2 review has preliminarily determined that no significant degradation of water quality is expected in Green Lake, which has been identified as having high aquatic life use. Also, no significant degradation of water quality is expected in the tidal channel or Corpus Christi Bay, which have been identified as having exceptional aquatic life use. Existing uses will be maintained and protected. The preliminary determination can be reexamined and may be modified if new information is received. The TCEQ executive director reviewed this action for consistency with the Texas Coastal Management Program (CMP) goals and policies in accordance with the regulations of the General Land Office and has determined that the action is consistent with the applicable CMP goals and policies. The TCEQ executive director has completed the technical review of the application and prepared a draft permit. The draft permit, if approved, would establish the conditions under which the facility must operate. The executive director has made a preliminary decision that this permit, if issued, meets all statutory and regulatory requirements. PUBLIC COMMENT / PUBLIC MEETING. A public meeting will be held and will consist of two parts, an Informal Discussion Period and a Formal Comment Period. A public meeting is not a contested case hearing under the Administrative Procedure Act. During the Informal Discussion Period, the public will be encouraged to ask questions of the applicant and TCEQ staff concerning the permit application. The comments and questions submitted orally during the Informal Discussion Period will not be considered before a decision is reached on the permit application and no formal response will be made. Responses will be provided orally during the Informal Discussion Period. During the Formal Comment Period on the permit application, members of the public may state their formal comments orally into the official record. A written response to all timely, relevant and material, or significant comments will be prepared by the Executive Director. All formal comments will be considered before a decision is reached on the permit application. A copy of the written response will be sent to each person who submits a formal comment or who requested to be on the mailing list for this permit application and provides a mailing address. Only relevant and material issues raised during the Formal Comment Period can be considered if a contested case hearing is granted on this permit application. The Public Meeting is to be held: Monday, December 11, 2017, at 7:00 p.m. Stephen F. Austin Elementary School 308 N. Gregory Gregory, Texas Please note, the public meeting previously scheduled for December 4, 2017, is cancelled. INFORMATION. Citizens are encouraged to submit written comments anytime during the meeting or by mail before the close of the public comment period to the Office of the Chief Clerk, TCEQ, Mail Code MC-105, P.O. Box 13087, Austin, Texas or electronically at If you need more information about this permit application or the permitting process, please call the TCEQ Public Education Program, Toll Free, at (800) Si desea información en Español, puede llamar al (800) General information about the TCEQ can be found at our web site at The permit application, executive director's preliminary decision, and draft permit are available for viewing and copying at Bell Whittington Public Library, 2400 Memorial Parkway, Portland, in San Patricio County, Texas and at La Retama Central Library, 805 Comanche Street, Corpus Christi, in Nueces County, Texas. Further information may also be obtained from GCGV Asset Holding LLC at the address stated above or by calling Mr. John E. Groneck at (832) Persons with disabilities who need special accommodations at the meeting should call the Office of the Chief Clerk at (512) or (800) RELAY-TX (TDD) at least one week prior to the meeting. TRD Bridget C. Bohac Chief Clerk Texas Commission on Environmental Quality Filed: November 8, 2017 Texas Ethics Commission List of Late Filers Below is a list from the Texas Ethics Commission naming the filers who failed to pay the penalty fine for failure to file the report, or filing a late report, in reference to the specified filing deadline. If you have any questions, you may contact Michelle Gonzales at (512) Deadline: Monthly Report due September 5, 2017, for Committees Bonita Ocampo, Tarrant County Tejano Democrats, 3803 S. Jones St, Fort Worth, Texas David C. Walker, U.S. Anesthesia Partners of Texas PAC, 1500 City West Blvd., Ste. 300, Houston, Texas TRD Seana Willing Executive Director Texas Ethics Commission Filed: November 2, 2017 General Land Office Notice and Opportunity to Comment on Requests for Consistency Agreement/Concurrence Under the Texas Coastal Management Program On January 10, 1997, the State of Texas received federal approval of the Coastal Management Program (CMP) (62 Federal Register pp ). Under federal law, federal agency activities and actions affecting the Texas coastal zone must be consistent with the CMP goals and policies identified in 31 TAC Chapter 501. Requests for federal consistency review were deemed administratively complete for the following project(s) during the period of October 30, 2017, to November 6, As required by federal law, the public is given an opportunity to comment on the consistency of proposed activities in the coastal zone undertaken or authorized by federal agencies. Pursuant to 31 TAC , , and , the public comment period extends 30 IN ADDITION November 17, TexReg 6537

120 days from the date published on the Texas General Land Office web site. The notice was published on the website on Friday, November 10, The public comment period for this project will close at 5:00 p.m. on Tuesday, December 12, FEDERAL AGENCY ACTIONS: Applicant: Freeport LNG Development, L.P. (FLNG) Location: The project site is located on the Freeport Harbor Ship Channel, near the City of Freeport, in Brazoria County, Texas. The Freeport Maintenance Offshore Dredge Material Disposal Site (ODMDS) is located approximately 3 miles offshore and about 1,000 feet southwest of the centerline of the Outer Bar Channel. LATITUDE & LONGITUDE (NAD 83): Project Description: The applicant requests to modify their existing Department of the Army permit to include maintenance dredging of the entire basin. Dredging will be conducted via a hydraulic cutter head dredge and/or mechanical clamshell dredge to excavate the material that will be directly loaded to a dump scow barge. The barge will be transported to the Freeport Harbor Maintenance ODMDS where the material will be dumped. Each maintenance dredging cycle is expected to take 3 months to complete. Submittals to evaluate effects of dredging and disposal of dredge material will be conducted, as required by Section 103 of the MPRSA. FLNG has estimated that the initial maintenance dredge cycle will remove approximately 1,200,000 cubic yards. Subsequent maintenance dredge cycles will occur annually and are estimated to remove approximately 500,000 cubic yards. Type of Application: U.S. Army Corps of Engineers (USACE) permit application #SWG This application will be reviewed pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA). CMP Project No: F1 Applicant: Total Petrochemicals & Refining, Incorporated Location: The project site is located at Port Road, in Pasadena, Harris County, Texas. LATITUDE & LONGITUDE (NAD 83): Project Description: The applicant proposes to discharge fill material into 9.5 acres of wetlands associated with the expansion of the existing facility to facilitate increased production and storage of rail cars. Type of Application: U.S. Army Corps of Engineers (USACE) permit application #SWG This application will be reviewed pursuant to Section 404 of the Clean Water Act (CWA). Note: The consistency review for this project may be conducted by the Texas Commission on Environmental Quality as part of its certification under 401 of the Clean Water Act. CMP Project No: F1 Applicant: Transcontinental Gas Pipeline Company, LLC Location: The project site is located on the outer continental shelf in the Gulf of Mexico, approximately 11 miles offshore of Sea Rim State Park. LATITUDE & LONGITUDE (NAD 83): Begin: End: Project Description: The applicant proposes decommissioning in place miles of 16" gas pipeline which is buried with 5' of cover, approximately 25' from the top of the water. The pipeline was previously authorized via Department of the Army Permit Approximately 0.02 acre (130 cubic yards) of continental shelf will be temporarily impacted so that the pipeline can be cut, flushed, and capped. Type of Application: U.S. Army Corps of Engineers (USACE) permit application #SWG This application will be reviewed pursuant to Section 10 of the Rivers and Harbors Act of 1899 and 404 of the Clean Water Act (CWA). CMP Project No: F1 Further information on the applications listed above, including a copy of the consistency certifications or consistency determinations for inspection, may be obtained from Ms. Allison Buchtien, P.O. Box 12873, Austin, Texas , or via at federal.consistency@glo.texas.gov. Comments should be sent to Ms. Buchtien at the above address or by . TRD Anne L. Idsal Chief Clerk/Deputy Land Commissioner General Land Office Filed: November 8, 2017 Texas Health and Human Services Commission Public Notice - Texas State Plan for Medical Assistance Amendments Effective December 1, 2017 The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendments are effective December 1, The purpose of these amendments is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for physical, occupational, and speech therapy provided by therapy assistants for the following: Early and Periodic Screening, Diagnosis and Treatment Services (EPSDT); Physicians and Other Practitioners; and Home Health Services. The proposed amendments are estimated to result in an aggregate cost savings of $25,365,875 for the remainder of federal fiscal year (FFY) 2018, consisting of $14,428,110 in federal funds and $10,937,765 in state general revenue. For FFY 2019, the estimated cost savings is $56,066,127, consisting of $32,137,104 in federal funds and $23,929,023 in state general revenue. For FFY 2020, the estimated cost savings is $56,963,185 consisting of $32,651,298 in federal funds and $24,311,887 in state general revenue. Further detail on specific rates and percentage changes is available on the HHSC Rate Analysis website under the December 1, 2017, proposed effective date at: Rate Hearing. A rate hearing was held on July 19, 2017, at 9:00 a.m. in Austin, Texas. Information about the proposed rate changes and the hearing can be found in the June 30, 2017, issue of the Texas Register on pages at Copy of Proposed Amendments. Interested parties may obtain a free copy of the proposed amendments or additional information about the amendments by contacting Doneshia Ates, State Plan Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) ; by facsimile at (512) ; or by at Medicaid_Chip_SPA_Inquiries@hhsc.state.Texas.us. Copies of the proposed amendments will 42 TexReg 6538 November 17, 2017 Texas Register

