TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 745. LICENSING

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), new §745.8561 and §745.8608 in Chapter 745, without changes to the proposed text as published in the June 10, 2016, issue of the Texas Register (41 TexReg 4162).

BACKGROUND AND JUSTIFICATION

The justification of the new rules is to implement Senate Bill (S.B.) 1407 that was passed by the 84th Texas Legislature in 2015 and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy. "Normalcy" is the ability of a child in care to live as normal a life as possible, including engaging in childhood activities that are suitable for children of the same age, level of maturity, and developmental level as determined by a reasonable and prudent parent standard.

Child Care Licensing (CCL) has met with three different workgroups that have provided input and comments regarding these rules related to normalcy. On September 29, 2015, CCL met with a workgroup of providers and advocates that was organized by Texas CASA (Court Appointed Special Advocates); On October 7, 2015, CCL met with the Committee for Advancing Residential Practices; and on December 16, 2015, CCL met with a workgroup of providers.

One of the changes related to normalcy includes a definition for the "reasonable and prudent standard". The changes to Chapter 745 clarify how the reasonable and prudent parent standard will be used by CCL during investigations and when imposing an enforcement action.

The sections will function by ensuring that the safety of children in care and the quality of their care will be improved by integrating the use of "reasonable and prudent parent standard" into Chapter 745.

COMMENTS

The 30-day comment period ended July 11, 2016. During this period, DFPS did not receive any comments regarding the new rules.

SUBCHAPTER K. INSPECTIONS AND INVESTIGATIONS

DIVISION 5. ABUSE AND NEGLECT

40 TAC §745.8561

STATUTORY AUTHORITY

The new rules are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606172

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER L. ENFORCEMENT ACTIONS

DIVISION 1. OVERVIEW OF ENFORCEMENT ACTIONS

40 TAC §745.8608

STATUTORY AUTHORITY

The new rule is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rule implements HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

§745.8608.How will Licensing implement the "reasonable and prudent parent standard" when determining whether to impose an enforcement action against a child-placing agency or general residential operation?

We will not impose an enforcement action against a child-placing agency or general residential operation based on the conduct of a foster parent or designated person who appropriately followed the reasonable and prudent parent standard when determining whether a child will be allowed to participate in a childhood activity.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606183

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§749.43, 749.61, 749.305, 749.307, 749.421, 749.423, 749.425, 749.501, 749.503, 749.509, 749.513, 749.515, 749.535, 749.539, 749.551, 749.553, 749.571, 749.573, 749.577, 749.581, 749.585, 749.633, 749.635, 749.663, 749.667, 749.669, 749.673, 749.675, 749.679, 749.725, 749.761, 749.767, 749.801, 749.861, 749.867, 749.869, 749.881, 749.901, 749.933, 749.935, 749.937, 749.939, 749.941, 749.945, 749.1005, 749.1007, 749.1011, 749.1021, 749.1107, 749.1109, 749.1111, 749.1113, 749.1115, 749.1131, 749.1133, 749.1135, 749.1151, 749.1153, 749.1183, 749.1187, 749.1291, 749.1301, 749.1307, 749.1309, 749.1313, 749.1317, 749.1321, 749.1323, 749.1331, 749.1335, 749.1339, 749.1363, 749.1369, 749.1371, 749.1401, 749.1409, 749.1415, 749.1421, 749.1423, 749.1425, 749.1433, 749.1463, 749.1469, 749.1503, 749.1521, 749.1541, 749.1581, 749.1583, 749.1803, 749.1813, 749.1815, 749.1819, 749.1863, 749.1891, 749.1893, 749.1895, 749.1921, 749.1923, 749.1925, 749.1959, 749.1961, 749.2001, 749.2151, 749.2201, 749.2203, 749.2231, 749.2305, 749.2403, 749.2445, 749.2447, 749.2451, 749.2453, 749.2471, 749.2475, 749.2487, 749.2488, 749.2497, 749.2599, 749.2623, 749.2635, 749.2655, 749.2803, 749.2805, 749.2815, 749.2903, 749.2904, 749.2905, 749.2909, 749.2911, 749.2913, 749.2917, 749.2931, 749.2961, 749.3027, 749.3031, 749.3039, 749.3061, 749.3075, 749.3103, 749.3133, 749.3135, 749.3137, 749.3139, and 749.4153; repeal of 749.101, 749.103, 749.105, 749.107, 749.131, 749.133, 749.161, 749.163, 749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359, 749.507, 749.531, 749.533, 749.601, 749.671, 749.681, 749.769, 749.771, 749.1003, 749.1523, and 749.2902; and new 749.101, 749.103, 749.105, 749.107, 749.109, 749.111, 749.113, 749.115, 749.117, 749.119, 749.121, 749.123, 749.125, 749.127, 749.129, 749.131, 749.133, 749.135, 749.137, 749.139, 749.141, 749.151, 749.153, 749.161, 749.304, 749.529, 749.531, 749.533, 749.534, 749.769, 749.1003, 749.1312, 749.1336, 749.2902, and 749.3151, concerning a comprehensive review of Chapter 749, Minimum Standards for Child-Placing Agencies. The amendments to §§749.43, 749.503, 749.761, 749.767, 749.801, 749.869, 749.935, 749.937, 749.941, 749.945, 749.1115, 749.1133, 749.1153, 749.1187, 749.1313, 749.1321, 749.1409, 749.1423, 749.1425, 749.1469, 749.1583, 749.1813, 749.1819, 749.1959, 749.2305, and 749.3137; and new §§749.103, 749.107, 749.115, 749.153, 749.161, 749.769, and 749.1003, are adopted with changes to the proposed text in the June 10, 2016, issue of the Texas Register (41 TexReg 4170). The amendment to §§749.61, 749.305, 749.307, 749.421, 749.423, 749.425, 749.501, 749.509, 749.513, 749.515, 749.535, 749.539, 749.551, 749.553, 749.571, 749.573, 749.577, 749.581, 749.585, 749.633, 749.635, 749.663, 749.667, 749.669, 749.673, 749.675, 749.679, 749.725, 749.861, 749.867, 749.881, 749.901, 749.933, 749.939, 749.1005, 749.1007, 749.1011, 749.1021, 749.1107, 749.1109, 749.1111, 749.1113, 749.1131, 749.1135, 749.1151, 749.1183, 749.1291, 749.1301, 749.1307, 749.1309, 749.1317, 749.1323, 749.1331, 749.1335, 749.1339, 749.1363, 749.1369, 749.1371, 749.1401, 749.1415, 749.1421, 749.1433, 749.1463, 749.1503, 749.1521, 749.1541, 749.1581, 749.1803, 749.1815, 749.1863, 749.1891, 749.1893, 749.1895, 749.1921, 749.1923, 749.1925, 749.1961, 749.2001, 749.2151, 749.2201, 749.2203, 749.2231, 749.2403, 749.2445, 749.2447, 749.2451, 749.2453, 749.2471, 749.2475, 749.2487, 749.2488, 749.2497, 749.2599, 749.2623, 749.2635, 749.2655, 749.2803, 749.2805, 749.2815, 749.2903, 749.2904, 749.2905, 749.2909, 749.2911, 749.2913, 749.2917, 749.2931, 749.2961, 749.3027, 749.3031, 749.3039, 749.3061, 749.3075, 749.3103, 749.3133, 749.3135, 749.3139, and 749.4153; repeal of 749.101, 749.103, 749.105, 749.107, 749.131, 749.133, 749.161, 749.163, 749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359, 749.507, 749.531, 749.533, 749.601, 749.671, 749.681, 749.769, 749.771, 749.1003, 749.1523, and 749.2902; and new 749.101, 749.105, 749.109, 749.111, 749.113, 749.117, 749.119, 749.121, 749.123, 749.125, 749.127, 749.129, 749.131, 749.133, 749.135, 749.137, 749.139, 749.141, 749.151, 749.304, 749.529, 749.531, 749.533, 749.534, 749.769, 749.1312, 749.1336, 749.2902, and 749.3151 are adopted without changes to the proposed text and will not be republished. Also in this issue of the Texas Register, DFPS is withdrawing the amendments to §749.1957 to make this rule consistent with its sister rule in Chapter 748, where the sister rule was withdrawn in response to a comment received; and §749.4259 because on further review the proposed changes to this rule were previously proposed and adopted.

BACKGROUND AND JUSTIFICATION

The justification of the amendments, new, and repeals is for Child Care Licensing (CCL) to be in compliance with Texas Human Resources Code (HRC) §42.042(b), which requires CCL to conduct a comprehensive review of all rules and minimum standards every six years. The adopted changes are a result of the comprehensive review of all minimum standards located in Chapter 749.

During this review of standards, CCL's goal was to balance the concerns of child advocacy groups, child-placing agencies, foster parents, children, and biological parents to formulate standards that promote the safety of every child in care.

In preparation for the review of minimum standards, CCL conducted a web-based survey open to permit holders, caregivers, advocates, parents, and anyone in the general public interested in commenting on the standards. The survey was available for public input from late August through December 2014. The next step in the review was to hold a series of 13 stakeholder forums throughout the state between September and November 2015 to solicit additional input from the public about proposed changes to the minimum standards.

Between the web-based survey and the stakeholder forums, CCL received almost three hundred comments (for both Chapters 748, Minimum Standards for General Residential Operations, and 749) from stakeholders for consideration in the review. These comments, along with a line-by-line review of all minimum standards conducted by both regional and State Office Licensing staff, formed the basis of the first round of recommendations that were then presented to a temporary workgroup. The temporary workgroup, comprised of 13 participants, including providers from child-placing agencies and general residential operations and representatives from Child Protective Services, Residential Contracts, and Licensing, met twice on December 16, 2015, and February 2, 2016. The workgroup reviewed and provided additional comments regarding the recommendations.

The repeals, amendments and new rules will function to (1) clarify the Minimum Standards for Child-Placing Agencies (CPAs); (2) place DFPS in compliance with HRC §42.042(b); and (3) reduce the risk to children.

DFPS received 24 comments from six commenters: Texas Boys Ranch, Athletes For Change, Breathable Baby, a Child Protective Services Supervisor, the Coalition for Nurses in Advanced Practice, and One Voice Texas. Responses to comments are noted below.

Comments concerning §§749.43, 749.1135(3)(A), and 749.1433: The commenter requested that DFPS add a definition for Advanced Practice Registered Nurse (APRN) and allow APRNs to sign written orders for the admission of children with primary medical needs into a CPA, and allow APRNs to review a child's primary medical needs.

Response: DFPS recommends that these rules be adopted without changes. DFPS is in agreement with the commenter. However, DFPS does not recommend this change at this time, because it would be prudent to propose the change in the future to put child-placing agencies and physicians on notice and to allow child-placing agencies and physicians an opportunity to comment on any change to the rules.

No comments concerning §749.43(11). However, DFPS recommends a change to clarify the definition of "chemical restraint" and to make the definition consistent with the wording in Chapter 748.

No comments concerning §749.43(20). However, DFPS recommends a change to clarify the definition of "emergency medication" and to make the definition consistent with the wording in Chapter 748.

No comments concerning §749.43(35). However, DFPS recommends a change to the definition of "immediate danger to self or others" to clarify that "serious physical injury" is to "self or others" and to make the definition consistent with the wording in Chapter 748.

No comments concerning §749.43(59). However, DFPS recommends a change to clarify the definition of "sanitize" and to make the definition consistent with wording in Chapter 748.

No comments concerning §749.43(66). However, DFPS recommends a change to clarify the definition of "substantial physical injury" by changing "substantial" to "serious" when discussing evidence of a physical injury to make the language in the definition consistent throughout.

No comments concerning §749.103. However, DFPS recommends a change to correct a typographical error.

No comments concerning §749.107. However, DFPS recommends a change to delete the discussion of consanguinity and affinity, because it is already clarified in the definition of "family member". In addition, information regarding consanguinity and affinity is being added to a Helpful Information box located on the DFPS public website version of the minimum standards immediately following §749.43.

Comments concerning §749.113: One commenter had two comments regarding this rule, which stated: (1) For §749.113(1) the policies regarding a child's visitation rights should be the same as those rights in the Child Protective Services (CPS) policy; and (2) a policy should be added to this rule that says a child has the right to contact the Foster Care Ombudsman.

Response: DFPS recommends that this rule be adopted without changes. (1) Not all foster home placements are CPS placements. CPS also has to abide by federal guidelines. There are minimum standards that must be enforced, and CPS may have requirements above the minimum standards that CPS will enforce; and (2) The right to contact the HHSC Ombudsman for Children and Youth in Foster Care has already been added in new §749.1003(b)(7).

Comment concerning §749.115(8): The commenter stated that a "child in care" should be included amongst the individuals against whom retaliation is prohibited.

Response: DFPS recommends that this rule be adopted with changes. The new rule includes "child" and "resident". However, DFPS agrees that "child in care" is clearer and has made this change to the rule.

No comments concerning §749.153. However, DFPS recommends a change to correct a typographical error.

