TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Health and Human Services Commission (HHSC) adopts, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §19.101, in Subchapter B, Definitions, and new §19.2113, in Subchapter V, Enforcement, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification, without changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8542).

The new section establishes the criteria by which the HHSC executive commissioner may stay a proposed nursing facility license revocation. The new section sets forth the requirements for a license holder to submit a written request to stay a license revocation, including that the license holder must enter into a stay agreement acceptable to the executive commissioner. The new section also states that a license revocation is rescinded if a license holder successfully completes the requirements of a stay agreement and a revocation is imposed if the license holder does not successfully complete the requirements of the stay agreement.

The amendment adds definitions of "stay agreement," "substandard quality of care violation," and "widespread," which are terms used in new §19.2113. The amendment also adds a definition of "quality measure report," a term used in new §19.2107, which is published elsewhere in this issue of the Texas Register.

DADS received no comments regarding adoption of the amendment or the new section.

SUBCHAPTER B. DEFINITIONS

40 TAC §19.101

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The amendment implements Texas Government Code, §531.0055, and Texas Health and Safety Code, Chapter 242.

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 March 7, 2017.

TRD-201700863

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: March 27, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2470


SUBCHAPTER V. ENFORCEMENT

DIVISION 2. LICENSING REMEDIES

40 TAC §19.2113

The new section is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The new section implements Texas Government Code, §531.0055, and Texas Health and Safety Code, Chapter 242.

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 March 7, 2017.

TRD-201700864

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: March 27, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2470


CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

The Texas Health and Human Services Commission (HHSC) adopts, on behalf of the Department of Aging and Disability Services (DADS), amendments to §19.910 and §19.911, and new §19.2107, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification without changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8542).

The amendments allow a quality-of-care monitor to visit a facility that is identified through the HHSC early warning system as a medium risk or that requests a visit and provides that a quality-of-care monitor conducts a follow-up visit within 45 days after an initial visit. The amendments also add that a rapid response team visits a nursing facility that is identified as high risk through the early warning system or that has committed three violations that require license revocation under new §19.2107.

The new section provides that, subject to certain exceptions, the HHSC executive commissioner revokes a nursing facility license if DADS finds that the license holder has committed three or more violations constituting an immediate threat to health and safety related to the abuse or neglect of a resident within a 24-month period at the same facility. The new section provides that a license holder may request a stay in accordance with new Section 19.2113, which is being adopted as part of a different project. The rule provides that if a request is denied or the license holder does not request a stay, the license holder may request a hearing to appeal a revocation. If a license is revoked, the rule allows DADS to request appointment of a trustee, assist with obtaining a new operator, or assist with relocating residents to another nursing facility.

DADS received no comments regarding adoption of the amendments or new section.

SUBCHAPTER J. QUALITY OF CARE

40 TAC §19.910, §19.911

The amendment is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The amendment implements Texas Government Code, §531.0055, and Texas Health and Safety Code, Chapter 242.

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 March 7, 2017.

TRD-201700861

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: March 27, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2470


SUBCHAPTER V. ENFORCEMENT

DIVISION 2. LICENSING REMEDIES

40 TAC §19.2107

The new section is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; and Texas Health and Safety Code, Chapter 242, which authorizes DADS to license and regulate nursing facilities.

The new section implements Texas Government Code, §531.0055, and Texas Health and Safety Code, Chapter 242.

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 March 7, 2017.

TRD-201700862

Lawrence Hornsby

General Counsel

Department of Aging and Disability Services

Effective date: March 27, 2017

Proposal publication date: October 28, 2016

For further information, please call: (512) 438-2470


PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 746. MINIMUM STANDARDS FOR CHILD-CARE CENTERS

The Texas Health and Human Service Commission (HHSC) adopts, on behalf of the Department of Family and Protective Services (DFPS), the repeal of §§746.103, 746.105, 746.107, 746.109, 746.507, 746.615, 746.617, 746.619, 746.621, 746.703, 746.903, 746.905, 746.1019, 746.1031, 746.1033, 746.1035, 746.1041, 746.1043, 746.1101, 746.1103, 746.1113, 746.1115, 746.1301, 746.1325, 746.1401, 746.1403, 746.2411, 746.2801, 746.2809, 746.2813, 746.3005, 746.3409, 746.3411, and 746.5009; new §§746.111, 746.113, 746.121, 746.123, 746.615, 746.1031, 746.1301, 746.1401, 746.2411, 746.2426, 746.3420, and 746.3606; and amendments to §§746.201, 746.301, 746.303, 746.405, 746.501, 746.503, 746.505, 746.603, 746.613, 746.623, 746.631, 746.705, 746.801, 746.803, 746.909, 746.1015, 746.1017, 746.1021, 746.1037, 746.1039, 746.1057, 746.1105, 746.1107, 746.1109, 746.1203, 746.1315, 746.1316, 746.1317, 746.1319, 746.1323, 746.2205, 746.2401, 746.2403, 746.2405, 746.2407, 746.2409, 746.2413, 746.2415, 746.2417, 746.2419, 746.2421, 746.2425, 746.2427, 746.2428, 746.2431, 746.2501, 746.2505, 746.2507, 746.2509, 746.2607, 746.2707, 746.2803, 746.2805, 746.2905, 746.2911, 746.3117, 746.3119, 746.3123, 746.3201, 746.3203, 746.3309, 746.3313, 746.3401, 746.3405, 746.3415, 746.3419, 746.3421, 746.3501, 746.3503, 746.3601, 746.3607, 746.3701, 746.3703, 746.3707, 746.3709, 746.3801, 746.3901, 746.4207, 746.4213, 746.4501, 746.4503, 746.4507, 746.4601, 746.4609, 746.4907, 746.4971, 746.5015, 746.5105, 746.5305, 746.5607, and 746.5621, concerning a comprehensive review of Chapter 746, Minimum Standards for Child-Care Centers.

The new §§746.123, 746.1031, 746.2426, 746.3420 and 746.3606; and amendments to §§746.201, 746.301, 746.303, 746.405, 746.501, 746.603, 746.623, 746.631, 746.801, 746.1015, 746.1017, 746.1021, 746.1037, 746.1039, 746.1057, 746.1105, 746.1107, 746.1109, 746.1317, 746.1323, 746.2415, 746.2421, 746.2427, 746.2428, 746.2803, 746.3309, 746.3415, 746.3501, 746.3503, 746.3607, 746.3703, 746.3707, 746.3709, 746.3801, 746.4609, 746.5305, and 746.5621 are adopted with changes to the proposed text published in the September 9, 2016, issue of the Texas Register (41 TexReg 6970).

The repeal of §§746.103, 746.105, 746.107, 746.109, 746.507, 746.615, 746.617, 746.619, 746.621, 746.703, 746.903, 746.905, 746.1019, 746.1031, 746.1033, 746.1035, 746.1041, 746.1043, 746.1101, 746.1103, 746.1113, 746.1115, 746.1301, 746.1325, 746.1401, 746.1403, 746.2411, 746.2801, 746.2809, 746.2813, 746.3005, 746.3409, 746.3411, and 746.5009; new §§746.111, 746.113, 746.121, 746.615, 746.1301, 746.1401, and 746.2411; and amendments to §§746.503, 746.505, 746.613, 746.705, 746.803, 746.909, 746.1203, 746.1315, 746.1316, 746.1319, 746.2205, 746.2401, 746.2403, 746.2405, 746.2407, 746.2409, 746.2413, 746.2417, 746.2419, 746.2425, 746.2431, 746.2501, 746.2505, 746.2507, 746.2509, 746.2607, 746.2707, 746.2805, 746.2905, 746.2911, 746.3117, 746.3119, 746.3123, 746.3201, 746.3203, 746.3313, 746.3401, 746.3405, 746.3419, 746.3421, 746.3601, 746.3701, 746.3901, 746.4207, 746.4213, 746.4501, 746.4503, 746.4507, 746.4601, 746.4907, 746.4971, 746.5015, 746.5105, and 746.5607 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 amendment to §746.1029 because the term "management" for required college courses is the more commonly used term and was correctly used in the current rule versus the use of "business management", which was used in the proposed rule; and the repeal and new §746.4607 because the new rule included a change that inadvertently allowed the maximum height of the designated play surface to be higher than was intended, so DFPS is reverting to the current rule.

BACKGROUND AND JUSTIFICATION

The justification for the repeals, new sections and amendments is to implement Texas Human Resources Code (HRC) §42.042(b) which requires Child Care Licensing (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 in Chapter 746.

During this review of standards, CCL's goal was to review the concerns of child advocacy groups, child-care centers, children, and parents and to formulate standards that balance children's health and safety with affordability and availability of care.

In preparation for the review of minimum standards, CCL conducted a web-based survey open to permit holders, caregivers, advocates, parents, CCL staff, 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 31 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 more than 1,200 comments relating to Chapters 744 (Minimum Standards for School-Age and Before- or After-School Programs), 745 (Licensing), 746, and 747 (Minimum Standards for Child-Care Homes) 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 was comprised of approximately 15 participants, including providers from child-care centers, a provider from a school-age and before- and after-school program, a parent, representatives from Licensing, and a representative from the Texas Workforce Commission. The workgroup had an introductory meeting on March 22, 2016, and subsequently met twice on April 5, 2016 and May 16, 2016 to review and provide comments regarding the recommended changes to Chapters 746, as well as Chapters 744 and 747.