121 be available for review at the local county offices of the Texas Department of Aging and Disability Services. Written Comments. Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or U.S. Mail Texas Health and Human Services Commission Attention: Rate Analysis, Mail Code H-400 P.O. Box Austin, Texas Overnight mail, special delivery mail, or hand delivery Texas Health and Human Services Commission Attention: Rate Analysis, Mail Code H-400 Brown-Heatly Building 4900 North Lamar Blvd Austin, Texas Phone number for package delivery: (512) Fax Attention: Rate Analysis at (512) TRD Karen Ray Chief Counsel Texas Health and Human Services Commission Filed: November 8, 2017 Public Notice - Texas State Plan for Medical Assistance Amendments Effective January 1, 2018 The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendments are effective January 1, The purpose of these amendments is to update the fee schedules in the current state plan by adjusting fees, rates, or charges for the following: 2018 Annual Healthcare Common Procedure Coding System (HCPCS) Updates; Ambulance Services; Birthing Center Facility Services; Case Management Services; Certified Pediatric Nurse Practitioners and Certified Family Nurse Practitioners; Certified Registered Nurse Anesthetists and Anesthesiologist Assistants; Clinical Diagnostic Laboratory Services; Durable Medical Equipment, Prosthetics, Orthotics, and Supplies; Early and Periodic Screening, Diagnosis, and Treatment Services (EPSDT); Family Planning Services; Hearing Aids and Audiometric Evaluations; Home Health Services; Indian Health Services; Licensed Clinical Social Worker Services; Licensed Marriage and Family Therapist Services; Licensed Professional Counselor Services; Physicians and Other Practitioners; Physician Assistants; Rehabilitative Chemical Dependency Treatment Facility Services; and Vision Care Services. The proposed amendments are estimated to result in an aggregate cost of $77,107,171 for the remainder of federal fiscal year (FFY) 2018, consisting of a cost of $43,763,582 in federal funds and a cost of $33,343,319 in state general revenue. For FFY 2019, the estimated cost is $119,494,462, consisting of a cost of $68,288,893 in federal funds and a cost of $51,205,569 in state general revenue. For FFY 2020, the estimated cost is $119,514,986, consisting of a cost of $68,297,372 in federal funds and a cost of $51,217,614 in state general revenue. Further detail on specific rates and percentage changes is available on the HHSC Rate Analysis website under the proposed effective date at: Rate Hearing. A rate hearing was held on November 16, 2017, at 1:30 p.m. in Austin, Texas, and information about the proposed rate changes (including methodology and justification) and the hearing can be found in the October 13, 2017, issue of the Texas Register on pages at In addition, a rate hearing will be held on January 9, 2018, in Austin, Texas to address the 2018 Annual Healthcare Common Procedures Coding System (HCPCS) Updates. Once available, information about the proposed rate changes (including methodology and justification) and the hearing will be published in a subsequent issue of the Texas Register at Copy of Proposed Amendments. Interested parties may obtain a free copy of the proposed amendments and/or additional information about the amendments by contacting Doneshia Ates, State Plan Advisor, by mail at the Health and Human Services Commission, P.O. Box 13247, Mail Code H-600, Austin, Texas 78711; by telephone at (512) ; by facsimile at (512) ; or by at Medicaid_Chip_SPA_Inquiries@hhsc.state.tx.us. Copies of the proposed amendments will be available for review at the local county offices of the Texas Department of Aging and Disability Services. Written Comments. Written comments about the proposed amendments and/or requests to review comments may be sent by U.S. mail, overnight mail, special delivery mail, hand delivery, fax, or U.S. Mail Texas Health and Human Services Commission Attention: Rate Analysis, Mail Code H-400 P.O. Box Austin, Texas Overnight mail, special delivery mail, or hand delivery Texas Health and Human Services Commission IN ADDITION November 17, TexReg 6539

122 Attention: Rate Analysis, Mail Code H-400 Brown-Heatly Building 4900 North Lamar Austin, Texas Phone number for package delivery: (512) Fax Attention: Rate Analysis at (512) TRD Karen Ray Chief Counsel Texas Health and Human Services Commission Filed: November 8, 2017 Department of State Health Services Licensing Actions for Radioactive Materials 42 TexReg 6540 November 17, 2017 Texas Register

123 IN ADDITION November 17, TexReg 6541

124 42 TexReg 6542 November 17, 2017 Texas Register

125 IN ADDITION November 17, TexReg 6543

126 TRD Barbara L. Klein Interim General Counsel Department of State Health Services Filed: November 3, 2017 Texas Department of Housing and Community Affairs Release of the Notice of Funding Availability for the "2018 Amy Young Barrier Removal Program" I. Source of Funds. The Amy Young Barrier Removal Program is funded through the Housing Trust Fund which was established by the 72nd Legislature, Senate Bill 546, Texas Government Code, , to create affordable housing for low- and very low-income households. Funding sources consist of appropriations or transfers made to the fund, unencumbered fund balances, and public or private gifts, grants, or donations. II. Notice of Funding Availability (NOFA) Summary. The Texas Department of Housing and Community Affairs (the "Department") announces the availability of $3,090, of State of Texas Housing Trust Funds for Fiscal Year 2018 for the Amy Young Barrier Removal ("AYBR") Program to be released on November 14, Funds are available through the Department's first-come, first-served online Reservation System. Additional funds may be added to this NOFA from loan repayments, interest earnings and deobligations from prior years. The AYBR Program provides one-time grants of up to $20,000 to Persons with Disabilities in a household qualified as earning 80% or less of the applicable Area Median Family Income. Grants are for home modifications that increase accessibility, eliminate life-threatening hazards and correct unsafe conditions. To be able to reserve AYBR Program funds on behalf of an eligible Person with Disabilities, nonprofit organizations, units of local government, councils of government, local mental health authorities, and public housing authorities must apply to be a Program Administrator and execute an AYBR Program Reservation System Agreement. III. Additional Information. The 2018 AYBR Program NOFA is posted on the Department's website at Questions regarding the AYBR Program NOFA may be addressed to Diana Velez at (512) or diana.velez@tdhca.state.tx.us. TRD Timothy K. Irvine Executive Director Texas Department of Housing and Community Affairs Filed: November 8, 2017 Release of the Notice of Funding Availability for the "FY Texas Bootstrap Loan Program" I. Source of Funds. The Texas Bootstrap Loan Program is funded through the Housing Trust Fund which was established by the 72nd Legislature, Senate Bill 546, Texas Government Code , to create affordable housing for low- and very low-income households. Funding sources consist of appropriations or transfers made to the fund, unencumbered fund balances, and public or private gifts, grants, or donations. 42 TexReg 6544 November 17, 2017 Texas Register

