TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

The Texas Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), adopts amendments to §§748.901, 748.2451, 748.2551, 748.2601, 748.2603, 748.2701, 748.2751, 748.2801, 748.2805, 748.2807, 748.2855, 748.2901, 748.2905, and 748.2907 in Chapter 748, concerning Minimum Standards for General Residential Operations without changes to the proposed text published in the October 21, 2016, issue of the Texas Register (41 TexReg 8255) and will not be republished.

BACKGROUND AND JUSTIFICATION

The justification of the amendments is to clarify the purpose, scope and notification requirements related to the use of Emergency Behavior Intervention (EBI) on a child in care. In late 2015, DFPS began development of rules related to Child Protective Services (CPS) and the provision of notice of significant events to key parties involved in the life of a child in care. See the February 12, 2016, issue of the Texas Register (41 TexReg 1372) and the May 20, 2016, issue of the Texas Register (41 TexReg 3754). In the course of discussions related to what constitutes a significant event, several stakeholders voiced concern regarding when or whether those parties would learn about the use of Emergency Behavior Intervention (EBI) on a child in care. In particular, there was general consensus that while CPS as the parent would not receive notice of each use of EBI, if the use of EBI reached the threshold at which an operation was required to hold a triggered review of EBI, CPS should be notified. However, this notification requirement was not clear in the relevant Minimum Standards, nor were all in agreement that the threshold for a review to be triggered was set appropriately.

Given the critical nature of the issues, DFPS undertook an immediate review of the related Minimum Standards. See the May 20, 2016, issue of the Texas Register (41 Tex. Reg. 3754). As a part of this review, the agency convened a temporary workgroup of affected providers, advocates, and agency staff in accordance with Texas Human Resources Code §42.042(i). The workgroup reached consensus regarding the need to clarify notification requirements related to triggered reviews, to add specificity regarding the purpose and scope of a triggered review, and to putting into place additional parameters if the operation is authorized to utilize personal restraints in excess of the limit ordinarily in place for the operation. DFPS also received information from individual workgroup members regarding other state and national practices and standards around EBI, which it reviewed in order to make additional recommendations to the Executive Commissioner and Executive Council. DFPS also included in the changes that relate to EBI but were identified as part of the separate comprehensive review of Chapter 748. Those changes are primarily related to updating and clarifying existing language, and DFPS determined it would be of maximum clarity to the public to bundle the changes together rather than have two separate packets that affect Minimum Standards related to EBI.

Finally, in order to make its rules consistent as appropriate, DFPS is adopting corresponding amendments to those identified for Chapter 748, related to General Residential Operations in Chapter 749, related to Child-Placing Agencies.

The amendments will function by adopting requirements regarding the use of EBI to clarify and, as appropriate, limit the use of EBI to improve the safety and well-being of children in the care of a regulated operation.

COMMENTS

Prior to the public comment period, but after DFPS had sent the rule changes for necessary approvals and publication in the Texas Register, the agency received a request for clarification from one of the temporary workgroup members, who represents a residential child-care provider. Specifically, the individual wished to confirm the consensus reached in the temporary workgroup that when a residential child-care provider is required by the rules to notify and invite the "parents" to a triggered review, this means in the case of a child in CPS conservatorship that the provider would notify CPS, and CPS would then notify key parties that a review had been triggered. DFPS agrees with this understanding. As used in rules §§748.2905 and 749.2335, "parents" refers to CPS as the managing conservator for a child in foster care, in accordance with general definitions in those chapters. See §§748.43 and 749.43. Once CPS receives notice of a triggered review as the child's legal parent, other agency rules provide that CPS would then notify other key parties in the case. See 40 Texas Administrative Code Chapter 700, Subchapter M, Division 2.

The proposed rule was presented to the HHS Executive Council on September 23, 2016. One individual, representing the Citizens Commission on Human Rights testified favorably on the rule changes and submitted written comments of similar effect. Those written comments discussed the risks associated with the use of EBI, and expressed appreciation to DFPS for its work on improving the parameters around the use of EBI, as well as improving communication related to the use of EBI.

DFPS received no additional comments on the proposed rule changes.

SUBCHAPTER F. TRAINING AND PROFESSIONAL DEVELOPMENT

DIVISION 5. PRE-SERVICE TRAINING REGARDING EMERGENCY BEHAVIOR INTERVENTION

40 TAC §748.901

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 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 January 18, 2017.

TRD-201700201

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


SUBCHAPTER N. EMERGENCY BEHAVIOR INTERVENTION

DIVISION 2. TYPES OF EMERGENCY BEHAVIOR INTERVENTION THAT MAY BE ADMINISTERED

40 TAC §748.2451

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 January 18, 2017.

TRD-201700202

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


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

40 TAC §748.2551

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 January 18, 2017.

TRD-201700204

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 5. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF A PERSONAL RESTRAINT

40 TAC §748.2601, §748.2603

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 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 January 18, 2017.

TRD-201700205

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 7. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF A MECHANICAL RESTRAINT

40 TAC §748.2701

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 January 18, 2017.

TRD-201700206

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 8. SUCCESSIVE USE AND COMBINATIONS OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §748.2751

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 January 18, 2017.