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

COMMENTS

The 30-day comment period ended October 9, 2016. During this period, DFPS received comments regarding 18 topics from 76 commenters, including Mainspring Schools, Texas Medical Association, Hill Country Fellowship Christian Academy, First3Years, Kinder Care Education, Texas League of Women Voters, Coalition for Nurses in Advanced Practice, Texans Care for Children, Partnership for a Healthy Texas, Texas Women's University, Atmos Pipeline Texas, Early Matters, Commit!, Momentous Institute, Family Services Association of San Antonio, Bell Nunnally, Dave Perry Miller & Associates, Temple Emanu-El, Bazosport College, Clinical Dermatology & Dermatological Surgery, and Texas Association for the Education of Young Children. A summary of the comments and the DFPS responses follow. Also included are changes to rules with no comments with an explanation of why additional clarification of the rule was needed.

There were no comments concerning §746.123, relating to definitions, with the exception of the comment immediately below concerning §746.123(28). However, DFPS is adopting this rule with changes to (1) correct a cite in the definition of "caregiver"; (2) correctly alphabetize a couple of definitions; (3) clarify that "clock hour" includes an hour of self-study training; (4) add a definition for "group activities"; (5) move a definition of "high-school equivalent" from proposed §746.1107 to this definitions rule because the term is used in several rules, and in order to clarify that there must be documentation of a GED or confirmation of home-schooling that adequately addresses basic competencies and clarify the wording of the rule to improve readability and ease of understanding; (6) modify the definition for "self-instructional training" to state that "self-study training" is a type of self-instructional training; (7) add a definition for "self-study training", which is 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, and clarifies that self-study training is limited to three hours of annual training per year; (8) renumber the definitions; and (9) make minor clarifications in the wording of the rule to improve readability and ease of understanding, including grammatical corrections and the deletion of a masculine pronoun.

Comment concerning §746.123(28), relating to the definition of a health-care professional: The commenter recommended adding a definition for "advanced practice registered nurse (APRN)", and amending the definition of "health-care professional" related to an APRN to be consistent with newer terminology used in the Texas Nursing Practice Act and throughout the other states.

Response: DFPS disagrees in part and agrees in part with the commenter and adopts this paragraph with changes. At this time a separate definition for APRN will not be added because this is the only time the APRN terminology is used in this chapter. DFPS will monitor the necessity of adding a definition of APRN in the future. DFPS will update the terminology for an APRN in the definition of a "health-care professional" as recommended by the commenter. Within the definition of "health-care professional" DFPS is also making some minor changes to delete a masculine pronoun and correct a grammatical error.

No comments concerning §746.201, relating to a permit holder's responsibilities. However, DFPS is adopting this rule with changes to correct a cite and to make several minor clarifications in the wording of the rule to improve readability and ease of understanding.

No comments concerning §746.301, relating to changes at a center that require notification to Licensing. However, DFPS is adopting this rule with changes to clarify when a change in ownership requires notification to Licensing, including adding a relevant cite.

No comments concerning §746.303, relating to director changes that require notification to Licensing. However, DFPS is adopting this rule with changes to clarify a designee, to clarify the rule to improve readability and ease of understanding, and to make the rule more consistent with its corresponding rule in Chapter 744.

No comments concerning §746.405, relating to what telephone numbers must be posted and where must they be posted. However, DFPS is adopting this rule with changes to clarify that phone numbers must be posted in a prominent place, delete the outdated requirement to post on the phone headset, and to make the rule more consistent with its corresponding rules in Chapters 744 and 747.

No comments concerning §746.501, relating to a center's operational policies. However, DFPS is adopting this rule with changes to the policy regarding a parent visiting and observing a center to clarify in more detail that the observation may include the center's building, premises, and equipment. DFPS is also making one minor clarification to paragraph (22) to improve readability and ease of understanding.

No comments concerning §746.603, relating to the records a center must keep. However, DFPS is adopting this rule with changes to clarify what type of daily tracking system for children is required, including adding a relevant cite. DFPS is also making a change to paragraph (10) to clarify that the written documentation must be maintained in the child's record, and two minor clarifications to paragraphs (6) and (10) to make the terms "vision and hearing screening" and "health-care professional" consistent throughout the chapter.

No comments concerning §746.623, relating to documentation requirements for an immunization record. However, DFPS is adopting this rule with changes to reorganize the documentation requirements. The changes, which are partially in response to a comment related to a corresponding rule in Chapter 748, also delete the address requirement for health-care professionals, add a requirement for clinic contact information when the immunization record is generated from an electronic health record system, simplify and clarify the wording of the rule to improve readability and ease of understanding, and make this rule consistent with corresponding rules in Chapters 744, 748, and 749.

No comments concerning §746.631, relating to signing children in and out of the center. However, DFPS is adopting this rule with changes to move the requirement to keep the daily tracking system for children to §746.801(19), which is the rule that lists the records that must be kept at a center. The timeline for keeping this tracking system will no longer be needed, because it is now covered in §746.803(a).

No comments concerning §746.801, relating to what records must be kept at a center. However, DFPS is adopting this rule with changes to clarify the infant feeding instructions and the daily tracking system by adding relevant cites for each requirement, to move the requirement to keep the daily tracking system for children to this rule (this requirement was previously in §746.631), and to clarify the wording of the rule to improve readability and ease of understanding.

No comments concerning §§746.1015 and 746.1017, relating to director qualifications. However, DFPS is adopting these two rules with changes to replace the term "business management" for required college courses to the more commonly used term "management" and to delete the subsection that states some director qualification options require periodic renewal, because this information is redundant and already included at §§746.1053 and 746.1055. DFPS will add the periodic renewal information to a Helpful Information box located on the DFPS public website version of the minimum standards immediately following each of these rules.

No comments concerning §746.1021, relating to what constitutes experience. However, DFPS is adopting this rule with changes to clarify that experience in a licensed or registered child-care home also includes experience as a substitute caregiver, and to clarify the wording to improve readability and ease of understanding.

No comments concerning §§746.1031 and 746.1037, relating to documentation requirements for management education qualifications and when clock hours or CEUs may be substituted for management education qualifications. However, DFPS is adopting these two rules with changes to replace the term "business management" with the more commonly used term "management" as it relates to the education qualifications.

No comments concerning §746.1039, relating to additional documentation requirements for a director. However, DFPS is adopting this rule with changes to correct two typographical errors.

No comments concerning §746.1057, relating to what happens when a director's credential expires. However, DFPS is adopting this rule with changes to clarify that a director's certificate will expire if the director does not submit the required documentation confirming that the credential is current.

No comments concerning §746.1105, relating to minimum qualifications for employees. However, DFPS is adopting this rule with a change to clarify that only DSHS or a local health authority may require TB exams, because there is no "regional" DSHS.

Comment concerning §746.1107, relating to the minimum qualifications of a caregiver: The commenter stated that caregivers should be required to have some type of Early Childhood credential.

Response: DFPS disagrees with the commenter but adopts this rule with changes. Credentials are mandated for directors. Credentials are also good for caregivers, and in many instances staffs are encouraged to obtain a credential where possible (for example, Texas Rising Star (a quality rating and improvement system for early childhood programs) and accreditation organizations). However, it is cost prohibitive to mandate credentials for all staff. In addressing a separate issue from the comment, DFPS is moving the definition for "high-school equivalent" to the definitions rule at §746.123, because the term is used in several other rules.

No comments concerning §746.1109, relating to when persons under 18 may be employed. However, DFPS is adopting this rule with changes to clarify the question for ease of understanding, delete a redundant cite, and make the wording of the rule consistent with its corresponding rule in Chapter 747.

Comments concerning §746.1309, relating to the annual training hours for caregivers: (1) Two commenters stated that they disagreed with increasing the number of training hours that caregivers may obtain through self-instruction. One commenter prefers to reduce the number of hours. The commenter states this is the least effective method of learning, and caregivers need time to interact with experts and get feedback. The other commenter stated that self-instructional courses should be properly vetted. (2) Two additional commenters recommended that the optional orientation and annual training regarding child nutrition, age-appropriate foods and snacks, and ways to develop age-appropriate activities and games that promote active play should be changed to mandated training.

Response: This rule was not proposed for public comment; therefore, these comments are outside the scope of the proposed rulemaking. Note: (1) This rule was proposed for public comment earlier in the year in response to the federal reauthorization of the Child Care and Development Block Grant (CCDBG). The rule changes made some significant changes to the required training curriculum and became effective on September 1, 2016. The self-instructional training hours issue was changed and discussed in the previous rule adoption. (2) Training on nutrition and active play are currently available through AgriLife and elsewhere. With the September 1, 2016 CCDBG changes to the training curriculum for centers, additional changes for training at this time will be confusing and burdensome. In addition, more mandated annual training will probably require an increase in the actual number of hours of annual training that each employee will need, which will result in additional costs for the provider.

Comment concerning §746.1315, relating to first-aid and CPR training: The commenter disagreed with allowing first-aid training to be conducted through self-instructional training. The commenter believes that face-to-face instruction is necessary and self-instruction courses should be properly vetted.

Response: DFPS disagrees with the commenter and adopts this rule without change. Most, if not all, professions are allowing web-based training and not mandating in-person training. The commenter pointed out that this change was only made with regard to first-aid and not CPR, because CPR training does require face-to-face instructional training. A 50% to 80% increase was made to the self-instructional training standards for child-care homes in 2012 with no noticeable increase in complaints or quality of training. Ultimately though, it is the center's responsibility to assess the quality of the training curriculum provided to staff, including first-aid training.

Comment concerning §746.1317, relating to training criteria: The commenter recommended deleting the option that allows training to be provided by someone with a "generally recognized credential . . . or documented knowledge relevant to the training." The commenter stated this option allows for loopholes in the training requirements.

Response: DFPS disagrees with the commenter but adopts this rule with changes. This training option cannot be deleted because it is mandated by HRC §42.0421(f). However, DFPS is adopting this rule with changes to delete a masculine pronoun and to remove language that self-instructional training may not be used for CPR, because it is redundant and can already be found in §746.1315. This change will also make this rule consistent with corresponding rules in Chapters 744 and 747.