No comments concerning §749.161. However, DFPS recommends a change to correct a typographical error.

Comment concerning §749.503(a)(2): The commenter was not sure what the proposed new definition for "substantial physical injury" is.

Response: DFPS recommends that the relevant paragraph of the rule be adopted without changes. The definition for "substantial physical injury" has been modified but is still included in §749.43(66), which primarily means a physical injury serious enough that a reasonable person would conclude that the injury needs treatment by a medical professional. The definition also provides examples of what is and what is not a substantial physical injury.

Comment concerning §749.503(a)(4) and (a)(5): The commenter had concerns regarding reporting child-on-child physical abuse and sexual abuse as a serious incident, because there are fights all the time at the facility, including pushing, slapping, kicking, punching, teasing, name-calling, bullying, as well as physical fights. The commenter wondered if these would need to be called in as serious incidents.

Response: DFPS recommends that these two paragraphs of the rule be adopted without changes. The only changes made to these two paragraphs related to clarifying that "physical abuse occurs when there is substantial physical injury" and the timing of the reporting. If any of these incidents result in substantial physical injury as defined in §749.43(66) or sexual abuse as defined in paragraph §749.503(a)(5), then the incident would need to be reported as a serious incident.

Comment concerning §749.503(a)(6): The commenter stated that they have a close relationship with local police and sometimes call them to help calm a teen boy, but the commenter would think twice about doing this if now they are required to report the law enforcement response to the foster home as a serious incident.

Response: DFPS recommends that this paragraph of the rule be adopted without changes. There should be many solutions to de-escalating a situation with a teen. However, if the situation has escalated to the point that law enforcement must be called, then a serious incident report is appropriate.

Comments concerning §749.503(a)(9): There were two comments from two different commenters (and one additional comment from another commenter that was received regarding a sister rule in Chapter 748) regarding reporting as a serious incident when a child 13 and older is absent from the foster home and still missing for more than two hours (previously 24 hours). The commenters stated that teens often leave without permission to clear their heads; there are some 16 year-olds that are practicing independent living skills and participating in normalcy activities in the community, such as riding the bus, going to school events after school, and working, and these teens may push the boundaries of their "curfews" and agreed upon times to return; 85% of teens return within two hours, 95% of teens come back within 4-6 hours, and very rarely does a teen stay gone for more than 24 hours; reporting these incidents will increase the workload for hotline intakes, which already take 30 minutes or more to answer a phone call; police will not take a report until it has been 24 hours; this will hurt a child's chances for a placement if they have a lot of run-away history; and one commenter recommended making the time frame 5 hours instead of 2.

Response: DFPS recommends that this paragraph of the rule be adopted with changes. The National Center for Missing and Exploited Children (NCMEC) are the experts in this area, and NCMEC states that the quicker children are reported, the more likely and quickly they will be found. Also, law enforcement must take reports on missing children and must report the child to the National Crime Information Center (NCIC) database immediately. The Department of Public Safety Crimes Against Children Unit has been calling law enforcement agencies all over Texas to remind them of this duty. With that said, DFPS understands the need to give teenagers space, especially in relation to independent living and normalcy. DFPS also understands that CPAs and foster parents need the ability to make prudent parenting decisions. DFPS recommends adopting a six hour time frame for reporting, but adding information that if a child has been alleged or determined to be a trafficking victim or you believe the child has been abducted or has no intention of returning to the foster home, then you must report this absence immediately. DFPS is also adding information regarding prudent decision making to a Helpful Information box located on the DFPS public website version of the minimum standards immediately following this rule.

No comments concerning §749.761. However, DFPS recommends a change to further clarify the language of the rule for ease of understanding.

No comments concerning §749.767. However, DFPS recommends reworking this proposed rule regarding when a contractor/volunteer from another organization is subject to the CPA's policies and procedures to clarify the language of the rule without changing the content and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.769. However, DFPS recommends reworking this proposed rule, because DFPS already has background check rules that apply to employees, but the changes will clarify that a person may not perform community service at a CPA; and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.801. However, DFPS recommends a change as noted below in the response to comments concerning §749.935(d).

No comments concerning §749.869. However, DFPS recommends a change to further clarify "qualified instructor" and to make this rule consistent with its sister rule in Chapter 748.

Comment concerning §749.935(d): The commenter stated that the number of self-instructional training hours (as part of annual training) should not be increased from 1/3 to 1/2 without a thorough review of the materials available for self-instruction. Many of these materials allow users to skip to the end of the training without gaining any real knowledge.

Response: DFPS recommends that this rule be adopted with changes. Most, if not all, professions are allowing web-based training and not mandating in-person training. A similar 50% to 80% change was made to the child-care home self-instructional training standards in 2012 with no noticeable increase in complaints regarding quality of training. Ultimately, it is the CPA's responsibility to make sure their staff and caregivers are receiving high quality training. However, DFPS recommends three changes to further clarify these issues: (1) §749.801 is being changed to add a definition for "self-study training", which is non-standardized training where an individual reads written materials, watches a training video, or listens to a recording to obtain certain knowledge that is required for annual training. The definition for "self-instructional training" is also being changed to clarify that self-study training is a type of self- instructional training; (2) §749.935(d) is being clarified further to state that no more than three hours of the self-instructional training may come from self-study training; and (3) the training requirements in §749.937 are being clarified so it is clear that they apply to instructor-led training and self-instructional training, but not self-study training.

No comments concerning §749.937. However, DFPS recommends a change as noted above in the response to comments concerning §749.935(d).

No comments concerning §749.941. However, DFPS recommends a change to clarify the language of the rule.

No comments concerning §749.945. However, DFPS recommends a change to correct a grammatical error in the question.

Comment concerning §749.1003(b)(1)(C): The commenter stated that the laundry list of discrimination grounds should not be deleted. Rather, all of the discrimination grounds, including sexual orientation and gender identity, should be listed to clearly outline what is prohibited.

Response: DFPS recommends that the subparagraph of this rule be adopted without changes. DFPS is committed to making sure there is no discrimination, but a laundry list is complicated, confusing, and not all encompassing. What is important is that a child be treated fairly in all situations.

Comment concerning §749.1003(b)(3)(C): The commenter stated the language of this rule ("The right to have the child's religious needs met. The child has the right to choose a church or not to practice a religion.") was troublesome and would be problematic for faith-based organizations. Many residential care agencies are faith-based. These policies and contract mandates restrict operations and compound the problems of the Texas foster care system.

Response: DFPS recommends that the subparagraph of this rule be adopted with changes. The last sentence in question will be deleted and the right will say "the right to have the child's religious needs met", which is the language that is in the current rule that is being replaced and has been in existence since 2007. This change meets the intent to protect the child's right to practice a religion consistent with the child's belief system without unnecessary and prescriptive language in the rule.

Comment concerning §749.1007: The commenter stated that a child's right to contact the Foster Care Ombudsman should be added to this rule regarding educational rights.

Response: DFPS recommends that this rule be adopted without changes. The right to contact the HHSC Ombudsman for Children and Youth in Foster Care is currently included in new 749.1003(b)(7).

Comment concerning §749.1011(c): The commenter stated that the re-evaluation of restrictions on contact with siblings should occur every 30 days, because contact with siblings is essential to a child's well-being as long as it is not contrary to their safety.

Response: DFPS recommends that this rule be adopted without changes. The current rule reduces the time frame for the re-evaluation of restrictions on a child's contact with siblings from 90 days to 60 days. A further reduction is not recommended at this time. In addition, if a further reduction in time for the re-evaluation of restrictions on a child's contact with siblings were to be recommended, it would be prudent to propose the change in the future to put child-placing agencies and advocates on notice and to allow child-placing agencies and advocates an opportunity to comment on such a change to the rule.

Comment concerning §749.1013: The commenter stated that the CPA should also document the child's reaction to the news that the child is being discharged or transferred from a placement.

Response: DFPS recommends that this rule be adopted without changes. DFPS is not opposed to this recommendation and plans on obtaining additional information regarding this change. However, DFPS does not recommend this change at this time, because the recommendation (if it is to be made) may have a cost implication and it would be prudent to propose the change to put child-placing agencies and advocates on notice and to allow child-placing agencies and advocates an opportunity to comment on such change to the rule.

No comments concerning §749.1115. However, DFPS recommends a change to clarify the language of the rule.

No comments concerning §749.1133. However, DFPS recommends a change to delete the requirement for a rationale for the appropriateness of the admission, because this would be clarified in the requirement on how the needs of the child can be met.

No comments concerning §749.1153. However, DFPS recommends a change to clarify that a child younger than three years old must have a dental examination if it is recommended by any health-care professional (not just a physician), and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1187. However, DFPS recommends a change to clarify the language of the rule, including clarifying that assessments must also be signed, dated, and documented in the child's record, and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1313. However, DFPS recommends a change to simplify and clarify that a child's parents and foster parents must have at least two weeks advance notice of the initial service plan and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1321. However, DFPS recommends a change to clarify that a child 14 and over must receive a copy or summary of the child's initial service plan unless there is a justification not to provide the plan, the child must review and sign the plan, and the agency must document a child's refusal to sign the plan or if a child disagrees with the plan; and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1409. However, DFPS recommends a change to clarify the language of the rule and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1423. However, DFPS recommends a change to correct a cite in the rule.

No comments concerning §749.1425. However, DFPS recommends reorganizing this proposed rule regarding the documentation requirements for immunization records. The changes, which are partially in response to a comment related to a sister rule in Chapter 748, delete the address requirement for health-care professionals, add a requirement for clinic contract information when the immunization record is generated from an electronic health record system, simplify and clarify the language of the rule, and make this rule consistent with its sister rules in Chapters 744, 746, and 748.

Comment concerning §749.1469(a)(2): The commenter discussed this rule, which requires the CPA to inform a child's physician of the administration and dosage of non-prescription medication and supplements to ensure there is not a contraindication with prescribed medication or the condition of the child. The commenter recommends broadening the term "physician" to "prescribing health-care professional", which would include an advanced practice registered nurse or physician's assistant that prescribes medication. The change would allow the relevant health-care professional to be informed of the administration and dosage of non-prescription medication and supplements and provide the most up to date information on the child.

Response: DFPS agrees with the commenter and recommends that this rule be adopted with the noted changes.

Comments concerning §749.1583(b)(2) and (3): The commenter recommended substituting "physician" and "prescribing physician" with "prescribing health-care professional" to allow other health-care professionals than can prescribe medication (for example, an advanced practice registered nurse or physician's assistant) to be notified of a child's side effects.

Response: DFPS agrees with the commenter and recommends that this rule be adopted with the noted changes.

Comment concerning §749.1813(b) and (c), formerly proposed as §749.1813(a)(6): As proposed, the rule added language to an existing rule enumerating types of products not allowed in a crib for an infant younger than 12 months of age. Of particular relevance to this rule, DFPS proposed adding a clarification that crib bumpers, which were not allowed under prior rule and interpretation, included "mesh bumpers." The commenter stated that there is a difference between bumper pads/mesh bumpers and mesh liners. The commenter disputed CCL's rationale for the changes that liners pose risks to children in care. According to the commenter, mesh liners prevent an infant's limbs from being entrapped between the crib slats. In addition, the mesh liners are much more permeable (from 14 to 46 times more permeable) than bumper pads and are not a risk for suffocation. The commenter provided studies they paid for to support both of these points, which conclude that for 13 plus years there have been no known injuries or deaths as a result of the mesh liners. The commenter expressed concern that there was no definition for bumper pads. One solution suggested was to ban bumper pads (including mesh bumpers) that incorporate any padding or other materials that are more than 12mm in thickness. The commenter indicated that were DFPS to adopt a ban on all types of bumpers and liners, the agency would be out of step with current research and pending action on the part of the Consumer Products Safety Commission (CPSC).

In addition, the commenter voiced concerns regarding whether DFPS complied with the Administrative Procedures Act in the proposal of the rule. Specifically, the commenter complained that product manufacturers were not specifically included in the preparatory outreach DFPS conducted prior to the rule's proposal in the Texas Register. The commenter next took issue with the fact that the rule proposal had an incorrect cite regarding the statutory authority under which the rules were proposed, which the commenter indicated delayed their assessment of the impact of the rule. Finally, the commenter also expressed that fiscal implications to manufacturers should have been calculated as a part of DFPS' fiscal impact analysis.

Response: DFPS recommends that the rule be adopted with changes. The DFPS rationale for the rule change is based on existing research that states that the safest course for a sleeping infant is a bare crib. However, DFPS agrees that the language could be clarified. First, DFPS determined it would be of maximum clarity to the public to reiterate the agency's stance, which mirrors that of the American Academy of Pediatrics (AAP) and the agency's own safe sleep campaigns that to be as safe as possible, the crib must be bare of anything other than a tight fitting sheet. Second, DFPS is clarifying, as the AAP has noted, that a crib mattress cover used to protect against wetness is also allowable if the cover is designed specifically for the crib or crib mattress, tight fitting, thin, and not designed to make the sleep surface softer. Lastly, rather than specifically enumerating any particular product, DFPS has concluded that it would be of maximum aid to the public's understanding to simply restate the basic principle that only a tight fitting sheet, or mattress cover if appropriately used, are allowed in a crib for an infant under 12 months.