127 II. Notice of Funding Availability (NOFA) Summary. The Texas Department of Housing and Community Affairs (the "Department"), through its Single Family Operations and Services Division, announces the availability of $6,145, in funds from the State of Texas Housing Trust Funds for Fiscal Years for the Texas Bootstrap Loan ("Bootstrap") Program. The $3,145, in FY 2018 funds will be available for online reservation on December 4, 2017, as follows: Two-third set-aside available only to census tracts listed at $2,098, Remaining one-third set-aside available statewide: $1,047, The $3,000,000 in FY 2019 funds will only be available for online reservation on July 9, 2018, and will be accessible by participating organizations on or about September 1, 2018, as follows: Two-third set-aside available only to census tracts listed at $2,000,000 Remaining one-third set-aside available statewide: $1,000,000 Additional funds may be added to this NOFA from loan repayments, interest earnings and deobligations from prior years. The purpose of the Bootstrap Program is to purchase land and/or build new residential or improve existing residential housing through selfhelp construction methods for Owner-Builders, including persons with special needs, whose household income does not exceed 60 percent of the Area Median Family Income. To be able to reserve Bootstrap Program funds on behalf of Owner- Builders, nonprofit organizations must undergo certification as a "Nonprofit Owner-Builder Housing Provider" (NOHP) by the Department and execute a loan origination agreement. Two-thirds of the funds are set aside for Owner-Builders with property in census tracts with median incomes not exceeding 75 percent of the current state median income. The remaining one-third is released statewide. III. Additional Information. The "FY Texas Bootstrap Loan Program" NOFA is posted on the Department's website at Questions regarding the Bootstrap Program NOFA may be addressed to Lisa Johnson at (512) or lisa.johnson@tdhca.state.tx.us. TRD Timothy K. Irvine Executive Director Texas Department of Housing and Community Affairs Filed: November 8, 2017 Texas Lottery Commission Scratch Ticket Game Number 2012 "Hot 7's" 1.0 Name and Style of Scratch Ticket Game. A. The name of Scratch Ticket Game No is "HOT 7'S". The play style is "key number match". 1.1 Price of Scratch Ticket Game. A. The price for Scratch Ticket Game No shall be $1.00 per Scratch Ticket. 1.2 Definitions in Scratch Ticket Game No A. Display Printing - That area of the Scratch Ticket outside of the area where the overprint and Play Symbols appear. B. Latex Overprint - The removable scratch-off covering over the Play Symbols on the front of the Scratch Ticket. C. Play Symbol - The printed data under the latex on the front of the Scratch Ticket that is used to determine eligibility for a prize. Each Play Symbol is printed in Symbol font in black ink in positive except for dual-image games. The possible black Play Symbols are: 01, 02, 03, 04, 05, 06, 08, 09, 10, 11, 12, 7 SYMBOL, $1.00, $2.00, $5.00, $10.00, $20.00, $40.00, $100 and $777. D. Play Symbol Caption - The printed material appearing below each Play Symbol which explains the Play Symbol. One caption appears under each Play Symbol and is printed in caption font in black ink in positive. The Play Symbol Caption which corresponds with and verifies each Play Symbol is as follows: IN ADDITION November 17, TexReg 6545

128 E. Serial Number - A unique 13 (thirteen) digit number appearing under the latex scratch-off covering on the front of the Scratch Ticket. The Serial Number is for validation purposes and cannot be used to play the game. The format will be: F. Bar Code - A 24 (twenty-four) character interleaved two (2) of five (5) Bar Code which will include a four (4) digit game ID, the seven (7) digit Pack number, the three (3) digit Scratch Ticket number and the ten (10) digit Validation Number. The Bar Code appears on the back of the Scratch Ticket. G. Pack-Ticket Number - A 14 (fourteen) digit number consisting of the four (4) digit game number (2012), a seven (7) digit Pack number, and a three (3) digit Scratch Ticket number. Scratch Ticket numbers start with 001 and end with 150 within each Pack. The format will be: H. Pack - A Pack of the "HOT 7'S" Scratch Ticket Game contains 150 Tickets, packed in plastic shrink-wrapping and fanfolded in pages of five (5). Tickets 001 to 005 will be on the top page; Tickets 006 to 010 on the next page, etc.; and Tickets 146 to 150 will be on the last page with backs exposed. Ticket 001 will be folded over so the front of Ticket 001 and 010 will be exposed. I. Non-Winning Scratch Ticket - A Scratch Ticket which is not programmed to be a winning Scratch Ticket or a Scratch Ticket that does not meet all of the requirements of these Game Procedures, the State Lottery Act (Texas Government Code, Chapter 466), and applicable rules adopted by the Texas Lottery pursuant to the State Lottery Act and referenced in 16 TAC, Chapter 401. J. Scratch Ticket Game, Scratch Ticket or Ticket - Texas Lottery "HOT 7'S" Scratch Ticket Game No Determination of Prize Winners. The determination of prize winners is subject to the general Scratch Ticket validation requirements set forth in Texas Lottery Rule , Instant Game Rules, these Game Procedures, and the requirements set out on the back of each Scratch Ticket. A prize winner in the "HOT 7'S" Scratch Ticket Game is determined once the latex on the Scratch Ticket is scratched off to expose 12 (twelve) Play Symbols. If a player matches any of the YOUR NUM- BERS Play Symbols to either of the WINNING NUMBERS Play Symbols, the player wins the prize for that number. If the player reveals a "7" Play Symbol, the player wins ALL 5 PRIZES instantly! No portion of the Display Printing nor any extraneous matter whatsoever shall be usable or playable as a part of the Scratch Ticket. 2.1 Scratch Ticket Validation Requirements. A. To be a valid Scratch Ticket, all of the following requirements must be met: 42 TexReg 6546 November 17, 2017 Texas Register

129 1. Exactly 12 (twelve) Play Symbols must appear under the Latex Overprint on the front portion of the Scratch Ticket; 2. Each of the Play Symbols must have a Play Symbol Caption underneath, unless specified, and each Play Symbol must agree with its Play Symbol Caption; 3. Each of the Play Symbols must be present in its entirety and be fully legible; 4. Each of the Play Symbols must be printed in black ink except for dual image games; 5. The Scratch Ticket shall be intact; 6. The Serial Number, Retailer Validation Code and Pack-Scratch Ticket Number must be present in their entirety and be fully legible; 7. The Serial Number must correspond, using the Texas Lottery's codes, to the Play Symbols on the Scratch Ticket; 8. The Scratch Ticket must not have a hole punched through it, be mutilated, altered, unreadable, reconstituted or tampered with in any manner; 9. The Scratch Ticket must not be counterfeit in whole or in part; 10. The Scratch Ticket must have been issued by the Texas Lottery in an authorized manner; 11. The Scratch Ticket must not have been stolen, nor appear on any list of omitted Scratch Tickets or non-activated Scratch Tickets on file at the Texas Lottery; 12. The Play Symbols, Serial Number, Retailer Validation Code and Pack-Scratch Ticket Number must be right side up and not reversed in any manner; 13. The Scratch Ticket must be complete and not miscut, and have exactly 12 (twelve) Play Symbols under the Latex Overprint on the front portion of the Scratch Ticket, exactly one Serial Number, exactly one Retailer Validation Code, and exactly one Pack-Scratch Ticket Number on the Scratch Ticket; 14. The Serial Number of an apparent winning Scratch Ticket shall correspond with the Texas Lottery's Serial Numbers for winning Scratch Tickets, and a Scratch Ticket with that Serial Number shall not have been paid previously; 15. The Scratch Ticket must not be blank or partially blank, misregistered, defective or printed or produced in error; 16. Each of the 12 (twelve) Play Symbols must be exactly one of those described in Section 1.2.C of these Game Procedures; 17. Each of the 12 (twelve) Play Symbols on the Scratch Ticket must be printed in the Symbol font and must correspond precisely to the artwork on file at the Texas Lottery; the Scratch Ticket Serial Numbers must be printed in the Serial font and must correspond precisely to the artwork on file at the Texas Lottery; and the Pack-Scratch Ticket Number must be printed in the Pack-Scratch Ticket Number font and must correspond precisely to the artwork on file at the Texas Lottery; 18. The Display Printing on the Scratch Ticket must be regular in every respect and correspond precisely to the artwork on file at the Texas Lottery; and 19. The Scratch Ticket must have been received by the Texas Lottery by applicable deadlines. B. The Scratch Ticket must pass all additional validation tests provided for in these Game Procedures, the Texas Lottery's Rules governing the award of prizes of the amount to be validated, and any confidential validation and security tests of the Texas Lottery. C. Any Scratch Ticket not passing all of the validation requirements is void and ineligible for any prize and shall not be paid. However, the Executive Director may, solely at the Executive Director's discretion, refund the retail sales price of the Scratch Ticket. In the event a defective Scratch Ticket is purchased, the only responsibility or liability of the Texas Lottery shall be to replace the defective Scratch Ticket with another unplayed Scratch Ticket in that Scratch Ticket Game (or a Scratch Ticket of equivalent sales price from any other current Texas Lottery Scratch Ticket Game) or refund the retail sales price of the Scratch Ticket, solely at the Executive Director's discretion. 2.2 Programmed Game Parameters. A. A Ticket can win up to five (5) times in accordance with the approved prize structure. B. Adjacent Non-Winning Tickets within a Pack will not have matching Play Symbol and Prize Symbol patterns. Two (2) Tickets have matching Play Symbol and Prize Symbol patterns if they have the same Play Symbols and Prize Symbols in the same spots. C. The top Prize Symbol will appear on every Ticket, unless otherwise restricted by other parameters, play action or prize structure. D. Each Ticket will have two (2) different WINNING NUMBERS Play Symbols. E. Non-winning YOUR NUMBERS Play Symbols will all be different. F. The "7" (WINALL) Play Symbol will never appear in either WIN- NING NUMBERS Play Symbol spot. G. The "7" (WINALL) Play Symbol will only appear as dictated by the prize structure. H. On Tickets that contain the "7" (WINALL) Play Symbol, neither of the WINNING NUMBERS Play Symbols will match any of the YOUR NUMBERS Play Symbols. I. Non-winning Prize Symbols will never appear more than two (2) times. J. Non-winning Prize Symbol(s) will never be the same as the winning Prize Symbol(s). K. No prize amount in a non-winning spot will correspond with the YOUR NUMBERS Play Symbol (i.e., 10 and $10). 2.3 Procedure for Claiming Prizes. A. To claim a "HOT 7'S" Scratch Ticket Game prize of $1.00, $2.00, $5.00, $10.00, $20.00, $40.00 or $100, a claimant shall sign the back of the Scratch Ticket in the space designated on the Scratch Ticket and present the winning Scratch Ticket to any Texas Lottery Retailer. The Texas Lottery Retailer shall verify the claim and, if valid, and upon presentation of proper identification, if appropriate, make payment of the amount due the claimant and physically void the Scratch Ticket; provided that the Texas Lottery Retailer may, but is not required, to pay a $40.00 or $100 Scratch Ticket Game. In the event the Texas Lottery Retailer cannot verify the claim, the Texas Lottery Retailer shall provide the claimant with a claim form and instruct the claimant on how to file a claim with the Texas Lottery. If the claim is validated by the Texas Lottery, a check shall be forwarded to the claimant in the amount due. In the event the claim is not validated, the claim shall be denied and the claimant shall be notified promptly. A claimant may also claim any of the above prizes under the procedure described in Section 2.3.B and Section 2.3.C of these Game Procedures. B. To claim a "HOT 7'S" Scratch Ticket Game prize of $777, the claimant must sign the winning Scratch Ticket and present it at one of the Texas Lottery's Claim Centers. If the claim is validated by the Texas Lottery, payment will be made to the bearer of the validated IN ADDITION November 17, TexReg 6547

