TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 38. CHILDREN WITH SPECIAL HEALTH CARE NEEDS SERVICES PROGRAM

25 TAC §§38.1 - 38.16

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes amendments to §§38.1 - 38.16, concerning the Children with Special Health Care Needs (CSHCN) Services Program.

BACKGROUND AND PURPOSE

As authorized by Health and Safety Code, Chapter 35, the CSHCN Services Program provides services to children younger than 21 years of age who have a chronic physical or developmental condition and to eligible clients with cystic fibrosis regardless of age.

The proposed amendments are necessary to add new definitions, make corrections, make revisions that simplify the eligibility determination process and allow clients a full six-month eligibility period, and to improve flow, accuracy, and clarity in the rules. Additionally, specific references to program fees (related to reimbursement rates for covered medical, dental, and other services) have been removed from the rules to allow the program flexibility to adjust rates when necessary to remain within budgetary limitations. Rates are determined in policy, and current program rates will remain accessible to the public via the program's claim administrator's Online Fee Lookup website.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 38.1 - 38.16 have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed.

SECTION-BY-SECTION SUMMARY

Amendments to §§38.1, 38.5 - 38.9, and 38.11 - 38.16 improve flow, accuracy, and clarity. Amendments to §38.2 include new definitions and revisions to existing definitions for terms used within the rules. Amendments to §38.3 add language necessary for clarification of the CSHCN Services Program eligibility requirements. Amendments to §38.4 clarify existing language and add new language for benefits and limitations and increase readability. Amendments to §38.10 clarify existing language and remove program fees and payment methodologies (related to reimbursement rates for covered medical, dental, and other services) so that the program has flexibility to adjust rates when necessary to remain within budgetary limitations.

FISCAL NOTE

Jann Melton-Kissel, RN, MBA, Director, Specialized Health Services Section, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal impact to state or local governments as a result of enforcing and administering the sections as proposed. The amendments are intended to clarify, update, and strengthen the chapter and are not anticipated to be controversial.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Melton-Kissel has also determined that there will be no adverse effect on small businesses or micro-businesses required to comply with the sections as proposed, because neither small businesses nor micro-businesses that are providers of CSHCN Services Program will be required to alter their business practices in order to comply with the sections.

ECONOMIC COST TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

Ms. Melton-Kissel has also 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 improved accuracy and consistency and more accurate interpretation of their intent. In addition, the amendments will allow the program to function more efficiently and effectively.

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined as 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

The department 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, §2007.043.

PUBLIC COMMENT

Comments on the proposal may be submitted by mail to Sandra Owen, RN, MN, Policy Formulation and Health Benefit Team Lead, Purchased Health Services Unit, Mail Code 1938, Department of State Health Services, P.O. Box 149347, Austin, Texas 78714-9347; by telephone at (512) 776-3007; or by email to sandra.owen@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.

STATUTORY AUTHORITY

The amendments are authorized by Government Code, §531.0055(e), and Health and Safety Code, Chapter 35 and §1001.075, 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 the department and for the administration of Health and Safety Code, Chapter 1001. The review of the rules implements Government Code, §2001.039.

The amendments affect Government Code, Chapter 531, and Health and Safety Code, Chapters 35 and 1001.

§38.1.Purpose and Common Name.

(a) Purpose. The purpose of this chapter is to implement the Children with Special Health Care Needs (CSHCN) Services Program as [that is ] authorized by Health and Safety Code, Chapter 35, to provide the following services to eligible children:

(1) - (7) (No change.)

(b) Common Name. The CSHCN [Children with Special Health Care Needs] Services Program may adopt a common name to facilitate and improve program marketing and recognition.

§38.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) (No change.)

(2) Advanced practice registered nurse--A registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse[, including, but not limited to, a nurse practitioner, nurse anesthetist, or clinical nurse specialist].

(3) - (21) (No change.)

(22) Disregards--An amount of money deducted from the family's total income for allowable expenses, such as child care.

(23) [(22)] Eligibility date for the CSHCN Services Program health care benefits--The effective date of eligibility for the CSHCN Services Program health care benefits is [15 days prior to] the date of receipt of a complete, approved [the ] application except in the following circumstances.

(A) The effective date of eligibility for newborns who are not born prematurely will be the date of birth. Newborn means a child 28 days old or younger.

(B) The effective date of eligibility for an applicant who is born prematurely shall be the day after the applicant has been out of the hospital for 14 consecutive days, but no earlier than [15 days prior to] the date of receipt of the application.

(C) The effective date of eligibility following traumatic injury shall be the day after the acute phase of treatment ends, but no earlier than [15 days prior to] the date of receipt of the application.

(D) The effective date of eligibility for applicants with spenddown is [the day after the earliest DOS on which the cumulative bills are sufficient to meet the spenddown amount, but no earlier than 15 days prior to] the date of receipt of the medical bills which document that spenddown has been met, following the receipt of a complete application. Only medical bills having a DOS within 12 months prior to or 6 months after the date of receipt of the application[, or a DOS within 6 months after the financial eligibility denial date] may be included to satisfy spenddown requirements. Medical bills for any member of the family [household ] for which the applicant, parent(s), guardian or managing conservator of the CSHCN Services Program applicant is responsible may be included. Medical bills used to meet spenddown cannot be paid by the CSHCN Services Program.

(E) Excluding applications for clients who are known to be ineligible for Medicaid and the CHIP due to age, citizenship status, or insurance coverage, all applications must include a determination of eligibility from Medicaid and the CHIP. If the CSHCN Services Program application is received without a Medicaid determination, a CHIP determination, or other data or documents needed to process the application, it will be considered incomplete. The applicant will be notified that the application is incomplete and given 60 days to submit the Medicaid determination, CHIP denial or enrollment, or other missing data or documents to the CSHCN Services Program. If the application is made complete within the 60-day time limit, the client's eligibility effective date will be established as [15 days prior to] the date the CSHCN Services Program application was first received. If the application is made complete more than 60 days after initial receipt, the eligibility effective date will be established as [15 days prior to] the date the application was made complete.

(24) [(23)] Emergency--A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent person with average knowledge of health and medicine could reasonably expect that the absence of immediate medical care could result in:

(A) placing the person's health in serious jeopardy;

(B) serious impairment to bodily functions; or

(C) serious dysfunction of any bodily organ or part.

(25) [(24)] Emotional or behavioral condition--Behavior which varies significantly from normal, that is chronic and does not quickly disappear, and that is unacceptable because of social or cultural expectations. Emotional or behavioral responses which are so different from those of the generally accepted, age-appropriate norms of people with the same ethnic or cultural background as to result in significant impairment in social relationships, self-care, educational progress, or classroom behavior. Examples include but are not limited to the following:

(A) an inability to build or maintain satisfactory age-appropriate interpersonal relationships with peers or adults;

(B) dangerously aggressive, self-destructive, severely withdrawn, or noncommunicative behaviors;

(C) a pervasive mood of unhappiness or depression; or

(D) evidence of excessive anxiety or fears.

(26) [(25)] Facility--A hospital, psychiatric hospital, rehabilitation hospital or center, ambulatory surgical center, renal dialysis center, specialty center, or outpatient clinic.

(27) [(26)] Family--For the purpose of determining family size [income] for program eligibility, the family includes the following persons who live in the same residence:

(A) the applicant;

(B) those related to the applicant as a parent, stepparent, or spouse who have a legal responsibility to support the applicant, or guardians or managing conservators who have a duty to provide food, shelter, education, and medical care for the applicant;

(C) children under age 19 or wards of the applicant; and

(D) children under age 19 or wards of a parent, stepparent, or spouse.

(28) [(27)] Family support services--Disability-related support, resources, or other assistance provided to the family of a child with special health care needs. The term may include services described by Part A of the Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.), as amended, and permanency planning, as that term is defined by Government Code, §531.151.

(29) [(28)] Federal Poverty Level (FPL)--The minimum income needed by a family for food, clothing, transportation, shelter, and other necessities in the United States, according to the United States Department of Health and Human Services, or its successor agency or agencies. The FPL varies according to family size and after adjustment for inflation, is published annually in the Federal Register.

(30) [(29)] Federally qualified health center [(FQHC)]--A federally qualified health center is designated by CMS to provide core medical services to a Medically Underserved Population [(MUP)].

(31) [(30)] Financial independence--A state in which a person currently files his or her own personal U.S. income tax return and is not claimed as a dependent by any other person on his or her U.S. income tax return.

(32) [(31)] Guardian--A statutory officer appointed under the Texas Probate Code who has a duty to provide food, shelter, education, and medical care for his or her ward.

(33) [(32)] Health care benefits--CSHCN Services Program benefits consisting of diagnosis and evaluation services, rehabilitation services, medical home care management services, family support services, transportation related services, and insurance premium payment services.