DFPS carefully reviewed the information provided by the commenter, along with other available information regarding safe sleep; arranged a meeting with the commenter and high level agency staff; and have continued dialogue regarding the rule on an ongoing basis. However, DFPS continues to view the safest mode of sleep for an infant is a crib with nothing other than a bare sheet, which has been the agency's historical interpretation of this rule without the clarification DFPS proposed. While CPSC may propose safety standards for alternatives to crib bumpers in the future, and while it is true that some states have carved mesh liners from their prohibitions, DFPS is committed to reviewing and applying existing research with an eye to maximum child protection. A close reading of the most recent CPSC information provided by the commenter indicates that while the concern of suffocation with bumper pads may not be as great with alternatives to bumper pads (mesh liners and vertical bumpers), there is still a lingering concern regarding alternatives to bumper pads being a strangulation hazard.

DFPS has concluded that the current CPSC review supports a ban of all bumpers and alternatives. Should the CPSC revisit their conclusions, CCL remains open to revisiting the corresponding regulations. However, in addition to the CPSC review, the American Academy of Pediatrics updated their guidelines regarding safe sleep as recently as October 24, 2016, and continues to recommend that for the maximum safety of infants, cribs be bare. While not specifically differentiating between cloth bumpers and mesh liners or other alternatives, the AAP's recommendations for the crib do not suggest that anything beyond a tight fitting sheet and possibly a tight fitting thin mattress cover if needed to protect the mattress against wetness. See http://pediatrics.aappublications.org/content/early/2016/10/25/peds.2016-2938.

Furthermore, in proposing this rule DFPS complied with the requirements of the Administrative Procedures Act. While product manufacturers were not specifically sought out for input prior to the rule's publication in the Texas Register, the requirements of the APA are that the public be put on notice of the rule in the proposal, not beforehand. Moreover, DFPS conducted a web-based survey from August - December 2014, held 13 stakeholder forums from September - November 2015, and met with two temporary workgroups in December 2015 and February 2016. In addition, while it would have been preferable for DFPS to list the correct statutory citation for rulemaking authority in the preamble as proposed, that requirement goes to whether DFPS had the statutory authority to take the action that it did, which is not in dispute. In addition, DFPS complied with the Act's directive to include in the preamble an explanation of the rule as well as the contents of the rule. Tex. Gov't Code §2001.024(a)(1) and (2). Public notice is effectuated through those requirements and not the listing of statutory authority, as evidenced by the fact that the commenter determined the subject matter of the rule and submitted comments within the public comment period. Finally, the APA requires DFPS to consider the economic impact of the rule on those required to comply with the rule. Tex. Gov't Code §2001.024(a)(5). In any event, DFPS was not modifying its interpretation but clarifying existing practice. Nor is DFPS affecting the manufacture or sale of mesh liners in the marketplace generally. DFPS is regulating the use of mesh liners only within the small subset of Texas child-placing agencies and foster homes subject to its regulatory authority.

No comments concerning §749.1819. However, DFPS recommends a change to clarify the language of the rule and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1957. However, DFPS recommends withdrawing the amendment in response to a comment to a sister rule in Chapter 748 where the commenter stated that "screaming" at a child will be at times too open for interpretation, especially in crisis situations and when a firm voice tone is needed.

No comments concerning §749.1959. However, DFPS recommends a change to delete "schools and chores" as activities that cannot be restricted because "schools and chores" are confusing. School cannot be restricted because a child has to attend as a matter of law, and chores are not a restriction but instead something assigned to a child to do; and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.2305. However, DFPS recommends a change to clarify that the names of any persons who provided medical assistance or treatment must be documented, not just medical providers, and to make this rule consistent with its sister rule in Chapter 748.

Comment concerning §749.2445(d): The commenter stated that all criminal history, not just the history of family violence, needs to be reported to Licensing so they can make a complete assessment of the home.

Response: DFPS recommends that this rule be adopted without changes. CPAs are currently required in §749.2447(7) to gather all criminal history information on a foster family applicant and include all of the information in the foster home screening. Only the family violence portion of that information is required to be reported to Licensing, which is a particular requirement of HRC §42.0561. The CPA determines whether to verify a foster home, and Licensing monitors the verification of the foster home, which includes a review of the criminal history in the foster home screening. Additional reporting of that information directly to Licensing is over burdensome and not necessary.

No comments concerning §749.3137. However, DFPS recommends a change to clarify that subsection (b) is only applicable when all of the children in the group are fours year of age and older and to clarify in that situation at least two adults must supervise four children who are actually in the water.

Comments concerning rules that were not proposed for change: One commenter commented on three rules, the comments stated: (1) for §749.1009(d), restrictions on contact between a child and others that continue for more than 10 days should be re-evaluated every 10 days, instead of every month; (2) for §749.1013(d), restrictions on contact between a child and the parents that continue for more than 15 days should be re-evaluated every 15 days, instead of every month; and (3) for §749.1611, this rule regarding a health-care professional's requirements when prescribing psychotropic medication, needs to reflect the current requirements of HB 915 (83-R).

Response: These three comments concern rules that are not proposed for public comment; therefore, these comments are outside of the scope of the proposed rulemaking. However, for §749.1611, DFPS is reviewing this rule to determine if it needs to be updated, or if it can be repealed since the Texas Medical Board licenses physicians and physician's assistants.

Comments concerning chapters that were not proposed for change: one commenter stated that there needs to be a provision prohibiting discrimination against race, ethnicity, etc., and gender identity and sexual orientation needs to be added to the list in Chapters 743, 747, 748, and 750; and in Chapter 748 the discrimination laundry list under the rights of the child needs to be specific.

Response: These comments concern rules that are not proposed for public comment; therefore these comments are outside of the scope of the proposed rulemaking.

SUBCHAPTER B. DEFINITIONS AND SERVICES

DIVISION 1. DEFINITIONS

40 TAC §749.43

STATUTORY AUTHORITY

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.43.What do certain words and terms mean in this chapter?

The words and terms used in this chapter have the meanings assigned to them under §745.21 of this title (relating to What do the following words and terms mean when used in this chapter?), unless another meaning is assigned in this section or unless the context clearly indicates otherwise. The following words and terms have the following meanings unless the context clearly indicates otherwise:

(1) Accredited college or university--An institution of higher education accredited by one of the following regional accrediting entities:

(A) The Southern Association of Colleges and Schools Commission on Colleges, a subdivision of the Southern Association of Colleges and Schools;

(B) The Middle States Commission on Higher Education, a component of the Middle States Association of Colleges and Schools;

(C) The Commission on Institutions of Higher Education, a subdivision of the New England Association of Schools and Colleges;

(D) The Higher Learning Commission (formerly part of the North Central Association of Colleges and Schools);

(E) The Northwest Commission on Colleges and Universities;

(F) The Accrediting Commission for Senior Colleges and Universities, a subdivision of the Western Association of Schools and Colleges; or

(G) The Accrediting Commission for Community and Junior Colleges, a subdivision of the Western Association of Schools and Colleges.

(2) Adaptive functioning--Refers to how effectively a person copes with common life demands and how well the person meets standards of personal independence expected of someone in his particular age group, socio-cultural background, and community setting.

(3) Adoption record--All information received by the child-placing agency that bears the child's name or pertains to the child, including any information about the birth parents and adoptive parents, is considered to be part of the adoption record.

(4) Adoptive home screening--Also known as a pre-adoptive home screening. A written evaluation, prior to the placement of a child in an adoptive home, of the:

(A) Prospective adoptive parent(s);

(B) Family of the prospective adoptive parents; and

(C) Environment of the adoptive parents and their family in relation to their ability to meet the needs of a child, and if a child has been identified for adoption, the needs of that particular child.

(5) Adult--A person 18 years old or older.

(6) Adverse action--See corrective or adverse action.

(7) Babysitting--Temporarily caring for a child in foster care for no more than 12 consecutive hours.

(8) Caregiver--A caregiver:

(A) Is a person counted in the child/caregiver ratio for foster care services, including employees, foster parents, contract service providers, and volunteers, whose duties include direct care, supervision, guidance, and protection of a child in care. This includes any person that is solely responsible for a child in foster care. For example, a child-placement staff that takes a foster child on an appointment or doctor's visit is considered a caregiver;

(B) Does not include babysitters, overnight care providers, or respite child-care providers unless they are:

(i) Verified foster parents;

(ii) Licensed foster parents; or

(iii) Agency employees;

(C) Does not include a contract service provider who:

(i) Provides a specific type of service to your agency for a limited number of hours per week or month;

(ii) Works with one particular child; or

(iii) Is a nurse being reimbursed by Medicaid; and

(D) Does not include a person left alone momentarily with a child in care while the caregiver leaves the room.

(9) Certified fire inspector--Persons certified by the Texas Commission on Fire Protection to conduct fire inspections.

(10) Child/caregiver ratio--The maximum number of children for whom one caregiver can be responsible.

(11) Chemical restraint--A type of emergency behavior intervention that uses chemicals or pharmaceuticals through topical application, oral administration, injection, or other means to immobilize or sedate a child as a mechanism of control. The use of a medication is not a chemical restraint under this chapter if the medication:

(A) Is prescribed by a treating health-care professional;

(B) Is administered solely for medical or dental reasons; and

(C) Has a secondary effect of immobilizing or sedating a child.

(12) Childhood activities--Activities that are generally accepted as suitable for children of the same chronological age, level of maturity, and developmental level as determined by a reasonable and prudent parent standard as specified in §749.2605 of this title (relating to What is the "reasonable and prudent parent standard"?). Examples of childhood activities include extracurricular activities, in-school and out-of-school activities, enrichment activities, cultural activities, and employment opportunities. Childhood activities include unsupervised childhood activities.

(13) Child in care--A child who has been placed by a child-placing agency in a foster or adoptive home, regardless of whether the child is temporarily away from the home. Unless a child has been discharged from the child-placing agency, the child is considered a child in care.

(14) Corporation or other type of business entity-- May include an association, corporation, nonprofit association, nonprofit corporation, nonprofit association with religious affiliation, nonprofit corporation with religious affiliation, limited liability company, political subdivision, or state agency. For purposes of this chapter, this definition does not include any type of "partnership", which is defined separately.

(15) Corrective or adverse action--Is any action by you that places a restriction or condition on a foster home's verification, including the revocation of the verification. Note: For information regarding a corrective or adverse action which Licensing is taking against you, see Subchapter L of Chapter 745 (relating to Enforcement Actions).

(16) Counseling--A procedure used by professionals from various disciplines in guiding individuals, families, groups, and communities by such activities as delineating alternatives, helping to articulate goals, processing feelings and options, and providing needed information. This definition does not include career counseling.

(17) Days--Calendar days, unless otherwise stated.

(18) De-escalation--Strategies used to defuse a volatile situation, to assist a child to regain behavioral control, and to avoid a physical restraint or other behavioral intervention.

(19) Department--The Department of Family and Protective Services (DFPS).

(20) Discipline--A form of guidance that is constructive or educational in nature and appropriate to the child's age, development, situation, and severity of the behavior.

(21) Emergency Behavior Intervention (EBI)--Interventions used in an emergency situation, including personal restraints, mechanical restraints, emergency medication, and seclusion.

(22) Emergency medication--A type of emergency behavior intervention that uses chemicals or pharmaceuticals through topical application, oral administration, injection, or other means to modify a child's behavior. The use of a medication is not an emergency medication under this chapter if the medication:

(A) Is prescribed by a treating health-care professional;

(B) Is administered solely for a medical or dental reason (e.g. benadryl for an allergic reaction or medication to control seizures); and

(C) Has a secondary effect of modifying a child's behavior.

(23) Emergency situation--A situation in which attempted preventative de-escalatory or redirection techniques have not effectively reduced the potential for injury, so that intervention is immediately necessary to prevent:

(A) Imminent probable death or substantial physical injury to the child because the child attempts or continually threatens to commit suicide or substantial physical injury; or

(B) Imminent physical harm to another because of the child's overt acts, including attempting to harm others. These situations may include aggressive acts by the child, including serious incidents of shoving or grabbing others over their objections. These situations do not include verbal threats or verbal attacks.

(24) Family members--An individual related to another individual within the third degree of consanguinity or affinity. For the definitions of consanguinity and affinity, see Chapter 745 of this title (relating to Licensing). The degree of the relationship is computed as described in Government Code, §573.023 (relating to Computation of Degree of Consanguinity) and §573.025 (relating to Computation of Degree of Affinity).

(25) Foster family home--A home that is the primary residence of the foster parent(s) and provides care for six or fewer children or young adults, under the regulation of a child-placing agency.