130 winning Scratch Ticket for that prize upon presentation of proper identification. When paying a prize of $600 or more, the Texas Lottery shall file the appropriate income reporting form with the Internal Revenue Service (IRS) and shall withhold federal income tax at a rate set by the IRS if required. In the event that the claim is not validated by the Texas Lottery, the claim shall be denied and the claimant shall be notified promptly. C. As an alternative method of claiming a "HOT 7'S" Scratch Ticket Game prize, the claimant must sign the winning Scratch Ticket, thoroughly complete a claim form, and mail both to: Texas Lottery Commission, P.O. Box 16600, Austin, Texas The Texas Lottery is not responsible for Scratch Tickets lost in the mail. In the event that the claim is not validated by the Texas Lottery, the claim shall be denied and the claimant shall be notified promptly. D. Prior to payment by the Texas Lottery of any prize, the Texas Lottery shall deduct: 1. A sufficient amount from the winnings of a prize winner who has been finally determined to be: a. delinquent in the payment of a tax or other money to a state agency and that delinquency is reported to the Comptroller under Government Code ; b. in default on a loan made under Chapter 52, Education Code; or c. in default on a loan guaranteed under Chapter 57, Education Code; and 2. delinquent child support payments from the winnings of a prize winner in the amount of the delinquency as determined by a court or a Title IV-D agency under Chapter 231, Family Code. E. If a person is indebted or owes delinquent taxes to the State, other than those specified in the preceding paragraph, the winnings of a person shall be withheld until the debt or taxes are paid. 2.4 Allowance for Delay of Payment. The Texas Lottery may delay payment of the prize pending a final determination by the Executive Director, under any of the following circumstances: A. if a dispute occurs, or it appears likely that a dispute may occur, regarding the prize; B. if there is any question regarding the identity of the claimant; C. if there is any question regarding the validity of the Scratch Ticket presented for payment; or D. if the claim is subject to any deduction from the payment otherwise due, as described in Section 2.3.D of these Game Procedures. No liability for interest for any delay shall accrue to the benefit of the claimant pending payment of the claim. 2.5 Payment of Prizes to Persons Under 18. If a person under the age of 18 years is entitled to a cash prize under $600 from the "HOT 7'S" Scratch Ticket Game, the Texas Lottery shall deliver to an adult member of the minor's family or the minor's guardian a check or warrant in the amount of the prize payable to the order of the minor. 2.6 If a person under the age of 18 years is entitled to a cash prize of $600 or more from the "HOT 7'S" Scratch Ticket Game, the Texas Lottery shall deposit the amount of the prize in a custodial bank account, with an adult member of the minor's family or the minor's guardian serving as custodian for the minor. 2.7 Scratch Ticket Claim Period. All Scratch Ticket prizes must be claimed within 180 days following the end of the Scratch Ticket Game or within the applicable time period for certain eligible military personnel as set forth in Texas Government Code Any rights to a prize that is not claimed within that period, and in the manner specified in these Game Procedures and on the back of each Scratch Ticket, shall be forfeited. 2.8 Disclaimer. The number of prizes in a game is approximate based on the number of Scratch Tickets ordered. The number of actual prizes available in a game may vary based on number of Scratch Tickets manufactured, testing, distribution, sales and number of prizes claimed. A Scratch Ticket Game may continue to be sold even when all the top prizes have been claimed. 3.0 Scratch Ticket Ownership. A. Until such time as a signature is placed upon the back portion of a Scratch Ticket in the space designated, a Scratch Ticket shall be owned by the physical possessor of said Scratch Ticket. When a signature is placed on the back of the Scratch Ticket in the space designated, the player whose signature appears in that area shall be the owner of the Scratch Ticket and shall be entitled to any prize attributable thereto. Notwithstanding any name or names submitted on a claim form, the Executive Director shall make payment to the player whose signature appears on the back of the Scratch Ticket in the space designated. If more than one name appears on the back of the Scratch Ticket, the Executive Director will require that one of those players whose name appears thereon be designated by such players to receive payment. B. The Texas Lottery shall not be responsible for lost or stolen Scratch Tickets and shall not be required to pay on a lost or stolen Scratch Ticket. 4.0 Number and Value of Scratch Ticket Prizes. There will be approximately 29,280,000 Scratch Tickets in Scratch Ticket Game No The approximate number and value of prizes in the game are as follows: 42 TexReg 6548 November 17, 2017 Texas Register

131 A. The actual number of Scratch Tickets in the game may be increased or decreased at the sole discretion of the Texas Lottery Commission. 5.0 End of the Scratch Ticket Game. The Executive Director may, at any time, announce a closing date (end date) for the Scratch Ticket Game No without advance notice, at which point no further Scratch Tickets in that game may be sold. The determination of the closing date and reasons for closing will be made in accordance with the Scratch Ticket closing procedures and the Instant Game Rules. See 16 TAC (j). 6.0 Governing Law. In purchasing a Scratch Ticket, the player agrees to comply with, and abide by, these Game Procedures for Scratch Ticket Game No. 2012, the State Lottery Act (Texas Government Code, Chapter 466), applicable rules adopted by the Texas Lottery pursuant to the State Lottery Act and referenced in 16 TAC, Chapter 401, and all final decisions of the Executive Director. TRD Bob Biard General Counsel Texas Lottery Commission Filed: November 7, 2017 Scratch Ticket Game Number 2018 "Super 7's" 1.0 Name and Style of Scratch Ticket Game. A. The name of Scratch Ticket Game No is "SUPER 7'S". The play style is "key number match". 1.1 Price of Scratch Ticket Game. A. The price for Scratch Ticket Game No shall be $10.00 per Scratch Ticket. 1.2 Definitions in Scratch Ticket Game No A. Display Printing - That area of the Scratch Ticket outside of the area where the overprint and Play Symbols appear. B. Latex Overprint - The removable scratch-off covering over the Play Symbols on the front of the Scratch Ticket. C. Play Symbol - The printed data under the latex on the front of the Scratch Ticket that is used to determine eligibility for a prize. Each Play Symbol is printed in Symbol font in black ink in positive except for dual-image games. The possible black Play Symbols are: 01, 02, 03, 04, 05, 06, 08, 09, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 49, 50, 7 SYMBOL, 77 SYMBOL, BANK SYM- BOL, COINS SYMBOL, GOLD SYMBOL, SAFE SYMBOL, $10.00, $15.00, $20.00, $25.00, $30.00, $75.00, $100, $200, $500, $1,000, $10,000, $50,000 and $277,000. D. Play Symbol Caption- The printed material appearing below each Play Symbol which explains the Play Symbol. One caption appears under each Play Symbol and is printed in caption font in black ink in positive. The Play Symbol Caption which corresponds with and verifies each Play Symbol is as follows: IN ADDITION November 17, TexReg 6549

