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) proposes amendments to §19.212, concerning Time Periods for Processing License Applications, and §19.2322, concerning Medicaid Bed Allocation Requirements, in Chapter 19, Nursing Facility Requirements Related to Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The proposed rule amendments are the result of an HHSC Medicaid Bed Allocation Audit and an HHSC internal audit requested by DADS Regulatory Services Licensing and Credentialing Section. The proposal amends rules regarding the nursing facility licensure process at HHSC and adds new rules regarding timeframes and additional circumstances for pending an application for renewal. These changes would allow a nursing facility time to comply with licensure requirements while an application is pending. The proposal also amends rules to allow a nursing facility to request an informal review regarding decisions related to Medicaid bed allocations. These changes would provide a mechanism for a nursing facility to contest HHSC decisions regarding de-allocated or decertified Medicaid beds, not just applications for waivers and exemptions.

SECTION-BY-SECTION SUMMARY

The proposed amendment of §19.212, Time Periods for Processing License Applications, adds that HHSC may pend an application for up to six months to allow an applicant to comply with licensure requirements. The proposal also adds that HHSC can pend an application for renewal if HHSC is proposing to deny or revoke the facility's license.

The proposed amendment of §19.2322(k), Informal Review Procedures, allows an existing nursing facility to request an informal review when it has been denied an increase in Medicaid bed allocations or was subject to decertification or de-allocation of Medicaid beds.

In both sections, all references to DADS are changed to HHSC to reflect the transfer of functions from DADS to HHSC in accordance with Senate Bill 200, 84th Legislature, 2015.

FISCAL NOTE

David Cook, Deputy Chief Financial Officer, has determined that, for the first five years the proposed amendments are in effect, enforcing or administering the amendments does not have foreseeable implications relating to costs or revenues of state or local governments.

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

HHSC has determined that the proposed amendments will not have an adverse economic effect on small businesses, micro-businesses, or rural communities because the amendments do not impose any economic requirements on small businesses, micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to person who are required to comply with the sections as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule does not impose a cost on regulated persons and is amended to reduce the burden or responsibilities imposed on regulated persons by the rule.

PUBLIC BENEFIT

Mary T. Henderson, DADS Associate Commissioner for Long Term Care Regulation, has determined that, for each year of the first five years the amendments are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit will be the provision of time to allow providers to comply with licensure requirements and, therefore, maintain continuity of care for residents. In addition, the amendments provide an appropriate mechanism for facilities to contest agency actions regarding Medicaid bed allocation other than decisions about applications for waiver and exemptions.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Sharon Wallace at (210) 619-8292. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSCRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When submitting comments, please indicate "Comments on Proposed Rule 40R011" in the subject line.

SUBCHAPTER C. NURSING FACILITY LICENSURE APPLICATION PROCESS

40 TAC §19.212

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; Texas Health and Safety Code, §242.031, which requires licensing of nursing facilities; and Texas Human Resources Code, §32.0213, which authorizes nursing facility Medicaid bed certification and decertification.

The amendments implement Texas Government Code, §531.0055; Texas Health and Safety Code, §242.037; and Texas Human Resources Code, §32.0213.

§19.212.Time Periods for Processing License Applications.

(a) The Health and Human Services Commission (HHSC) [Texas Department of Human Services (DHS)] will process only applications received within 60 days prior to the requested date of the issuance of the license.

(b) An application is complete when all requirements for licensing have been met, including compliance with standards. If an inspection for compliance is required, the application is not complete until the inspection has occurred, reports have been reviewed, and the applicant complies with the standards.

(c) If the application is postmarked by the filing deadline and received by HHSC within 15 days of the postmark, the application is [will be] considered to be timely filed [if received in the Licensing Section of the state office of Long-Term Care-Regulatory Texas Department of Human Services, within 15 days of the postmark].

(d) HHSC notifies a facility [Long-Term Care-Regulatory will notify facilities] within 30 days of receipt of the application if any of the following applications are incomplete:

(1) initial application;

(2) change of ownership;

(3) renewal; and

(4) increase in capacity.

(e) A [Except as provided in the following sentence, a] license will be issued or denied within 30 days of the receipt of a complete application or within 30 days prior to the expiration date of the license. [However, DHS may pend action on an application for renewal of a license for up to six months if the facility is subject to a proposed or pending licensure termination action on or within 30 days prior to the expiration date of the license. The issuance of the license constitutes DHS's official written notice to the facility of the acceptance and filing of the application.]

(f) HHSC may pend action for up to six months on an application:

(1) of any type listed in subsection (d) of this section to give an applicant time to comply with licensure requirements imposed by HHSC; or

(2) for renewal of the license if the facility is subject to a proposed denial or pending licensure revocation action.

(g) [(f)] Criteria for reimbursement of fees are as follows.

(1) In the event the application is not processed in the time periods as stated, the applicant has a right to request of the program director full reimbursement of all filing fees paid in that particular application process. If the program director does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied. Good cause for exceeding the period established is considered to exist if:

(A) the number of applications to be processed exceeds by 15% or more the number processed in the same calendar quarter of the preceding year;

(B) another public or private entity used in the application process caused the delay; or

(C) other conditions existed giving good cause for exceeding the established periods.