(34) [(33)] Health insurance and health benefits plan--A policy or plan, individual, group, or government-sponsored, that an individual purchases or in which an individual participates that provides benefits when medical or dental costs are or would be incurred. Sources of health insurance include, but are not limited to, health insurance policies, buy-in programs, health maintenance organizations, preferred provider organizations, employee health welfare plans, union health welfare plans, medical expense reimbursement plans, United States Department of Defense or Department of Veterans Affairs benefit plans, Medicaid, CHIP, and Medicare. Benefits may be in any form, including, but not limited to, reimbursement based upon cost, cash payment based upon a schedule, or access without charge or at minimal charge to providers of medical or dental care. Benefits from a municipal or county hospital, joint municipal-county hospital, county hospital authority, hospital district, county indigent health care programs, or the facilities of a publicly supported medical school shall not constitute health insurance for purposes of this chapter.

(35) Income--The gross income, either earned or unearned, before deductions over a given period of time for each family member.

[(34) Household--For the purpose of determining spenddown medical expenses, the living unit in which the applicant resides and which also may include one or more of the following:]

[(A) mother;]

[(B) father;]

[(C) stepparent;]

[(D) spouse;]

[(E) foster parent(s), managing conservator, or guardian;]

[(F) grandparent(s);]

[(G) sibling(s);]

[(H) stepbrother(s); or]

[(I) stepsister(s).]

(36) [(35)] Managing conservator--A person designated by a court to have daily legal responsibility for a child.

(37) [(36)] Medicaid--A program of medical care authorized by Title XIX of the Social Security Act and the Human Resources Code.

(38) [(37)] Medical home--A respectful partnership between a client, the client's family as appropriate, and the client's primary health care setting. A medical home is family centered health care that is accessible, continuous, comprehensive, coordinated, compassionate, and culturally competent. A medical home provides primary care that includes preventive care, care coordination, and appropriate referral and collaboration with specialist and other service providers as required.

(39) [(38)] Medicare--A federal program that provides medical care for people age 65 or older and the disabled as authorized by Title XVIII of the Social Security Act.

(40) [(39)] Natural home--The home in which a person lives that is either the residence of his or her parent(s), foster parent(s) or guardian, or extended family member(s), or the home in the community where the person has chosen to live, alone or with other persons. A natural home may utilize natural support systems such as family, friends, co-workers, and services available to the general population as they are available.

(41) [(40)] Other benefit--A benefit, other than a benefit provided under this chapter, to which a person is entitled for payment of the costs of services included in the scope of coverage of the CSHCN Services Program including, but not limited to, benefits available from:

(A) an insurance policy, group health plan, health maintenance organization, or prepaid medical or dental care plan;

(B) home, auto, or other liability insurance;

(C) Title XVIII, Title XIX, or Title XXI of the Social Security Act (42 U.S.C. §§1395 et seq., 1396 et seq., and 1397aa et seq.), as amended;

(D) the United States Department of Veterans Affairs;

(E) the United States Department of Defense;

(F) workers' compensation or any other compulsory employers' insurance program;

(G) a public program created by federal or state law or under the authority of a municipality or other political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, a county indigent health care program, or the facilities of a publicly supported medical school; or

(H) a cause of action for the cost of care, including medical care, dental care, facility care, and medical supplies, required for a person applying for or receiving services from the department or a settlement or judgment based on the cause of action if the expenses are related to the need for services provided under this chapter.

(42) [(41)] Otologist--A physician whose specialty is diseases of the ear.

(43) [(42)] Permanency planning--A planning process undertaken for children with chronic illness or developmental disabilities who reside in institutions or are at risk of institutional placement, with the explicit goal of securing a permanent living arrangement that enhances the child's growth and development, which is based on the philosophy that all children belong in families and need permanent family relationships. Permanency planning is directed toward securing: a consistent, nurturing environment, an enduring, positive adult relationship(s), and a specific person who will be an advocate for the child throughout the child's life. Permanency planning provides supports to enable families to nurture their children, to reunite with their children when they have been placed outside the home, and to place their children in family environments.

(44) [(43)] Person--An individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity.

(45) [(44)] Physician--A person licensed by the Texas Medical Board to practice medicine in this state.

(46) [(45)] Physician assistant--A person licensed as a physician assistant by the Texas Physician Assistant Board.

(47) Practitioner--A person who is licensed to practice medicine, dentistry, nursing or an allied health profession.

(48) [(46)] Prematurity or born prematurely--A child born at less than 36 weeks gestational age and hospitalized since birth.

(49) [(47)] Program--The Children with Special Health Care Needs (CSHCN) Services Program.

(50) [(48)] Provider--A person or facility as defined in §38.6 of this title (relating to Providers) that delivers services purchased by the CSHCN Services Program for the purpose of implementing the Act.

(51) [(49)] Rehabilitation services--The process of the physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury which includes the following acute and chronic or rehabilitative services:

(A) facility care, medical and dental care, and occupational, speech, and physical therapies;

(B) the provision of medications, braces, orthotic and prosthetic devices, durable medical equipment, and other medical supplies; and

(C) other services specified in this chapter.

(52) [(50)] Respite care--A service provided on a short-term basis for the purpose of relief to the primary care giver in providing care to individuals with disabilities. Respite services can be provided in either in-home or out-of-home settings on a planned basis or in response to a crisis in the family where a temporary caregiver is needed.

(53) [(51)] Rural health clinic--A rural health clinic is designated by CMS to provide core medical services in a Medically Underserved Area [(MUA)].

(54) [(52)] Routine child care--Child care for a child who needs supervision while the parent or guardian is at work, in school, or in job training.

(55) [(53)] Services--The care, activities, and supplies provided under the Act, including but not limited to, both acute and chronic or rehabilitative medical care, dental care, facility care, medications, durable medical equipment, medical supplies, occupational, physical, and speech therapies, family support services, case management services, and other care specified by program rules.

(56) [(54)] Social service organization--For purposes of this chapter, a for-profit or nonprofit corporation or other entity, not including individual persons, that provides funds for travel, meal, lodging, and family supports expenses in advance to enable CSHCN Services Program clients to obtain program services.

(57) [(55)] Specialty center--A facility and staff that meet the CSHCN Services Program minimum standards established in this chapter and are designated for use by CSHCN Services Program clients as part of the comprehensive services for a specific medical condition.

(58) [(56)] Spenddown--A process that allows an applicant to obtain program financial eligibility when the applicant's family income exceeds 200% of the FPL. The family must prove cumulative medical expenses that exceed the difference between the family income and 200% of the FPL income limit. [Financial eligibility achieved when household income exceeds 200% of the FPL if the applicant's family can document its responsibility for household medical bills that are equal to or greater than the amount in excess of the 200% level.]

(59) [(57)] State--The State of Texas.

(60) [(58)] Subrogation--Assumption by third party, such as a second creditor or an insurance company, of another person's legal right to collect a debt or damages.

(61) [(59)] Supplemental Security Income Program (SSI)--Title XVI of the Social Security Act which provides for payments to individuals (including children under age 18) who are disabled and have limited income and resources.

(62) [(60)] Support--The contribution of money or services necessary for a person's maintenance, including, but not limited to, food, clothing, shelter, transportation, and health care.

(63) [(61)] Texas resident--A person who:

(A) is physically present within the geographic boundaries of the state;

(B) has an intent to remain within the state;

(C) maintains an abode within the state (i.e., house or apartment, not merely a post office box);

(D) has not come to Texas from another country for the purpose of obtaining medical care with the intent to return to the person's native country;

(E) does not claim residency in any other state or country; and

(i) is a minor child residing in Texas whose parent(s), managing conservator, guardian of the child's person, or caretaker (with whom the child consistently resides and plans to continue to reside) is a Texas resident;

(ii) is a person residing in Texas who is the legally dependent spouse of a Texas resident; or

(iii) is an adult residing in Texas, including an adult whose parent(s), managing conservator, guardian of the adult's person, or caretaker (with whom the adult [consistently] resides and plans to continue to reside) [is a Texas resident or who is his or her own guardian].

(64) [(62)] Treatment plan--The plan of care for the client (time and treatment specific) as certified by and implemented under the supervision of a physician or other practitioner in the program.

(65) [(63)] United States Public Health Service [(USPHS)] price--The average manufacturer price for a drug in the preceding calendar quarter under Title XIX of the Social Security Act, reduced by the rebate percentage, as authorized by the Veterans Health Care Act of 1992 (P.L. 102-585, November 4, 1992).

(66) [(64)] Urgent need for health care benefits--A [client] need for health care services when the lack of those services would cause a permanent increase in disability, intense pain or suffering, or death [that fits the criteria and protocol described in §38.16(e) of this title].

(67) [(65)] Ward--An individual placed under the protection of a guardian, or a person who by reason of incapacity is under the protection of a court either directly or through a guardian appointed by the court.