132 42 TexReg 6550 November 17, 2017 Texas Register

133 E. Serial Number - A unique 13 (thirteen) digit number appearing under the latex scratch-off covering on the front of the Scratch Ticket. The Serial Number is for validation purposes and cannot be used to play the game. The format will be: F. Bar Code - A 24 (twenty-four) character interleaved two (2) of five (5) Bar Code which will include a four (4) digit game ID, the seven (7) digit Pack number, the three (3) digit Scratch Ticket number and the ten (10) digit Validation Number. The Bar Code appears on the back of the Scratch Ticket. G. Pack-Ticket Number - A 14 (fourteen) digit number consisting of the four (4) digit game number (2018), a seven (7) digit Pack number, and a three (3) digit Scratch Ticket number. Scratch Ticket numbers start with 001 and end with 050 within each Pack. The format will be: H. Pack - A Pack of the "SUPER 7'S" Scratch Ticket Game contains 050 Tickets, packed in plastic shrink-wrapping and fanfolded in pages of one (1). The Packs will alternate. One will show the front of Ticket 001 and back of 050 while the other fold will show the back of Ticket 001 and front of 050. I. Non-Winning Scratch Ticket - A Scratch Ticket which is not programmed to be a winning Scratch Ticket or a Scratch Ticket that does not meet all of the requirements of these Game Procedures, the State Lottery Act (Texas Government Code, Chapter 466), and applicable rules adopted by the Texas Lottery pursuant to the State Lottery Act and referenced in 16 TAC, Chapter 401. J. Scratch Ticket Game, Scratch Ticket or Ticket - Texas Lottery "SU- PER 7'S" Scratch Ticket Game No Determination of Prize Winners. The determination of prize winners is subject to the general Scratch Ticket validation requirements set forth in Texas Lottery Rule , Instant Game Rules, these Game Procedures, and the requirements set out on the back of each Scratch Ticket. A prize winner in the "SUPER 7'S" Scratch Ticket Game is determined once the latex on the Scratch Ticket is scratched off to expose 56 (fifty-six) Play Symbols. If a player matches any of the YOUR NUMBERS Play Symbols to any of the WINNING NUMBERS Play IN ADDITION November 17, TexReg 6551

134 Symbols, the player wins the prize for that number. If the player reveals a "7" Play Symbol, the player wins 5 TIMES the prize for that symbol. If the player reveals a "77" Play Symbol, the player wins ALL 25 PRIZES instantly! BONUS PLAY AREA: If a player reveals a prize amount, the player wins that amount instantly! No portion of the Display Printing nor any extraneous matter whatsoever shall be usable or playable as a part of the Scratch Ticket. 2.1 Scratch Ticket Validation Requirements. A. To be a valid Scratch Ticket, all of the following requirements must be met: 1. Exactly 56 (fifty-six) Play Symbols must appear under the Latex Overprint on the front portion of the Scratch Ticket; 2. Each of the Play Symbols must have a Play Symbol Caption underneath, unless specified, and each Play Symbol must agree with its Play Symbol Caption; 3. Each of the Play Symbols must be present in its entirety and be fully legible; 4. Each of the Play Symbols must be printed in black ink except for dual image games; 5. The Scratch Ticket shall be intact; 6. The Serial Number, Retailer Validation Code and Pack-Scratch Ticket Number must be present in their entirety and be fully legible; 7. The Serial Number must correspond, using the Texas Lottery's codes, to the Play Symbols on the Scratch Ticket; 8. The Scratch Ticket must not have a hole punched through it, be mutilated, altered, unreadable, reconstituted or tampered with in any manner; 9. The Scratch Ticket must not be counterfeit in whole or in part; 10. The Scratch Ticket must have been issued by the Texas Lottery in an authorized manner; 11. The Scratch Ticket must not have been stolen, nor appear on any list of omitted Scratch Tickets or non-activated Scratch Tickets on file at the Texas Lottery; 12. The Play Symbols, Serial Number, Retailer Validation Code and Pack-Scratch Ticket Number must be right side up and not reversed in any manner; 13. The Scratch Ticket must be complete and not miscut, and have exactly 56 (fifty-six) Play Symbols under the Latex Overprint on the front portion of the Scratch Ticket, exactly one Serial Number, exactly one Retailer Validation Code, and exactly one Pack-Scratch Ticket Number on the Scratch Ticket; 14. The Serial Number of an apparent winning Scratch Ticket shall correspond with the Texas Lottery's Serial Numbers for winning Scratch Tickets, and a Scratch Ticket with that Serial Number shall not have been paid previously; 15. The Scratch Ticket must not be blank or partially blank, misregistered, defective or printed or produced in error; 16. Each of the 56 (fifty-six) Play Symbols must be exactly one of those described in Section 1.2.C of these Game Procedures; 17. Each of the 56 (fifty-six) Play Symbols on the Scratch Ticket must be printed in the Symbol font and must correspond precisely to the artwork on file at the Texas Lottery; the Scratch Ticket Serial Numbers must be printed in the Serial font and must correspond precisely to the artwork on file at the Texas Lottery; and the Pack-Scratch Ticket Number must be printed in the Pack-Scratch Ticket Number font and must correspond precisely to the artwork on file at the Texas Lottery; 18. The Display Printing on the Scratch Ticket must be regular in every respect and correspond precisely to the artwork on file at the Texas Lottery; and 19. The Scratch Ticket must have been received by the Texas Lottery by applicable deadlines. B. The Scratch Ticket must pass all additional validation tests provided for in these Game Procedures, the Texas Lottery's Rules governing the award of prizes of the amount to be validated, and any confidential validation and security tests of the Texas Lottery. C. Any Scratch Ticket not passing all of the validation requirements is void and ineligible for any prize and shall not be paid. However, the Executive Director may, solely at the Executive Director's discretion, refund the retail sales price of the Scratch Ticket. In the event a defective Scratch Ticket is purchased, the only responsibility or liability of the Texas Lottery shall be to replace the defective Scratch Ticket with another unplayed Scratch Ticket in that Scratch Ticket Game (or a Scratch Ticket of equivalent sales price from any other current Texas Lottery Scratch Ticket Game) or refund the retail sales price of the Scratch Ticket, solely at the Executive Director's discretion. Programmed Game Parameters. A. A Ticket can win up to twenty-six (26) times in accordance with the approved prize structure. B. Adjacent Non-Winning Tickets within a Pack will not have matching Play Symbol and Prize Symbol patterns. Two (2) Tickets have matching Play Symbol and Prize Symbol patterns if they have the same Play Symbols and Prize Symbols in the same spots. C. The top Prize Symbol will appear on every Ticket unless restricted by other parameters, play action or prize structure. D. Each Ticket will have five (5) different WINNING NUMBERS Play Symbols. E. Non-winning YOUR NUMBERS Play Symbols will all be different. F. Non-winning Prize Symbols will never appear more than three (3) times. G. The "7" (WIN5X) and "77" (WINALL) Play Symbols will never appear in the WINNING NUMBERS Play Symbol spots. H. The "7" (WIN5X) and "77" (WINALL) Play Symbols will appear as dictated by the prize structure. I. On Tickets that contain the "77" (WINALL) Play Symbol, none of the WINNING NUMBERS Play Symbols will match any of the YOUR NUMBERS Play Symbols and the "7" (WIN5X) Play Symbol will not appear. J. Non-winning Prize Symbols will never be the same as the winning Prize Symbol(s). K. No prize amount in a non-winning spot will correspond with the YOUR NUMBERS Play Symbol (i.e., 20 and $20). 2.3 Procedure for Claiming Prizes. A. To claim a "SUPER 7'S" Scratch Ticket Game prize of $10.00, $15.00, $20.00, $25.00, $30.00, $75.00, $100, $200 or $500, a claimant shall sign the back of the Scratch Ticket in the space designated on the Scratch Ticket and present the winning Scratch Ticket to any Texas Lottery Retailer. The Texas Lottery Retailer shall verify the claim and, if valid, and upon presentation of proper identification, if appropriate, make payment of the amount due the claimant and physically void the 42 TexReg 6552 November 17, 2017 Texas Register