(26) Foster group home--A home verified:

(A) After January 1, 2007, that is the primary residence of the foster parent(s) and provides care for seven to 12 children or young adults, under the regulation of a child-placing agency; or

(B) Prior to January 1, 2007, that provides care for seven to 12 children or young adults, under the regulation of a child-placing agency.

(27) Foster home--As referred to in this chapter means both types of homes, foster family homes and foster group homes.

(28) Foster home screening--A written evaluation, prior to the verification of the foster home, of the:

(A) Prospective foster parent(s);

(B) Family of the prospective foster parent(s);

(C) All other part- or full-time household members; and

(D) Environment of the foster parent(s) and their family in relation to their ability to meet the child's needs.

(29) Foster parent--A person verified to provide child-care services in the foster home.

(30) Full-time--At least 30 hours per week.

(31) Governing body--A group of persons or officers of the corporation or other type of business entity having ultimate authority and responsibility for the child-placing agency.

(32) Health-care professional--A licensed physician, licensed advanced practice registered nurse, physician's assistant, licensed vocational nurse (LVN), licensed registered nurse (RN), or other licensed medical personnel providing health care to the child within the scope of the person's license. This does not include medical doctors or medical personnel not licensed to practice in the United States.

(33) High-risk behavior--Behavior of a child that creates an immediate safety risk to the child or others. Examples of high-risk behavior include suicide attempt, self-abuse, physical aggression causing bodily injury, chronic running away, substance abuse, fire setting, and sexual aggression or perpetration.

(34) Human services field--A field of study that contains coursework in the social sciences of psychology and social work including some counseling classes focusing on normal and abnormal human development and interpersonal relationship skills from an accredited college or university. Coursework in guidance counseling does not apply.

(35) Immediate danger to self or others--A situation where a prudent person would conclude that bodily harm would occur if there were no immediate interventions. Immediate danger includes a serious risk of suicide, serious physical injury to self or others, or the probability of bodily harm resulting from a child running away. Immediate danger does not include:

(A) Harm that might occur over time or at a later time; or

(B) Verbal threats or verbal attacks.

(36) Infant--A child from birth through 17 months.

(37) Master record--The compilation of all required records for a specific person or home, such as a master personnel record, master case record for a child, or a master case record for a foster or adoptive home.

(38) Mechanical restraint--A type of emergency behavior intervention that uses the application of a device to restrict the free movement of all or part of a child's body in order to control physical activity.

(39) Mental health professional--Refers to:

(A) A psychiatrist licensed by the Texas Medical Board;

(B) A psychologist licensed by the Texas State Board of Examiners of Psychologists;

(C) A master's level social worker or higher licensed by the Texas State Board of Social Work Examiners;

(D) A professional counselor licensed by the Texas State Board of Examiners of Professional Counselors;

(E) A marriage and family therapist licensed by the Texas State Board of Examiners of Marriage and Family Therapists; and

(F) A master's level or higher nurse licensed as an Advanced Practice Registered Nurse by the Texas Board of Nursing and board certified in Psychiatric/Mental Health.

(40) Non-ambulatory--A child that is only able to move from place to place with assistance, such as a walker, crutches, a wheelchair, or prosthetic leg.

(41) Non-mobile--A child that is not able to move from place to place, even with assistance.

(42) Overnight care--Temporary care provided for a child in foster care by someone other than the foster parents with whom the child is placed for more than 12 consecutive hours, but no more than 72 consecutive hours.

(43) Owner--The sole proprietor, partnership, or corporation or other type of business entity who owns a child-placing agency.

(44) Parent--A person who has legal responsibility for or legal custody of a child, including the managing conservator or legal guardian.

(45) Partnership--A partnership may be a general partnership, (general) limited liability partnership, limited partnership, or limited partnership as limited liability partnership.

(46) Permit holder--The owner of the child-placing agency that is granted the permit.

(47) Person legally authorized to give consent--The person legally authorized to give consent by the Texas Family Code or a person authorized by the court.

(48) Personal restraint--A type of emergency behavior intervention that uses the application of physical force without the use of any device to restrict the free movement of all or part of a child's body in order to control physical activity. Personal restraint includes escorting, which is when a caregiver uses physical force to move or direct a child who physically resists moving with the caregiver to another location.

(49) Physical force--Pressure applied to a child's body that reduces or eliminates the child's ability to move freely.

(50) Post-adoption services--Services available through the child-placing agency (direct or on referral) to birth and adoptive parents and the adoptive child after the adoption is consummated. Examples include counseling, maintaining a registry if a central registry is not used, providing pertinent, new medical information to birth or adoptive parents, or providing the adult adoptee a copy of his record upon request.

(51) Post-placement adoptive report--A written evaluation of the assessments and interviews, after the adoptive placement of the child, regarding the:

(A) Child;

(B) Prospective adoptive parent(s);

(C) Family of the prospective adoptive parent(s);

(D) Environment of the prospective adoptive parent(s) and their family; and

(E) Adjustment of all individuals to the placement.

(52) Pre-adoptive home screening--See adoptive home screening.

(53) PRN--A standing order or prescription that applies "pro re nata" or "as needed according to circumstances."

(54) Professional service provider--Refers to:

(A) A child placement management staff or person qualified to assist in child placing activity;

(B) A psychiatrist licensed by the Texas Medical Board;

(C) A psychologist licensed by the Texas State Board of Examiners of Psychologists;

(D) A master's level social worker or higher licensed by the Texas State Board of Social Work Examiners;

(E) A professional counselor licensed by the Texas State Board of Examiners of Professional Counselors;

(F) A marriage and family therapist licensed by the Texas State Board of Examiners of Marriage and Family Therapists;

(G) A master's level or higher nurse licensed as an Advanced Practice Registered Nurse by the Texas Board of Nursing and board certified in Psychiatric/Mental Health; and

(H) Other professional employees in fields such as drug counseling, nursing, special education, vocational counseling, pastoral counseling, and education who may be included in the professional staffing plan for your agency that provides treatment services if the professional's responsibilities are appropriate to the scope of the agency's program description. These professionals must have the minimum qualifications generally recognized in the professional's area of specialization.

(55) Prone restraint--A restraint in which the child is placed in a chest-down hold.

(56) Psychosocial assessment--An evaluation by a mental health professional of a child's mental health that includes a:

(A) Clinical interview of the child;

(B) Diagnosis from the Diagnostic and Statistical Manual of Mental Disorders 5 (DSM-5), or statement that rules out a DSM-5 diagnosis;

(C) Treatment plan for the child, including whether further evaluation of the child is needed (for example: is a psychiatric evaluation needed to determine if the child would benefit from psychotropic medication or hospitalization; or is a psychological evaluation with psychometric testing needed to determine if the child has a learning disability or an intellectual disability); and

(D) Written summary of the assessment.

(57) Re-evaluate--Assessing all factors required for the initial evaluation for the purpose of determining if any substantive changes have occurred. If substantive changes have occurred, these areas must be fully evaluated.

(58) Regularly--On a recurring, scheduled basis. Note: For the definition for "regularly or frequently present at an operation" as it applies to background checks, see §745.601 of this title (relating to What words must I know to understand this subchapter?).

(59) Sanitize--The use of a product (usually a disinfecting solution) registered by the Environmental Protection Agency (EPA) that substantially reduces germs on inanimate objects to levels considered safe by public health requirements. Many bleach and hydrogen peroxide products are EPA-registered. You must follow the product's labelling instructions for sanitizing (paying particular attention to any instructions regarding contact time and toxicity on surfaces likely to be mouthed by children, such as toys and crib rails). For an EPA-registered sanitizing product or disinfecting solution that does not include labelling instructions for sanitizing (a bleach product, for example), you must conduct these steps in the following order:

(A) Washing with water and soap;

(B) Rinsing with clear water;

(C) Soaking in or spraying on a disinfecting solution for at least two minutes. Rinsing with cool water only those items that a child is likely to place in his mouth; and

(D) Allowing the surface or item to air-dry.

(60) School-age child--A child who is five years old or older and who will attend school in August or September of that year.

(61) Seat belt--A lap belt and any shoulder strap included as original equipment on or added to a motor vehicle.

(62) Seclusion--A type of emergency behavior intervention that involves the involuntary separation of a child from other residents and the placement of the child alone in an area from which the resident is prevented from leaving by a physical barrier, force, or threat of force.

(63) Service plan--A plan that identifies a child's basic and specific needs and how those needs will be met.

(64) Short personal restraint--A personal restraint that does not last longer than one minute before the child is released.

(65) State or local fire authority--A fire official who is authorized to conduct fire safety inspections on behalf of the city, county, or state government, including certified fire inspectors.

(66) Substantial physical injury--Physical injury serious enough that a reasonable person would conclude that the injury needs treatment by a medical professional, including dislocated, fractured, or broken bones; concussions; lacerations requiring stitches; second and third degree burns; and damages to internal organs. Evidence that physical injury is serious includes the location and/or severity of the bodily harm and/or the age of the child. Substantial physical injury does not include minor bruising, the risk of minor bruising, or similar forms of minor bodily harm that will resolve healthily without professional medical attention.

(67) Supine restraint--Placing a child in a chest up restraint hold.

(68) Supplement-- Includes vitamins, herbs, and any supplement labeled dietary supplement.

(69) Swimming activities--Activities related to the use of splashing pools, wading pools, swimming pools, or other bodies of water.

(70) Toddler--A child from 18 months through 35 months old.

(71) Trafficking victim--A child who has been recruited, harbored, transported, provided or obtained for the purpose of forced labor or commercial sexual activity, including any child subjected to an act or practice as specified in Penal Code §20A.02 or §20A.03.

(72) Trauma informed care (TIC)--Care for children that is child-centered and considers the unique culture, experiences, and beliefs of the child. TIC takes into consideration:

(A) The impact that traumatic experiences have on the lives of children;

(B) The symptoms of childhood trauma;

(C) An understanding of a child's personal trauma history;

(D) The recognition of a child's trauma triggers; and

(E) Methods of responding that improve a child's ability to trust, to feel safe, and to adapt to changes in the child's environment.

(73) Treatment director--The person responsible for the overall treatment program providing treatment services. A treatment director may have other responsibilities and may designate treatment director responsibilities to other qualified persons.

(74) Unsupervised childhood activities--Childhood activities that a child in care participates in away from the foster home and the foster parents. Childhood activities that the foster parents conduct or supervise or the child-placing agency sponsors are not unsupervised childhood activities. Unsupervised childhood activities may include playing sports, going on field trips, spending the night with a friend, going to the mall, or dating. Unsupervised childhood activities may last one or more days.

(75) Volunteer--A person who provides:

(A) Child-care services, treatment services, or programmatic services under the auspices of the agency without monetary compensation, including a "sponsoring family;" or

(B) Any type of services under the auspices of the agency without monetary compensation when the person has unsupervised access to a child in care.

(76) Young adult--An adult whose chronological age is between 18 and 22 years, who is currently in a residential child-care operation, and who continues to need child-care services.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606148

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. SERVICES

40 TAC §749.61

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606149

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §§749.101, 749.103, 749.105, 749.107

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606151

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 1. PLANS AND POLICIES REQUIRED FOR THE APPLICATION PROCESS

40 TAC §§749.101, 749.103, 749.105, 749.107, 749.109, 749.111, 749.113, 749.115, 749.117, 749.119, 749.121, 749.123, 749.125, 749.127, 749.129, 749.131, 749.133, 749.135, 749.137, 749.139, 749.141

The new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new sections implement HRC §42.042.

§749.103.What policies and procedures must I submit for Licensing's approval as part of the application process?

(a) You must develop the policies and procedures identified in subsection (b) of this section. Your policies and procedures must comply with or exceed the minimum standards specified in this chapter, Chapter 42 of the Human Resources Code, Chapter 745 of this title (relating to Licensing), and any other applicable law.