§38.3.Eligibility for Services.

(a) Eligibility for health care benefits. In order to be determined eligible for program health care benefits, applicants must meet the medical, financial, and other criteria in this section.

(1) Medical or dental criteria. At least annually, a physician or dentist must certify that the person meets the definition of "child with special health care needs" as defined by §38.2(5) of this title (relating to Definitions). The medical or dental criteria certification must be based upon a physical examination conducted within the 12 months immediately preceding the date of certification. The physician or dentist must document the medical or dental diagnosis code and descriptor from the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM), or its successor, for the person's primary diagnosis that meets the medical or dental criteria certification definition and for each of the person's other medical or dental conditions for statistical and referral purposes. To facilitate application to the program for certain applicants, the program Medical Director or Assistant Medical Director may accept written documentation of medical or dental criteria certification submitted by a physician or dentist who is licensed to practice in a state or jurisdiction of the United States of America other than Texas. The program does not reimburse for written documentation of medical or dental criteria certification. If a physician or dentist requests coverage of diagnosis and evaluation services to determine if the person meets the definition of a "child with special health care needs" and the person meets all other eligibility criteria for health care benefits, then the person may be given up to 60 days of program coverage for diagnosis and evaluation services only. Only program providers as specified in §38.6 of this title (relating to Providers), may be reimbursed for services as defined in §38.2 of this title.

(2) Financial criteria. Financial criteria are determined at least annually [every six months ] or as directed by statute [statutory requirements]. Financial criteria are based upon the [same] determinations of income, family size, and disregards [as the CHIP. Premiums paid for health insurance may be included as a disregard]. All families must verify their income and disregards[, if applicable].

(A) The income level for eligibility is 200% of the FPL [federal poverty level ]. If the family income exceeds this level, and the applicant's family can document its responsibility for family [household] medical bills incurred within 12 months prior to the application date or within 6 months after the financial eligibility denial date that are equal to or greater than the amount in excess of the 200% level, the applicant may be determined financially eligible for a period of 6 months, or as directed by statutory requirements, beginning on the eligibility date.

(B) Applications to Medicaid and the SSI [Supplemental Security Income (SSI)] programs.

(i) - (ii) (No change.)

(3) - (7) (No change.)

(8) Determination of continuing eligibility for health care benefits. Financial criteria for eligibility for health care benefits must be re-established at least annually [every six months] or as directed by statute [statutory requirements]. Medical or dental criteria must be re-established at least annually (i.e., within 365 days from the first day of the client's initial date of program [current] eligibility [period] or within 366 days during a leap year). Clients [Ongoing clients] for health care benefits will be notified of program deadlines for re-establishment of eligibility. If an ongoing client for health care benefits does not meet program deadlines for submitting information required for the determination of continuing eligibility, the client's eligibility for health care benefits will end. If the then former client re-applies to the program after such lapse in eligibility and is determined eligible for health care benefits, the former client will be considered a new client. If the program has a waiting list for health care benefits, the new client will be placed on the waiting list in order according to the date and time the client is determined eligible for health care benefits.

(b) (No change.)

§38.4.Covered Services.

(a) (No change.)

(b) Types of service.

(1) - (2) (No change.)

(3) Rehabilitation services. Rehabilitation services means a process of physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury which includes the following acute and chronic or rehabilitative services: facility care, medical and dental care, occupational, speech, and physical therapies, the provision of medications, braces, orthotic and prosthetic devices, durable medical equipment, other medical supplies, and other services specified in this chapter. To be eligible for program reimbursement, treatment must be for a client and must have been prescribed by a practitioner [provider] in compliance with all applicable laws and regulations of the State of Texas. Services may be limited and the availability of certain services described in the following subparagraphs is contingent upon implementation of automation procedures and systems.

(A) Medical or dental assessment and treatment. A physician or dentist [Physicians ] must provide medical or dental assessment and treatment services, including [medically ] necessary laboratory and radiology studies. All [Other ] practitioners must be licensed by the State of Texas, enrolled as providers in the program, and practicing within the scope of their respective licenses or registrations.

(B) Outpatient mental health services. Outpatient mental health services are limited to no more than 30 encounters in a calendar year by all professionals licensed to provide mental or behavioral health services including psychiatrists, psychologists, licensed clinical social workers [(LCSW)], licensed marriage and family therapists, and licensed professional counselors per eligible client per calendar year. Coverage includes, but is not limited to psychological or neuropsychological testing, psychotherapy, and counseling.

(C) Preventive and therapeutic dental services (including oral and maxillofacial surgery). Preventive and therapeutic dental services must be provided by licensed dentists enrolled to participate in the program. Coverage for therapeutic dental services, including prosthetics and oral and maxillofacial surgery, follows the Texas Medicaid program guidelines. Orthodontic care must be prior authorized and may be provided only for CSHCN Services Program eligible clients with diagnoses of cleft-craniofacial abnormalities, dentofacial abnormalities, or late effects of fractures of the skull and face bones.

(D) Podiatric services. Podiatric services must be provided by licensed practitioners [providers] enrolled to participate in the program. Podiatrists are limited to services medically necessary to treat conditions of the foot and ankle. Podiatric services follow the Texas Medicaid program guidelines. Supportive devices, such as molds, inlays, shoes, or supports, must comply with coverage limitations for foot orthoses.

(E) Treatment in program participating facilities. Hospital [Non-emergency hospital] care must be provided in facilities that are enrolled as program providers. The length of stay is limited according to diagnosis, procedures required, and the client's condition.

(i) Inpatient hospital care, coverage limitations, and inpatient psychiatric care.

(I) (No change.)

(II) Coverage limitations. Coverage is limited to 60 days per calendar year [except for stem cell transplantation, for which coverage is available for 120 days per calendar year]. For stem cell transplantation, an additional 60 days coverage may be allowed.

(III) (No change.)

(ii) - (iv) (No change.)

(v) Care for renal disease. Renal dialysis is limited to the treatment of acute renal disease or chronic (end stage) renal disease. Treatment may be provided through a renal dialysis facility, inpatient or outpatient hospital, or in the client's home. Covered services include [and includes], but are [is] not limited to dialysis, laboratory services, drugs and supplies, declotting shunts, on-site physician services, and appropriate access surgery. Renal transplants must be prior authorized, and approval is subject to the availability of funds. If funding is available, renal [Renal] transplants may be covered in approved renal transplant centers if the projected cost of the transplant and follow-up care is less than that of continuing renal dialysis. Estimated cost of the renal transplant over a one-year period versus the cost of renal dialysis for one year at their facility must be documented. For each client 18 years of age and older, the transplant team must also provide a plan of care to be implemented after the client reaches 21 years of age and is no longer eligible for program services. [Renal transplants must be prior authorized, and approval is subject to the availability of funds.]

(F) - (H) (No change.)

(I) Hyperalimentation and TPN [Total Parenteral Nutrition (TPN)] Services. Services include, but are not limited to solutions and additives, supplies and equipment, customary and routine laboratory work, enteral supplies, and nursing visits. These services may be provided on a daily basis when oral intake cannot maintain adequate nutrition. Covered services must be reasonable, medically necessary, appropriate, and prescribed by a practitioner licensed to do so.

(J) - (S) (No change.)

(4) (No change.)

(5) Family support services. Family support services include disability-related support, resources, or other assistance and may be provided to the family of a client with special health care needs.

(A) - (D) (No change.)

(E) Unallowable services. Family support funds may not be used to provide those services that do not relate to the client's disability and do not directly support the client's living in his or her natural home and participating in family life and integrated or inclusive community activities. Examples of unallowable services include, but are not limited to:

(i) - (xviii) (No change.)

(xix) services provided by an individual under the age of 18 years or by the client's parent(s), guardian, or other individual(s) residing with the client [ member of the client's household]; and

(xx) services exclusively to support the care of siblings or other individual(s) residing with the client [members of the client's household], but which are not necessary to meet the medical needs of the client.[;]

(F) (No change.)

(6) Other types of services. The following services also are available through the program.

(A) - (B) (No change.)

(C) Meals and lodging. The program may provide meals and lodging to enable a client, accompanied by a parent, guardian, or their designee as needed, to obtain inpatient or outpatient care [for a client] at a facility located away from their home. The reason for the inpatient or outpatient visit must be directly related to medically necessary treatment for the client that is provided by program enrolled providers and covered by the program. Meals and lodging associated with travel to services that are provided more than 50 miles from the Texas border will not be approved except as specified in §38.6(e) of this title.

(D) (No change.)