No comments concerning §746.1323, relating to a caregiver or director obtaining training from another operation. However, DFPS is adopting this rule with changes to reorganize the rule and clarify the wording of the rule to improve readability and ease of understanding without impacting the content of the rule.

Comments concerning §746.2205, relating to an activity plan: Two commenters recommended changes to this rule to clarify that: (1) media viewing is not permitted during meal or snack time; (2) a TV/video or computer should not be used for more than 30 minutes once a week and only for educational purposes; and (3) outdoor activities should be provided two or three times a week, should include structured and unstructured play, should include vigorous activity, and centers should have written policies to promote physical activity. Another commenter also supports encouraging outdoor play to reduce child obesity.

Response: DFPS disagrees with the commenters and adopts this rule without change. (1) §746.2207 already states that media viewing cannot be used as an activity unless it is related to the planned activity. This rule would not allow children just to watch television or a movie while eating. (2) Section 746.2205 is not appropriate to make the change related to the length of time that a TV/video or computer may be used, because §746.2207 (which is not proposed for change) already addresses the issue at two hours per day. For such a major change (from two hours a day to 30 minutes a week), it would not be prudent to make the change to the rule without first proposing the change to allow centers and parents an opportunity to comment. Even so, DFPS will need to conduct additional research regarding this issue before such a proposed change would be contemplated. There are currently some proponents for more frequent computer usage for educational purposes and in response to teacher directed use. (3) Sections 746.2507, 746.2607, and 746.2707 currently address the commenter's activity issues for children with the exception of a policy requirement, which is not necessary in light of these rules.

No comments concerning §746.2415, relating to equipment that is prohibited for infants. However, DFPS is adopting this rule with changes, which are in response to comments related to corresponding rules in Chapters 748 and 749. The changes clarify that cribs must be bare except for a tight fitting sheet and a crib mattress cover that is designed for the crib, is tight fitting and thin, and is not designed to make the sleep surface softer. These changes also make the rule consistent with corresponding rules in Chapters 744, 747, 748, and 749.

Comment concerning §746.2421, relating to an infant's written feeding instructions: To be consistent with other rule changes in this chapter, the commenter recommended that any "health-care professional", not just a "physician", be allowed to provide written feeding instructions for infants.

Response: DFPS agrees with the commenter and adopts this rule with the appropriate change.

No comments concerning §§746.2426, 746.2427, and 746.2428, relating to infants sleeping in restrictive devices, sleeping on their backs, and swaddling, respectively. However, DFPS is adopting these three rules with changes to allow an exception in all of these instances if there is a completed Sleep Exception Form with a signed statement from a health-care professional stating that the exception is medically necessary.

No comments concerning §746.2803, relating to methods of discipline and guidance that may be used. However, DFPS is adopting this rule with changes to correct a grammatical error and to clarify the wording of the rule to improve readability and ease of understanding.

Comments concerning §§746.3305, 746.3315, and 746.3316, relating to nutrition: Two commenters recommended that the nutrition rules should also address children younger than 12 months of age, should align with the Child and Adult Care Food Program (CACFP), and at a minimum should specify nine requirements that were listed by the commenter. One additional commenter supports revising standards to reflect the nutrition requirements of the state obesity prevention program.

Response: These rules were not proposed for public comment; therefore, these comments are outside the scope of the proposed rulemaking. However, DFPS does plan on working with the Department of State Health Services (DSHS), advocates, parents, and providers to determine whether the current rules regarding nutrition need to be updated.

Comments concerning §746.3309, relating to parents providing meals and snacks: Two commenters recommended a change to this rule for those centers that ask parents to supply a child's lunches and/or snacks. The commenters stated that given the importance of nutrition in a child's first few years and the absence of other channels for effectively communicating with parents, the state should leverage the child care provider's relationship with parents to require the centers to give information to parents regarding the nutritional value of food, sample menus, food allergies, and choking hazards.

Response: DFPS agrees in part and disagrees in part with the commenters and adopts this rule with changes. DFPS agrees that nutrition for young children is important and currently has information in the Technical Assistance Library on the DFPS website regarding age-appropriate nutrition, food allergies, and choking hazards (but not sample menus). DFPS currently encourages providers to communicate with parents about nutrition, food allergies, and choking hazards. However, in some instances parents may already be getting this information through other programs (for example, parents currently receiving benefits through the CACFP or Women, Infants, and Children (WIC)). DFPS does not believe a mandatory rule is necessary at this time. In any event, it would not be prudent to make this change to the rule without first proposing the change to allow centers and parents an opportunity to comment on the change. DFPS will add information to the current Helpful Information box immediately following the rule that is located on the DFPS public website version of the minimum standards to further encourage communication with the parents regarding nutrition, food allergies, and choking hazards. In addressing a separate issue from the comment, DFPS is making the wording of this rule consistent with its corresponding rule in Chapter 747 by adding language to clarify that a parent may provide baked goods for a celebration party at the center, and clarifying the wording of the rule to improve readability and ease of understanding.

Comment concerning §746.3407(13), relating to a healthy environment for children: One commenter really appreciated the addition that requires centers to use, store, and dispose of hazardous materials "as recommended by the manufacturer".

Response: This rule was not proposed for public comment; therefore, this comment is outside the scope of the proposed rulemaking. Note: DFPS appreciates the comment even though the changes were proposed for public comment earlier in the year and became effective on September 1, 2016.

No comments concerning §746.3415, relating to when employees must wash their hands. However, DFPS is adopting this rule with changes to correct a grammatical error.

Comment concerning §746.3420, relating to the use of hand sanitizer: The commenter disagrees with allowing the use of hand sanitizer, except in the case of a field trip where water and soap are not available. Her experience is that hand sanitizer dries out sensitive skin and does not provide the same cleanliness as soap and water. She would like to see medical research that shows it is appropriate for young children.

Response: DFPS disagrees with the commenter but adopts this rule with changes. This new rule, which allows hand sanitizers under certain conditions, is consistent with the recommendations of the American Association of Pediatrics and the national standards of Caring for Our Children, which represent the best evidence, expertise, and experience in the country on quality health and safety practices and policies in early childhood care. However, DFPS is clarifying that hand sanitizers may only be used when all of the conditions in the rule are met, and is reorganizing the order of the conditions to improve the understanding of the rule. DFPS is also adding a Helpful Information box immediately following the rule that is located on the DFPS public website version of the minimum standards that states hand sanitizers should be used in moderation and should not be substituted for all hand washing.

Comment concerning §746.3501, relating to the steps for diaper changing: The commenter disagrees with allowing powder with or without the parent's permission and believes powder should not be allowed because of the recent findings connecting talcum powder to cancer.

Response: DFPS agrees with the commenter; however, DFPS is making limited changes to the rule. The proposed change inadvertently allowed the use of powder when changing a diaper with or without the parent's permission. It would not be prudent to completely disallow the use of powders without first proposing a rule change to allow centers and parents an opportunity to comment on such a change. DFPS is reverting to the original premise of only allowing powder with the parent's permission, with some clarification changes to improve readability. DFPS is also making some clarification changes to paragraphs (2) and (3) to improve readability and to be consistent with similar changes made in its corresponding rule in Chapter 747.

Comment concerning §746.3503, relating to equipment for diaper changing: For diaper changing surfaces above the floor, the commenter disagrees that a caregiver should have an option to only be facing the child instead of using safety mechanisms or keeping a hand on the child. The new standard does not specify how far away the caregiver can be from the child and puts the safety of children at risk.

Response: DFPS agrees with the commenter and has clarified the wording of the rule to make it clear that if the caregiver is using the option of facing the child when changing a diaper on a surface above the floor, then the caregiver must also be within an arm's length of the child at all times.

No comments concerning §746.3606, relating to when an ill child may return to care. However, DFPS is adopting this rule with changes to clarify the wording of the rule without changing the content to improve readability and ease of understanding, and to make it consistent with its corresponding rules in Chapters 744 and 747.

Comment concerning §746.3607, relating to how a caregiver should respond to an illness or injury that requires the immediate attention of a health-care professional: To be consistent with other changes made to the rules, when there is an illness or injury that requires the immediate attention of a health-care professional, the commenter recommended also contacting the physician "or health-care professional" identified in the child's record, because it may not be a physician.

Response: DFPS agrees with the commenter and adopts this rule with the appropriate change. In addition, DFPS is also deleting the word "critical" and adding language to make the question of the rule consistent with the answer, which applies to caregivers responding to an illness or injury "that requires the immediate attention of a health-care professional".

No comments concerning §746.3703, relating to ensuring the safety of children. However, DFPS is adopting this rule with changes to make it clear that prohibited tobacco products include smoking tobacco, e-cigarettes, and vaporizers. Oil diffusers would be allowable. This change is in response to a comment on a corresponding rule in Chapter 747.

No comments concerning §746.3707, relating to firearms allowed at the center. However, DFPS is adopting this rule with changes to clarify that while firearms and other weapons are prohibited on the premises of a center, the prohibition does not apply to personal vehicles. This clarification is needed because a new definition of "premises" was added to §746.123.

No comments concerning §746.3709, relating to toys that explode or shoot. However, DFPS is adopting this rule with changes to clarify the wording of the rule without changing the content to improve readability and ease of understanding, and to make it consistent with its corresponding rules in Chapters 744 and 747.

No comments concerning §746.3801, relating to medication. However, DFPS is adopting this rule with changes to delete a phrase that was added in the proposed amendment regarding the parent providing non-prescription medication, which was confusing and inadvertently altered the meaning of the rule.

No comments concerning §746.4609, relating to the maximum height allowed for the highest designated play surface if a center was licensed before 2010. However, DFPS is adopting this rule with changes to clarify that the grandfather date is September 1, 2010 (not December 1, 2010), when changes are made to the equipment the height requirements in §746.4607 must be met, and the wording of the question and answer to improve readability and ease of understanding.