(2) If the request for full reimbursement is denied, the applicant may appeal directly to the executive [DHS] commissioner for resolution of the dispute. The applicant must send a written statement to the executive commissioner describing the request for reimbursement and the reasons for it. The program also may send a written statement to the executive commissioner describing the program's reasons for denying reimbursement. The executive commissioner makes a timely decision concerning the appeal and notifies the applicant and the program in writing of the decision.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703734

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (210) 619-8292


SUBCHAPTER X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES

40 TAC §19.2322

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of health and human services; Texas Health and Safety Code, §242.031, which requires licensing of nursing facilities; and Texas Human Resources Code, §32.0213, which authorizes nursing facility Medicaid bed certification and decertification.

The amendments implement Texas Government Code, §531.0055; Texas Health and Safety Code, §242.037; and Texas Human Resources Code, §32.0213.

§19.2322.Medicaid Bed Allocation Requirements.

(a) Definitions. The words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant--An individual or entity requesting a bed allocation waiver or exemption.

(2) Assignment of rights--The Health and Human Services Commission (HHSC) [Department of Aging and Disability Services (DADS)] conveyance of a specific number of allocated Medicaid beds from a nursing facility or entity to another entity for purposes of constructing a new nursing facility or for any other use as authorized by this chapter.

(3) Bed allocation--The process by which HHSC [DADS] controls the number of nursing facility beds that are eligible to become Medicaid-certified in each nursing facility.

(4) Bed certification--The process by which HHSC [DADS] certifies compliance with state and federal Medicaid requirements for a specified number of Medicaid beds allocated to a nursing facility.

(5) County or precinct occupancy rate--The number of residents, regardless of source of payment, occupying certified Medicaid beds in a county divided by the number of Medicaid beds allocated in the county, including Medicaid beds that are certified and Medicaid beds that have been allocated but are not certified. In the four most populous counties in the state, the occupancy rate is calculated for each county commissioner precinct.

(6) Licensee--The individual or entity, including a controlling person, that is:

(A) an applicant for licensure by HHSC [DADS ] under Chapter 242 of the Texas Health and Safety Code and for Medicaid certification;

(B) licensed by HHSC [DADS] under Chapter 242 of the Texas Health and Safety Code; or

(C) licensed under Chapter 242 of the Texas Health and Safety Code and holds the contract to provide Medicaid services.

(7) Lien holder--The individual or entity that holds a lien against a physical plant.

(8) Multiple-facility owner--An individual or entity that owns, controls, or operates under lease two or more nursing facilities within or across state lines.

(9) Occupancy rate--The number of residents occupying certified Medicaid beds divided by the number of certified Medicaid beds in a nursing facility.

(10) Open solicitation period--A period during which an individual or entity may apply for an allocation of Medicaid beds in a high-occupancy county or precinct.

(11) Physical plant--The land and attached structures to which beds are allocated or for which an application for bed allocation has been submitted.

(12) Property owner--The individual or entity that owns a physical plant.

(13) Transfer of beds--HHSC [DADS] conveyance of a specific number of allocated Medicaid beds from an existing nursing facility or entity to another existing licensed nursing facility. The nursing facility may use the transferred Medicaid beds to increase the number of Medicaid-certified beds currently licensed or to increase the number of Medicaid-certified beds when additional licensed beds are added to the nursing facility in the future.

(b) Purpose. The purpose of this section is to control the number of Medicaid beds that HHSC [DADS] contracts, to improve the quality of resident care by selective and limited allocation of Medicaid beds, and to promote competition.

(c) Bed allocation general requirements. The allocation of Medicaid beds is an opportunity for the property owner or the lessee of a nursing facility to obtain a Medicaid nursing facility contract for a specific number of Medicaid-certified beds.

(1) Medicaid beds are allocated to a nursing facility and remain at the physical plant where they were originally allocated, unless HHSC [DADS] transfers or assigns the beds.

(2) When HHSC [DADS] allocates Medicaid beds to a nursing facility as a result of actions by the licensee, HHSC [DADS] requires that the beds remain allocated to the physical plant, even when the licensee ceases operating the nursing facility, unless HHSC [DADS] assigns or transfers the beds.

(3) Notwithstanding any language in subsections (f) and (g) of this section and the fact that applicants for bed allocation waivers and exemptions may be licensees or property owners, HHSC [DADS] allocates beds to the physical plant and the owner of that property controls the Medicaid beds subject to HHSC [DADS] rules and requirements and all valid physical plant liens.

(d) Control of beds. Except as specified in this section, HHSC [DADS] does not accept applications for a Medicaid contract for nursing facility beds from any nursing facility that was not granted:

(1) a valid certificate of need (CON) by the Texas Health Facilities Commission before September 1, 1985;

(2) a waiver or exemption approved by the Department of Human Services before January 1, 1993; or

(3) a valid order that had the effect of authorizing the operation of the nursing facility at the bed capacity for which participation is sought.

(e) Level of acceptable care. Unless specifically exempted from this requirement, applicants and controlling persons of an applicant for Medicaid bed allocation waivers or exemptions must comply with level of acceptable care requirements. Level of acceptable care requirements apply only in determining bed allocation waiver and exemption eligibility and have no effect on other sections of this chapter.

(1) HHSC [DADS] determines a waiver or exemption applicant or a controlling person of an applicant complies with level of acceptable care requirements if, within the preceding 24 months, the applicant or controlling person:

(A) has not received any of the following sanctions:

(i) termination of Medicaid or Medicare certification;

(ii) termination of Medicaid contract;

(iii) denial, suspension, or revocation of a nursing facility license;

(iv) cumulative Medicaid or Medicare civil monetary penalties totaling more than $5,000 per facility;

(v) civil penalties pursuant to §242.065 of the Texas Health and Safety Code; or

(vi) denial of payment for new admissions;

(B) does not have a pattern of substantial or repeated licensing and Medicaid sanctions, including administrative penalties or other sanctions; and

(C) does not have a condition listed in §19.214(a) of this chapter (relating to Criteria for Denying a License or Renewal of a License).