(E) Payment of insurance premiums, coinsurance, co-payments, and deductibles. The program may pay public or private health insurance premiums to maintain or acquire a health benefit plan or other third party coverage for the client, and if paying for such health insurance can reasonably be expected to be cost effective for the program. The program may pay for coinsurance and deductible amounts when the total amount paid (including all payers) to the provider does not exceed the amount allowed by the program for the covered service. The program may reimburse clients for co-payments paid for covered drugs [services ]. The program will not pay premiums, deductibles, coinsurance, or co-payments for clients enrolled in CHIP.

(c) - (e) (No change.)

§38.5.Rights and Responsibilities of a Client's Parent(s) [Parents], Foster Parent(s) [Parents], Guardian, or Managing Conservator, or an Adult Client.

(a) Rights. A client's parent(s) [parents], foster parent(s) [parents], guardian, or managing conservator, or an adult client has [shall have] the right to:

(1) - (6) (No change.)

(b) Responsibilities. A client's parent(s) [parents ], foster parent(s) [parents], guardian, or managing conservator, or an adult client has [shall have ] the responsibility to:

(1) - (9) (No change.)

(c) (No change.)

§38.6.Providers.

(a) General requirements for participation. The Children with Special Health Care Needs Services [(CSHCN)] Act, Health and Safety Code, §35.004, requires that all [ physicians, dentists, licensed dietitians, facilities, specialty centers, and other] providers be approved to participate in the program according to program criteria and procedures.

(1) Providers seeking approval for program participation must submit a completed application to the program or its designee including a signed provider agreement and all documents requested [on the application].

(2) - (5) (No change.)

(6) All approved providers must agree to the following:

(A) (No change.)

(B) retain these records and claims for a period of five years from the date of service, [until] the client's 21st birthday, or until all audit questions, appeal hearings, investigations, litigation, or court cases are resolved, whichever occurs last;

(C) (No change.)

(D) allow the department, the Office of Inspector General [(OIG) ], HHSC, or designees of these organizations access to its premises; and cooperate and assist with any audit or investigation.

(7) - (8) (No change.)

(9) If a license or certification is required by law to practice in the State of Texas, the provider must maintain the required license or certification and practice within the scope of the license, certification, registration, and any other applicable requirements.

(10) - (11) (No change.)

(b) (No change.)

(c) Provider types. Approved providers include, but are not limited to:

(1) - (23) (No change.)

(24) physician [physicians] assistants;

(25) - (28) (No change.)

(d) - (e) (No change.)

§38.7.Ambulatory Surgical Care Facilities.

(a) - (b) (No change.)

(c) The program reimbursement for care at freestanding ASC facilities shall be limited to Levels I and II surgical procedures as [so ] designated by the American Society of Anesthesiologists.

§38.8.Inpatient Rehabilitation Centers.

(a) (No change.)

(b) The criteria for inpatient rehabilitation center approval include the following.

(1) (No change.)

(2) The center shall be located in Texas.

(3) The center shall be located outside Texas, in the United States within 50 miles of the Texas border.

§38.9.Cleft-Craniofacial Services.

To assure that clients with cleft lip, cleft palate, or other craniofacial anomalies receive quality, comprehensive services, cleft-craniofacial teams requesting approval from the program must comply with the following standards:

(1) All cleft-craniofacial surgical procedures are provided within the context and consultation of a coordinated, comprehensive, interdisciplinary cleft-craniofacial team and must be prior authorized. Team composition is consistent with current basic standards of the American Cleft Palate-Craniofacial Association [(ACPA)].

(2) A [The] comprehensive cleft-craniofacial team will include an operating surgeon, orthodontist, speech-language pathologist, and at least one additional specialist from otolaryngology, audiology, pediatrics, genetics, social work, psychology, and general pediatric or prosthetic dentistry. Adjunct participants may be added as determined by the cleft-craniofacial team to meet the needs of individual clients.

(3) (No change.)

§38.10.Payment of Services.

The program reimburses providers for covered services for clients. Payment may be made only after the delivery of the service, with the exception of meals, transportation, lodging, and insurance premium payments. Excluding allowable insurance or health maintenance organization co-payments, the client or client's family must not be billed for the service or be required to make a preadmission or pretreatment payment or deposit. Providers may not request or accept payment from the client or the client's family for completing any program forms. Providers must agree to accept established fees as payment in full. The program may negotiate reimbursement alternatives to reduce costs through requests for proposals, contract purchases, or incentive programs.

(1) Payment or denial of claims. Payments [All payments ] made on behalf of a client will be for claims received by the program or its payment contractor within 95 days of the date of service, within 95 days from the date of discharge from inpatient hospital and inpatient rehabilitation facilities, within 95 days from the date the client's eligibility is added to program automation systems, or within the submission deadlines listed in paragraphs (1)(B)(ii) and (2) of this section, whichever is later. Claims for family support services, drug co-payments, and insurance premium payment assistance must be submitted within 95 days of the last day of the month in which services were provided. If the 95th day for receipt of a claim falls on a weekend or holiday, the deadline shall be extended to the next business day following the weekend or holiday. The program must process the claims of eligible providers within a period not to exceed 30 days of receipt and determination of proper evidence establishing the validity of claims, invoices, and statements. In cases where the program determines that a basis exists for further review, suspension, or other irregularity, extended processing time may be required. [Claims will either be paid or denied within 30 days of receipt.] The manager of the department unit having responsibility for oversight of the program or his or her designee(s) may waive the filing deadlines according to the conditions and circumstances specified in paragraphs (3) - (5) of this section. A claim must be processed and paid within 24 months of the date of service. Claims received by the program or its payment contractor after this time frame will not be considered for payment by the program.

(A) - (B) (No change.)

(2) Claims involving health insurance coverage, CHIP, or Medicaid. Any health insurance that provides coverage to the client must be utilized before the program can pay for services. Providers must file a claim with health insurance, CHIP, or Medicaid prior to submitting any claim to the program for payment. Claims with health insurance must be received by the program within 95 days of the date of disposition by the other third party resource, and no later than 365 days from the date of service. The program will consider claims received for the first time after the 365-day deadline if a third party resource recoups a payment made in error; however, the claim must be received by the program within 95 days from the third party's disposition. The program may pay for covered health care benefits during CHIP or other health insurance enrollment waiting periods. During these periods, providers may file claims directly with the program without evidence of denial by the other insurer.

(A) Health insurance denial [or nonresponse]. If a claim is denied by health insurance, the provider may bill the program if the letter of denial also is submitted with the claim form. If the denial letter is not available, the provider must include on the claim form the date the claim was filed with the insurance company, the reason for the denial, name and telephone number of the insurance company, the policy number, the name of the policy holder and identification numbers for each policy covering the client, the name of the insurance company employee who provided the information on the denial of benefits, and the date of the contact. [If more than 110 days have elapsed from the date a claim was filed with the third party resource and no response has been received, the claim may be submitted to the program for consideration of payment. Claims must be submitted with documentation indicating the third party resource has not responded.]

(B) - (D) (No change.)

(3) - (5) (No change.)

(6) Program fees. The program establishes fees and payment methodologies for covered medical, dental, and other services based upon appropriated funds. All fees are subject [Subject] to [any] reductions or limitations authorized by §38.16(b)(2)(E) of this title (relating to Procedures to Address Program Budget Alignment). [, the program or its designee shall reimburse claims for covered medical, dental, and other services according to the following:]

[(A) meals, lodging, and transportation:]

[(i) meals--up to the amount specified in the current State of Texas Travel Allowance Guide as per diem meal expenses;]

[(ii) lodging:]

[(I) hotel--the amount as contracted with the Texas Medicaid Medical Transportation Program (MTP), not to exceed the amount specified in the current State of Texas Travel Allowance Guide as per diem lodging expenses plus all applicable hotel occupancy taxes; and]

[(II) Ronald McDonald House--the amount contracted with the MTP; and]

[(iii) transportation:]

[(I) mileage--the distance and amount per mile as specified in the current State of Texas Travel Allowance Guide;]

[(II) by contract--the amount as negotiated by the MTP with contractors such as intercity buses, vans, cabs, or urban mass transit authorities;]

[(III) air fare--the ticket price reflecting the state discount if ordered by MTP or the billed amount if MTP had no opportunity to coordinate transportation in an emergency; and]

[(IV) cab fare--the billed amount if other transportation is unavailable or the MTP is unable to coordinate transportation;]

[(B) administrative fee to social service organizations--the percentage of the charge for meals, lodging, and transportation negotiated by the MTP with these entities;]

[(C) ambulance service--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(D) transportation of remains:]

[(i) first call--$150;]

[(ii) embalming--$100;]

[(iii) container--$150;]

[(iv) mileage billed by funeral home--$1.00 per mile; and]

[(v) air freight--the billed amount;]

[(E) nutritional products--the least of the billed amount, the amount allowed by the Texas Medicaid Program, or the Average Wholesale Price (AWP) per unit according to the prices in the current edition of the Drug Topics Red Book, published by Medical Economics Company, Inc., Montvale, New Jersey 07645-1742, on file with the CSHCN Services Program. For products not listed in the current edition of the Drug Topics Red Book, reimbursement shall be based on the same methodology using the AWP supplied by the manufacturer of the product;]