No comments concerning §746.5305, relating to the mounting of fire extinguishers. However, DFPS is adopting this rule with changes to correct the grammar, so the answer and the question will be consistent.

No comments concerning §746.5621, relating to the communication requirements for a vehicle when transporting children. However, DFPS is adopting this rule with changes to reorganize the rule and clarify the wording of the rule to improve readability and ease of understanding.

There were also some general comments that were made:

Comment: The commenter wanted better training, but was not specific about the recommendation.

Response: No specific rule on training was proposed for public comment; therefore, this comment is outside the scope of the proposed rulemaking. Note: effective September 1, 2016 DFPS made numerous changes to the training requirements for centers in response to the federal reauthorization of the CCDBG.

Comment concerning vaccine-preventable diseases for employees: The commenter is concerned that the immunization requirements for caregivers are set as part of the facility's operational policies, and not all facilities have strong policies in place. The commenter encourages DFPS to establish tools to help facilities develop more effective policies and make a facility's policies more available to the public to help parents make informed decisions about selecting a center.

Response: The relevant rule for vaccine-preventable diseases is §746.3611, which was not proposed for public comment. Therefore, this comment is outside the scope of the proposed rulemaking. Note: HRC §42.04305 was passed in 2013, the 83rd Legislative Session, and established the type of policies a facility must have in relation to employees and vaccine-preventable diseases. Any changes to required policies would need to be consistent with the statute. DFPS will look at developing further tools for facilities and look at the possibility of encouraging on-line publication of policies within fiscal restraints.

Comments concerning Early Childhood Intervention (ECI): The commenter made three recommendations relating to ECI: (1) Add a standard that requires caregivers that suspect a child has a developmental delay or disability to make a referral to ECI, which the commenter stated is required by I.D.E.A.; (2) Allow ECI providers to serve children in the classroom versus removing them to an isolated room for services, unless special circumstances exist; and (3) Allow the current ECI criminal background checks to suffice for the CCL background check requirements.

Response: No rules regarding ECI or criminal background checks were proposed for public comment; therefore, the comments are outside of the scope of the proposed rulemaking. However, in response to each comment: (1) DFPS will meet with ECI and Legal staff to determine if additional rules and/or direction for centers are needed related to referrals to ECI; (2) the current language of §746.2201 already states that when appropriate ECI providers should be serving children in the child's current environment, which in most instances would mean the classroom. There are no rules that prevent a child from receiving ECI services in the classroom; (3) if a center does not employ or contract with a professional, the professional is only present in an official capacity, and parental consent is obtained before the professional has unsupervised access with the child, current §745.615(d) already excludes the necessity of a CCL background check for a professional who is licensed or required to have a background check to be compliant with another governmental entity's requirements. It appears that ECI would meet the requirements of this exclusion rule and would not require a CCL background check.

Comments concerning ratios: There were 67 commenters that recommended the ratios for children be lowered, expressed concern about DFPS stopping the statewide collection of data for a statewide study, and/or recommended that the study be resumed. Two commenters recommended that the ratios remain the same.

Response: No rules regarding ratios were proposed for public comment; therefore, the comments are outside the scope of the proposed rulemaking.

SUBCHAPTER A. PURPOSE AND DEFINITIONS

40 TAC §§746.103, 746.105, 746.107, 746.109

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 March 8, 2017.

TRD-201700879

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER A. PURPOSE, SCOPE, AND DEFINITIONS

DIVISION 2. SCOPE

40 TAC §746.111, §746.113

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.

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 March 8, 2017.

TRD-201700882

Aurdrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. DEFINITIONS

40 TAC §746.121, §746.123

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.

§746.123.What do certain words and terms mean when used 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 another subchapter or unless the context clearly indicates otherwise. In addition, the following words and terms used in this chapter have the following meanings unless the context clearly indicates otherwise:

(1) Activity space--An area or room used for children's activities, including areas separate from a group's classroom.

(2) Administrative and clerical duties--Duties that involve the operation of a child-care center, such as bookkeeping, enrolling children, answering the telephone, and collecting fees.

(3) Admission--The process of enrolling a child in a child-care center. The date of admission is the first day the child is physically present in the center.

(4) Adult--A person 18 years old and older.

(5) Age-appropriate--Activities, equipment, materials, curriculum, and environment that are developmentally consistent with the chronological age of the child being served.

(6) Alternate care program--A program in which no child is in care for more than five consecutive days, and no child is in care for more than 15 days in one calendar month, regardless of the duration of each stay.

(7) Attendance--When referring to a child's attendance, the physical presence of a child at the child-care center's program on any given day or at any given time, as distinct from the child's enrollment in the child-care center.

(8) Bouncer seat--A stationary seat designed to provide gentle rocking or bouncing motion by an infant's movement, or by battery-operated movement. This type of equipment is designed for an infant's use from birth until the child can sit up unassisted.

(9) Caregiver--A person who is counted in the child/caregiver ratio, whose duties include the supervision, guidance, and protection of a child. As used in this chapter, a caregiver must meet the minimum education, work experience, and training qualifications required under Subchapter D of this chapter (relating to Personnel). A caregiver is usually an employee, but may also be a substitute, volunteer, or contractor (also see Division 5 of Subchapter D (relating to Substitutes, Volunteers, and Contractors)).

(10) Certified Child-Care Professional Credential--A credential given by the National Early Childhood Program Accreditation to a person working directly with children. The credential is based on assessed competency in several areas of child care and child development.

(11) Certified lifeguard--A person who has been trained in life saving and water safety by a qualified instructor, from a recognized organization which awards a certificate upon successful completion of the training. The certificate is not required to use the term "lifeguard," but the permit holder must be able to document that the certificate represents the type of training described.

(12) CEUs (continuing education units)--A standard unit of measure for adult education and training activities. One CEU equals ten clock hours of participation in an organized, continuing-education experience, under responsible, qualified direction and instruction. Although a person may obtain a CEU in many of the same settings as clock hours, the CEU provider must meet the criteria established by the International Association for Continuing Education and Training to be able to offer the CEU.

(13) Child --An infant, a toddler, a pre-kindergarten age child, or a school-age child.

(14) Child-care center--A child-care facility that is licensed to care for seven or more children for less than 24 hours per day, at a location other than the permit holder's home. If you were licensed before September 1, 2003, the location of the center could be in the permit holder's home.

(15) Child-care program--The services and activities provided by a child-care center.

(16) Child Development Associate Credential--A credential given by the Council for Professional Recognition to a person working directly with children. The credential is based on assessed competency in several areas of child care and child development.

(17) Clock hour--An actual hour of documented:

(A) Attendance at instructor-led training, such as seminars, workshops, conferences, early childhood classes, and other planned learning opportunities, provided by an individual/s as specified in §746.1317(a) of this title (relating to Must the training for my caregivers and the director meet certain criteria?); or

(B) Self-instructional training that was created by an individual/s, as specified in §746.137(a) and (b), or self-study training.

(18) Corporal punishment--The infliction of physical pain on a child as a means of controlling behavior. This includes spanking, hitting, slapping, or thumping a child.

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

(20) Employee--A person a child-care center employs full-time or part-time to work for wages, salary, or other compensation. Employees are all of the child-care center staff, including caregivers, kitchen staff, office staff, maintenance staff, the assistant director, the director, and the owner, if the owner is ever on site at the center or transports a child.

(21) Enrollment--The list of names or number of children who have been admitted to attend a child-care center for any given period of time; the number of children enrolled in a child-care center may vary from the number of children in attendance on any given day.

(22) Entrap--A component or group of components on equipment that forms angles or openings that could trap a child's head by being too small to allow the child's body to pass through, or large enough for the child's body to pass through but too small to allow the child's head to pass through.

(23) Field trips--Activities conducted away from the child-care center.

(24) Food service--The preparation or serving of meals or snacks.

(25) Frequent--More than two times in a 30-day period. Note: For the definition of "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?).

(26) Garbage--Waste food or items that when deteriorating cause offensive odors and attract rodents, insects, and other pests.

(27) Group activities--Activities that allow children to interact with other children in large or small groups. Group activities include storytelling, finger plays, show and tell, organized games, and singing.

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

(29) Health check--A visual or physical assessment of a child to identify potential concerns about a child's health, including signs or symptoms of illness and injury, in response to changes in the child's behavior since the last date of attendance.

(30) High school equivalent:

(A) Documentation of a program recognized by the Texas Education Agency (TEA) or other public educational entity in another state, which offers similar training on reading, writing, and math skills taught at the high school level, such as a General Educational Development (GED) certificate; or

(B) Confirmation that the person received home-schooling that adequately addressed basic competencies such as basic reading, writing, and math skills, which would otherwise have been documented by a high school diploma.

(31) Individual activities--Opportunities for the child to work independently or to be away from the group, but supervised.

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

(33) Inflatable--An amusement ride or device, consisting of air-filled structures designed for use by children, as specified by the manufacturer, which may include bouncing, climbing, sliding, or interactive play. They are made of flexible fabric, kept inflated by continuous air flow by one or more blowers, and rely upon air pressure to maintain their shape.

(34) Instructor-led training--Training characterized by the communication and interaction that takes place between the student and the instructor. The training 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 communicate with the student in a timely fashion, including answering questions, providing feedback on skills practice, providing guidance or information on additional resources, and proactively interacting with students. Examples of this type of training include classroom training, web-based on-line facilitated learning, video-conferencing, or other group learning experiences.

(35) Janitorial duties--Those duties that involve the cleaning and maintenance of the child-care center building, rooms, furniture, etc. Cleaning and maintenance include such duties as cleansing carpets, washing cots, and sweeping, vacuuming, or mopping a restroom or a classroom. Sweeping up after an activity or mopping up a spill in a classroom that is immediately necessary for the children's safety is not considered a janitorial duty.