(2) HHSC [DADS] considers the criteria in paragraph (1) of this subsection to determine if local facilities provide a level of acceptable care in counties, communities, ZIP codes or other geographic areas that are the subject of a waiver application. HHSC [DADS] only considers sanctions that are final and are not subject to appeal when determining if a local facility complies with level of acceptable care requirements.

(3) Nursing facilities that have received any of the sanctions listed in paragraph (1) of this subsection within the previous 24 months are not eligible for an allocation of Medicaid beds under subsection (h) of this section or an allocation of additional Medicaid beds under subsection (f) of this section. In the case of sanctions against the nursing facility to which the beds would be allocated that are appealed, either administratively or judicially, an application will be suspended until the appeal has been resolved. Sanctions that have been administratively withdrawn or were subsequently reversed upon administrative or judicial appeal are not considered.

(4) If an applicant for an allocation of additional Medicaid beds or a controlling person of an applicant is a multiple-facility owner or a multiple-facility owner owns the applicant, the multiple-facility owner must demonstrate an overall record of complying with level of acceptable care requirements. HHSC [DADS] considers the number of facilities that have received sanctions listed in paragraph (1) of this subsection in relation to the number of facilities that the multiple-facility owner owns to determine if a multiple-facility owner meets level of acceptable care requirements. HHSC [DADS] only considers sanctions that are final and are not subject to appeal when determining whether the multiple-facility owner's facilities not receiving the new bed allocation comply with level of care requirements.

(5) When the applicant is a licensee that has operated a nursing facility less than 24 months, the nursing facility must establish at least a 12-month compliance record immediately preceding the application in which the nursing facility has not received any of the sanctions listed under paragraph (1) of this subsection.

(6) When the applicant has no history of operating nursing facilities, HHSC [DADS] will review the compliance record of health-care facilities operated, managed, or otherwise controlled by controlling parties of the applicant. If a controlling party or the applicant has never operated, managed, or otherwise controlled any health-care facilities, a compliance review is not required.

(7) The executive commissioner, or the executive commissioner's designee, may make an exception to any of the requirements in this subsection if the executive commissioner or the executive commissioner's designee determines the needs of Medicaid recipients in a local community will be served best by granting a Medicaid bed allocation waiver or exemption. In determining whether to make an exception to the requirements, the executive commissioner or the executive commissioner's designee may consider the following:

(A) the overall compliance record of the waiver or exemption applicant;

(B) the current availability of Medicaid beds in facilities that comply with level of acceptable care requirements in the local community;

(C) the level of support for the waiver or exemption from the local community;

(D) the way a waiver or exemption will improve the overall quality of care for nursing facility residents; and

(E) the age and condition of nursing facility physical plants in the local community.

(f) Exemptions. HHSC [DADS] may grant an exemption from the requirements in subsection (d) of this section. All exemption actions must comply with the requirements in this subsection and with requirements of the Centers for Medicare & [and] Medicaid Services (CMS) regarding bed capacity increases and decreases. When a bed allocation exemption is approved, the licensee must comply with the requirements in §19.201 of this chapter (relating to Criteria for Licensing) at the time of licensure and Medicaid certification of the new beds or nursing facility.

(1) Replacement Medicaid nursing facilities and beds. An applicant may request that HHSC [DADS] approve replacement of allocated Medicaid beds by the construction of one or more new nursing facilities.

(A) The applicant must own the physical plant where the beds are allocated or possess a valid assignment of rights to the Medicaid beds.

(B) The applicant must obtain written approval by all lien holders of the physical plant where the beds are allocated before requesting HHSC [DADS] approval to relocate the Medicaid beds to the replacement facility if the replacement facility will be constructed at a different address than the current facility. The applicant must submit the lien holder approval with the replacement nursing facility request. If the physical plant where the Medicaid beds are allocated does not have a lien, the applicant must submit a written attestation of that fact with the replacement nursing facility request.

(C) Replacement nursing facility applicants, including those who obtained the rights to the beds through a HHSC [DADS] assignment of beds, must comply with the level of acceptable care requirements in subsection (e) of this section, unless the applicant for a replacement nursing facility is the current property owner.

(D) HHSC [DADS] may grant a replacement facility an increase of up to 25 percent of the currently allocated Medicaid beds, if the applicant complies with the level of acceptable care requirements in subsection (e) of this section. HHSC [DADS] will not transfer or assign the additional allocation of beds until they are certified at the replacement facility.

(E) The physical plant of the replacement nursing facility must be located in the same county in which the Medicaid beds currently are allocated.

(2) Transfer of Medicaid beds. An applicant may request HHSC [DADS] transfer allocated Medicaid beds certified or previously certified to another physical plant.

(A) The applicant must own the physical plant where the beds are allocated, or the applicant must present HHSC [DADS] with:

(i) a valid Medicaid bed transfer agreement that specifies the number of additional Medicaid beds the applicant is requesting HHSC [DADS] allocate to the receiving nursing facility; or

(ii) a valid Medicaid bed assignment that specifies the number of additional Medicaid beds the applicant is requesting HHSC [DADS] allocate to the receiving nursing facility.