[(F) nutritional services--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(G) medical foods--the least of the billed amount, the manufacturer's suggested retail price (MSRP), or the amount allowed by the Texas Medicaid Program;]

[(H) out-patient medications:]

[(i) medications covered by Medicaid when billed by pharmacies--the same drug costs and dispensing fees allowed by the Texas Medicaid Vendor Drug Program;]

[(ii) medications not covered by Medicaid when billed by pharmacies--the lower of the billed amount or the drug cost available through the database used by the Texas Medicaid Vendor Drug Program plus the same dispensing fees allowed by the Texas Medicaid Vendor Drug Program;]

[(iii) medications covered by Medicaid when billed by hospitals--(the lower of the billed amount or the drug cost available through the database used by the Texas Medicaid Vendor Drug Program plus dispensing fee); and]

[(iv) hemophilia blood factor products--the lower of the billed price or the United States Public Health Service (USPHS) price in effect on the date of service;]

[(I) expendable medical supplies--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(J) durable medical equipment--provided by enrolled home health agencies and durable medical equipment providers, the lower of the billed amount or the amount allowed by the Texas Medicaid Program. If the Texas Medicaid Program has not established an allowable amount, then reimbursement will be the least of the following:]

[(i) the billed amount; or]

[(ii) the Medicare fee schedule as defined in 1 Texas Administrative Code, §354.1031(b)(9); or]

[(iii) the Manufacturer's Suggested Retail Price (MSRP) minus a discount as established by the Texas Medicaid Program; or if no MSRP exists, the incurred cost to the dealer plus a percentage as determined by the Texas Medicaid Program;]

[(K) orthotics and prosthetics--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(L) total parenteral nutrition and hyperalimentation (including equipment, supplies and related services)--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(M) home health nursing services (provided only through participating program home and community support service agencies)--reimbursement for a maximum of 200 hours per client per calendar year, with an additional 200 hours per client per calendar year available if justification of need and cost effectiveness are documented;]

[(i) services provided by a registered nurse--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(ii) services provided by a licensed vocational nurse--the lower of the billed amount or the amount allowed by the Texas Medicaid Program; and]

[(iii) services provided by a home health aide or home health medication aide (including those legally delegated by a supervising registered nurse)--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(N) outpatient physical therapy, occupational therapy, speech-language pathology, and respiratory therapy (provided by physicians or by therapists other than physicians)--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(O) audiological testing and amplification devices--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(P) insurance premium payment assistance program--the lowest available premium for a plan which covers the client if cost effective;]

[(Q) hospital (inpatient and outpatient care) and inpatient psychiatric care--reimbursed at 80% of the rate authorized by the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) which is equivalent to the hospital's Medicaid interim rate;]

[(R) inpatient rehabilitation care--reimbursed at 80% of TEFRA rates for a maximum of 90 inpatient days per calendar year;]

[(S) hospice services--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(T) care for renal disease--]

[(i) renal dialysis services--the lower of the billed amount or the amount allowed by the Texas Medicaid Program; and]

[(ii) renal transplant services--renal transplants may be covered if the projected cost for the transplant and follow-up care is less than that of continuing renal dialysis. Negotiated coverage and cost are based on prior authorization documentation of cost effectiveness;]

[(U) freestanding ambulatory surgical centers--the lower of the billed amount or the amount allowed by the Texas Medicaid Program based upon Ambulatory Surgical Code Groupings approved by the Centers for Medicare and Medicaid Services (CMS) and the Department of State Health Services;]

[(V) hospital ambulatory surgical centers--the lower of the amount billed or the amount allowed by the Texas Medicaid Program based upon Ambulatory Surgical Code Groupings approved by the CMS and the Department of State Health Services;]

[(W) covered professional services by physicians, podiatrists, advanced practice registered nurses, psychologists, licensed professional counselors, or other providers that are not otherwise specified--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(X) independent laboratory--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(Y) radiology services--the lower of the billed amount or the amount allowed by the Texas Medicaid Program;]

[(Z) dental services--the lower of the billed amount or the amount allowed by the Texas Medicaid Program; and]

[(AA) vision services--the lower of the billed amount or the amount allowed by the Texas Medicaid Program, except certain specialized lenses, which are reimbursed at the manufacturer's suggested retail price less 18%.]

(7) - (8) (No change.)

§38.11.Contracts, Written Agreements, and Donations.

The program may contract on a bid basis for treatment, equipment, medications, supplies, program operations, and other services in order to conserve funds and administer the program effectively.

(1) (No change.)

(2) The program may use consultants from any medical or dental specialty or other discipline to address specific issues or [and] problems in relation to the identification, diagnosis and evaluation, rehabilitation, case management, other family support services, and health benefits coverage for clients.

(3) (No change.)

§38.12.Denial, Modification, Suspension, or Termination of Program Eligibility or Eligibility for Health Care Benefits.

(a) Any person applying for or eligible for health care benefits from the program shall be notified in writing if the program proposes to deny, modify, suspend, or terminate such health care benefits because:

(1) - (5) (No change.)

(6) the [a] client has received third party or liability payments and has failed to reimburse the department for services provided to the client;

(7) - (10) (No change.)

(b) (No change.)

§38.13.Right of Appeal.

(a) Administrative review.

(1) - (6) (No change.)

(7) If the program receives a written request for administrative review within 30 days of the date of the notification, the program shall conduct an administrative review of the circumstances surrounding the proposed action. Within 30 days following receipt of a request for administrative review, the [The] program shall send [give] the applicant, client, family, or provider written notice of:

(A) the program decision, including [and ] the supporting reasons for the decision; or [within 30 days of receipt of the request for administrative review.]

(B) the need for extended time to research the circumstances, including an expected date for response to the request.

(8) (No change.)

(b) (No change.)

§38.14.Development and Improvement of Standards and Services.

To ensure that cost-effective, quality, appropriate medical and related services are available and delivered to clients, the program may establish a system of program evaluation. Program evaluation may include information obtained from management [to obtain management information] about the program's operation and effectiveness, may [to] establish guidelines and standards for program health care services, may [to] monitor compliance with these established standards and guidelines, may [to] identify and analyze patterns and trends in provider billing and service delivery, and may [to] develop systems which promote family-centered, community-based alternatives that nurture and support children with special health care needs.

(1) - (6) (No change.)

§38.15.Third Party Recovery.

(a) The program or the program's designee may recover the cost of services provided to a client from any [a] person or entity who does not pay or reimburse the department as required by Health and Safety Code, §35.007.

(b) - (d) (No change.)

§38.16.Procedures to Address Program Budget Alignment.

(a) The department must [shall] analyze actuarial cost projections concerning program administrative and client services to estimate the amount of funds needed in the fiscal year by the program to serve program clients and shall monitor such program cost projections and funding analyses at least monthly to determine whether the estimated amount of funds needed by the program will:

(1) - (2) (No change.)

(b) - (f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 22, 2012.

TRD-201205480

Lisa Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: December 2, 2012

For further information, please call: (512) 776-6972


CHAPTER 169. ZOONOSIS CONTROL

SUBCHAPTER A. RABIES CONTROL AND ERADICATION

25 TAC §§169.21 - 169.34

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes amendments to §§169.21 - 169.34, concerning the control of rabies.

BACKGROUND AND PURPOSE

These rules are necessary to comply with Health and Safety Code, Chapter 826, "Rabies," §826.011, which provides the Executive Commissioner of the Health and Human Services Commission with the authority to administer the rabies control program and adopt rules necessary to effectively administer the program.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 169.21 - 169.34 have been reviewed and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed.

Specifically, the sections cover purpose, definitions, information relating to the control of rabies, preexposure rabies vaccination, reports of human exposure to rabies, facilities for the quarantining or impounding of animals, quarantine method and testing, requirements of a quarantine facility, vaccination requirement, disposition of domestic animals exposed to rabies, interstate movement of dogs and cats into Texas, international movement of dogs and cats into Texas, submission of specimens for laboratory examination, and statewide quarantine.

The proposed revisions to the sections update and clarify language to enable those subject to the sections to more readily comply. The amendments enhance implementation of a comprehensive rabies control program that will diminish public exposure to rabies, reduce morbidity and mortality from rabies among humans and animals, and provide for humane treatment of animals suspected of rabies. After carefully considering the alternatives, the department believes the rules as amended are the best method of implementing the statute to protect the public health with rules for the control and eradication of rabies in the State of Texas.

SECTION-BY-SECTION SUMMARY

The amendments to §§169.21, 169.23 and 169.24 modify language to make the sections more concise and remove superfluous language.

The amendment to §169.22 updates and adds definitions to maintain the sections technically correct.