(36) Local sanitation official--A sanitation official designated by the city or county government.

(37) Natural environment--Settings that are natural or normal for all children of an age group without regard to ability or disability. For example, the primary natural group setting for a toddler with a disability would be a play group or whatever setting exists for toddlers without disabilities.

(38) Permit is no longer valid--For purposes of this chapter, a permit remains valid through the renewal process. A permit only becomes invalid when your center voluntarily closes or must close because of an enforcement action in Subchapter L of Chapter 745 (relating to Enforcement Actions).

(39) Premises--Includes the child-care center, any lots on which the center is located, any outside ground areas, any outside play areas, and the parking lot.

(40) Regular--On a recurring, scheduled basis. Note: For the definition of "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?).

(41) Restrictive device--Equipment that places the body of a child in a position that may restrict airflow or cause strangulation; usually, the child is placed in a semi-seated position. Examples of restrictive devices are car seats, swings, bouncy seats, and high chairs.

(42) Safety belt--A lap belt and any shoulder straps included as original equipment on or added to a vehicle.

(43) Sanitize--The use of a product (usually a disinfecting solution) that is registered by the Environmental Protection Agency (EPA) which 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 labeling 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 follow these steps in 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 children are likely to place in their mouths; and

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

(44) School-age child--A child who is five years of age and older, and who will attend school at or away from the child-care center in August or September of that year.

(45) 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. Lessons or modules commonly include questions with clear right and wrong answers. An example of this type of training is web-based training. Self-study training is also a type of self-instructional training.

(46) 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 of annual training per year.

(47) Special care needs--A child with special care needs is a child who has a chronic physical, developmental, behavioral, or emotional condition and who also requires assistance beyond that required by a child generally to perform tasks that are within the typical chronological range of development, including the movement of large and/or small muscles, learning, talking, communicating, self-help, social skills, emotional well-being, seeing, hearing, and breathing.

(48) State or local fire marshal--A fire official designated by the city, county, or state government.

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

(50) Universal precautions--An approach to infection control where all human blood and certain human bodily fluids are treated as if known to be infectious for HIV, HBV, and other blood-borne pathogens.

(51) Water activities--Related to the use of swimming pools, splashing/wading pools, sprinkler play, or other bodies of water.

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 March 8, 2017.

TRD-201700884

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER B. ADMINISTRATION AND COMMUNICATION

DIVISION 1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §746.201

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.

§746.201.What are my responsibilities as the permit holder?

You are responsible for the following:

(1) Developing and implementing your child-care center's operational policies, which must comply with or exceed the minimum standards specified in this subchapter;

(2) Developing written personnel policies, including job descriptions, job responsibilities, and requirements;

(3) Making provisions for training that comply with Division 4, Subchapter D of this chapter (relating to Professional Development);

(4) Designating a child-care center director who meets minimum standard qualifications and has daily, on-site responsibility for the operation of the child-care center;

(5) Reporting and ensuring your employees and volunteers report suspected abuse, neglect, or exploitation directly to DFPS without delegating this responsibility, as required by the Texas Family Code, §261.101;

(6) Ensuring all information related to background checks is kept confidential, as required by the Human Resources Code, §40.005(d) and (e);

(7) Ensuring parents have the opportunity to visit the child-care center any time during the child-care center's hours of operation to observe their child, program activities, the building, the grounds, and the equipment without having to secure prior approval;

(8) Maintaining liability insurance, as required by the Human Resources Code §42.049, if we license you to care for 13 or more children;

(9) Complying with the child-care licensing law found in Chapter 42 of the Human Resources Code, the applicable minimum standards, and other applicable rules in the Texas Administrative Code;

(10) Reporting to DFPS any Department of Justice substantiated complaints related to Title III of the Americans with Disabilities Act, which applies to commercial public accommodations; and

(11) Ensuring the total number of children in care at the center or away from the center, such as during a field trip, never exceeds the licensed capacity of the center.

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 March 8, 2017.

TRD-201700885

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 2. REQUIRED NOTIFICATION

40 TAC §746.301, §746.303

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.

§746.301.What changes regarding my child-care center must I notify Licensing about before making the change?

You must notify us in writing before:

(1) Changing the address or location of the child care center;

(2) Adding to or reducing indoor or outdoor space;

(3) Reducing the number of toilets or sinks;

(4) Adding a swimming pool or other permanent body of water;

(5) Changing the age range of children to be cared for;

(6) Changing the hours, days, or months of operation;

(7) Offering new services, relating to minimum standards found in this chapter, such as a get-well care program, nighttime care, transportation, or field trips;

(8) Planned closure of five consecutive days or more, during designated hours of operation, when the operation is not caring for children, with the exception of nationally recognized holidays;

(9) Going out of business; or

(10) There is a change in ownership of a center as specified in §745.437 of this title (relating to What is a change in ownership of an operation?).

§746.303.What changes must I notify Licensing of regarding the child-care center's designee, governing body, and director?

You must notify us in writing, no later than five days after a change is made, regarding:

(1) The designee of your center that is not a sole proprietorship. The designee for a sole proprietorship is the owner/sole proprietor;

(2) The board chair for a corporate facility or other executive officer of the governing body;

(3) The address of the center's designee or governing body; and

(4) The center director.

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 March 8, 2017.

TRD-201700886

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. REQUIRED POSTINGS

40 TAC §746.405

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.

§746.405.What telephone numbers must I post and where must I post them?

You must post in a prominent place the following telephone numbers:

(1) 911 or, if 911 is not available in your area, you must post the telephone numbers for:

(A) Emergency medical services;

(B) Law enforcement; and

(C) Fire department;

(2) Poison control;

(3) The Texas Abuse and Neglect Hotline (1-800-252-5400);

(4) The local Licensing office telephone number; and

(5) The child-care center telephone number, name, and address.

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 March 8, 2017.

TRD-201700887

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 4. OPERATIONAL POLICIES

40 TAC §§746.501, 746.503, 746.505

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.

§746.501.What written operational policies must I have?

(a) You must develop written operational policies and procedures that at a minimum address each of the following:

(1) Hours, days, and months of operation;

(2) Procedures for the release of children;

(3) Illness and exclusion criteria;

(4) Procedures for dispensing medication or a statement that medication is not dispensed;

(5) Procedures for handling medical emergencies;

(6) Procedures for parental notifications;

(7) Discipline and guidance that is consistent with Subchapter L of this title (relating to Discipline and Guidance). A copy of Subchapter L may be used for your discipline and guidance policy;

(8) Suspension and expulsion of children;

(9) Safe sleep for infants 12 months old or younger that is consistent with the rules in Subchapter H of this chapter (relating to Basic Requirements for Infants) that relate to sleep requirements and restrictions, including sleep positioning, and crib requirements and restrictions, including mattresses, bedding, blankets, toys, and restrictive devices;

(10) Meals and food service practices;

(11) Immunization requirements for children, including tuberculosis screening and testing if required by your regional Texas Department of State Health Services or local health authority;

(12) Hearing and vision screening requirements;

(13) Enrollment procedures, including how and when parents will be notified of policy changes;

(14) Transportation, if applicable;

(15) Water activities, if applicable;

(16) Field trips, if applicable;

(17) Animals, if applicable;

(18) Procedures for providing and applying, as needed, insect repellent and sunscreen, including what types will be used, if applicable;

(19) The procedures for parents to review and discuss with the child-care center director any questions or concerns about the policies and procedures of the child-care center;

(20) The procedures for parents to participate in the child-care center's operation and activities;

(21) The procedures for parents to review a copy of the child-care center's most recent Licensing inspection report and how the parent may access the minimum standards online;

(22) Instructions on how a parent may contact the local Licensing office, access the Texas Abuse and Neglect Hotline, and access the DFPS website;

(23) Your emergency preparedness plan;

(24) Your provisions to provide a comfortable place with an adult sized seat in your center or within a classroom that enables a mother to breastfeed her child. In addition, your policies must inform parents that they have the right to breastfeed or provide breast milk for their child while in care;

(25) Preventing and responding to abuse and neglect of children, including:

(A) Required annual training for employees;

(B) Methods for increasing employee and parent awareness of issues regarding child abuse and neglect, including warning signs that a child may be a victim of abuse or neglect and factors indicating a child is at risk for abuse or neglect;

(C) Methods for increasing employee and parent awareness of prevention techniques for child abuse and neglect;

(D) Strategies for coordination between the center and appropriate community organizations; and

(E) Actions that the parent of a child who is a victim of abuse or neglect should take to obtain assistance and intervention, including procedures for reporting child abuse or neglect;

(26) Procedures for conducting health checks, if applicable; and

(27) Vaccine-preventable diseases for employees, unless your center is in the home of the permit holder. The policy must address the requirements outlined in §746.3611 of this title (relating to What must a policy for protecting children from vaccine-preventable diseases include?).

(b) You must also inform the parents that:

(1) They may visit the child-care center at any time during your hours of operation to observe their child, the program activities, the building, the premises, and the equipment without having to secure prior approval; and

(2) Under the Texas Penal Code any area within 1000 feet of a child-care center is a gang-free zone, where criminal offenses related to organized criminal activity are subject to a harsher penalty. You may inform the parents by:

(A) Providing this information in the operational policies;

(B) Distributing the information in writing to the parents; or

(C) Informing the parents verbally as part of an individual or group parent orientation.

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 March 8, 2017.

TRD-201700888

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §746.507

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 March 8, 2017.

TRD-201700890

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER C. RECORD KEEPING

DIVISION 1. RECORDS OF CHILDREN

40 TAC §§746.603, 746.613, 746.615, 746.623, 746.631

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.

§746.603.What records must I have for children in my care and how long must I keep them?