(B) If the Medicaid beds are allocated to a specific physical plant, the applicant must obtain and submit written approval from the property owner and, if the physical plant has a lien, written approval from all lien holders to obtain a HHSC [DADS] transfer of the Medicaid beds to another facility. If the physical plant where the Medicaid beds are allocated does not have a lien, the applicant must submit a written attestation of that fact with the transfer request.

(C) The receiving licensee must comply with level of acceptable care requirements in subsection (e) of this section.

(D) Both facilities must be located in the same county.

(3) High-occupancy facilities. Medicaid-certified nursing facilities with high occupancy rates may periodically apply to HHSC [DADS] to receive bed allocation increases.

(A) The occupancy rate of the Medicaid beds of the applicant nursing facility must be at least 90.0 percent for nine of the previous 12 months prior to the application.

(B) The application for additional Medicaid beds may be for no more than 10 percent (rounded to the nearest whole number) of the facility's Medicaid-certified nursing facility beds.

(C) The applicant nursing facility must comply with level of acceptable care requirements in subsection (e) of this section.

(D) The applicant nursing facility may reapply for additional Medicaid beds no sooner than nine months from the date of the previous allocation increase.

(E) Medicaid beds allocated to a nursing facility under this requirement may only be certified at the applicant nursing facility. HHSC [DADS] does not transfer or assign the additional allocation of beds until they are certified at the applicant nursing facility.

(4) Non-certified nursing facilities. Licensed nursing facilities that do not have Medicaid-certified beds may apply to HHSC [DADS] for an initial allocation of Medicaid beds.

(A) The application for Medicaid beds may be for no more than 10 percent (rounded to the nearest whole number) of the facility's licensed nursing facility beds.

(B) The applicant nursing facility must comply with level of acceptable care requirements in subsection (e) of this section.

(C) After the applicant nursing facility receives an allocation of Medicaid beds, the facility may apply for additional Medicaid beds in accordance with paragraph (3) of this subsection.

(5) Low-capacity facilities. For purposes of efficiency, nursing facilities with a Medicaid bed capacity of less than 60 may receive additional Medicaid beds to increase their capacity up to a total of 60 Medicaid beds.

(A) The nursing facility must be licensed for less than 60 beds and have a current certification of less than 60 Medicaid beds.

(B) The nursing facility must have been Medicaid-certified before June 1, 1998.

(C) The applicant licensee must comply with level of acceptable care requirements in subsection (e) of this section.

(D) Facilities that have a Medicaid capacity of less than 60 beds due to the loss of Medicaid beds under provisions in subsection (j) of this section are not eligible for this exemption.

(6) Spend-down Medicaid beds. Licensed nursing facilities may apply to HHSC [DADS] for temporary spend-down Medicaid beds for residents who have "spent down" their resources to become eligible for Medicaid, but for whom no Medicaid bed is available. A HHSC [DADS] approval of spend-down Medicaid beds allows a nursing facility to exceed temporarily its allocated Medicaid bed capacity.

(A) The applicant nursing facility must have a Medicaid contract with a Medicaid bed capacity of at least 10 percent of licensed capacity authorized in paragraph (4) of this subsection. If the nursing facility is not currently Medicaid-certified, the licensee must be approved for Medicaid certification and obtain a Medicaid contract with a Medicaid bed capacity at least as large as that authorized in paragraph (4) of this subsection.

(B) All Medicaid or dually certified beds must be occupied by Medicaid or Medicare recipients at the time of application.

(C) The application for a spend-down Medicaid bed must include documentation that the person for whom the spend-down bed is requested:

(i) was not eligible for Medicaid at the time of the resident's most recent admission to the nursing facility; and

(ii) was a resident of the nursing facility for at least the immediate three months before becoming eligible for Medicaid, excluding hospitalizations.

(D) The nursing facility is eligible to receive Medicaid benefits effective the date the resident meets Medicaid eligibility requirements.

(E) The nursing facility must assign a permanent Medicaid bed to the resident as soon as one becomes available.

(F) Facilities with multiple residents in spend-down beds must assign permanent Medicaid beds to those residents in the same order the residents were admitted to spend-down beds.

(G) The assignment of residents in spend-down beds to permanent Medicaid beds must precede the admission of new residents to permanent beds.

(H) The nursing facility must notify HHSC [DADS] immediately upon the death or permanent discharge of the resident or transfer of the resident to a permanent Medicaid bed. Failure of the nursing facility to notify HHSC [DADS] of these occurrences in a timely manner is basis for denying applications for spend-down Medicaid beds.

(I) The nursing facility is not required to comply with level of acceptable care requirements in subsection (e) of this section.

(g) Waivers. The executive commissioner or the executive commissioner's designee may grant a waiver of the requirements stated in subsection (d) of this section under certain conditions.

(1) Applicants must meet the following conditions to be eligible for the specific waivers in subsection (h) of this section.

(A) The applicant must meet the level of acceptable care requirement in subsection (e) of this section.

(B) The applicant must submit a complete HHSC [DADS] waiver application.

(C) At the time of licensure and Medicaid certification of the allocated beds, the licensee must comply with the requirements in §19.201 of this chapter.

(D) A waiver recipient or a subsequent waiver assignee must, at the time of licensure and Medicaid certification, be the property owner or the licensee of the facility where Medicaid beds allocated through the waiver process are certified.

(2) A waiver recipient may request that HHSC [DADS] approve the assignment of an approved waiver to another entity in accordance with this paragraph. A waiver recipient may request HHSC [DADS] approval of only one assignment. A waiver assignment is not valid unless and until it is approved by HHSC [DADS].