The amendment to §169.25 clarifies the type of exposure and adds a legal citation.

The amendment to §169.26 clarifies facility and animal care requirements and provides succinct descriptions.

The amendment to §169.27 clarifies language relating to rabies exposure and animal quarantine and disposition, plus reformats current language to establish a smoother reading transition.

The amendment to §169.28 clarifies and updates language relating to the requirements of quarantine facilities, including explaining how appeals are handled.

The amendment to §169.29 clarifies the rabies vaccination requirement and the intent of the rule.

The amendment to §169.30 modifies language pertaining to disposition of domestic animals exposed to rabies to coincide with proposed updates to definitions.

The amendments to §169.31 and §169.32 clarify language pertaining to dogs and cats coming into Texas from other states and other countries and required rabies vaccination documentation.

The amendment to §169.33 modifies language pertaining to the submission of rabies specimens for laboratory examination to meet recent changes in the needs of the department's laboratory.

The amendment to §169.34 clarifies language pertaining to the statewide quarantine and the animals subject to the statewide quarantine, including updating information on associated agencies.

FISCAL NOTE

Janna Zumbrun, Director, Infectious Disease Prevention Section, 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.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Zumbrun has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This was determined by interpretation of the rule that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the sections.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed. The Texas Veterinary Medical Association and the Texas State Board of Veterinary Medical Examiners were contacted about proposed changes to rabies vaccination certificate requirements; there is not an anticipated fiscal impact for veterinarians who will need to comply with these amendments. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

In addition, Ms. Zumbrun 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 will be enhancing public health and safety by advising preexposure rabies vaccination of persons at high risk for rabies exposure; requiring reporting of potential exposure of humans to rabies; imposing quarantine or testing of animals that potentially exposed a human to rabies; setting standards for the humane and effective quarantine of these animals; establishing minimum standards for vaccination of dogs and cats against rabies with associated recordkeeping and records retention; establishing requirements for the disposition of domestic animals exposed to a rabid animal; establishing rabies vaccination requirements for interstate and international movement of dogs and cats into Texas; establishing standards for the submission of specimens to the department's laboratory for rabies testing; and establishing statewide rabies quarantine for particular wildlife species. After careful consideration of alternatives, the department concludes that the rules, as revised, provide a clear, concise, comprehensive policy of rabies control that will diminish public exposure to rabies, reduce morbidity and mortality from rabies among humans and animals, and provide for humane treatment of animals suspected of rabies. This policy is the most efficient use of public and private resources to achieve these goals.

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "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

The department has determined that the proposed amendments do 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, do not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposal may be submitted to Tom Sidwa, DVM, MPH, Department of State Health Services, Infectious Disease Prevention Section, Zoonosis Control Branch, Mail Code 1956, P.O. Box 149347, Austin, Texas 78714-9347 or by email to Tom.Sidwa@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.

STATUTORY AUTHORITY

The amendments are authorized by Health and Safety Code, §81.004, which provides the department with the authority to adopt rules necessary for the implementation of the Communicable Disease Prevention and Control Act; §826.011, which provides the department with the authority to administer the rabies control program and adopt rules necessary to effectively administer this program; §826.012, which provides that rules adopted by the department are minimum standards for rabies control; §826.042, which provides that the department shall adopt rules governing the testing of quarantined animals and the procedure for and method of quarantine; §826.045, which requires the department to adopt rules to enforce an area rabies quarantine; §826.051, which requires the department to adopt rules governing the types of facilities that may be used to quarantine or impound animals; and Government Code, §531.0055, and Health and Safety Code, §1001.075, 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 the department and for the administration of Health and Safety Code, Chapter 1001. Review of the rules implements Government Code, §2001.039.

The amendments affect Health and Safety Code, Chapters 81, 826, and 1001; and Government Code, Chapters 531 and 2001.

§169.21.Purpose.

The purpose of this subchapter [these sections] is to protect public health by establishing standardized [uniform ] rules for the control and eradication of rabies in the State of Texas, in accordance with [Chapter 826 of] the Texas Health and Safety Code, Chapter 826.

§169.22.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Unless defined below, all words have definitions as provided in the Texas Health and Safety Code, §826.002.

(1) - (4) (No change.)

(5) Currently vaccinated--Vaccinated and satisfying all the following criteria.

(A) The animal must have been vaccinated against rabies with a vaccine licensed by the United States Department of Agriculture (USDA) for that [animal] species at or after the minimum age requirement and using the recommended route of administration for the vaccine.

(B) - (C) (No change.)

(6) - (10) (No change.)

(11) Euthanatize--To cause the death of an animal implementing a technique that is in accordance with the methods, recommendations, and procedures prepared by the American Veterinary Medical Association (AVMA) and set forth in the AVMA Guidelines on Euthanasia (June 2007) and:

(A) rapidly produces unconsciousness and death with minimal pain or distress; or

(B) utilizes anesthesia produced by an agent that causes painless loss of consciousness and death following such loss of consciousness.

(12) [(11)] Health service region--A contiguous group of Texas counties, so designated by the Executive Commissioner of the Health and Human Services Commission.

(13) [(12)] High-risk animals--Those animals which have a high probability of transmitting rabies; they include skunks, bats, foxes, coyotes, and raccoons.

(14) [(13)] Housing facility--Any room, building, or area used to contain a primary enclosure or enclosures.

[(14) Humanely killed--To cause the death of an animal by a method which:]

[(A) rapidly produces unconsciousness and death without pain or distress; or]

[(B) utilizes anesthesia produced by an agent that causes painless loss of consciousness, and death following such loss of consciousness.]

(15) - (25) (No change.)

(26) Sanitize--To make visibly [physically ] clean followed by the use of a disinfectant [and] to destroy disease-producing agents.

(27) Suitable Specimen--For rabies testing, a head with brain and brain stem intact or a complete transverse cross section of the brain stem and tissue from at least one of the following: cerebellum and/or hippocampus.

(28) [(27)] Unowned animal--Any animal for which a custodian has not been identified.

(29) [(28)] Vaccinated--Properly administered by or under the direct supervision of a veterinarian with a rabies vaccine licensed for use in that species by the USDA.

(30) [(29)] Veterinarian--A person licensed to practice veterinary medicine in the United States.

(31) [(30)] Zoonosis Control Branch--The branch within the department to which the responsibility for administering these rules is assigned.

§169.23.Information Relating to the Control of Rabies.

The department's Zoonosis Control Branch will assume the responsibility of collecting, analyzing, and preparing monthly and annual summaries [summations ] of rabies activity in the state. These reports will be forwarded to national, state, and municipal agencies as requested [required], and selected statistics will be sent to veterinary medical and animal control organizations throughout the state.

§169.24.Preexposure Rabies Vaccination.

Preexposure rabies vaccinations should be administered to [all ] individuals whose activities place them at a significant risk of exposure to rabies, in accordance with the recommendations of the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices (ACIP).

§169.25.Reports of Human Exposure to Rabies.

(a) - (b) (No change.)

(c) The local rabies control authority will investigate each potential rabies exposure and assure appropriate resolution, in accordance with §169.27 of this title.

§169.26.Facilities for the Quarantining or Impounding of Animals.

(a) Generally.

(1) (No change.)

(2) Water and electric power. Reliable and adequate electric power, if required to comply with other provisions of these sections, and adequate fresh, clean [potable] water shall be available.

(3) Storage. Supplies of food and bedding shall be stored in facilities which adequately protect such supplies against infestation or contamination by vermin. Refrigeration shall be provided for supplies of perishable food. Non-perishable foods, such as dry food, do not require refrigeration. Open [For example, open] bags of non-perishable dry food should [may] be sealed or stored in sealed cans, and unopened bags should [may ] be stacked on pallets or shelves with at least 12 inches of clearance between the floor and the first level to enable effective inspection and cleaning practices.

(4) - (5) (No change.)

(6) Management. The manager of a facility should be either an individual who has satisfactorily completed an appropriate [department] training course or a veterinarian.

(7) (No change.)

(8) Heating. Adequate shelter shall be provided to protect animals from any form of cold or inclement weather and direct effects of wind, rain, or snow. Auxiliary heat or clean, dry bedding material shall be provided any time the ambient temperature falls below 50 degrees Fahrenheit (10 degrees Celsius) [for more than four consecutive hours] when animals are present. If supplemental bedding material is used during cold weather, [larger] quantities should be adequate to prevent hypothermia [used ] as temperatures drop.

(9) Cooling and Ventilation. Adequate shelter shall be provided to protect animals from any form of overheating and direct rays of the sun. Facilities shall be provided with fresh air either by means of windows, doors, vents, fans, or air conditioning and shall be ventilated so as to minimize drafts, odors, and moisture condensation. Auxiliary ventilation, such as fans or air conditioning, shall be provided in indoor facilities when the ambient temperature is 85 degrees Fahrenheit (29.5 degrees Celsius) or higher when animals are present.