135 Scratch Ticket; provided that the Texas Lottery Retailer may, but is not required, to pay a $25.00, $30.00, $75.00, $100, $200 or $500 Scratch Ticket Game. In the event the Texas Lottery Retailer cannot verify the claim, the Texas Lottery Retailer shall provide the claimant with a claim form and instruct the claimant on how to file a claim with the Texas Lottery. If the claim is validated by the Texas Lottery, a check shall be forwarded to the claimant in the amount due. In the event the claim is not validated, the claim shall be denied and the claimant shall be notified promptly. A claimant may also claim any of the above prizes under the procedure described in Section 2.3.B and Section 2.3.C of these Game Procedures. B. To claim a "SUPER 7'S" Scratch Ticket Game prize of $1,000, $10,000, $50,000 or $277,000, the claimant must sign the winning Scratch Ticket and present it at one of the Texas Lottery's Claim Centers. If the claim is validated by the Texas Lottery, payment will be made to the bearer of the validated winning Scratch Ticket for that prize upon presentation of proper identification. When paying a prize of $600 or more, the Texas Lottery shall file the appropriate income reporting form with the Internal Revenue Service (IRS) and shall withhold federal income tax at a rate set by the IRS if required. In the event that the claim is not validated by the Texas Lottery, the claim shall be denied and the claimant shall be notified promptly. C. As an alternative method of claiming a "SUPER 7'S" Scratch Ticket Game prize, the claimant must sign the winning Scratch Ticket, thoroughly complete a claim form, and mail both to: Texas Lottery Commission, P.O. Box 16600, Austin, Texas The Texas Lottery is not responsible for Scratch Tickets lost in the mail. In the event that the claim is not validated by the Texas Lottery, the claim shall be denied and the claimant shall be notified promptly. D. Prior to payment by the Texas Lottery of any prize, the Texas Lottery shall deduct: 1. A sufficient amount from the winnings of a prize winner who has been finally determined to be: a. delinquent in the payment of a tax or other money to a state agency and that delinquency is reported to the Comptroller under Government Code ; b. in default on a loan made under Chapter 52, Education Code; or c. in default on a loan guaranteed under Chapter 57, Education Code; and 2. delinquent child support payments from the winnings of a prize winner in the amount of the delinquency as determined by a court or a Title IV-D agency under Chapter 231, Family Code. E. If a person is indebted or owes delinquent taxes to the State, other than those specified in the preceding paragraph, the winnings of a person shall be withheld until the debt or taxes are paid. 2.4 Allowance for Delay of Payment. The Texas Lottery may delay payment of the prize pending a final determination by the Executive Director, under any of the following circumstances: A. if a dispute occurs, or it appears likely that a dispute may occur, regarding the prize; B. if there is any question regarding the identity of the claimant; C. if there is any question regarding the validity of the Scratch Ticket presented for payment; or D. if the claim is subject to any deduction from the payment otherwise due, as described in Section 2.3.D of these Game Procedures. No liability for interest for any delay shall accrue to the benefit of the claimant pending payment of the claim. 2.5 Payment of Prizes to Persons Under 18. If a person under the age of 18 years is entitled to a cash prize under $600 from the "SUPER 7'S" Scratch Ticket Game, the Texas Lottery shall deliver to an adult member of the minor's family or the minor's guardian a check or warrant in the amount of the prize payable to the order of the minor. 2.6 If a person under the age of 18 years is entitled to a cash prize of $600 or more from the "SUPER 7'S" Scratch Ticket Game, the Texas Lottery shall deposit the amount of the prize in a custodial bank account, with an adult member of the minor's family or the minor's guardian serving as custodian for the minor. 2.7 Scratch Ticket Claim Period. All Scratch Ticket prizes must be claimed within 180 days following the end of the Scratch Ticket Game or within the applicable time period for certain eligible military personnel as set forth in Texas Government Code Any rights to a prize that is not claimed within that period, and in the manner specified in these Game Procedures and on the back of each Scratch Ticket, shall be forfeited. 2.8 Disclaimer. The number of prizes in a game is approximate based on the number of Scratch Tickets ordered. The number of actual prizes available in a game may vary based on number of Scratch Tickets manufactured, testing, distribution, sales and number of prizes claimed. A Scratch Ticket Game may continue to be sold even when all the top prizes have been claimed. 3.0 Scratch Ticket Ownership. A. Until such time as a signature is placed upon the back portion of a Scratch Ticket in the space designated, a Scratch Ticket shall be owned by the physical possessor of said Scratch Ticket. When a signature is placed on the back of the Scratch Ticket in the space designated, the player whose signature appears in that area shall be the owner of the Scratch Ticket and shall be entitled to any prize attributable thereto. Notwithstanding any name or names submitted on a claim form, the Executive Director shall make payment to the player whose signature appears on the back of the Scratch Ticket in the space designated. If more than one name appears on the back of the Scratch Ticket, the Executive Director will require that one of those players whose name appears thereon be designated by such players to receive payment. B. The Texas Lottery shall not be responsible for lost or stolen Scratch Tickets and shall not be required to pay on a lost or stolen Scratch Ticket. 4.0 Number and Value of Scratch Ticket Prizes. There will be approximately 14,640,000 Scratch Tickets in Scratch Ticket Game No The approximate number and value of prizes in the game are as follows: IN ADDITION November 17, TexReg 6553

136 A. The actual number of Scratch Tickets in the game may be increased or decreased at the sole discretion of the Texas Lottery Commission. 5.0 End of the Scratch Ticket Game. The Executive Director may, at any time, announce a closing date (end date) for the Scratch Ticket Game No without advance notice, at which point no further Scratch Tickets in that game may be sold. The determination of the closing date and reasons for closing will be made in accordance with the Scratch Ticket closing procedures and the Instant Game Rules. See 16 TAC (j). 6.0 Governing Law. In purchasing a Scratch Ticket, the player agrees to comply with, and abide by, these Game Procedures for Scratch Ticket Game No. 2018, the State Lottery Act (Texas Government Code, Chapter 466), applicable rules adopted by the Texas Lottery pursuant to the State Lottery Act and referenced in 16 TAC, Chapter 401, and all final decisions of the Executive Director. TRD Bob Biard General Counsel Texas Lottery Commission Filed: November 7, 2017 North Central Texas Council of Governments Notice of Consultant Contract Award Pursuant to the provisions of Government Code, Chapter 2254, the North Central Texas Council of Governments (NCTCOG) publishes this notice of consultant contract award. The consultant request appeared in the June 2, 2017, issue of the Texas Register (42 TexReg 2971). As part of NCTCOG's 2017 Cooperative Transit Vehicle Security Camera Systems (Re-Solicitation) Procurement, the selected vendor will provide the hardware, software, and installation of transit vehicle security camera systems. CWI Digital Systems, LLC, 3213 FM 121, Van Alstyne, Texas 75495, was selected to provide the security camera systems for a one-year base contract that is not to exceed $653,000. TRD R. Michael Eastland Executive Director North Central Texas Council of Governments Filed: November 2, 2017 Texas Board of Nursing Texas Peer Assistance Program for Nurses Audit Contract Pursuant to Texas Government Code, , the Board provides the following notice: The Board is under a current contract with the Texas Nurses Foundation to provide peer assistance services, through the Texas Peer Assistance Program for Nurses (TPAPN), to nurses with substance use disor- 42 TexReg 6554 November 17, 2017 Texas Register