(A) The waiver recipient or the owner of the waiver recipient must maintain majority ownership and management control of the assignee.

(B) The assignee must not have an owner or controlling person who was not an owner or controlling person of the waiver recipient.

(C) The assignee must own the physical plant of the waiver facility at the time of licensure and certification (as landlord) or be the licensee at the time of licensure and certification (as the licensed operator). Under either circumstance, the allocated beds are subject to subsection (c) of this section.

(D) The assignee must meet the requirements in subsection (e) of this section regarding level of acceptable care.

(3) A waiver recipient entity may remove a controlling person from ownership of the entity, but the waiver recipient entity must not add an owner after the waiver is approved by HHSC [DADS]. A change to the ownership of the waiver recipient entity or the waiver assignment entity must be reported to HHSC [DADS].

(4) HHSC [DADS] may, in its sole discretion, determine that a waiver applicant that submits false or fraudulent information is not eligible for a waiver. HHSC [DADS] may, in its sole discretion, revoke a waiver issued and decertify Medicaid beds issued based on false or fraudulent information provided by the applicant.

(5) Except as provided in paragraphs (6) - (9) of this subsection, HHSC [DADS] considers waiver applications in the order in which they are received. A waiver applicant may request that review of its application be deferred until one or more applications submitted after its application has been reviewed. This request must be in writing.

(6) HHSC [DADS] gives priority to a small house waiver application submitted in accordance with subsection (h)(9) of this section over a pending community needs waiver application submitted in accordance with subsection (h)(2) of this section for the same county. If approved, HHSC [DADS] includes the small house facility beds when determining the need for a community needs waiver.

(7) During any period in which HHSC [DADS] is processing a waiver application in accordance with subsection (h)(2), (4), (5), or (9) of this section, HHSC [DADS] may suspend processing the waiver application for up to six months if HHSC [DADS] determines the county or precinct occupancy rate of the county or precinct in which the site of the proposed waiver is located is at least 85 percent during at least six of the previous nine months. HHSC [DADS] calculates the occupancy rate based on the monthly Medicaid occupancy reports submitted to HHSC [DADS] by Medicaid-certified nursing facilities and includes the occupancy rate of certified Medicaid beds and allocated Medicaid beds that are encumbered for future certification as a result of approval of a waiver or exemption in the subject county or precinct.

(8) HHSC [DADS] initiates the high occupancy county or precinct waiver process referenced in subsection (h)(1) of this section if HHSC [DADS] determines requirements for the open solicitation process for a high occupancy county or precinct waiver are met during the temporary suspension period referenced in paragraph (7) of this subsection. HHSC [DADS] does not process any pending waiver applications in the affected county or precinct until the open solicitation process referenced in subsection (h)(1) of this section is complete.

(9) HHSC [DADS] continues to process a suspended waiver application in the affected county or precinct if HHSC [DADS] determines requirements for the open solicitation process of the high occupancy county or precinct waiver are not met during the suspension period referenced in paragraph (7) of this subsection.

(h) Specific waiver types. HHSC [DADS] may grant a waiver if it determines that Medicaid beds are necessary for the following circumstances.

(1) High occupancy waiver. A high occupancy waiver is designed to meet the needs of counties and certain precincts that have a high county or precinct occupancy rate for multiple months.

(A) HHSC [DADS] monitors monthly county or precinct occupancy rates. If HHSC [DADS] determines that a county or precinct occupancy rate equals or exceeds 85 percent for at least nine of the previous twelve months, HHSC [DADS] may initiate a waiver process by placing a public notice in the Texas Register and the Electronic State Business Daily (ESBD) to announce an open solicitation period.

(B) The public notice announces that HHSC [DADS] may allocate 90 additional Medicaid beds in the county or precinct.

(C) The notice identifies the county or precinct and the beginning and end dates of the solicitation period. The notice also includes the HHSC [DADS] address to which the application for additional Medicaid beds must be submitted and specifies that the application must be received by HHSC [DADS] before the close of business on the end date of the solicitationperiod.

(D) An applicant for additional Medicaid beds must comply with the level of acceptable care requirements in subsection (e) of this section.

(E) An applicant must submit a complete HHSC [DADS] waiver application.

(F) At the end of the solicitation period, HHSC [DADS] determines if an applicant is eligible for additional Medicaid beds. If multiple applicants are eligible, the applicant who will receive the allocation of beds will be chosen by a lottery selection.

(G) If no application for the waiver process is received or if no applicant meets the requirements in this section, HHSC [DADS] conducts no further solicitation. HHSC [DADS] closes the process without allocating Medicaid beds.

(H) An applicant that is granted a high occupancy waiver must provide to HHSC [DADS] a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC [DADS] to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC [DADS] will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC [DADS] approves the waiver application.

(I) If an applicant chooses to provide a performance bond or surety bond instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subchapter must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC [DADS]; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(J) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial institution.

(K) An applicant must notify HHSC [DADS] at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(L) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit and substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program or until paid to HHSC [DADS] after notice provided in accordance with subparagraph (M) of this paragraph.

(M) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC [DADS] upon receipt of notice from HHSC [DADS] to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC [DADS] revokes the applicant's waiver;

(iii) the applicant did not notify HHSC [DADS ] of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC [DADS ] of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(2) Community needs waiver. A community needs waiver is designed to meet the needs of communities that do not have reasonable access to acceptable nursing facility care.

(A) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic or health needs studies, that documents:

(i) an immediate need for additional Medicaid beds in the community; and

(ii) Medicaid residents in the community do not have reasonable access to acceptable nursing facility care.