(b) As part of the application process, you must submit the following policies and procedures to us for our approval:

(1) Policies and procedures related to record keeping, including where the records will be located. The policies must be consistent with Subchapter D of this chapter (relating to Reports and Records Keeping);

(2) Personnel policies and procedures consistent with §749.105 of this title (relating to What are the requirements for my personnel policies and procedures?);

(3) Conflict of interest policies consistent with §749.107 of this title (relating to What must my conflict of interest policies include?);

(4) Admission policies consistent with §749.109 of this title (relating to What must my admission policies include?);

(5) Placement policies consistent with §749.111 of this title (relating to What must my placement policies include?);

(6) Child-care policies consistent with §749.113 of this title (relating to What child-care policies must I develop?);

(7) Emergency behavior intervention policies consistent with §749.115 of this title (relating to What emergency behavior intervention policies must I develop if my foster homes are permitted to use emergency behavior intervention?);

(8) Discipline policies consistent with §749.117 of this title (relating to What are the requirements for my discipline policies for children in care?);

(9) Foster care policies consistent with §749.119 of this title (relating to What foster care policies must I develop?);

(10) Rights and responsibilities of the child-placing agency and the foster parents consistent with §749.121 of this title (relating to What policies must I develop concerning the rights and responsibilities of the child-placing agency and foster parents?);

(11) Additional policies for foster parents that provide treatment services consistent with §749.123 of this title (relating to What policies must I develop regarding foster parents who provide treatment services to a child with primary medical needs?);

(12) Additional policies for foster parents who offer a transitional living program consistent with §749.125 of this title (relating to What policies must I develop for foster parents who offer a transitional living program?);

(13) Policies for babysitters, overnight care providers, and respite care providers consistent with §749.127 of this title (relating to What policies must I develop for babysitters, overnight care providers, and respite care providers?);

(14) Policies for a legal risk placement program consistent with §749.129 of this title (relating to What policies must I develop for a legal risk placement program for foster-adoptive families?);

(15) Adoption policies, if applicable, consistent with §749.131 of this title (relating to What policies must I develop if I offer adoption services?);

(16) Volunteer policies consistent with §749.133 of this title (relating to What policies must I develop if I use volunteers?);

(17) Abuse and neglect policies consistent with §749.135 of this title (relating to What abuse and neglect policies must I develop?);

(18) An appeal process for adult clients consistent with Division 8 of Subchapter C (relating to Clients and Appeals);

(19) A weapons, firearms, explosive materials, and projectiles policy, for foster care services, consistent with Division 3 of Subchapter O (relating to Weapons, Firearms, Explosive Materials, and Projectiles); and

(20) A tobacco and e-cigarette policy consistent with §749.2931 of this title (relating to What policies must I enforce regarding tobacco products and e-cigarettes?).

§749.107.What must my conflict of interest policies include?

Your conflict of interest policies must include:

(1) A statement that child placement staff and child placement management staff will not conduct, review, or approve foster home screenings, adoptive home screenings, or post-placement adoptive reports if there is a conflict of interest or bias with the family or the child. For example, there would be a conflict of interest if the staff is related to or has a personal relationship with the family or the child;

(2) A statement that it is a conflict of interest for your agency to verify as a foster parent or approve as an adoptive parent any of the following persons or relatives of any of the following persons: any current owner, member of the governing body, executive director, or any other employee or contract service provider of your agency;

(3) A code of conduct on the relationship between your agency's owners (including members of the governing body, if applicable), employees, contract service providers, children in placement, children's families, and prospective and current foster and adoptive parents, including required parameters for entering into independent financial relationships or transactions;

(4) For corporations or other types of business entities, a statement that the majority of the voting members of the governing body must consist of persons who do not have a conflict of interest that would potentially interfere with objective decision making. Persons who have such a conflict of interest include the following:

(A) Family members of:

(i) An officer of the governing body;

(ii) The administrator or executive director of the child-placing agency; or

(iii) Any person with a controlling interest in the entity's stock; or

(B) If the governing body is a non-profit entity, persons who benefit financially from the agency, including but not limited to persons employed by or working at the agency, paid consultants, subcontractors, or vendors; and

(5) For adoptions, you may state whether the person whom you evaluated appears to be suitable for adoption, even if there are other individuals requesting adoption. If you have not evaluated parties of a disputed case, you must refrain from making an adoption or custody recommendation, unless otherwise directed by the court.

§749.115.What emergency behavior intervention policies must I develop if my foster homes are permitted to use emergency behavior intervention?

At a minimum, you must develop emergency behavior intervention policies to implement the requirements in Subchapter L of this chapter (relating to Foster Care Services: Emergency Behavior Intervention). The policies must include the following:

(1) A complete description of emergency behavior interventions that you permit caregivers to use;

(2) The specific techniques that caregivers can use;

(3) The qualifications for caregivers who assume the responsibility for emergency behavior intervention implementation, including required experience and training, and an evaluation component for determining when a specific caregiver meets the requirements of a caregiver qualified in emergency behavior intervention. You must have an on-going program to evaluate caregivers qualified in emergency behavior intervention and the use of emergency behavior interventions;

(4) Your requirements for and restrictions on the use of permitted emergency behavior interventions;

(5) For the orientation required in §749.1111(b)(6) of this title (relating to What orientation must I provide a child?), how you will:

(A) Explain and document to a child in a manner that the child can understand:

(i) Who can use an emergency behavior intervention;

(ii) The actions a caregiver must first attempt to defuse the situation and avoid the use of emergency behavior intervention;

(iii) The situations in which emergency behavior intervention may be used;

(iv) The types of emergency behavior intervention you permit;

(v) When the use of an emergency behavior intervention must cease;

(vi) What action the child must exhibit to be released from the emergency behavior intervention;

(vii) The way to report an inappropriate emergency behavior intervention;

(viii) The way to provide voluntary comments during or after an emergency behavior intervention; and

(ix) The process for making written comments after an emergency behavior intervention, such as comments regarding the incident that led to the emergency behavior intervention, the manner in which a caregiver intervened, and the manner in which the child was the subject or to which they were a witness. You may create a standardized form that is easily accessible or give children the permission to submit comments on regular paper; and

(B) Obtain each child's input on preferred de-escalation techniques that caregivers can use to assist the child in the de-escalation process;

(6) Requirements that caregivers must attempt less restrictive and less intrusive emergency behavior interventions as preventive measures and de-escalating interventions to avoid the use of emergency behavior intervention;

(7) Training for emergency behavior intervention. The policy must include a description of the emergency behavior intervention training curriculum that meets the requirements in the rules of this chapter, the amount and type of training required for different levels of caregivers (if applicable), training content, and how the training will be delivered; and

(8) Prohibitions for discharging or otherwise retaliating against:

(A) An employee, child in care, foster parent or other adult client, resident, or other person for filing a complaint, presenting a grievance, or otherwise providing in good faith information relating to the misuse of emergency behavior intervention at the agency or foster home; or

(B) A child in care, foster parent or other adult client, or resident because someone on behalf of the client or resident files a complaint, presents a grievance, or otherwise provides in good faith information relating to the misuse of emergency behavior intervention at the agency or foster home.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606153

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. GOVERNING BODY

40 TAC §749.131, §749.133

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606154

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

40 TAC §749.151, §749.153

The new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new sections implement HRC §42.042.

§749.153.What changes must I notify Licensing about regarding my child-placing agency?

(a) You must provide written notification to your Licensing Representative:

(1) As soon as possible, but at least 30 days before you:

(A) Change the legal structure of your agency or your governing body, if applicable;

(B) Move your agency to another location;

(C) Open a branch office; or

(D) Change your agency's or a branch office's hours of operation;

(2) As soon as possible, but at least 15 days before you:

(A) Make changes to the plans required in §749.101(3) and (4) of this title (relating to What plans must I submit for Licensing's approval as part of the application process?); or

(B) Make changes to the policies and procedures required in §749.103(b) of this title (relating to What policies and procedures must I submit for Licensing's approval as part of the application process?);

(3) As soon as possible, but no later than two days after:

(A) You change your child-placing agency administrator;

(B) A new individual becomes a controlling person at your child-placing agency;

(C) An individual ceases to be a controlling person at your child-placing agency; or

(D) There is a significant change in the information we maintain about a controlling person, such as a name change or mailing address change; and

(4) About a foster home's verification status as described in §749.2489 of this title (relating to (What information must I submit to Licensing about a foster home's verification status?).

(b) You must report to the Texas Abuse and Neglect Hotline as soon as you become aware of any foster or adoptive placements that appear to have been made by someone other than the child's parents or a child-placing agency.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606156

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. GENERAL FISCAL REQUIREMENTS

40 TAC §749.161, §749.163

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606159

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §749.161

The new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new sections implement HRC §42.042.

§749.161.What are my fiscal requirements?

(a) You must establish and maintain your agency on a sound fiscal basis, including:

(1) Paying your employees timely;

(2) Paying foster parents per your agreement with them; and

(3) Making sure the needs of children in care are being met.

(b) You must maintain complete financial records that comply with Generally Accepted Accounting Principles, including:

(1) Accounting for a child's money separately from the funds of your agency and the foster home. You may not use a child's personal earnings, allowances, or gifts to pay for the child's room and board, unless such use is a part of the child's service plan and the child's parent approves it in writing. You must give or send the child's money to the child, parent, or next placement within 30 days of the child's discharge; and

(2) Making one of the following available for our review:

(A) An annual review of your financial records conducted by an independent Certified Public Accountant in accordance with the Generally Accepted Accounting Principles; or

(B) Proof of reserve funds equal to at least three months of operating expenses for your agency.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606162

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 7. BRANCH OFFICES

40 TAC §§749.304, 749.305, 749.307

The amendments and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606167

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 8. POLICIES AND PROCEDURES

40 TAC §§749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606175

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 8. CLIENTS AND APPEALS

40 TAC §§749.421, 749.423, 749.425

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606179

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

40 TAC §§749.501, 749.503, 749.509, 749.513, 749.515

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.503.When must I report and document a serious incident?

(a) You must report and document the following types of serious incidents involving a child in your care. The reports must be made to the following entities, and the reporting and documenting must be within the specified time frames:

Figure: 40 TAC §749.503(a) (.pdf)

(b) If there is a medically pertinent incident, such as a seizure, that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as a serious incident.

(c) If there is a serious incident involving an adult resident, you do not have to report the incident to Licensing, but you must document the incident in the same manner as a serious incident. You do have to report the incident to:

(1) Law enforcement as outlined in the chart above;

(2) The parents, if the adult resident is not capable of making decisions about the resident's own care; and

(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.

(d) You must report and document the following types of serious incidents involving your agency, one of your foster homes, an employee, professional level service provider, contract staff, or a volunteer to the following entities within the specified time frame:

Figure: 40 TAC §749.503(d) (.pdf)

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606180

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §749.507

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606181

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. OPERATION RECORDS

40 TAC §§749.529, 749.531, 749.533, 749.534, 749.535, 749.539

The amendments and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606182

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §749.531, §749.533

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606184

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. PERSONNEL RECORDS

40 TAC §749.551, §749.553

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606185

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. CLIENT RECORDS

40 TAC §§749.571, 749.573, 749.577, 749.581, 749.585

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606186

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER E. AGENCY STAFF AND CAREGIVERS

DIVISION 1. GENERAL REQUIREMENTS

40 TAC §749.601

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606187

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. CHILD-PLACING AGENCY ADMINISTRATOR

40 TAC §749.633, §749.635

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606188

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. CHILD PLACEMENT STAFF AND CHILD PLACEMENT MANAGEMENT STAFF

40 TAC §§749.663, 749.667, 749.669, 749.673, 749.675, 749.679

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606189

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. CHILD PLACEMENT STAFF

40 TAC §749.671, §749.681

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606190

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. TREATMENT DIRECTOR

40 TAC §749.725

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606191

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. CONTRACT STAFF AND VOLUNTEERS

40 TAC §§749.761, 749.767, 749.769

The amendments and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new sections implement HRC §42.042.

§749.761.What are the requirements for a volunteer?

(a) You must maintain a personnel record for each volunteer.

(b) The personnel record must include a statement signed and dated by the volunteer indicating the volunteer must immediately report any suspected incident of abuse, neglect, or exploitation to the Texas Abuse and Neglect Hotline and the agency's administrator or administrator's designee. An internal reporting policy may not require or allow a person to delegate the person's responsibility to report suspected abuse, neglect, or exploitation.

§749.767.When is a volunteer or contractor who is a part of another organization subject to my policies and procedures?

(a) A volunteer or contractor who is part of another organization is subject to your policies and procedures unless that organization provides screening, training, and supervision to the volunteer/contractor that are adequate to protect the health and safety of children. Before the volunteer/contractor can have contact with children:

(1) The volunteer/contractor must meet the relevant requirements of your policies and procedures; or

(2) You must confirm that the organization provides adequate screening, training, and supervision.

(b) An organization may be another licensed operation.

§749.769.May a person perform community service hours at my agency?

A person may not perform community service at your agency. For the purpose of this rule, community service includes service a person must perform because the person is on probation, parole, or otherwise required to perform the service through the courts because of criminal activity.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606193

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §749.769, §749.771

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606194

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER F. TRAINING AND PROFESSIONAL DEVELOPMENT

DIVISION 1. DEFINITIONS

40 TAC §749.801

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.801.What do certain words and terms mean in this subchapter?

The words and terms used in this subchapter have the following meanings:

(1) CPR--Cardiopulmonary resuscitation.

(2) Hours--Clock hours.

(3) Instructor-led training--Training that is characterized by the communication and interaction that takes place between the student and the instructor. It must include an opportunity for the student to interact with the instructor to obtain clarifications and information beyond the scope of the training materials. For such an opportunity to exist, the instructor must be able to answer questions, provide feedback on skills practice, provide guidance or information on additional resources, and proactively interact with students. Examples of this type of training include classroom training, on-line distance learning, video-conferencing, or other group learning experiences.

(4) Self-instructional training--Training designed to be used by one individual working alone and at the individual's own pace to complete lessons or modules. An example of this type of training is web-based training. Self-study training is also a type of self-instructional training.

