TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 265. GENERAL SANITATION

SUBCHAPTER B. TEXAS YOUTH CAMPS SAFETY AND HEALTH

25 TAC §265.30

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (DSHS), proposes new §265.30, concerning Waiver; Appeal.

BACKGROUND AND PURPOSE

The new section is necessary to comply with House Bill 492, 85th Legislature, Regular Session, 2017, that amended Health and Safety Code, Chapter 141, by adding §141.0025, relating to a waiver for certain youth camp programs from youth camp licensing.

SECTION-BY-SECTION SUMMARY

The purpose of new §265.30 is to establish criteria that a youth camp program must meet to request a waiver from DSHS from youth camp licensing; establish criteria for which a waiver may be revoked; and establish the appeal process for a waiver that has been revoked.

FISCAL NOTE

Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the section will be in effect, there will be fiscal implications to state government as a result of enforcing and administering the sections as proposed. DSHS will lose revenue from licensing fees for those camps that meet the criteria, probably less than $500.00 for each of the first five years. This would only apply to one or two camps that meet the criteria for requesting the waiver. There will be no effect on local government.

GOVERNMENT GROWTH IMPACT STATEMENT

DSHS has determined that during the first five years that the section will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of employee positions;

(3) implementation of the proposed rule will not require an increase or decrease in future legislative appropriations;

(4) the proposed rule will require a decrease in fees paid to the agency;

(5) the proposed rules will create a new rule;

(6) the proposed rules will not expand, limit, or repeal an existing rule;

(7) the proposed rule will decrease the number of individuals subject to the rule; and

(8) DSHS has insufficient information to determine the proposed rule's effect on the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Jon Huss, Associate Commissioner, has also determined that there will be no adverse impact on small businesses, micro-businesses or rural communities required to comply with the section as proposed. The rule does not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rule. The rule does not apply to rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the section as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; does not impose a cost on regulated persons; and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT

In addition, Mr. Huss has also determined that for each year of the first five years that the section will be in effect, the public will benefit from adoption of the section. The public benefit anticipated from enforcing or administering the section is to better ensure the health and safety of children attending youth camps.

REGULATORY ANALYSIS

DSHS has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

DSHS has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, 1100 W 49th St, MC 1911, Austin, TX 78756; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us within 30 days of the publication of this proposal in the Texas Register.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on HHSC last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 18R002" in the subject line.

STATUTORY AUTHORITY

The new section is authorized by Health and Safety Code, §141.008, which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to administer the youth camp program; Health and Safety Code, §141.0025, relating to a waiver for certain programs from youth camp licensing; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system.

The new section is authorized by Health and Safety Code, Chapters 141 and 1001; and Government Code, Chapter 531.

§265.30.Waiver; Appeal.

(a) The department may grant a waiver from the requirements of this chapter to a program that meets the conditions described in Health and Safety Code, §141.0025(a). The program seeking the waiver shall provide proof to the department that the program meets the conditions described in Health and Safety Code, §141.0025(a) before the department may grant a waiver. To ensure that the program continues to be eligible for a waiver, the department may require the program to resubmit proof of meeting the conditions described in Health and Safety Code, §141.0025(a) no more frequently than one time per calendar year or as part of an investigation described in subsection (c) of this section.

(b) A waiver granted by the department under subsection (a) of this section is valid until the waiver is revoked for cause by the department. Examples of cause for revocation include but are not limited to:

(1) the failure to ensure the health, safety, or welfare of persons at the program; or

(2) the failure to report abuse or neglect occurring at the program as required by Family Code, Chapter 261.

(c) The department may conduct an investigation in response to an allegation that there is cause to revoke a program's waiver or that a program no longer meets the conditions described in Health and Safety Code, §141.0025(a).

(d) A person who operates a program for which an application for a waiver under this section has been denied or for which a waiver under this section has been revoked may appeal the action in the manner provided for appeal of contested cases under Government Code, Chapter 2001. When the department proposes to deny or revoke a waiver granted under this section, it shall give notice of the proposed action in writing and shall provide information on how to request an administrative hearing. The program shall make a written request for a hearing within 30 days from the date on the notice letter sent by the department.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 7, 2017.

TRD-201704995

Barbara L. Klein

Interim General Counsel

Department of State Health Services

Earliest possible date of adoption: January 21, 2018

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