(a) You must maintain the following records for each child enrolled in your child-care center:

(1) Child-care enrollment agreement specified in §746.503 of this title (relating to Must I provide parents with a copy of my operational policies?);

(2) Admission information specified in §746.605 of this title (relating to What admission information must I obtain for each child?);

(3) Statement of the child's health from a health-care professional;

(4) Immunization records;

(5) Tuberculosis screening and testing information, if required by your regional Texas Department of State Health Services or local health authority;

(6) Vision and hearing screening results, if applicable;

(7) Licensing Incident/Illness Report form, if applicable;

(8) A daily tracking system for when a child's care begins and ends as specified in §746.631 of this title (relating to Must I have a system for signing children in and out of my care?);

(9) Medication administration records, if applicable; and

(10) A copy of any health-care professional recommendations or orders for providing specialized medical assistance to the child. In some instances minimum standards allow for a deviation from a minimum standard with written documentation from a health-care professional. You must also maintain this written documentation in the child's record.

(b) These records must at a minimum be kept at the child-care center and must be available during hours of operation and for the following periods of time:

(1) Medication administration records for three months after administering the medication;

(2) Health-care professional recommendations or orders for three months after the health-care professional has indicated that the specialized medical assistance is no longer needed; and

(3) All other records noted in subsection (a) of this section for three months after the child's last day in care.

§746.623.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 record from the Texas Immunization Registry, a copy of the current immunization record that is on file at the pre-kindergarten or school that the child attends, or the health passport for a child in the conservatorship of DFPS. The record must include:

(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. An example includes a record from a doctor's office or a pharmacy. The record must include:

(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.

§746.631.Must I have a system for signing children in and out of my care?

(a) Yes. You must have a tracking system for each child coming and going from your child-care center throughout the day. This tracking system must include the name of each child; the date, time of arrival, and time of departure; and the employee or parent's initials or other unique identifier code.

(b) All caregivers must have access to the tracking system to determine which children are in care during their work shift, changes in caregivers, and emergency evacuations.

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 March 8, 2017.

TRD-201700892

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §§746.615, 746.617, 746.619, 746.621

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 March 8, 2017.

TRD-201700894

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 2. RECORDS OF ACCIDENTS AND INCIDENTS

40 TAC §746.703

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 March 8, 2017.

TRD-201700895

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §746.705

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 March 8, 2017.

TRD-201700896

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. RECORDS THAT MUST BE KEPT ON FILE AT THE CHILD-CARE CENTER

40 TAC §746.801, §746.803

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.

§746.801.What records must I keep at my child-care center?

You must maintain and make the following records available for our review upon request, during hours of operation. Paragraphs (14), (15), and (16) of this section are optional, but if provided will allow Licensing to avoid duplicating the evaluation of standards that have been evaluated by another state agency within the past year:

(1) Children's records, as specified in Division 1 of this subchapter (relating to Records of Children);

(2) Infant feeding instructions, as required in §746.2421 of this title (relating to What written feeding instructions must I obtain for an infant not ready for table food?), if applicable;

(3) Personnel and training records according to Division 4 of this subchapter (relating to Personnel Records);

(4) Licensing Child-Care Center Director's Certificate;

(5) Attendance records or time sheets listing all days and hours worked for each employee;

(6) Verification of liability insurance or notice of unavailability, if applicable;

(7) Medication records, if applicable;

(8) Playground maintenance checklists;

(9) Pet vaccination records, if applicable;

(10) Safety documentation for emergency drills, fire extinguishers, and smoke detectors;

(11) Most recent fire inspection report, including any written approval from the fire marshal to provide care above or below ground level, if applicable;

(12) Most recent sanitation inspection report;

(13) Most recent gas inspection report, if applicable;

(14) Most recent Texas Department of State Health Services' immunization compliance review form, if applicable;

(15) Most recent Texas Department of Agriculture Child and Adult Care Food Program (CACFP) report, if applicable;

(16) Most recent local workforce board Child-Care Services Contractor inspection report, if applicable;

(17) Record of pest extermination, if applicable;

(18) Most recent DFPS form certifying that you have reviewed each of the bulletins and notices issued by the United States Consumer Product Safety Commission regarding unsafe children's products and that there are no unsafe children's products in use or accessible to children in the child-care center;

(19) A daily tracking system for when a child's care begins and ends as specified in §746.631 of this title (relating to Must I have a system for signing children in and out of my care?);

(20) Documentation for cribs as specified in §746.2409(a)(9) of this title (relating to What specific safety requirements must my cribs meet?), if applicable; and

(21) Documentation for vehicles specified in §746.5627 of this title (relating to What documentation must I keep at the child-care center for each vehicle used to transport children in care?), if applicable.

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 March 8, 2017.

TRD-201700897

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 4. PERSONNEL RECORDS

40 TAC §746.903, §746.905

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 March 8, 2017.

TRD-201700898

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §746.909

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 March 8, 2017.

TRD-201700899

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER D. PERSONNEL

DIVISION 1. CHILD-CARE CENTER DIRECTOR

40 TAC §§746.1015, 746.1017, 746.1021, 746.1031, 746.1037, 746.1039, 746.1057

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.

§746.1015.What qualifications must the director of my child-care center licensed for 13 or more children meet?

Except as otherwise provided in this division, the director of a child-care center licensed for 13 or more children must be at least 21 years of age, have a high school diploma or its equivalent, and meet one of the following combinations of education and experience, as defined in §746.1021 of this title (relating to What constitutes experience in a licensed child-care center, or in a licensed or registered child-care home?):

Figure: 40 TAC §746.1015 (.pdf)

§746.1017.What qualifications must the director of my child-care center licensed for 12 or fewer children meet?

Except as otherwise provided in this division, the director of a child-care center licensed for 12 or fewer children must be at least 21 years old, have a high school diploma or its equivalent, and meet one of the following combinations of education and experience, as defined in §746.1021 of this title (relating to What constitutes experience in a licensed child-care center, or in a licensed or registered child-care home?):

Figure: 40 TAC §746.1017 (.pdf)

§746.1021.What constitutes experience in a licensed child-care center, or in a licensed or registered child-care home?

(a) Only the following types of experience may be counted as experience in a licensed child-care center:

(1) Experience as a director, assistant director, or as a caregiver working directly with children in a DFPS licensed or certified child-care center (or similar type of day care center that was formerly licensed, certified, or accredited by DFPS); and

(2) Experience as a director, assistant director, or caregiver working directly with children in a licensed or certified child-care center in another state or country.

(b) Only experience working directly with children in a DFPS licensed or registered child-care home (or in a group day-care home that was formerly licensed by DFPS) as an assistant caregiver, substitute caregiver, or primary caregiver may be counted as experience in a licensed or registered child-care home.

(c) You must have obtained all work experience in a full-time capacity or its equivalent in a part-time capacity. Full-time is defined as at least 30 hours per week. The work experience may be paid or unpaid.

§746.1031.What documentation must I provide to show that my director meets the child development and management education qualifications?

If requested by Licensing, you must provide original transcripts and supporting documentation, such as a credit course catalog description or a course syllabus or outline to determine whether the course is recognized as child development or management.

§746.1037.May clock hours or CEUs (continuing education units) be substituted for any of the educational requirements in this division?

(a) Clock hours or CEUs may only be substituted for the required credit hours in child development and management.

(b) 50 clock hours or five CEUs may only be substituted for every three college credit hours required in child development and/or management.

(c) The documentation to verify the clock hours or CEUs must be as specified in §746.1329 of this title (relating to What documentation must I provide to Licensing to verify that training requirements have been met?).

§746.1039.What additional documentation must I submit to Licensing to show my child-care center director is qualified and when must I submit it?

(a) In addition to showing that your director meets the minimum qualifications for an employee (and minimum qualifications for a caregiver, if applicable), you must submit the following for each director at your child-care center:

(1) A completed Licensing Personal History Statement form specifying the education and experience of your designated director;

(2) A completed Licensing Governing Body/Director Designation form;

(3) An original and current Licensing Child-Care Center Director's Certificate form; or an original college transcript or original training certificates which verify the educational requirements; and

(4) Complete dates, names, addresses, and telephone numbers which support the required experience.

(b) You must submit the information to us:

(1) As part of a new application for a permit; or

(2) Within five days of designating a new director.

§746.1057.What happens if my Child-Care Center Director's Certificate expires?

We will give you a deadline for your director to submit the required documentation or for you to designate another qualified director. If your director allows the Child-Care Center Director's Certificate to expire without submitting the required documentation confirming that the credential is current, then your center will no longer meet the minimum standards for a child-care center director.

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 March 8, 2017.

TRD-201700900

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §§746.1019, 746.1031, 746.1033, 746.1035, 746.1041, 746.1043

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 March 8, 2017.

TRD-201700902

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 2. CHILD-CARE CENTER EMPLOYEES AND CAREGIVERS

40 TAC §§746.1101, 746.1103, 746.1113, 746.1115

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 March 8, 2017.

TRD-201700903

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §§746.1105, 746.1107, 746.1109

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.

§746.1105.What minimum qualifications must each of my child-care center employees meet?

Each child-care center employee must:

(1) Meet the requirements in Subchapter F of Chapter 745 of this title (relating to Background Checks);

(2) Have a current record of a tuberculosis examination, showing the employee is free of contagious TB, if required by the Texas Department of State Health Services or local health authority;

(3) Complete a notarized Licensing Affidavit for Applicants for Employment form as specified in Human Resources Code, §42.059; and

(4) Complete orientation to your child-care center as specified in Division 4 of this subchapter (relating to Professional Development).

§746.1107.What additional minimum qualifications must each of my caregivers meet?

Except as otherwise provided in this division, each caregiver must comply with minimum standards for employees and must:

(1) Be at least 18 years of age;

(2) Have a:

(A) High school diploma;

(B) High school equivalent; or

(C) High school certificate of coursework completion as defined in Texas Education Code, §28.025(d); and

(3) Complete eight hours of the required 24 hours of pre-service training, as specified in Division 4 of this subchapter (relating to Professional Development) before being counted in the child/caregiver ratio.