(5) Self-study training--Non-standardized training where an individual reads written materials, watches a training video, or listens to a recording to obtain certain knowledge that is required for annual training. Self-study training is limited to three hours, see 749.935(d) of this title (relating to What types of hours or instruction can be used to complete the annual training requirements?).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606195

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. PRE-SERVICE EXPERIENCE AND TRAINING

40 TAC §§749.861, 749.867, 749.869

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.869.What are the instructor requirements for providing pre-service training?

(a) The training must be instructor-led.

(b) A qualified instructor must deliver the pre-service training. A qualified instructor must hold a generally recognized credential or possess documented knowledge and/or experience relevant to the training the instructor will provide.

(c) A health-care professional or a pharmacist must provide training in administering psychotropic medication. The trainer must assess each participant after the training to ensure that the participant has learned the course content.

(d) To provide training in emergency behavior intervention the:

(1) Instructor must be certified in a recognized method of emergency behavior intervention, or be able to document knowledge of:

(A) The emergency behavior intervention;

(B) The course material;

(C) Training delivery methods and techniques; and

(D) Training evaluation or assessment methods and techniques;

(2) Training must be competency-based and require participants to demonstrate skill and competency at the end of the training.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606197

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. GENERAL PRE-SERVICE TRAINING AND PRE-SERVICE TRAINING REGARDING NORMALCY

40 TAC §749.881

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606198

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 5. PRE-SERVICE TRAINING REGARDING EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.901

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606200

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. ANNUAL TRAINING

40 TAC §§749.933, 749.935, 749.937, 749.939, 749.941, 749.945

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.935.What types of hours or instruction can be used to complete the annual training requirements?

(a) If the training complies with the other rules in this division (relating to Annual Training), annual training may include hours or Continuing Education Units earned through:

(1) Workshops or courses offered by local school districts, colleges or universities, or Licensing;

(2) Conferences or seminars;

(3) Self-instructional training, excluding training on emergency behavior intervention, first-aid, and CPR;

(4) Planned learning opportunities provided by child-care associations or Licensing;

(5) Planned learning opportunities provided by a child-placing agency administrator, professional contract service provider, professional service provider, treatment director, child placement management staff, child placement staff, contractor, or caregiver who meets minimum qualifications in the rules of this chapter; or

(6) Completed college courses for which a passing grade is earned, with three college credit hours being equivalent to 50 clock hours of required training. College courses do not substitute for required CPR or first-aid certification or required annual training on emergency behavior intervention or psychotropic medication.

(b) For annual training hours, you may count:

(1) The hours of annual training that a person received at another residential child-care operation, if the person:

(A) Received the training within the time period you are using to calculate the person's annual training; and

(B) Provides documentation of the training;

(2) Annual emergency behavior intervention training;

(3) First-aid and CPR training;

(4) Any hours of pre-service training that the person earned in addition to the required pre-service hours, although you may not carry over more than 10 hours of a person's pre-service training hours for use as annual training hours during the upcoming year;

(5) Half of the hours spent developing initial training curriculum that is relevant to the population of children served. No additional credit hours for training curriculum development are permitted for repeated training sessions; and

(6) One-fourth of the hours spent updating and making revisions to training curriculum that is relevant to the population of children served.

(c) For annual training hours, you may not count:

(1) Orientation training;

(2) Required pre-service training;

(3) The hours involved in case staffings and conferences with the supervisor; or

(4) The hours presenting training to others.

(d) No more than one-half of the required annual training hours may come from self-instructional training. No more than three of those self-instructional hours may come from self-study training.

(e) If a person earns more than the minimum number of training hours required during a particular year, the person can carry over to the next year a maximum of 10 training hours.

§749.937.Does Licensing approve training resources or trainers for annual training hours?

(a) No. We do not approve or endorse training resources or trainers for training hours.

(b) However, you must ensure that employees and caregivers receive reliable training relevant to the population of children served.

(c) Instructor-led training and self-instructional training, excluding self-study training, must include:

(1) Specifically stated learning objectives;

(2) A curriculum, which includes experiential or applied activities;

(3) An evaluation/assessment tool to determine whether the person has obtained the information necessary to meet the stated objectives; and

(4) A certificate, letter, or a signed and dated statement of successful completion from the training source.

§749.941.What areas or topics are appropriate for annual training?

Other than the mandated topics, annual training must be in areas appropriate to the needs of children for whom the caregiver provides care, which may include:

(1) Developmental stages of children;

(2) Constructive guidance and discipline of children;

(3) Fostering children's self-esteem;

(4) Positive interaction with children;

(5) Strategies and techniques for working with the population of children served;

(6) Supervision and safety practices in the care of children, including making reasonable and prudent parenting decisions regarding a foster child's participation in childhood activities;

(7) Preventing the spread of communicable diseases;

(8) Water Safety; or

(9) Administration of medication.

§749.945.For a caregiver who administers psychotropic medication, what annual training is required?

If you permit a caregiver to administer psychotropic medication:

(1) The caregiver's annual training must meet the psychotropic medication training requirements in §749.885 of this title (relating to Are there additional general pre-service training requirements for a caregiver that administers psychotropic medication?); and

(2) The caregiver must obtain annual psychotropic medication training no later than 12 months after the caregiver's last psychotropic medication training.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606203

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER G. CHILDREN'S RIGHTS

40 TAC §749.1003

The repeal is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeal implements HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606205

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §§749.1003, 749.1005, 749.1007, 749.1011, 749.1021

The amendments and new section are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new section implement HRC §42.042.

§749.1003.What rights does a child in care have?

(a) A child's rights are cumulative of any other rights granted by law or other Licensing rules.

(b) The following categories include the child's rights that you must adhere to:

(1) Safety and care, including:

(A) The right to good care and treatment that meets the child's needs in the most family-like setting possible;

(B) The right to be free from abuse, neglect, and exploitation; and

(C) The right to fair treatment;

(2) Family contacts, including the right to maintain regular contact with the child's parents and siblings, unless restrictions are necessary because of the child's best interest, the decision of an appropriate professional, or a court order;

(3) Living a normal life, including:

(A) The right to speak and be spoken to in the child's own language, including Braille if the child is blind or sign language if the child is deaf. This should also occur within a reasonable time after an emergency admission of a child, if applicable. You must make every effort to place a child with foster parent(s) who can communicate with the child. If these efforts are not successful, you must document in the preliminary service plan your plan to meet the communication needs of the child;

(B) The right to receive educational services appropriate to the child's age and developmental level;

(C) The right to have the child's religious needs met;

(D) The right to participate in childhood activities, including foster family activities and activities away from the foster home and the foster parents, that are appropriate for the child's age, maturity, and developmental level;

(E) The right to privacy, including sending and receiving unopened mail, making and receiving phone calls, keeping a personal journal, and having visitors, unless the child's best interest, appropriate professionals, or court order necessitates restrictions;

(F) The right to personal care, hygiene, and grooming equipment and supplies and training in how to use them;

(G) The right to have comfortable clothing, which is suitable to the child's age and size and similar to the clothing of other children in the community. Teenagers should have reasonable opportunities to select the clothing;

(H) The right to clothing that protects the child against the weather;

(I) The right to have personal items at the child's home and to get additional things within reasonable limits;

(J) The right to personal space in the child's bedroom to store clothes and belongings;

(K) The right to be informed of search policies and be free of unreasonable searches and unreasonable removal of personal items;

(L) Depending on the child's age and maturity, the right to seek employment, keep the child's own money, have a bank account in the child's name, and get paid for any work done for the agency or home as part of the child's service plan or vocational training, with the exception of assigned routine duties that relate to the child's living environment, such as cleaning the child's room, or other chores, or work assigned as a disciplinary measure;

(M) The right to consent in writing before taking part in any publicity or fund raising activity for the foster home or agency, including the use of the child's photograph;

(N) The right to refuse to make public statements showing gratitude to the foster home or agency; and

(O) The right to not be pressured to get an abortion, give up her child for adoption, or parent her child, if applicable;

(4) Discipline, including:

(A) The right to be free from any harsh, cruel, unusual, unnecessary, demeaning, or humiliating treatment or punishment. This means the child must not be:

(i) Shaken;

(ii) Subjected to or threatened with corporal punishment, including spanking or hitting the child;

(iii) Forced to do unproductive work that serves no purpose except to demean the child, such as moving rocks from one pile to another or digging a hole and then filling it in;

(iv) Denied food, sleep, a bathroom, mail, or family visits as punishment;

(v) Subjected to remarks that belittle or ridicule the child or the child's family;

(vi) Threatened with the loss of placement or shelter as punishment; and

(vii) Subjected to demeaning behavior to embarrass, control, harm, intimidate, or isolate the child. "Demeaning behavior" may include using physical force, rumors, threats, or inappropriate comments;

(B) The right to discipline that is appropriate to the child's age, maturity, and developmental level; and

(C) The right to have restrictions or disciplinary policies explained to the child at admittance and when the measures are imposed;

(5) Plans for the child while in care, including:

(A) The right to have a comprehensive service plan that addresses the child's needs, including transitional and discharge planning; and

(B) The right to actively participate in the development of the child's service plan within the limits of the child's comprehension and ability to manage the information. The child has the right to a copy or summary of the plan. A child 14 years of age or older has the right to review and sign the service plan;

(6) Medical care and records, including:

(A) The right to medical, dental, vision, and mental health care and developmental services that adequately meet the child's needs. The right to request that the care or services be separate from adults (other than young adults) who are receiving services;

(B) The right to be free of unnecessary or excessive medication; and

(C) The right to confidential care and treatment, including keeping medical records and agency records private and only discussing them when it is about the child's care; and

(7) Complaints, including the right to make calls, reports, or complaints without interference, coercion, punishment, retaliation, or threats of punishment or retaliation. The child may make these calls, reports, or complaints anonymously. Depending upon the nature of the complaint, the child has the right to call, report, or complain to:

(A) The DFPS Texas Abuse/Neglect Hotline at 1-800-252-5400;

(B) The HHSC Ombudsman for Children and Youth Currently in Foster Care at 1-844-286-0769;

(C) The DFPS Office of Consumer Affairs at 1-800-720-7777; or

(D) Disability Rights of Texas at 1-800-252-9108.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606206

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER H. FOSTER CARE SERVICES: ADMISSION AND PLACEMENT

DIVISION 1. ADMISSIONS

40 TAC §§749.1107, 749.1109, 749.1111, 749.1113, 749.1115

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1115.What information must I provide caregivers when I admit a child?

(a) By the day you admit the child for care, you must provide the caregivers responsible for the child's care with information about the child's immediate needs, such as enrolling the child in school or obtaining needed medical care or clothing.

(b) You must inform appropriate caregivers of any special needs, such as medical or dietary needs or conditions or supervision needs, and document that you shared the information with the caregiver.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606208

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. ADMISSION ASSESSMENT

40 TAC §§749.1131, 794.1133, 749.1135

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1133.What information must an admission assessment include?

(a) An admission assessment must provide an initial evaluation of the appropriate placement for a child, and ensure that you obtain the information necessary for you to facilitate service planning.

(b) Prior to a child's non-emergency admission, an admission assessment must be completed which includes:

(1) The child's legal status;

(2) A description of the circumstances that led to the child's referral for substitute care;

(3) A description of the child's behavior, including appropriate and maladaptive behavior, and any high-risk behavior;

(4) Any history of physical, sexual, or emotional abuse or neglect;

(5) Current medical and dental status, including the available results of any medical and dental examinations;

(6) Current mental health and substance abuse status, including available results of any psychiatric evaluation, psychological evaluation, or psychosocial assessment;

(7) The child's current developmental level of functioning;

(8) The child's current educational level, and any school problems;

(9) Any applicable requirements of §749.1135 of this title (relating to What are the additional admission assessment requirements when I admit a child for treatment services?);

(10) Documentation indicating efforts made to obtain any of the information in paragraphs (1)-(9) of this subsection, if any information is not obtainable;

(11) The services you plan to provide to the child;

(12) Immediate goals of placement;

(13) The parent's expectations for placement, duration of the placement, and family involvement;

(14) The child's understanding of the placement; and

(15) A determination of whether and how you can meet the needs of the child.

(c) Prior to completing a child's initial service plan, the following information must be added to the admission assessment:

(1) The child's social history. The history must include information about past and existing relationships with the child's birth parents, siblings, extended family members, and other significant adults and children, and the quality of those relationships with the child;

(2) A description of the child's home environment and family functioning;

(3) The child's birth and neonatal history;

(4) The child's developmental history;

(5) The child's mental health and substance abuse history;

(6) The child's school history, including the names of previous schools attended and the dates the schools were attended, grades earned, and special achievements;

(7) The child's history of any other placements outside the child's home, including the admission and discharge dates and reasons for placement;

(8) The child's criminal history, if applicable;

(9) The child's skills and special interests;

(10) Documentation indicating efforts made to obtain any of the information in paragraphs (1)-(9) of this subsection, if any information is not obtainable;

(11) The services you plan to provide to the child, including long-range goals of placement;

(12) Recommendations for any further assessments and testing;

(13) A recommended behavior management plan; and

(14) A determination of whether and how you can meet the needs of the child, based on an evaluation of the child's special strengths and needs.