TRD-201700207

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 9. TIME RESTRICTIONS FOR EMERGENCY BEHAVIOR INTERVENTION

40 TAC §§748.2801, 748.2805, 748.2807

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 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 January 18, 2017.

TRD-201700208

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 10. GENERAL CAREGIVER RESPONSIBILITIES, INCLUDING DOCUMENTATION, AFTER THE ADMINISTRATION OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §748.2855

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 January 18, 2017.

TRD-201700214

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 11. TRIGGERED REVIEWS

40 TAC §§748.2901, 748.2905, 748.2907

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 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 January 18, 2017.

TRD-201700215

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

SUBCHAPTER L. FOSTER CARE SERVICES: EMERGENCY BEHAVIOR INTERVENTION

The Texas Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), adopts amendments to §§749.2281, 749.2283, 749.2331, 749.2335, and 749.2337, in Chapter 749, concerning Minimum Standards for Child-Placing Agencies (CPAs) without changes to the proposed text published in the October 21, 2016, issue of the Texas Register (41 TexReg 8261) and will not be republished.

BACKGROUND AND JUSTIFICATION

The justification of the amendments is to clarify the purpose, scope and notification requirements related to the use of Emergency Behavior Intervention (EBI) on a child in care. In late 2015, DFPS began development of rules related to Child Protective Services and the provision of notice of significant events to key parties involved in the life of a child in care. See the February 26, 2016, issue of the Texas Register (41 TexReg 1372) and the May 20, 2016, issue of the Texas Register (41 TexReg 3754). In the course of discussions related to what constitutes a significant event, several stakeholders voiced concern regarding when or whether those parties would learn about the use of Emergency Behavior Intervention (EBI) on a child in care. In particular, there was general consensus that while CPS as the parent would not receive notice of each use of EBI, if the use of EBI reached the threshold at which an operation was required to hold a triggered review of EBI, CPS should be notified. However, this notification requirement was not clear in the relevant Minimum Standards, nor were all in agreement that the threshold for a review to be triggered was set appropriately.

Given the critical nature of the issues, DFPS undertook an immediate review of the related Minimum Standards. See the May 20, 2016, issue of the Texas Register (41 TexReg 3754). As a part of this review, the agency convened a temporary workgroup of affected providers, advocates, and agency staff in accordance with Texas Human Resources Code §42.042(i). The workgroup reached consensus regarding the need to clarify notification requirements related to triggered reviews, to add specificity regarding the purpose and scope of a triggered review, and to putting into place additional parameters if the operation is authorized to utilize personal restraints in excess of the limit ordinarily in place for the operation. DFPS also received information from individual workgroup members regarding other state and national practices and standards around EBI, which it reviewed in order to make additional recommendations to the Executive Commissioner and Executive Council. DFPS also included in the changes that relate to EBI but were identified as part of the separate comprehensive review of Chapter 748. Those changes are primarily related to updating and clarifying existing language, and DFPS determined it would be of maximum clarity to the public to bundle the changes together rather than have two separate packets that affect Minimum Standards related to EBI.

Finally, in order to make its rules consistent as appropriate, DFPS is adopting corresponding amendments to those identified for Chapter 748, related to General Residential Operations in Chapter 749, related to Child-Placing Agencies.

The amendments will function by adopting requirements regarding the use of EBI to clarify and, as appropriate, limit the use of EBI to further improve the safety and well-being of children in the care of a regulated operation.

COMMENTS

Prior to the public comment period, but after DFPS had sent the rule changes for necessary approvals and publication in the Texas Register, the agency received a request for clarification from one of the temporary workgroup members, who represents a residential child-care provider. Specifically, the individual wished to confirm the consensus reached in the temporary workgroup that when a residential child-care provider is required by the rules to notify and invite the "parents" to a triggered review, this means in the case of a child in CPS conservatorship that the provider would notify CPS, and CPS would then notify key parties that a review had been triggered. DFPS agrees with this understanding. As used in rules §§748.2905 and 749.2335, "parents" refers to CPS as the managing conservator for a child in foster care, in accordance with general definitions in those chapters. See §§748.43 and 749.43. Once CPS receives notice of a triggered review as the child's legal parent, other agency rules provide that CPS would then notify other key parties in the case. See 40 Texas Administrative Code Chapter 700, Subchapter M, Division 2.

The proposed rules were presented to the HHS Executive Council on September 23, 2016. One individual, representing the Citizens Commission on Human Rights testified favorably on the rule changes and submitted written comments of similar effect. Those written comments discussed the risks associated with the use of EBI, and expressed appreciation to DFPS for its work on improving the parameters around the use of EBI, as well as improving communication related to the use of EBI.

DFPS received no additional comments on the proposed rule changes.

DIVISION 7. TIME RESTRICTIONS FOR EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2281, §749.2283

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.

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 January 18, 2017.

TRD-201700216

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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


DIVISION 9. TRIGGERED REVIEWS

40 TAC §§749.2331, 749.2335, 749.2337

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 January 18, 2017.

TRD-201700217

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: February 7, 2017

Proposal publication date: October 21, 2016

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