§746.1109.When may I employ a person under the age of 18 or a person who does not have a high school diploma or equivalent as a caregiver?

(a) You may employ a 16 or 17 year old who has a high school diploma or its equivalent and count the person in the child/caregiver ratio, provided that:

(1) You don't leave the person alone with sole responsibility for or in charge of an individual child, a group of children, or the child-care center;

(2) The person works in the same room with and is supervised by a caregiver qualified under §746.1107 of this title (relating to What additional minimum qualifications must each of my caregivers meet?); and

(3) The person has completed a child-care-related career program, which:

(A) The Texas Education Agency (including a charter school), the Texas Private School Accreditation Commission, other similar educational entity in another state, or federal agency approves; or

(B) A home-school approves, and the person completes all 24 hours of pre-service training before being placed in a room with children.

(b) You may employ a 16, 17, or 18 year old who attends high school but has not graduated and count the person in the child/caregiver ratio, provided that:

(1) You don't leave the person alone with sole responsibility for or in charge of an individual child, a group of children, or the child-care center;

(2) The person works in the same room with and is supervised by a caregiver qualified under §746.1107 of this title;

(3) The person is currently enrolled in or has completed a child-care-related career program, which:

(A) The Texas Education Agency (including a charter school), the Texas Private School Accreditation Commission, other similar educational entity in another state, or federal agency approves; or

(B) A home-school approves, and the person completes all 24 hours of pre-service training before being placed in a room with children; and

(4) The person is expected to obtain a high school diploma or equivalent.

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 March 8, 2017.

TRD-201700904

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. GENERAL RESPONSIBILITIES FOR CHILD-CARE CENTER PERSONNEL

40 TAC §746.1203

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 March 8, 2017.

TRD-201700905

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 4. PROFESSIONAL DEVELOPMENT

40 TAC §746.1301, §746.1325

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 March 8, 2017.

TRD-201700906

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §§746.1301, 746.1315 - 746.1317, 746.1319, 746.1323

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.

§746.1301.What training must I ensure that my employees and caregivers have?

You must make sure that employees and caregivers have the training required in the following chart:

Figure: 40 TAC 746.1301 (.pdf)

§746.1317.Must the training for my caregivers and the director meet certain criteria?

(a) Training may include clock hours or CEUs provided by:

(1) A training provider registered with the Texas Early Childhood Professional Development System Training Registry, maintained by the Texas Head Start State Collaboration Office;

(2) An instructor who teaches early childhood development or another relevant course at a secondary school or institution of higher education accredited by a recognized accrediting agency;

(3) An employee of a state agency with relevant expertise;

(4) A physician, psychologist, licensed professional counselor, social worker, or registered nurse;

(5) A person who holds a generally recognized credential or possesses documented knowledge relevant to the training the person will provide;

(6) A director at your child-care center who has demonstrated core knowledge in child development and caregiving if:

(A) Providing training to the director's own staff; and

(B) Your child-care center has not been on probation, suspension, emergency suspension, or revocation in the two years preceding the training or been assessed an administrative penalty in the two years preceding the training; or

(7) A person who has at least two years of experience working in child development, a child development program, early childhood education, a childhood education program, or a Head Start or Early Head Start program and:

(A) Has a current Child Development Associate (CDA) credential; or

(B) Holds at least an associate's degree in child development, early childhood education, or a related field.

(b) Training may include clock hours or CEUs obtained through self-instructional materials, if the materials were developed by a person who meets one of the qualifications in subsection (a) of this section.

(c) All training, including instructor-led and self-instructional 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 of successful completion from the training source.

§746.1323.If I hire a caregiver or a director that received training at another operation, may these hours count towards the annual training requirement at my center?

Training received at another operation can be applied towards the annual training requirement, if:

(1) The caregiver or director provides documentation of training as specified in §746.1329 of this title (relating to What documentation must I provide to Licensing to verify that training requirements have been met?);

(2) The person obtained the training from a child-care center, a school-age or before or after-school program, or a child-care home that we license or register; and

(3) The training was obtained within two months before coming to work for your child-care center.

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 March 8, 2017.

TRD-201700907

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 5. VOLUNTEERS, SUBSTITUTES, AND CONTRACTORS

40 TAC §746.1401, §746.1403

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 March 8, 2017.

TRD-201700908

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 5. SUBSTITUTES, VOLUNTEERS, AND CONTRACTORS

40 TAC §746.1401

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 section 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 March 8, 2017.

TRD-201700909

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER F. DEVELOPMENTAL ACTIVITIES AND ACTIVITY PLAN

40 TAC §746.2205

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 March 8, 2017.

TRD-201700910

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER H. BASIC CARE REQUIREMENTS FOR INFANTS

40 TAC §§746.2401, 746.2403, 746.2405, 746.2407, 746.2409, 746.2411, 746.2413, 746.2415, 746.2417, 746.2419, 746.2421, 746.2425 - 746.2428, 746.2431

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.

§746.2415.What specific types of equipment am I prohibited from using with infants?

(a) You may not use the following equipment for infants, which has been identified as unsafe for infants by the Consumer Product Safety Commission and the American Academy of Pediatrics:

(1) Baby walkers, which are devices that allow an infant to sit inside a walker equipped with rollers or wheels and move across the floor;

(2) Baby doorway jumpers, which are devices that allow an infant to bounce while supported in a seat by an elastic "bungee cord" suspended from a doorway;

(3) Accordion safety gates;

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

(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 12 months of age.

(c) A crib mattress cover may also 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.

§746.2421.What written feeding instructions must I obtain for an infant not ready for table food?

(a) For an infant who is not yet ready for table food, you must obtain and follow written feeding instructions that are signed and dated by the infant's parent or health-care professional.

(b) You must review and update the feeding instructions with the parent every 30 days until the infant is able to eat table food.

§746.2426.May I allow infants to sleep in a restrictive device?

You may not allow an infant to sleep in a restrictive device. If an infant falls asleep in a restrictive device, the infant must be removed from the device and placed in a crib as soon as possible. Infants may sleep in a restrictive device if you have a completed Sleep Exception Form that includes a signed statement from a health-care professional stating that the child sleeping in a restrictive device is medically necessary.

§746.2427.Are infants required to sleep on their backs?

Infants not yet able to turn over on their own must be placed in a face-up sleeping position in the infant's own crib, unless you have a completed Sleep Exception Form that includes a signed statement from a health-care professional stating that a different sleeping position for the child is medically necessary.

§746.2428.May I swaddle an infant to help the infant sleep?

You may not lay a swaddled infant down to sleep or rest on any surface at any time unless you have a completed Sleep Exception Form that includes a signed statement from a health-care professional stating that swaddling the child for sleeping purposes is medically necessary.

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 March 8, 2017.

TRD-201700911

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §746.2411

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 March 8, 2017.

TRD-201700912

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER I. BASIC CARE REQUIREMENTS FOR TODDLERS

40 TAC §§746.2501, 746.2505, 746.2507, 746.2509

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 March 8, 2017.

TRD-201700913

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER J. BASIC CARE REQUIREMENTS FOR PRE-KINDERGARTEN AGE CHILDREN

40 TAC §746.2607

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 March 8, 2017.

TRD-201700914

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER K. BASIC CARE REQUIREMENTS FOR SCHOOL AGE CHILDREN

40 TAC §746.2707

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 March 8, 2017.

TRD-201700915

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER L. DISCIPLINE AND GUIDANCE

40 TAC §§746.2801, 746.2809, 746.2813

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 March 8, 2017.

TRD-201700916

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §746.2803, §746.2805

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.

§746.2803.What methods of discipline and guidance may a caregiver use?

Discipline must be:

(1) Individualized and consistent for each child;

(2) Appropriate to the child's level of understanding;

(3) Directed toward teaching the child acceptable behavior and self-control; and

(4) A positive method of discipline and guidance that encourages self-esteem, self-control, and self-direction, including the following:

(A) Using praise and encouragement of good behavior instead of focusing only upon unacceptable behavior;

(B) Reminding a child of behavior expectations daily by using clear, positive statements;

(C) Redirecting behavior using positive statements; and

(D) Using brief supervised separation or time out from the group, when appropriate for the child's age and development, which is limited to no more than one minute per year of the child's age.

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 March 8, 2017.

TRD-201700917

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER M. NAPTIME

40 TAC §746.2905, §746.2911

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 March 8, 2017.

TRD-201700918

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER N. FIELD TRIPS

40 TAC §746.3005

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 March 8, 2017.

TRD-201700919

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER O. GET-WELL CARE PROGRAMS

40 TAC §§746.3117, 746.3119, 746.3123

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 March 8, 2017.

TRD-201700920

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER P. NIGHTTIME CARE

40 TAC §746.3201, §746.3203

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 March 8, 2017.

TRD-201700921

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER Q. NUTRITION AND FOOD SERVICE

40 TAC §746.3309, §746.3313

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.

§746.3309.May parents provide meals and/or snacks for their child instead of my child-care center providing them?

(a) Yes; however, your enrollment agreement signed by the parent must include a statement that the parent is choosing to provide the child's meals and/or snacks from home and the parent understands the child-care center is not responsible for its nutritional value or for meeting the child's daily food needs.

(b) If the parent provides a meal but not a snack, you are responsible for providing a snack as specified in §746.3307 of this title (relating to What kind of foods must I serve for snacks?).

(c) You must provide safe and proper storage and service of the individual meals and snacks provided by parents.

(d) Snacks provided by a parent must not be shared with other children, unless:

(1) A parent is providing baked goods for a celebration or party being held at the center; and

(2) You ensure that the shared snacks meet the needs of children who require special diets.