(d) You must attempt to obtain a signed authorization, so you can subsequently request in writing materials from the child's current or most recent placement, such as the admission assessment, professional assessments, and the discharge summary. You must consider information from these materials when you complete your admission assessment if they are made available to you.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606209

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. REQUIRED ADMISSION INFORMATION

40 TAC §749.1151, §749.1153

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1153.What are the dental requirements when I admit a child into care?

(a) If the child is younger than three years old and a health-care professional recommends a dental examination, then you must ensure that a dentist examines the child.

(b) A child three years old or older must have a dental appointment scheduled with a dentist within 30 days after the date of admission, and the examination must occur within 90 days after the date of admission. A dental examination is not required if you have documentation that the child has had a dental examination within the past year, including documentation in the child's health passport if the child is in the department's conservatorship.

(c) The report and findings of the dental examination must be documented in the child's record according to §749.1409(b) and (c) of this title (relating to What general dental requirements must my agency meet?).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606211

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. EMERGENCY ADMISSION

40 TAC §749.1183, §749.1187

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1187.For an emergency admission, when must I complete all of the requirements for an admission assessment?

(a) For an emergency admission, you must complete all of the requirements (see Division 2 of this subchapter (relating to Admission Assessment)) for an admission assessment within 40 days from the date of the child's admission.

(b) In an emergency admission of a child receiving treatment services, the child must not continue in care for more than 30 days after the date of admission unless the child has received the psychiatric evaluation, psychological evaluation, psychosocial assessment, or medical evaluation that is required by §749.1135 of this title (relating to What are the additional admission assessment requirements when I admit a child for treatment services?), and the evaluation or assessment indicates manifestations of the disorder requiring treatment services. All evaluations and assessments must be signed, dated, and documented in the child's record.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606212

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 7. POST-PLACEMENT CONTACT

40 TAC §749.1291

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606214

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER I. FOSTER CARE SERVICES: SERVICE PLANNING, DISCHARGE

DIVISION 1. SERVICE PLANS

40 TAC §§749.1301, 749.1307, 749.1309, 749.1312, 749.1313, 749.1317, 749.1321, 749.1323

The amendments and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new sections implement HRC §42.042.

§749.1313.When must I inform the child's parents and foster parents of an initial service plan meeting?

(a) The child's parents and foster parents must have at least two weeks advance notice of the initial service plan meeting.

(b) The child's record must include documentation of the notice and any responses from the parents and foster parents.

§749.1321.To whom do I provide a copy of the child's initial service plan?

(a) You must give a copy or summary of the initial service plan to the:

(1) Child, when appropriate. At a minimum, you must give a copy or summary of the plan to a child 14 years of age or older, unless there is justification for not providing the plan;

(2) Child's parents; and

(3) Child's caregivers.

(b) If you provide a copy or summary of the initial service plan to a child:

(1) The child must review the plan;

(2) The child must sign the plan, or you must document the child's refusal to sign it; and

(3) You must document if the child disagrees with the plan.

(c) If you do not provide a copy or summary of the initial service plan to a child, you must document your justification for not sharing the plan in the child's record.

(d) You must document in the child's record that you provided a copy or summary of the initial service plan to the child's parents.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606215

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. SERVICE PLAN REVIEW AND UPDATES

40 TAC §§749.1331, 749.1335, 749.1336, 749.1339

The amendments and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606216

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. DISCHARGE AND TRANSFER PLANNING

40 TAC §§749.1363, 749.1369, 749.1371

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606217

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER J. FOSTER CARE SERVICES: MEDICAL AND DENTAL

DIVISION 1. MEDICAL AND DENTAL CARE

40 TAC §§749.1401, 749.1409, 749.1415, 749.1421, 749.1423, 749.1425, 749.1433

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1409.What general dental requirements must my agency meet?

(a) A child in your care must receive dental care:

(1) Initially, according to the requirements in §749.1153 of this title (relating to What are the dental requirements when I admit a child into care?);

(2) At as early an age as necessary;

(3) As needed for relief of pain and infections; and

(4) As needed for ongoing maintenance of dental health.

(b) The child's record must include a written record of each dental examination that consists of:

(1) A copy of the results of the dental examination;

(2) Follow-up treatment recommended and any appointments scheduled; and

(3) A notation of the child's refusal to accept dental treatment, if applicable.

(c) For a child in the conservatorship of the department, you must supplement any information already documented in the child's health passport in order to comply with subsection (b) of this section. In your written record for the child, you are not required to repeat information that is already in the child's health passport.

(d) You must obtain follow-up dental work indicated by the examination, such as treatment of cavities and cleaning.

§749.1423.What exemptions or exceptions are there concerning immunization requirements?

(a) A child may be exempt from immunization requirements for a medical reason and reason of conscience, including a religious belief. To claim an exemption, the person applying for the child's admission must meet criteria specified by:

(1) §42.043(d) and (d-1) of the Human Resources Code; or

(2) The Department of State Health Services rule in 25 TAC §97.62 (relating to Exclusions from Compliance).

(b) For some diseases, a child who previously had a disease and is accordingly naturally immune from it may qualify for an exception to the immunization requirements for the disease. To claim this exception, the person applying for the child's admission must meet the criteria specified by the Department of State Health Services rule in 25 TAC §97.65 (relating to Exceptions to Immunization Requirements).

§749.1425.What documentation is acceptable for an immunization record?

Acceptable documentation includes:

(1) An official immunization record generated from a state or local health authority, including a record from another state. Examples include a registry, a copy of the current immunization record that is on file at the pre-kindergarten program or school, or the health passport for a child in the conservatorship of DFPS, so long as the record includes:

(A) The child's name and date of birth;

(B) The type of vaccine and number of doses; and

(C) The month, day, and year the child received each vaccination; or

(2) An official immunization record or photocopy, such as from a doctor's office, that includes:

(A) The child's name and date of birth;

(B) The type of vaccine and number of doses;

(C) The month, day, and year the child received each vaccination;

(D) The signature (including a rubber stamp or electronic signature) of the health-care professional who administered the vaccine, or another health-care professional's documentation of the immunization as long as the name of the health-care professional that administered the vaccine is documented; and

(E) Clinic contact information, if the immunization record is generated from an electronic health record system.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606218

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. ADMINISTRATION OF MEDICATION

40 TAC §749.1463, §749.1469

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1469.What are the requirements for administering nonprescription medication and supplements?

(a) For non-prescription medications and supplements, you must:

(1) Follow the label instructions for dosage;

(2) Inform the child's prescribing health-care professional of the administration and dosage of any non-prescription medication or supplements to ensure the nonprescription medication and/or supplements are not contraindicated with any other medication prescribed to the child or the child's medical conditions.

(b) You may give nonprescription medication or supplements to more than one child from one container.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606220

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. SELF-ADMINISTRATION OF MEDICATION

40 TAC §749.1503

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606221

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. MEDICATION STORAGE AND DESTRUCTION

40 TAC §749.1521

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606222

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §749.1523

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The repeals implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606224

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 5. MEDICATION RECORDS

40 TAC §749.1541

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606225

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 7. SIDE EFFECTS AND ADVERSE REACTIONS TO MEDICATION

40 TAC §749.1581, §749.1583

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1583.What must a caregiver do if a child experiences side effects from any medications?

(a) A side effect from any medication is an effect of medication in addition to the medication's intended effect, often an undesirable effect.

(b) If a child experiences side effects from any medication, the caregiver must:

(1) Document the observed and reported side effects;

(2) Immediately report any serious side effects to the child's prescribing health-care professional and the child's parent; and

(3) Report any other side effect to the prescribing health-care professional within 72 hours.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606226

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER K. FOSTER CARE SERVICES: DAILY CARE, PROBLEM MANAGEMENT

DIVISION 1. ADDITIONAL REQUIREMENTS FOR INFANT CARE

40 TAC §§749.1803, 749.1813, 749.1815, 749.1819

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1813.What types of equipment may a foster home not use with infants?

(a) A foster home may not use any of the following types of equipment with infants:

(1) Baby walkers;

(2) Baby bungee jumpers;

(3) Accordion safety gates;

(4) Toys that are not large enough to prevent swallowing or choking; and

(5) Bean bags, waterbeds, and foam pads for use as sleeping equipment.

(b) Except for a tight fitting sheet and as provided in subsection (c), the crib must be bare for an infant younger than twelve months of age.

(c) A crib mattress cover may be used to protect against wetness, but the cover must:

(1) Be designed specifically for the size and type of crib and crib mattress that it is being used with;

(2) Be tight fitting and thin; and

(3) Not be designed to make the sleep surface softer.

(d) An infant receiving treatment services for primary medical needs may have special items that assist with safe sleep at the written recommendation of a health-care professional. You must keep the recommendation in the child's record.

§749.1819.What are the specific requirements for feeding an infant?

(a) Caregivers must feed an infant based on the recommendations of the infant's health-care professional.

(b) Unless recommendations from the service team are contrary, caregivers must hold the infant while feeding an infant that is:

(1) Birth through six months old; or

(2) Unable to sit unassisted in a high chair or other seating equipment during feeding.

(c) Caregivers must never prop a bottle by supporting it with anything other than the infant's or adult's hand.

(d) A caregiver who cares for more than one infant must:

(1) Sterilize shared bottles or training cups between uses by different infants; and

(2) Clean high chair trays before each use.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606228

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. ADDITIONAL REQUIREMENTS FOR PREGNANT CHILDREN

40 TAC §749.1863

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606230

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. EDUCATIONAL SERVICES

40 TAC §§749.1891, 749.1893, 749.1895

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606231

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 5. RECREATIONAL SERVICES

40 TAC §§749.1921, 749.1923, 749.1925

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606233

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. DISCIPLINE AND PUNISHMENT

40 TAC §749.1959, §749.1961

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.1959.To what extent may a caregiver restrict a child's activities as a behavior management tool?

(a) Within limits, a foster parent may restrict a child's activities as a behavior management tool.

(b) Restrictions of activities, that will be imposed on a child for more than 14 days, must be reviewed with and approved by the child placement management staff or treatment director prior to or within 24 hours of imposing the restriction.

(c) Restrictions to a particular room or building that will be imposed on a child for more than 24 hours must have approval from the service planning team, a professional service provider, or treatment director prior to or within 24 hours of imposing the restriction.

(d) You must inform the child and parent about any such restrictions you place on the child.

(e) Documentation of all approvals, justification for the restriction, and informing the child and parents must be in the child's record.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606235

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER L. FOSTER CARE SERVICES: EMERGENCY BEHAVIOR INTERVENTION

DIVISION 1. DEFINITIONS

40 TAC §749.2001

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606237

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. RESPONSIBILITIES DURING ADMINISTRATION OF ANY TYPE OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2151

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606263

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 5. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF A PERSONAL RESTRAINT

40 TAC §749.2201, §749.2203

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606239

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. COMBINATIONS OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2231

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606241

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 8. GENERAL CAREGIVER RESPONSIBILITIES, INCLUDING DOCUMENTATION, AFTER THE ADMINISTRATION OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2305

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

§749.2305.When must a caregiver document the use of an emergency behavior intervention, and what must the documentation include?

(a) As soon as possible, but no later than 24 hours after the initiation of the intervention, the caregiver must document in the child's record the following information:

(1) The child's name;

(2) A description and assessment of the circumstances and specific behaviors that caused the basis for the emergency behavior intervention;

(3) The de-escalation attempted before and during the use of the emergency behavior intervention and the child's reaction to those strategies;

(4) The specific emergency behavior intervention administered;

(5) The date and time the intervention was administered;

(6) The length of time the child was restrained;

(7) The name of the caregiver(s) that participated in the incident that led to the intervention, and who administered the intervention;

(8) The name of the person(s) who observed the child;

(9) The names of any witnesses to the emergency behavior intervention, including child witnesses in the home;

(10) All attempts to explain to the child what behaviors were necessary for release from the intervention;

(11) The child's condition following the use of the medication or release from the intervention, including any injury the child sustained as a result of the intervention or any adverse effects caused by the use of the intervention. If the child received medical assistance or treatment, the caregiver must document the name of the person(s) who provided medical assistance or treatment; and

(12) The actions the caregiver(s) took to facilitate the child's return to normal activities following the end of the intervention.

(b) The child placement staff must document their review of the use of the emergency behavior intervention within 72 hours of the incident.

(c) If personal restraint is used, documentation must also include the specific restraint techniques used, including a prone or supine restraint used as a transitional hold.

(d) If emergency medication is used, documentation must also include the specific medication used and the dosage administered to the child.