(B) The application must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.

(C) The demographic or health needs study must include at least the following information pertaining to the community's population:

(i) population growth trends;

(ii) population growth trends specific to the elderly, including income or financial condition;

(iii) Medicaid bed occupancy data;

(iv) level of acceptable care provided by local nursing facilities; and

(v) any existing allocated Medicaid beds not currently certified but that could be used for a new Medicaid nursing facility.

(D) The applicant must submit documentation of substantial community support for the new nursing facility or beds.

(E) When determining the immediate need for additional Medicaid beds, and whether residents have reasonable access to acceptable nursing facility care, HHSC [DADS] considers:

(i) the number and occupancy rate of certified Medicaid beds that comply with level of acceptable care requirements; and

(ii) the number of encumbered Medicaid beds that have been approved by HHSC [DADS] but are not yet certified.

(F) Replacement beds or waiver beds approved in accordance with subsection (f)(1) or (h) of this section will not be considered in the calculation in subparagraph (D) of this paragraph if the owner of the replacement beds or waiver beds has not purchased land for a new construction site within 24 months after the date HHSC [DADS] initially approves the replacement request or the waiver for the beds.

(G) HHSC [DADS] considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC [DADS].

(H) HHSC [DADS] notifies local nursing facilities when a complete community needs waiver application is received and affords local nursing facilities an opportunity to comment on the waiver application. The notification includes a deadline for submission of comments. HHSC [DADS] limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(I) An applicant that is granted a community needs waiver must provide to HHSC [DADS] a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC [DADS] to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC [DADS] will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC [DADS ] approves the waiver application.

(J) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond provided under this subparagraph must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC [DADS]; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(K) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.

(L) An applicant must notify HHSC [DADS] at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(M) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC [DADS] after notice provided in accordance with subparagraph (N) of this paragraph.

(N) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC [DADS] upon receipt of notice from HHSC [DADS] to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC [DADS] revokes the applicant's waiver;

(iii) the applicant did not notify HHSC [DADS ] of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC [DADS ] of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(3) Criminal justice waiver. The criminal justice waiver is designed to meet the needs of the Texas Department of Criminal Justice (TDCJ). The applicant must document that:

(A) the waiver is needed to meet the identified and determined nursing facility needs of TDCJ; and

(B) the new nursing facility is approved by TDCJ to serve persons under their supervision who have been released on parole, mandatory supervision, or special needs parole in accordance with Texas Government Code, Chapter 508, Parole and Mandatory Supervision.

(4) Economically disadvantaged waiver. The economically disadvantaged waiver is designed to meet the needs of residents of ZIP codes located in communities where a majority of residents have an average income below the countywide average income and do not have reasonable access to acceptable nursing facility care.

(A) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic or health needs studies that documents:

(i) the ZIP code in which the new nursing facility will be constructed has a population with an income that is at least 20 percent below the average income of the county according to the most recent U.S. census or more recent census projection;

(ii) an immediate need for additional Medicaid beds in the ZIP code in which the new nursing facility will be constructed; and

(iii) residents in the ZIP code in which the nursing facility or beds will be located do not have reasonable access to acceptable nursing facility care.

(B) The application must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.

(C) The demographic or health needs study must include at least the following information pertaining to the community's population:

(i) population growth trends;

(ii) population growth trends specific to the elderly, including income or financial condition;

(iii) Medicaid bed occupancy data;

(iv) level of acceptable care provided by local facilities; and

(v) any existing allocated Medicaid beds not currently certified but could be used for a new Medicaid nursing facility.

(D) When determining the immediate need for additional Medicaid beds, and whether residents have reasonable access to acceptable nursing facility care, HHSC [DADS] considers:

(i) the number and occupancy rate of certified Medicaid beds that comply with level of acceptable care requirements; and

(ii) the number of encumbered Medicaid beds that have been approved by HHSC [DADS] but are not yet certified.

(E) Replacement beds or waiver beds approved in accordance with subsection (f)(1) or (h) of this section will not be considered in the calculation in subparagraph (D) of this paragraph if the owner of the replacement beds or waiver beds has not purchased land for a new construction site within 24 months after the date HHSC [DADS] initially approves the replacement request or the waiver for the beds.

(F) HHSC [DADS] considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC [DADS].

(G) HHSC [DADS] notifies local nursing facilities when a complete economically disadvantaged waiver application is received and affords local nursing facilities an opportunity to comment on the waiver application. The notification includes a deadline for submission of comments. HHSC [DADS] limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(H) An applicant that is granted an economically disadvantaged waiver must provide to HHSC [DADS] a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC [DADS] to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC [DADS] will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC [DADS ] approves the waiver application.

(I) If an applicant chooses to provide a performance bond or surety bond instead of an irrevocable letter of credit, the performance bond provided under this subparagraph must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC [DADS]; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(J) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial institution.

(K) An applicant must notify HHSC [DADS] at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(L) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC [DADS] after notice provided in accordance with subparagraph (M) of this paragraph.

(M) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC [DADS] upon receipt of notice from HHSC [DADS] to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC [DADS] revokes the applicant's waiver;

(iii) the applicant did not notify HHSC [DADS ] of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC [DADS ] of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(5) Alzheimer's waiver. The Alzheimer's waiver is designed to meet the needs of communities that do not have reasonable access to Alzheimer's nursing facility services.