137 ders and/or mental health issues. During its recent review by the Texas Sunset Advisory Commission, (Commission), the Commission recommended that the Board establish meaningful performance goals and a clear procedure for evaluating TPAPN in order to determine the effectiveness of the program. Further, the Commission recommended that the Board consider establishing targets/goals for its current measures of recidivism and dropout rates, as well as other measures to indicate program effectiveness. The Commission also recommended that the Board consider incorporating new measures/means to evaluate its peer assistance program in its next Request for Proposal (RFP) and consider amending its current contract with the Texas Nurses Foundation. On November 2, 2017, the Board entered into a new contract with Citizen Advocacy Center (CAC), pursuant to "An Invitation for Consultants to Provide Offers of Auditing Services" posted in the Texas Register on August 11, 2017 (42 TexReg 4023), in accordance with Texas Government Code, CAC, located at th Street, NW, Suite #4, Washington, DC 20009, was the successful offeror. CAC's response met all of the requirements of the "Invitation." The Board based its selection of CAC on its demonstrated competence, knowledge, and qualifications and on the reasonableness of its proposed fee, as required by Texas Government Code, Pursuant to the new contract, CAC will perform an audit of TPAPN. The audit will evaluate TPAPN's overall performance, including a determination of whether TPAPN is performing as expected, and whether it is in the public interest to continue the contract with TPAPN. The requested audit must also include a review of all of TPAPN's internal performance metrics; the existence of, and adherence to, TPAPN's internal guidelines and policies; adherence to the Board's policies; consistency and fairness in the treatment of the program's participants; TPAPN's methods of internal record keeping; the appropriateness of fees paid by the participants; enrollment trends, including waiting periods for enrollment into the program; TPAPN's sustained enrollments rates; satisfaction ratings of the participants; and the completion rate of participants. The requested audit must also evaluate the level of TPAPN's managerial control over the program; TPAPN's ability to construct, produce, and maintain meaningful performance measures for the program; TPAPN's commitment to providing non-punitive, rehabilitative services to participants; TPAPN's ability to construct budgetary constraints designed to sustain and enhance the longevity of the program; and TPAPN's ability to timely enroll new participants in the program, minimize attrition, and incentivize completion of the program. Additionally, the requested audit should also include an evaluation of TPAPN's ability to meet and adjust to the changing needs of the participants, including consideration of a participant's specific diagnosis under the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-V) (i.e., mild, moderate, or severe substance use disorder). The contract begins on November 2, 2017, and will continue until the audit is completed or until August 31, 2018, whichever first occurs. CAC must complete its audit during this time period. CAC will be paid the sum of $20, to perform the required audit of TPAPN, and will be reimbursed for its travel expenses, up to a maximum amount of $5, TRD Jena Abel Deputy General Counsel Texas Board of Nursing Filed: November 7, 2017 Public Utility Commission of Texas Notice of Application for Approval of a Service Area Contract and to Amend Water Certificates of Convenience and Necessity Notice is given to the public of the filing with the Public Utility Commission of Texas (commission) of an application for approval of an agreement that would amend water certificates of convenience and necessity (CCNs) in Bexar County. Docket Style and Number: Application of Green Valley Special Utility District and the City of Schertz for Approval of a Service Area Contract Under Texas Water Code and to Amend Certificates of Convenience and Necessity in Bexar County, Docket Number The Application: Schertz holds water CCN No and Green Valley SUD holds water CCN No Schertz and Green Valley SUD have agreed to alter the boundaries of their respective CCNs and transfer a portion of the Triple H Property from within the boundary of Green Valley's CCN to Schertz's CCN boundary. Persons wishing to intervene or comment on the action sought should contact the commission by mail at P.O. Box 13326, Austin, Texas , or by phone at (512) or toll-free at (888) A deadline for intervention in this proceeding will be established. Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission through Relay Texas by dialing All comments should reference Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 6, 2017 Notice of Application for Sale, Transfer, or Merger Notice is given to the public of an application filed with the Public Utility Commission of Texas (commission) on October 30, 2017, in accordance with the Texas Water Code. Docket Style and Number: Application of Kempner Water Supply Corporation and the City of Copperas Cove for Sale, Transfer, or Merger of Facilities and Certificate Rights in Coryell County, Docket Number The Application: Kempner Water Supply Corporation and the City of Copperas Cove filed an application for approval of the sale, transfer, or merger of facilities and certificate rights in Coryell County. Specifically, Kempner WSC seeks approval to sell and transfer a portion of water certificate of convenience and necessity (CCN) No to the City of Copperas Cove's CCN No Rates will not change for the affected customers. Persons who wish to intervene in the proceeding or comment upon the action sought should contact the commission as soon as possible as an intervention deadline will be imposed. A comment or request to intervene should be mailed to Public Utility Commission of Texas, P.O. Box 13326, Austin, Texas Further information may also be obtained by calling the commission's Office of Customer Protection at (512) or (888) Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission through Relay Texas by dialing All correspondence should refer to Docket Number TRD IN ADDITION November 17, TexReg 6555

138 Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 2, 2017 Notice of Application for Sale, Transfer, or Merger Notice is given to the public of an application filed with the Public Utility Commission of Texas (commission) on November 1, 2017, in accordance with the Texas Water Code. Docket Style and Number: Application of Cypress Cove Maintenance Association and Cypress Cove Water Supply Corporation for Sale, Transfer, or Merger of Facilities and Certificate Rights in Comal County, Docket Number The Application: Cypress Cove Maintenance Association filed an application for the sale, transfer, or merger of facilities and certificate rights in Comal County. Specifically, Cypress Cove Maintenance seeks approval to transfer all of the area under water certificate of convenience and necessity (CCN) No to Cypress Cove Water Supply Corporation, who will obtain a new CCN. The total area being requested includes approximately 600 acres and serves 376 current customers. Persons who wish to intervene in the proceeding or comment upon the action sought should contact the commission as soon as possible as an intervention deadline will be imposed. A comment or request to intervene should be mailed to Public Utility Commission of Texas, P.O. Box 13326, Austin, Texas Further information may also be obtained by calling the commission's Office of Customer Protection at (512) or (888) Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission through Relay Texas by dialing All correspondence should refer to Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 2, 2017 Notice of Application for Sale, Transfer, or Merger Notice is given to the public of an application filed with the Public Utility Commission of Texas (commission) on October 31, 2017, in accordance with the Texas Water Code. Docket Style and Number: Application of Shady Shores Development d/b/a Shady Shores Water System and Diana Special Utility District for Sale, Transfer, or Merger of Facilities and Certificate Rights in Marion County, Docket Number The Application: Shady Shores Development d/b/a Shady Shores Water System and Diana Special Utility District filed an application for approval of the sale, transfer, or merger of facilities and certificate rights in Marion County. Specifically, Diana SUD seeks approval to acquire all of the water system assets and service area held by Shady Shores under water certificate of convenience and necessity number The requested area includes approximately 250 acres and 153 current customers. Persons who wish to intervene in the proceeding or comment upon the action sought should contact the commission as soon as possible as an intervention deadline will be imposed. A comment or request to intervene should be mailed to Public Utility Commission of Texas, P.O. Box 13326, Austin, Texas Further information may also be obtained by calling the commission's Office of Customer Protection at (512) or (888) Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission through Relay Texas by dialing All correspondence should refer to Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 6, 2017 Notice of Application for Sale, Transfer, or Merger Notice is given to the public of an application filed with the Public Utility Commission of Texas (commission) on November 1, 2017, under the Public Utility Regulatory Act, Tex. Util. Code Ann and Docket Style and Number: Application of BHER Santa Rita Investment, Inc. Under of the Public Utility Regulatory Act, Docket Number The Application: On November 1, 2017, BHER Santa Rita Wind Investment, LLC filed an application for approval to purchase 100% of the membership interests in Santa Rita Wind Energy LLC. Following the proposed transaction, the combined generation owned and controlled by Santa Rita Wind and its affiliates and will equal approximately 1,587 MW, or approximately 1.70% of the installed capacity in the Electric Reliability Council of Texas (ERCOT) or capable delivery into ERCOT. Persons wishing to intervene or comment on the action sought should contact the commission as soon as possible as an intervention deadline will be imposed. A comment or request to intervene should be mailed to at P.O. Box 13326, Austin, Texas , or by phone at (512) or toll-free at (888) Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission through Relay Texas by dialing All comments should reference Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 6, 2017 Notice of Application to Amend a Service Provider Certificate of Operating Authority On November 3, 2017, an application was filed with the Public Utility Commission of Texas (commission) to amend a service provider certificate of operating authority. Docket Style and Number: Application of WANRack, LLC to Amend a Service Provider Certificate of Operating Authority, Docket No Application: WANRack, LLC filed an application to amend service provider certificate of operating authority number to reflect a corporate restructuring and a change in ownership and control. WAN- Rack will be re-domiciled and converted from a Kansas limited liability company to a Delaware limited liability company, in addition WAN- Rack will be wholly-owned by WANRack Holdings, LLC. 42 TexReg 6556 November 17, 2017 Texas Register