(e) This rule does not apply to short personal restraints.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606242

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER M. FOSTER HOMES: SCREENINGS AND VERIFICATIONS

DIVISION 1. GENERAL REQUIREMENTS

40 TAC §749.2403

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606244

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. FOSTER HOME SCREENINGS

40 TAC §§749.2445, 749.2447, 749.2451, 749.2453

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606245

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. VERIFICATION OF FOSTER HOMES

40 TAC §§749.2471, 749.2475, 749.2487, 749.2488, 749.2497

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606246

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. SUPERVISION

40 TAC §749.2599

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606247

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 8. RESPITE CHILD-CARE SERVICES

40 TAC §749.2623, §749.2635

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606248

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 9. AGENCY--FOSTER FAMILY RELATIONSHIPS

40 TAC §749.2655

The amendments, repeals, and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments, repeals, and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606249

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER N. FOSTER HOMES: MANAGEMENT AND EVALUATION

40 TAC §§749.2803, 749.2805, 749.2815

The amendments, repeals, and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments, repeals, and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606250

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER O. FOSTER HOMES: HEALTH AND SAFETY REQUIREMENTS, ENVIRONMENT, SPACE AND EQUIPMENT

DIVISION 1. HEALTH AND SAFETY

40 TAC §749.2902

The amendments, repeals, and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments, repeals, and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606251

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC 749.2902 - 749.2905, 749.2909, 749.2911, 749.2913, 749.2917

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606252

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 2. TOBACCO AND E-CIGARETTE USE

40 TAC §749.2931

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606253

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 3. WEAPONS, FIREARMS, EXPLOSIVE MATERIALS, AND PROJECTILES

40 TAC §749.2961

The amendment is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendment implements HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606254

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. SPACE AND EQUIPMENT

40 TAC §§749.3027, 749.3031, 749.3039

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606255

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 5. NUTRITION AND FOOD PREPARATION

40 TAC §749.3061, §749.3075

The amendments, repeals, and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments, repeals, and new sections implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606256

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. TRANSPORTATION

40 TAC §749.3103

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606257

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 7. SWIMMING POOLS, BODIES OF WATER, SAFETY

40 TAC §§749.3133, 749.3135, 749.3137, 749.3139, 749.3151

The amendments, repeals, and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments, repeals, and new sections implement HRC §42.042.

§749.3137.What are the child/adult ratios for swimming activities?

(a) The maximum number of children one adult can supervise during swimming activities is based on the age of the youngest child in the group and is specified in the following chart:

Figure: 40 TAC §749.3137(a) (.pdf)

(b) When all of the children in the group are at least four years of age or older, in addition to meeting the required swimming child/adult ratio listed in subsection (a) of this section, at least two adults must supervise four or more children who are actually in the water.

(c) When a child who is non-ambulatory or who is subject to seizures is engaged in swimming activities, you must assign one adult to that one child. This adult must be in addition to any lifeguard on duty in the swimming area. You do not have to meet this requirement if a licensed physician writes orders in which the physician determines that the child:

(1) Is at low risk of seizures and that special precautions are not needed; or

(2) Only needs to wear an approved life jacket while swimming and additional special precautions are not needed.

(d) A lifeguard who is supervising the area where the children are swimming may be counted in the child/adult ratio; however, one caregiver must always be present and the lifeguard may not be the only person counted in the child/adult ratio.

(e) The ratios in subsection (a) of this section do not include children over the age of 12 years old who are competent swimmers. However, you must still comply with the child/caregiver ratios required in §749.2563 of this title (relating to How do I determine child/caregiver ratio for a foster group home?).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606258

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER V. ADDITIONAL REQUIREMENTS FOR CHILD-PLACING AGENCIES THAT PROVIDE TRAFFICKING VICTIM SERVICES

DIVISION 4. TRAINING

40 TAC §749.4153

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606259

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§749.863, 749.931, 749.1311, 749.2563, and 749.2593; new §§749.868, 749.882, 749.943, 749.944, 749.2601, 749.2603, 749.2605, and 749.2607; and repeal of §749.2594, in Chapter 749, concerning Minimum Standards for Child-Placing Agencies. The new §749.2605 is adopted with changes to the proposed text published in the June 10, 2016, issue of the Texas Register (41 TexReg 4228). The amendments to §§749.863, 749.931, 749.1311, 749.2563, and 749.2593; new §§749.868, 749.882, 749.943, 749.944, 749.2601, 749.2603, and 749.2607; and the repeal of §749.2594 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND JUSTIFICATION

The justification of the amendments, new rules and repeal are to implement Senate Bill (S.B.) 1407 that was passed by the 84th Texas Legislature in 2015 and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy and for clarity and consistency. In December of 2014, some changes to Chapter 749 related to normalcy became effective; these changes need to be updated.

"Normalcy" is the ability of a child in care to live as normal a life as possible, including engaging in childhood activities that are suitable for children of the same age, level of maturity, and developmental level as determined by a reasonable and prudent parent standard.

Some minor changes related to normalcy are also being made to the Chapter 749 rules relating to service planning and children's rights. Since there are other more significant changes being made to the service planning and children's rights rules, those rules are being adopted in a different rule packet regarding the comprehensive review of Chapter 749, which is being published in the same issue of the Texas Register.

A new definition for "childhood activities" and a modified definition for "unsupervised childhood activities" have been added to the definitions in §749.43 of this title (relating to What do certain words and terms mean in this chapter?). Since there are many other changes being made to definitions in §749.43 in response to the comprehensive review of Chapter 749, the definition changes are being adopted in the comprehensive review packet of Chapter 749, which is being published in the same issue of the Texas Register. However, for purposes of understanding these adopted changes the adopted §749.43 definitions are as follows: (1) childhood activities--activities that are generally accepted as suitable for children of the same chronological age, level of maturity, and developmental level as determined by a reasonable and prudent parent standard as specified in §749.2605 of this title (relating to What is the "reasonable and prudent parent standard"?). Examples of childhood activities include extracurricular activities, in-school and out-of-school activities, enrichment activities, cultural activities, and employment opportunities. Childhood activities include unsupervised childhood activities; and (2) unsupervised childhood activities--childhood activities that a child in care participates in away from the foster home and the foster parents. Childhood activities that the foster parents conduct or supervise or a child-placing agency sponsors are not unsupervised childhood activities. Unsupervised childhood activities may include playing sports, going on field trips, spending the night with a friend, going to the mall, or dating. Unsupervised childhood activities may last one or more days.

Finally, there are some additional rule review changes not related to normalcy that are being adopted in these rules, which consists of updating the language and numbering of tables for consistency and ease of understanding.

Child Care Licensing (CCL) has met with three different workgroups that have provided input and comments regarding these rules related to normalcy. On September 29, 2015, CCL met with a workgroup of providers and advocates that were organized by CASA (Court Appointed Special Advocates); On October 7, 2015, CCL met with the Committee for Advancing Residential Practices; and on December 16, 2015, CCL met with a workgroup of providers.

The sections will function by ensuring that the safety of children in care and the quality of their care will be improved by integrating normalcy into the minimum standards.

COMMENTS

The 30-day comment period ended July 11, 2016. During this period, DFPS did not receive any comments regarding the adoption of the repeal, amendments and new sections. However, DFPS is recommending a change to §749.2605 to clarify that the reasonable and prudent parent standard of care is used to encourage a child's social growth and development and to clarify two of the items that must be taken into consideration when making a reasonable and prudent decision on whether a child may participate in a childhood activity.

SUBCHAPTER F. TRAINING AND PROFESSIONAL DEVELOPMENT

DIVISION 3. PRE-SERVICE EXPERIENCE AND TRAINING

40 TAC §749.863, §749.868

STATUTORY AUTHORITY

The new section and amendment are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606227

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 4. GENERAL PRE-SERVICE TRAINING AND PRE-SERVICE TRAINING REGARDING NORMALCY

40 TAC §749.882

STATUTORY AUTHORITY

The new section is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606229

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. ANNUAL TRAINING

40 TAC §§749.931, 749.943, 749.944

STATUTORY AUTHORITY

The new sections and amendment are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606232

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER I. FOSTER CARE SERVICES: SERVICE PLANNING, DISCHARGE

DIVISION 1. SERVICE PLANS

40 TAC §749.1311

STATUTORY AUTHORITY

The amendment is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606234

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


SUBCHAPTER M. FOSTER HOMES: SCREENINGS AND VERIFICATIONS

DIVISION 5. CAPACITY AND CHILD/CAREGIVER RATIO

40 TAC §749.2563

STATUTORY AUTHORITY

The amendment is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606236

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 6. SUPERVISION

40 TAC §749.2593

STATUTORY AUTHORITY

The amendment is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606238

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


40 TAC §749.2594

STATUTORY AUTHORITY

The repeal is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606240

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


DIVISION 7. NORMALCY

40 TAC §§749.2601, 749.2603, 749.2605, 749.2607

STATUTORY AUTHORITY

The new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

§749.2605.What is the "reasonable and prudent parent standard"?

(a) The reasonable and prudent parent standard is the standard of care that a parent of reasonable judgment, skill, and caution would use to maintain the health, safety, and best interest of the child and encourage the emotional and social growth and development of the child.

(b) When using the reasonable and prudent parent standard, a foster parent must take into consideration the following when deciding whether a child may participate in normal childhood activities:

(1) The child's age and level of maturity;

(2) The child's cognitive, social, emotional, and physical development level;

(3) The child's behavioral history and ability to safely participate in a proposed activity;

(4) The child's overall abilities;

(5) Whether the activity is a normal childhood activity for a child of that age and level of maturity;

(6) The child's desires;

(7) The surrounding circumstances, hazards, and risks of the activity;

(8) Outside supervision of the activity, if available and appropriate;

(9) The supervision instructions in the child's service plan; and

(10) The importance of providing the child with the most normal family-like living experience possible.

(c) There is a presumption that a reasonable and prudent parent would include the child in normal interactions and experiences within the foster family and allow the child to participate in foster family activities, to the same extent as a similarly situated child born to the family.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606243

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854


CHAPTER 750. MINIMUM STANDARDS FOR INDEPENDENT FOSTER HOMES

SUBCHAPTER M. CAPACITY AND CHILD/CAREGIVER RATIO; SUPERVISION; RESPITE CHILD-CARE SERVICES; AND FOSTER FAMILY RELATIONSHIPS

40 TAC §§750.1004, 750.1005, 750.1007

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), new §750.1004; and amendments to §750.1005 and §750.1007, without changes to the proposed text published in the June 10, 2016, issue of the Texas Register (41 TexReg 4236).

BACKGROUND AND JUSTIFICATION

The justification of the new rule and amendments are to implement Senate Bill (S.B.) 1407 that was passed by the 84th Texas Legislature in 2015 and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy and for clarity and consistency.

"Normalcy" is the ability of a child in care to live as normal a life as possible, including engaging in childhood activities that are suitable for children of the same age, level of maturity, and developmental level as determined by a reasonable and prudent parent standard.

Child Care Licensing (CCL) has met with three different workgroups that have provided input and comments regarding these rules related to normalcy. On September 29, 2015, CCL met with a workgroup of providers and advocates that were organized by Texas CASA (Court Appointed Special Advocates); On October 7, 2015, CCL met with the Committee for Advancing Residential Practices; and on December 16, 2015, CCL met with a workgroup of providers.

An independent foster group home (IFGH) is an operation (not related to a child-placing agency) that provides care for seven to 12 children up to the age of 18 years. As of the date of publication of these rules, there are only two IFGHs operating in Texas. Neither one contracts with the DFPS or provides services to children in the managing conservatorship of DFPS. Although the rules impacting IFGHs are located in Chapter 750, there are numerous standards in Chapter 749 of this title (relating to Minimum Standards for Child-Placing Agencies), that are adopted by reference in Chapter 750.

A summary of the changes related to normalcy that were proposed in Chapter 749 and was published in the same issue of the Texas Register include: (1) clarifying that children must participate in childhood activities, including unsupervised childhood activities (activities that are away from and not supervised by the foster home); (2) defining "normalcy" and the "reasonable and prudent parent standard"; (3) listing items that must be taken into consideration when making a reasonable and prudent decision on whether a child may participate in a childhood activity; (4) clarifying who will make decisions regarding whether a child may participate in a childhood activity; (5) clarifying that a child's participation in childhood activities must be discussed during service planning meetings; (6) requiring two hours of pre-service training regarding normalcy for foster parents; (7) requiring that two hours of normalcy training be included in the mandated annual training for all caregivers; and (8) providing a list of curriculum components that must be included in the general pre-service and annual normalcy training.

The sections will function by ensuring that the safety of children in care and the quality of their care will be improved by integrating normalcy into the minimum standards.

COMMENTS

The 30-day comment period ended July 11, 2016. During this period, DFPS did not receive any comments regarding the new rules.

STATUTORY AUTHORITY

The amendments and new rules are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments and new rules implement HRC §42.042, S.B. 1407 (84th Reg. Ses.), and portions of the federal law H.R. 4980 (also entitled "Preventing Sex Trafficking and Strengthening Families Act") related to normalcy.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 5, 2016.

TRD-201606219

Audrey Carmical

General Counsel Interim

Department of Family and Protective Services

Effective date: January 1, 2017

Proposal publication date: June 10, 2016

For further information, please call: (512) 438-3854