(A) The applicant must document that:

(i) the nursing facility is affiliated with a medical school operated by the state;

(ii) the nursing facility will participate in ongoing research programs for the care and treatment of persons with Alzheimer's disease;

(iii) the nursing facility will be designed to separate and treat residents with Alzheimer's disease by stage and functional level;

(iv) the nursing facility will obtain and maintain voluntary certification as an Alzheimer's nursing facility in accordance with §§19.2204, 19.2206, and 19.2208 of this chapter (relating to Voluntary Certification of Facilities for Care of Persons with Alzheimer's Disease; General Requirements for a Certified Facility; and Standards for Certified Alzheimer's Facilities); and

(v) only residents with Alzheimer's disease or related dementia will be admitted to the Alzheimer's Medicaid beds.

(B) The applicant must submit a demographic or health needs study, prepared by an independent professional experienced at preparing demographic studies that documents the need for the number of Medicaid Alzheimer's beds requested. The study must include a statement by the preparer of the study that the preparer has no interest, financial or otherwise, in the outcome of the waiver application.

(C) HHSC [DADS] notifies local nursing facilities when a complete Alzheimer's waiver application is received and afford local nursing facilities an opportunity to comment on the waiver application. The notification will include a deadline for submission of comments. HHSC [DADS] limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(D) HHSC [DADS] considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC [DADS].

(E) A facility that has Medicaid beds allocated under provisions of an Alzheimer's waiver may apply for a waiver in accordance with other subsections of this section, including subsection (f)(3) or (4) of this section. HHSC [DADS] does not count the beds allocated under an Alzheimer's waiver to determine the allowable bed allocation increase. For example, a 120-bed nursing facility with 60 Alzheimer waiver beds would be eligible for 10 percent of the 60 remaining beds or six additional Medicaid beds.

(6) Teaching nursing facility waiver. A teaching nursing facility waiver is designed to meet the statewide needs for providing training and practical experience for health-care professionals. The applicant must submit documentation that the nursing facility:

(A) is affiliated with a state-supported medical school;

(B) is located on land owned or controlled by the state-supported medical school; and

(C) serves as a teaching nursing facility for physicians and related health-care professionals.

(7) Rural county waiver. A rural county waiver is designed to meet the needs of rural areas of the state that do not have reasonable access to acceptable nursing facility care. For purposes of this waiver, a rural county is one that has a population of 100,000 or less according to the most recent census, and has no more than two Medicaid-certified nursing facilities. HHSC [DADS] approves no more than 120 additional Medicaid beds per county per year and no more than 500 additional Medicaid beds statewide in a calendar year under this waiver provision. HHSC [DADS] considers a waiver application on a first-come, first-served basis. Requests received in a year in which the 500-bed limit has been met will be carried over to the next year. The county commissioner's court must request the waiver.

(A) The commissioner's court must notify HHSC [DADS] of its intent to consider a rural county waiver and obtain verification from HHSC [DADS] that the county complies with the definition of rural county.

(B) The commissioner's court must publish a notice in the Texas Register and in a newspaper of general circulation in the county. The notice must seek:

(i) comments on whether a new Medicaid nursing facility should be requested; and

(ii) proposals from persons or entities interested in providing additional Medicaid-certified beds in the county, including persons or entities currently operating Medicaid-certified facilities with high occupancy rates. HHSC [DADS], in its sole discretion, may eliminate from participating in the process persons or entities that submit false or fraudulent information.

(C) The commissioner's court must determine whether to proceed with the waiver request after considering all comments and proposals received in response to the notices provided under subparagraph (B) of this paragraph. In determining whether to proceed with the waiver request, the commissioner's court must consider:

(i) the demographic and economic needs of the county;

(ii) the quality of existing Medicaid nursing facilities in the county;

(iii) the quality of the proposals submitted, including a review of the past history of care provided, if any, by the person or entity submitting the proposal; and

(iv) the degree of community support for additional Medicaid nursing facility services.

(D) The commissioner's court must document the comments received, proposals offered and factors considered in subparagraph (C) of this paragraph.

(E) If the commissioner's court decides to proceed with the waiver request, it must submit a recommendation that HHSC [DADS] issue a waiver to a person or entity who submitted a proposal for new or additional Medicaid beds. The recommendation must include:

(i) the name, address, and telephone number of the person or entity recommended for contracting for the Medicaid beds;

(ii) the location, if the commissioner's court desires to identify one, of the recommended nursing facility;

(iii) the number of beds recommended; and

(iv) the information listed in subparagraph (D) of this paragraph used to make the recommendation.

(F) An applicant that is granted a rural county waiver must provide to HHSC [DADS] a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC [DADS] to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC [DADS] will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC [DADS] approves the waiver application.

(G) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subchapter must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC [DADS]; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance with Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(H) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.

(I) An applicant must notify HHSC [DADS] at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(J) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility if certified to participate in the Medicaid program; or until paid to HHSC [DADS] after notice provided in accordance with subparagraph (K) of this paragraph.

(K) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC [DADS] upon receipt of notice from HHSC [DADS] to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC [DADS] revokes the applicant's waiver;

(iii) the applicant did not notify HHSC [DADS ] of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC [DADS ] of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(8) State veterans homes. State veterans homes, authorized and built under the auspices of the Texas Veterans Land Board, must meet all requirements for Medicaid participation.

(9) Small house waiver. A small house waiver is designed to promote the construction of smaller nursing facility buildings that provide a homelike environment.

(A) A facility must meet the requirements in §19.345 of this chapter (relating to Small House and Household Facilities) for HHSC [DADS] to grant a small house waiver for the facility.