139 Persons wishing to comment on the action sought should contact the Public Utility Commission of Texas by mail at P.O. Box 13326, Austin, Texas , or by phone at (512) or toll free at (888) no later than November 27, Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission through Relay Texas by dialing All comments should reference Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 6, 2017 Notice of Petition for Amendment to a Water Certificate of Convenience and Necessity by Expedited Release Notice is given to the public of the filing with the Public Utility Commission of Texas (commission) on October 27, 2017, of a petition to amend a water certificate of convenience and necessity (CCN) by expedited release in Denton County. Docket Style and Number: Petition of Mike Hopkins, Executor of the Estate of Herman H. Hopkins, to Amend Bolivar Water Supply Corporation's Certificate of Convenience and Necessity in Denton County by Expedited Release, Docket Number The Petition: A petition was filed by Mike Hopkins, as executor of the estate of Herman H. Hopkins, for expedited release of acres from Bolivar Water Supply Corporation's water certificate of convenience and necessity No in Denton County under Texas Water Code (a 5) and 16 Texas Administrative Code (l). Persons wishing to comment on the action sought should contact the commission no later than November 27, 2017, by mail at P.O. Box 13326, Austin, Texas , or by phone at (512) or toll-free at (888) Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission through Relay Texas by dialing All comments should reference Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 1, 2017 Notice of Petition for True-Up of 2015 Federal Universal Service Fund Impacts to the Texas Universal Service Fund Notice is given to the public of the filing with the Public Utility Commission of Texas (commission) an application on October 31, 2017, for true-up of 2015 Federal Universal Service Fund (FUSF) Impacts to the Texas Universal Service Fund (TUSF). Docket Style and Number: Application of Border to Border Communications, Inc. for True-Up of 2015 Federal Universal Service Fund Impacts to the Texas Universal Service Fund, Docket Number The Application: Border to Border Communications, Inc. (BTBC) filed a true-up report in accordance with Findings of Fact Nos. 9 and 10 of the final order in Docket No In Docket No , the Commission approved BTBC's application to recover funds from the TUSF and ordered a true-up of the FUSF revenue changes for This application addresses BTBC's final and actual FUSF impact for Persons wishing to intervene or comment on the action sought should contact the commission by mail at P.O. Box 13326, Austin, Texas , or by phone at (512) or toll-free at (888) A deadline for intervention in this proceeding will be established. Hearing and speech-impaired individuals with text telephone (TTY) may contact the commission through Relay Texas by dialing All comments should reference Docket Number TRD Adriana Gonzales Rules Coordinator Public Utility Commission of Texas Filed: November 6, 2017 Teacher Retirement System of Texas Correction of Error The Teacher Retirement System of Texas adopted an amendment to 34 TAC in the November 10, 2017, issue of the Texas Register (42 TexReg 6373). Due to an error by the Teacher Retirement System of Texas, the adoption incorrectly listed the section under Subchapter C, Employment After Retirement. The section is located under Subchapter D, Employer Pension Surcharge. The amendment was effective November 14, TRD Texas Department of Transportation Public Transportation Division - Notice of Call for Projects The Texas Department of Transportation (department) announces a Call for Projects for: 1. Statewide Planning Assistance - 49 U.S.C. 5304, 43 Texas Administrative Code (TAC) Rural Transportation Assistance - 49 U.S.C. 5311(b)(3), 43 TAC Intercity Bus - 49 U.S.C. 5311(f), 43 TAC Rural Discretionary - 49 U.S.C Discretionary Program, 43 TAC Fleet Replacement - 49 U.S.C Formula Grants for Rural Areas Program, 43 TAC Fleet Replacement - 49 U.S.C Urbanized Area Formula Program, 43 TAC These public transportation projects will be funded through the Federal Transit Administration (FTA) 5304, 5311(b)(3), 5311(f), 5311, and 5307 programs. It is anticipated that multiple projects from multiple funding programs will be selected for State Fiscal Year Project selection will be administered by the Public Transportation Division. Projects selected for funding under the 5304, 5311(b)(3), 5311(f), and 5311 programs will be awarded in the form of grants with payments made for allowable reimbursable expenses or for defined deliverables. Successful applicants will become subrecipients of the department. Successful applicants of projects selected for funding under 5307 will apply for funds directly with FTA for the approved project. IN ADDITION November 17, TexReg 6557

140 Information and instructions regarding the call for projects will be posted on the Public Transportation Division website at Purpose: The Call for Projects invites applications for services to develop, promote, coordinate, or support public transportation. Applications submitted for funding should reflect projects that will: assist small urban and rural transit agencies to develop projects and strategies to further meet the transportation needs of local residents using current program resources; design and implement training and technical assistance projects and other support services tailored to meet the specific needs of transit operators in rural areas; assist public transportation providers in rural areas to provide passenger transportation services to the general public using the most efficient combination of knowledge, materials, resources, and technology; support connections, services, and infrastructure to meet the intercity mobility needs of residents in rural areas; or maintain capital assets in a state of good repair. Eligible Applicants: Eligible applicants may include state agencies, local public bodies and agencies thereof, private nonprofit organizations, operators of public transportation services, state transit associations, transit districts, and private for-profit operators. Eligible applicants are defined in 43 TAC Chapter 31. Key Dates and Deadlines: November 17, 2017: Opportunity opens in egrants January 5, 2018: Deadline for submitting written questions February 16, 2018: Deadline for receipt of applications May 31, 2018: Target date for presentation of project selection recommendations to the Texas Transportation Commission for action September 1, 2018: Target date for most project grant agreements to be executed Questions: Individuals with questions relating to the Call for Projects should PTN_ProgramMgmt@txdot.gov. TRD Joanne Wright Deputy General Counsel Texas Department of Transportation Filed: November 3, TexReg 6558 November 17, 2017 Texas Register

141 How to Use the Texas Register Information Available: The sections of the Texas Register represent various facets of state government. Documents contained within them include: Governor - Appointments, executive orders, and proclamations. Attorney General - summaries of requests for opinions, opinions, and open records decisions. Texas Ethics Commission - summaries of requests for opinions and opinions. Emergency Rules - sections adopted by state agencies on an emergency basis. Proposed Rules - sections proposed for adoption. Withdrawn Rules - sections withdrawn by state agencies from consideration for adoption, or automatically withdrawn by the Texas Register six months after the proposal publication date. Adopted Rules - sections adopted following public comment period. Texas Department of Insurance Exempt Filings - notices of actions taken by the Texas Department of Insurance pursuant to Chapter 5, Subchapter L of the Insurance Code. Review of Agency Rules - notices of state agency rules review. Tables and Graphics - graphic material from the proposed, emergency and adopted sections. Transferred Rules - notice that the Legislature has transferred rules within the Texas Administrative Code from one state agency to another, or directed the Secretary of State to remove the rules of an abolished agency. In Addition - miscellaneous information required to be published by statute or provided as a public service. Specific explanation on the contents of each section can be found on the beginning page of the section. The division also publishes cumulative quarterly and annual indexes to aid in researching material published. How to Cite: Material published in the Texas Register is referenced by citing the volume in which the document appears, the words TexReg and the beginning page number on which that document was published. For example, a document published on page 2402 of Volume 40 (2015) is cited as follows: 40 TexReg In order that readers may cite material more easily, page numbers are now written as citations. Example: on page 2 in the lower-left hand corner of the page, would be written 40 TexReg 2 issue date, while on the opposite page, page 3, in the lower right-hand corner, would be written issue date 40 TexReg 3. How to Research: The public is invited to research rules and information of interest between 8 a.m. and 5 p.m. weekdays at the Texas Register office, James Earl Rudder Building, 1019 Brazos, Austin. Material can be found using Texas Register indexes, the Texas Administrative Code section numbers, or TRD number. Both the Texas Register and the Texas Administrative Code are available online at: The Texas Register is available in an.html version as well as a.pdf version through the internet. For website information, call the Texas Register at (512) Texas Administrative Code The Texas Administrative Code (TAC) is the compilation of all final state agency rules published in the Texas Register. Following its effective date, a rule is entered into the Texas Administrative Code. Emergency rules, which may be adopted by an agency on an interim basis, are not codified within the TAC. The TAC volumes are arranged into Titles and Parts (using Arabic numerals). The Titles are broad subject categories into which the agencies are grouped as a matter of convenience. Each Part represents an individual state agency. The complete TAC is available through the Secretary of State s website at The Titles of the TAC, and their respective Title numbers are: 1. Administration 4. Agriculture 7. Banking and Securities 10. Community Development 13. Cultural Resources 16. Economic Regulation 19. Education 22. Examining Boards 25. Health Services 28. Insurance 30. Environmental Quality 31. Natural Resources and Conservation 34. Public Finance 37. Public Safety and Corrections 40. Social Services and Assistance 43. Transportation How to Cite: Under the TAC scheme, each section is designated by a TAC number. For example in the citation 1 TAC 27.15: 1 indicates the title under which the agency appears in the Texas Administrative Code; TAC stands for the Texas Administrative Code; is the section number of the rule (27 indicates that the section is under Chapter 27 of Title 1; 15 represents the individual section within the chapter). How to Update: To find out if a rule has changed since the publication of the current supplement to the Texas Administrative Code, please look at the Index of Rules. The Index of Rules is published cumulatively in the blue-cover quarterly indexes to the Texas Register. If a rule has changed during the time period covered by the table, the rule s TAC number will be printed with the Texas Register page number and a notation indicating the type of filing (emergency, proposed, withdrawn, or adopted) as shown in the following example. TITLE 1. ADMINISTRATION Part 4. Office of the Secretary of State Chapter 91. Texas Register 1 TAC (P)

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