(10) - (11) (No change.)

(12) Primary enclosures. Primary enclosures should be designed based upon enclosure guidelines prepared by The Association of Shelter Veterinarians and set forth in Guidelinesfor Standards of Care in Animal Shelters (2010). Primary enclosures shall:

(A) - (E) (No change.)

(F) provide sufficient space to allow each animal to make normal postural adjustments without touching the top of the enclosure, including turning freely, standing easily, sitting, stretching, moving its head, lying in a comfortable position with limbs extended, and moving and assuming a comfortable posture for feeding, drinking, urinating, and defecating [turn around fully, stand, sit, and lie in a comfortable position].

(b) Feeding.

(1) (No change.)

(2) Dogs and cats shall be fed at least once a day or more often as appropriate for the age and condition of the animal, except as directed by a veterinarian.

(3) (No change.)

(4) All other animals shall be fed appropriately as described on the packaging of a commercial, species-specific food, except [or] as directed by a veterinarian.

(5) (No change.)

(c) Watering. If fresh, clean [potable] water is not accessible to all animals at all times, it shall be offered to them at least twice daily for periods of not less than one hour, except as directed by a veterinarian. Drinking bottles may be used for animals acclimated to their use. Domestic ferrets shall have fresh, clean [potable] water accessible at all times, provided in drinking bottles of appropriate size to maintain a fresh supply. Water receptacles shall be kept clean and sanitary.

(d) (No change.)

(e) Pest Control. A regular program for the control of insects, ectoparasites, and other pests shall be established and maintained. The facility shall be free of visible signs of [ insects,] rodents[,] and keep other vermin infestations to a minimum at all times. Each pesticide must be used in accordance with its manufacturer's label instructions.

(f) - (g) (No change.)

§169.27.Quarantine Method and Testing.

(a) When a dog, cat, or domestic ferret which has bitten a human has been identified, the custodian will place the animal (regardless of its vaccination status) in quarantine as defined in the Texas Health and Safety Code, §826.002, until the end of the 10-day observation period. The animal must also be quarantined if there is probable cause to believe that it has otherwise exposed a human to rabies. The observation period will begin at the time of the exposure. The animal must be placed in a department-licensed quarantine facility specified by the local rabies control authority and observed at least twice daily. However, the local rabies control authority may allow the animal to be quarantined in a veterinary clinic. As an alternative to quarantine at a department-licensed facility or a veterinary clinic, the local rabies control authority may allow home confinement. [If the potential rabies exposure occurs in a city or county other than where the animal's custodian resides, the animal may be transferred to a department-licensed quarantine facility or a veterinary clinic in the city or county of the custodian's residence or allowed home confinement, if applicable, if there is mutual agreement to do so between the local rabies control authorities for the city or county where the exposure occurred and where the custodian resides. The alternative to quarantining (to include home confining) a dog, cat, or domestic ferret is to have the animal humanely killed in such a manner that the brain is not damaged and a suitable specimen (head with brain intact or brain) submitted to a department-designated laboratory for rabies testing as specified in subsection (h) of this section.] To allow home confinement, the following criteria must be met.

(1) - (2) (No change.)

(3) During the confinement period, the animal's custodian must monitor the animal's behavior and health status and immediately notify the local rabies control authority if any change is noted.

(4) [(3)] The local rabies control authority or a veterinarian must observe the animal at least on the first and last days of the home confinement.

(5) [(4)] The animal was not a stray as defined in the Texas Health and Safety Code, §826.002, at the time of the potential exposure.

(b) If the potential rabies exposure described in subsection (a) of this section occurs in a city or county other than where the animal's custodian resides, the animal may be transferred to a department-licensed quarantine facility or a veterinary clinic in the city or county of the custodian's residence or allowed home confinement, if applicable, if there is mutual agreement to do so between the local rabies control authorities for the city or county where the exposure occurred and where the custodian resides.

(c) The alternative to quarantining (to include home confining) a dog, cat, or domestic ferret that has bitten or otherwise potentially exposed a person to rabies as described in subsection (a) of this section is to have the animal euthanatized in such a manner that the brain is not damaged and a suitable specimen submitted to a department-designated laboratory for rabies testing. A list of department-designated laboratories may be found on the department's website or may be obtained from any of the department's regional Zoonosis Control offices.

(d) [(b)] A domestic animal which has potentially exposed a human to rabies and has been designated by the local rabies control authority as unowned may be euthanatized [humanely killed]. If the animal is euthanatized, a [A] suitable specimen shall be submitted for rabies testing [as specified in subsection (h) of this section].

(e) [(c)] If the animal implicated in the potential exposure is a high-risk animal, it shall be euthanatized [humanely killed ] and a suitable specimen submitted for rabies testing [ as specified in subsection (h) of this section].

(f) [(d)] If the animal implicated in the potential exposure is a low-risk animal, neither quarantine nor rabies testing will be required unless the local rabies control authority has cause to believe the animal is rabid, in which case it shall be euthanatized [humanely killed] and a suitable specimen submitted for rabies testing [as specified in subsection (h) of this section].

(g) [(e)] The local rabies control authority may require an animal which has inflicted multiple bite wounds, punctures, or lacerations to a person to be euthanatized. [humanely killed] If the animal is euthanatized, [and ] a suitable specimen shall be submitted for rabies testing [as specified in subsection (h) of this section].

(h) [(f)] If the animal implicated in the potential exposure is not included in subsections (a)- (g) [subsection (a), (b), (c), (d), or (e) ] of this section, the animal either will be euthanatized [humanely killed ] and a suitable specimen submitted for rabies testing [ as specified in subsection (h) of this section] or the local rabies control authority may require the animal to be quarantined at a department-licensed quarantine facility or a veterinary clinic, or confined elsewhere as deemed appropriate by the local rabies control authority for the 30-day observation period as an alternative to euthanatizing [killing] and testing. If the potential rabies exposure occurs in a city or county other than where the animal's custodian resides, the animal may be transferred to a department-licensed quarantine facility or a veterinary clinic in the city or county of the custodian's residence or allowed confinement deemed appropriate if there is mutual agreement to do so between the local rabies control authorities for the city or county where the exposure occurred and where the custodian resides. During the observation period, the animal's custodian must monitor the animal's behavior and health status and immediately notify the local rabies control authority if any change is noted.

(i) [(g)] Any animal required to be quarantined under this section that[, which] cannot be maintained in secure quarantine[, ] shall be euthanatized [humanely killed ] and a suitable specimen submitted for rabies testing [ as specified in subsection (h) of this section].

(j) [(h)] All laboratory specimens referred to in subsections (c) - (i) [(a) - (g)] of this section shall be submitted in accordance with §169.33 of this title (relating to Submission of Specimens for Laboratory Examination).

(k) [(i)] At the discretion of the local rabies control authority, assistance animals may not be required to be placed in quarantine (to include confinement) during the observation period. During the applicable observation period, the animal's custodian must monitor the animal's behavior and health status and immediately notify the local rabies control authority if any change is noted.

(l) [(j)] Police service animals are exempted from quarantine per the Texas Health and Safety Code, §826.048, including confinement. During the applicable observation period, the animal's custodian must monitor the animal's behavior and health status and immediately notify the local rabies control authority if any change is noted.

(m) [(k)] Animals should not be vaccinated against rabies during the observation period; however, animals may be treated for [unrelated] medical problems that are diagnosed by a veterinarian and are not related to rabies. If the animal becomes ill during the observation period, the local rabies control authority must be notified by the person having possession of the animal.

§169.28.Requirements of a Quarantine Facility.

(a) Quarantine procedures.

(1) (No change.)

(2) An animal that is [being] quarantined because it may have exposed a human to rabies must be maintained in a primary enclosure, separated from all other animals by a solid partition so that there is no possibility of physical contact between animals. An empty chamber between animals is not an acceptable alternative. To prevent rabies transmission, handling of quarantined animals shall be minimized and carried out in a manner that avoids physical contact of other animals and people with the saliva of quarantined animals. Individuals handling quarantined animals should utilize appropriate personal protective equipment. To prevent escape, the primary enclosure must be enclosed on all sides, including the top. Quarantine cages, runs, or rooms must have "Rabies Quarantine" signs posted.

(b) Facilities planning. Any entity desiring to construct a quarantine facility shall submit plans to the department for review prior to beginning construction of a new facility or significant renovation to an existing facility.

(c) Inspection requirements of quarantine facilities.

(1) It will be the responsibility of the department to inspect all quarantine facilities, including those operated by government contractors. The inspection of the premises will be accomplished during ordinary business hours. All deficiencies will be documented in writing. Those that are of sufficient significance to affect the humane care or security of any animal housed within the facility must be corrected within a reasonable period of time.