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 March 8, 2017.

TRD-201700922

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER R. HEALTH PRACTICES

DIVISION 1. ENVIRONMENTAL HEALTH

40 TAC §§746.3401, 746.3405, 746.3415, 746.3419 - 746.3421

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.

§746.3415.When must employees wash their hands?

Employees must wash their hands:

(1) Before eating or handling food or medication;

(2) Before feeding a child;

(3) After arriving at the child-care center;

(4) After diapering a child;

(5) After assisting a child with toileting;

(6) After personal toileting;

(7) After handling or cleaning bodily fluids, such as after wiping noses, mouths, or bottoms, and tending sores;

(8) After handling or feeding animals;

(9) After outdoor activities;

(10) After handling raw food products;

(11) After eating, drinking, or smoking;

(12) After using any cleaners or toxic chemicals; and

(13) After removing gloves.

§746.3420.May I use hand sanitizer as a substitute for washing hands?

You may use hand sanitizers as a substitute for washing hands if all of the following conditions are met:

(1) You only use hand sanitizers on children 24 months and older;

(2) You do not use hand sanitizers to wash hands that are visibly dirty or greasy or have chemicals on them, unless you are away from the classroom and soap and water are not available for hand washing;

(3) You follow the labeling instructions for the appropriate amount to be used and for how long the hand sanitizer needs to remain on the skin surface to be effective;

(4) Children have adult supervision when using hand sanitizers; and

(5) You store hand sanitizers out of the reach of children when not in 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 March 8, 2017.

TRD-201700923

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


40 TAC §746.3409, §746.3411

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 March 8, 2017.

TRD-201700925

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 2. DIAPER CHANGING

40 TAC §746.3501, §746.3503

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.

§746.3501.What steps must caregivers follow for diaper changing?

Caregivers must:

(1) Promptly change soiled or wet diapers or clothing;

(2) Thoroughly cleanse a child with individual cloths or disposable towels. You must discard any disposable towels after use and launder any cloths before using them again;

(3) Ensure that a child is dry before placing a new diaper on the child. If the child must be dried, you must use a clean, individual cloth or disposable towel to dry the child. You must discard the disposable towel after use and launder any cloth before using it again;

(4) Not apply powders, creams, ointments, or lotions unless you obtain the parent's written permission. If the parent supplies these items, permission is implicit and you do not need to obtain permission for each use;

(5) Label powders, creams, ointments, or lotions with the individual child's name; and

(6) Keep all diaper-changing supplies out of the reach of children.

§746.3503.What equipment must I have for diaper changing?

(a) You must have a diaper-changing table or surface that is smooth, non-absorbent, and easy to clean.

(b) You must not use areas that children come in close contact with during play or eating, such as dining tables, sofas, or floor play areas, for diaper changing.

(c) If the diaper-changing table or surface is above the floor level, then at all times when the child is on the table/surface:

(1) There must be a safety mechanism (such as raised sides) that is used;

(2) The caregiver's hand must remain on the child; or

(3) The caregiver must be facing the child and within an arm's length of the child.

(d) You must have a hand-washing sink in the diaper-changing area. Refer to §746.4403 of this title (relating to Must I have a hand-washing sink in the diaper-changing area?).

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 March 8, 2017.

TRD-201700927

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. ILLNESS AND INJURY

40 TAC §§746.3601, 746.3606, 746.3607

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.

§746.3606.When may a child who was ill return to my child-care center?

A child who was ill may return to your child-care center when:

(1) The child is free of symptoms of illness for 24 hours; or

(2) You have obtained a health-care professional's statement that the child no longer has an excludable disease or condition.

§746.3607.How should caregivers respond to an illness or injury that requires the immediate attention of a health-care professional?

For an illness or injury that requires the immediate attention of a health-care professional, you must:

(1) Contact emergency medical services (or take the child to the nearest emergency room after you have ensured the supervision of other children in the group);

(2) Give the child first-aid treatment or CPR when needed;

(3) Contact the child's parent;

(4) Contact the physician or other health-care professional identified in the child's record; and

(5) Ensure supervision of other children in the group.

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 March 8, 2017.

TRD-201700928

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER S. SAFETY PRACTICES

DIVISION 1. SAFETY PRECAUTIONS

40 TAC §§746.3701, 746.3703, 746.3707, 746.3709

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.

§746.3703.How can I ensure the safety of the children from other persons?

(a) People whose behavior and/or health status poses an immediate threat or danger to the health or safety of the children must not be present when children are in care.

(b) People must not consume alcohol or controlled substances without a prescription in the child-care center, during transportation, or on field trips.

(c) People must not be under the influence of or impaired by alcohol or controlled substances in the child-care center, during transportation, or on field trips.

(d) People must not smoke any e-cigarette, vaporizer, or tobacco product or otherwise use any tobacco product at your child-care center, on the premises, on the playground, in transportation vehicles, or during field trips.

§746.3707.Are firearms or other weapons allowed at my child-care center?

(a) Peace officers as listed in §2.12 of the Code of Criminal Procedure and security officers commissioned by the Texas Private Security Board who are trained and certified to carry a firearm on duty may have firearms and ammunition on the premises of your child-care center.

(b) For all other persons, firearms, hunting knives, bows and arrows, and other weapons are prohibited on the premises of the child-care center, unless the child-care center is also your residence. This prohibition does not apply to personal vehicles.

(c) Firearms, hunting knives, bows and arrows, and other weapons kept on the premises of a child-care center located in your home must remain in a locked cabinet inaccessible to children during all hours of operation.

(d) Ammunition must be kept in a separate locked cabinet and inaccessible to children during all hours of operation.

§746.3709.May I have toys or other types of equipment that explode or shoot things?

A child may not use any type of toy or equipment that explodes or that shoots things, such as caps, BB guns, darts, or fireworks at the child-care center or on field trips. These types of toys and equipment are not allowed at your operation unless your operation is located in your home. If your child-care center is located in your home, you must keep any such toy or equipment in a locked cabinet inaccessible to any child during your hours of operation.

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 March 8, 2017.

TRD-201700929

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 2. MEDICATIONS AND MEDICAL ASSISTANCE

40 TAC §746.3801

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.

§746.3801.What does "medication" refer to in this division?

In this division, medication means:

(1) A prescription medication; or

(2) A non-prescription medication, excluding topical ointments such as diaper ointment, insect repellent, or sunscreen.

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 March 8, 2017.

TRD-201700930

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. ANIMALS AT THE CHILD-CARE CENTER

40 TAC §746.3901

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 March 8, 2017.

TRD-201700931

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER T. PHYSICAL FACILITIES

DIVISION 1. INDOOR SPACE REQUIREMENTS

40 TAC §746.4207, §476.4213

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 March 8, 2017.

TRD-201700932

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 4. FURNITURE AND EQUIPMENT

40 TAC §§746.4501, 746.4503, 746.4507

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 March 8, 2017.

TRD-201700933

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER U. INDOOR AND OUTDOOR ACTIVE PLAY SPACE AND EQUIPMENT

DIVISION 1. MINIMUM SAFETY REQUIREMENTS

40 TAC §746.4601, §746.4609

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.

§746.4609.What is the maximum height allowed for the highest designated play surface, if my child-care center was licensed before September 1, 2010?

(a) If you were licensed before September 1, 2010, the maximum height allowed for the highest designated play surface on active play equipment is:

(1) Six feet for equipment designed to be used by children younger than five years old; or

(2) Eight feet for equipment designed to be used by children five years old and older.

(b) If your center re-designs the existing playground or adds new playground equipment, then as the changes are made you must meet equipment height requirements specified in §746.4607 of this title (relating to What is the maximum height of the highest designated play surface allowed?). You must submit a written plan for compliance to us upon request.

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 March 8, 2017.

TRD-201700934

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 5. SURFACING

40 TAC §746.4907

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 March 8, 2017.

TRD-201700935

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 7. INFLATABLES

40 TAC §746.4971

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 March 8, 2017.

TRD-201700936

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER V. SWIMMING POOLS AND WADING/SPLASHING POOLS

40 TAC §746.5009

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 March 8, 2017.

TRD-201700937

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER V. SWIMMING POOLS, WADING/SPLASHING POOLS, AND SPRINKLER PLAY

40 TAC §746.5015

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 March 8, 2017.

TRD-201700938

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER W. FIRE SAFETY AND EMERGENCY PRACTICES

DIVISION 1. FIRE INSPECTION

40 TAC §746.5105

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 March 8, 2017.

TRD-201700939

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


DIVISION 3. FIRE EXTINGUISHING AND SMOKE DETECTION SYSTEMS

40 TAC §746.5305

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.

§746.5305.Where must I mount fire extinguishers?

You must mount all fire extinguishers on the wall by a hanger or bracket. The top of all extinguishers must be no higher than five feet above the floor and the bottom at least four inches above the floor or any other surface. If the state or local fire marshal or the manufacturer's instructions has different mounting instructions, you must follow those instructions. All fire extinguishers must be readily available for immediate use by employees and caregivers.

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 March 8, 2017.

TRD-201700940

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358


SUBCHAPTER X. TRANSPORTATION

40 TAC §746.5607, §746.5621

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.

§746.5621.What communication requirements are there for a vehicle used to transport children?

When transporting children in a vehicle:

(1) The vehicle must have a communications device such as a cellular phone or two-way radio; or

(2) A caregiver at the child-care center must know the routine arrival and departure times of the vehicle and take action if the vehicle does not return to the child-care center at a scheduled time. The driver must travel a known fixed route within an approximate timeframe.

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 March 8, 2017.

TRD-201700941

Audrey Carmical

Interim General Counsel

Department of Family and Protective Services

Effective date: April 15, 2017

Proposal publication date: September 9, 2016

For further information, please call: (512) 438-4358