(2) The inspections will be accomplished annually and [or] more frequently when significant discrepancies have been identified. Any facility that does not achieve acceptable standards will not be licensed for rabies quarantine operations.

(3) The quarantine facility manager has the right to appeal the results of the inspection. If the opinion of management of the quarantine facility is in conflict with the inspection, he or she may request a review of the inspection by the manager of the department's Zoonosis Control Branch, who will then notify [. The appeal listed in this paragraph will be made in writing through] the regional director's office of the health service region in which the quarantine facility is located that an appeal has been submitted. The appeal listed in this paragraph will be made in writing and submitted within 30 days of the inspection. After receipt of the appeal, the department will have 60 days to respond.

§169.29.Vaccination Requirement.

(a) The custodian (excluding animal shelters as defined in the Texas Health and Safety Code, §823.001) of each dog or cat shall have the animal vaccinated against rabies by 16 weeks of age. The animal must be vaccinated by or under the direct supervision of a veterinarian with rabies vaccine licensed by the United States Department of Agriculture for that [animal] species at or after the minimum age requirement and using the recommended route of administration for the vaccine. If a previously vaccinated animal is overdue for a booster, once revaccinated, the animal will be considered currently vaccinated; the animal should be placed on a vaccination schedule according to the maximum labeled duration of immunity for the most recently administered vaccine. The attending veterinarian has discretion as to when the subsequent vaccination will be scheduled as long as the revaccination due date does not exceed the recommended interval for booster vaccination as established by the manufacturer or vaccination requirements instituted by local ordinance. [The custodian shall retain each vaccination certificate until the animal receives a subsequent booster.] Livestock [(especially those that have frequent contact with humans)], domestic ferrets, and wolf-dog hybrids should be vaccinated against rabies. Among livestock species, vaccination of equines and others that have frequent contact with humans is strongly advised. The administration of a rabies vaccine in a species for which no licensed vaccine is available is at the discretion of the veterinarian; however, an animal receiving a rabies vaccine under these conditions will not be considered to be vaccinated against rabies virus in potential rabies exposure situations.

(b) (No change.)

(c) Each veterinarian who issues a rabies vaccination certificate, or the veterinary practice where the certificate was issued, shall retain a readily retrievable copy of the certificate for a period of not less than five [two] years [after the revaccination due date].

(d) (No change.)

(e) The custodian shall retain each rabies vaccination certificate until the animal receives a subsequent booster and shall produce the certificate upon request by any local rabies control authority, public health official, or animal control, law enforcement, or peace officer when the request is part of the requester's official duty.

§169.30.Disposition of Domestic Animals Exposed to Rabies.

(a) Not currently vaccinated animals which have been bitten by, directly exposed by physical contact with, or directly exposed to the fresh tissues of a rabid animal shall be:

(1) euthanatized [humanely killed]; or

(2) immediately vaccinated against rabies, placed in confinement for 90 days, and given booster vaccinations during the third and eighth weeks of confinement. For young animals, additional vaccinations may be necessary to ensure that the animal receives at least two vaccinations at or after the age prescribed by the United States Department of Agriculture (USDA) for the vaccine administered.

(b) Currently vaccinated animals which have been bitten by, directly exposed by physical contact with, or directly exposed to the fresh tissues of a rabid animal shall be:

(1) euthanatized [humanely killed]; or

(2) immediately given a booster rabies vaccination and placed in confinement for 45 days.

(c) - (d) (No change.)

§169.31.Interstate Movement of Dogs and Cats into Texas.

Each dog and cat 12 weeks of age or older to be transported into Texas for any purpose shall be admitted only when vaccinated against rabies and the time elapsed since the most recent vaccination has not exceeded the manufacturer recommendations for the vaccine. If an initial vaccination was administered less than 30 days prior to arrival, the custodian should confine the dog or cat for the balance of the 30 days. Additionally, documentation must be provided by a vaccination certificate showing the date of vaccination, vaccine used, revaccination due date, identification information for the vaccinated animal, contact information of the animal's custodian, and signature , signature stamp, or computerized signature and contact information of the veterinarian responsible for administration of the vaccine. If the dog or cat is less than 12 weeks of age, the custodian should confine the animal until 30 days subsequent to its initial vaccination.

§169.32.International Movement of Dogs and Cats into Texas.

The federal government regulates the entry of pets into the United States; requirements set forth in this section are in addition to meeting federal requirements. If the department receives a federal importation notice, the department may request the local rabies control authority in the area where the animal will be located to monitor the notice for compliance. Contingent upon the department receiving notification of an importation-compliance failure, the department may report the failure to the appropriate authority. Each dog and cat 12 weeks of age or older to be transported into Texas for any purpose shall be admitted only when vaccinated against rabies and the time elapsed since the most recent vaccination has not exceeded the manufacturer recommendations for the vaccine. If an initial vaccination was administered less than 30 days prior to arrival in the United States, the custodian must confine the dog or cat for the balance of the 30 days. Additionally, documentation must be provided by a vaccination certificate or passport showing the date of vaccination, vaccine used, revaccination due date, identification information for the vaccinated animal, contact information of the animal's custodian, and signature, signature stamp, or computerized signature and contact information of the veterinarian responsible for administration of the vaccine. If the dog or cat is less than 12 weeks of age, the custodian shall [must] confine the animal until 30 days subsequent to its initial vaccination.

§169.33.Submission of Specimens for Laboratory Examination.

Preparation of specimens either for shipment or for personal delivery for rabies diagnosis shall include the following.

(1) (No change.)

(2) The head of the suspect animal shall be separated from the body by a qualified person wearing appropriate personal protective equipment as soon as possible after the death of the animal. Only the head shall be submitted with the exception that whole bats and small rodents may be submitted. If only the brain is submitted rather than the entire head, the minimum tissue requirements for rabies testing are a complete transverse cross section of the brain stem and tissue from at least one of the following: cerebellum and/or [or] hippocampus. Submissions that do not meet these tissue requirements will be considered unsatisfactory due to a lack of sufficient material.

(3) - (6) (No change.)

(7) The following procedures are required for shipment:

(A) shipment shall be by bus or other reliable carrier; the department does not recommend the United States Postal Service. If an overnight carrier (other than bus) is used, [such as United Parcel Service (UPS) or Federal Express,] ship the specimen such that it will arrive by Friday or delay shipment until Monday. Do not ship via overnight carrier on Friday or the day before a holiday. These services do not deliver to the department on the weekend;

(B) (No change.)

(C) at the time of the shipment, the shipper shall [telephone the laboratory and ] notify laboratory personnel of the shipment via telephone or laboratory-approved electronic format; and

(D) (No change.)

(8) (No change.)

§169.34.Statewide Quarantine.

(a) Declaration. The Executive Commissioner of the Health and Human Services Commission (HHSC) declares a statewide rabies quarantine.

(1) - (2) (No change.)

(3) Animals subject to the statewide rabies quarantine include any live species of fox, skunk, coyote, or raccoon [foxes] indigenous or naturalized to North America[ , coyote (Canis latrans), or raccoon (Procyon lotor)].

(4) Transport exceptions. Animals subject to the statewide rabies quarantine may be transported by peace officers and individuals hired or contracted by local, state, or federal government agencies to deal with stray animals when such transport is a part of their official duty. These animals may also be transported by employees of zoos or other institutions accredited by the Association of Zoos and Aquariums [American Association of Zoological Parks and Aquariums] when such transport is part of their official duty; educators permitted by the Texas Parks and Wildlife Department for educational display; rehabilitators permitted by the Texas Parks and Wildlife Department; an entity issued authorization for nuisance fur-bearing animal relocation from the Texas Parks and Wildlife Department; and pest management professionals licensed by the Texas Department of Agriculture. If an exempt individual transports such animals for release, the animals must be released within a ten-mile radius or within ten miles of the city limits of where they were originally captured and the release must be within the county in which they were originally captured.

(b) (No change.)

[(c) Special provisions for raccoons. In addition to the transport exceptions listed in subsection (a)(4) of this section, the following individuals may transport raccoons:]

[(1) rehabilitators permitted by the Texas Parks and Wildlife Department may transport raccoons within a ten-mile radius or within ten miles of the city limits of where they were originally captured;]

[(2) pest control operators licensed by the Structural Pest Control Board may transport raccoons within a ten-mile radius or within ten miles of the city limits of where they were originally captured; and]

[(3) educators permitted by the Texas Parks and Wildlife Department for educational display.]

[(d) Rehabilitation of animals. Except for raccoons, rehabilitation of animals listed in subsection (a)(3) of this section is prohibited.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 22, 2012.

TRD-201205478

Lisa Hernandez

General Counsel

Department of State Health Services

Earliest possible date of adoption: December 2, 2012

For further information, please call: (512) 776-6972