(B) An applicant for a small house waiver must submit an application to HHSC [DADS] and a schematic building plan of the proposed facility with sufficient detail to demonstrate that the proposed project meets the requirements in §19.345 of this chapter.

(C) An applicant that is granted a small house waiver must submit final construction documents in accordance with §19.344 of this chapter (relating to Plans, Approvals, and Construction Procedures) before facility construction begins.

(D) HHSC [DADS] notifies local nursing facilities when a complete small house waiver application is received and allows the local nursing facilities to comment on the waiver application. The notification includes the deadline for submitting comments. HHSC [DADS] limits subsequent comments during the review process to facilities that submit timely comments in response to the notification of a completed application.

(E) HHSC [DADS] does not approve more than 16 beds for a small house facility or for a household in a facility that is granted a small house waiver.

(F) HHSC [DADS] considers an application withdrawn if it is not completed within 90 days after the application is submitted to HHSC [DADS].

(G) Subject to subparagraph (E) of this paragraph, HHSC [DADS] approves the replacement or transfer of beds certified at a small house nursing facility in accordance with subsection (f)(1) or (2) of this section only to another small house or household facility.

(H) A facility that has Medicaid beds allocated under provisions of a small house waiver may apply for general Medicaid beds in accordance with other subsections of this section, including subsection (f)(3) or (4) of this section. HHSC [DADS] does not count the beds allocated under a small house waiver provision in determining the allowable bed allocation increase. For example, a 120-bed nursing facility with 60 Small House waiver beds would be eligible for 10 percent of the 60 remaining beds or six additional Medicaid beds.

(I) An applicant that is granted a small house waiver must provide to HHSC [DADS] a performance bond, surety bond, or an irrevocable letter of credit in the amount of $500,000 payable to HHSC [DADS] to ensure that the Medicaid beds granted to the applicant under the waiver are certified within the time periods required by subsection (i)(4)(G) of this section, including any extensions granted under subsection (i)(6) of this section. HHSC [DADS] will revoke a waiver if the performance bond, surety bond, or irrevocable letter of credit is not provided within 90 days after HHSC [DADS] approves the waiver application.

(J) If an applicant chooses to provide a performance bond or surety bond, instead of an irrevocable letter of credit, the performance bond or surety bond provided under this subparagraph must:

(i) be executed by a corporate entity in accordance with Texas Insurance Code, Chapter 3503, Subchapter A;

(ii) be in a form approved by HHSC [DADS]; and

(iii) clearly and prominently display on the face of the bond:

(I) the name, mailing address, physical address, and telephone number of the surety company or financial institution to which any notice of claim should be sent; or

(II) the toll-free telephone number maintained by the Texas Department of Insurance in accordance Texas Insurance Code, Chapter 521, Subchapter B, and a statement that the address of the surety company to which any notice of claim should be sent may be obtained from the Texas Department of Insurance by calling the toll-free telephone number.

(K) If an applicant chooses to provide an irrevocable letter of credit, the irrevocable letter of credit must be issued by a banking institution or similar financial/lending institution.

(L) An applicant must notify HHSC [DADS] at least 60 days in advance if:

(i) the applicant does not intend to renew its performance bond, surety bond, or irrevocable letter of credit on the annual renewal date; or

(ii) the applicant changes the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(M) An applicant may choose a performance bond, surety bond, or irrevocable letter of credit, and may substitute one for the other over the course of development and construction, but regardless of which option is chosen, the performance bond, surety bond, or irrevocable letter of credit must continue in effect until the facility is certified to participate in the Medicaid program; or until paid to HHSC [DADS] after notice provided in accordance with subparagraph (N) of this paragraph.

(N) A performance bond, surety bond, or irrevocable letter of credit is immediately due and must be paid to HHSC [DADS] upon receipt of notice from HHSC [DADS] to the issuer of the performance bond, surety bond, or irrevocable letter of credit that:

(i) the applicant did not comply with subsection (i)(4)(G) of this section, which may include an extension granted under subsection (i)(6) of this section;

(ii) HHSC [DADS] revokes the applicant's waiver;

(iii) the applicant did not notify HHSC [DADS ] of its intent not to renew the performance bond, surety bond, or irrevocable letter of credit at least 60 days before its automatic annual renewal date; or

(iv) the applicant did not notify HHSC [DADS ] of a change in the lending institution or surety bond company administering the performance bond, surety bond, or irrevocable letter of credit.

(i) Time Limits and Extensions.

(1) Medicaid beds transferred in accordance with subsection (f)(2) of this section must be certified within six months after HHSC [DADS] grants the exemption.

(2) Time limits applicable to temporary Medicaid beds are specified in subsection (f)(6) of this section.

(3) All facilities and beds approved in accordance with waiver provisions of subsection (h) of this section and replacement nursing facilities approved in accordance with subsection (f)(1) of this section, must be constructed, licensed, and Medicaid-certified within 42 months after the waiver or replacement exemption is granted.

(4) A recipient of a waiver must provide HHSC [DADS] with evidence of compliance with subparagraphs (A) - (G) of this paragraph. The recipient must submit evidence of compliance on or before the date stated in the subparagraph, including any extensions granted under paragraph (6) of this subsection.

(A) The land must be under contract within 12 months after HHSC [DADS] approval of the waiver or replacement.

(B) An architect or engineer must be under contract to prepare final construction documents within 15 months after HHSC [DADS] approval of the waiver or replacement.

(C) The facility's preliminary plans must be completed within 18 months after HHSC [DADS] approval of the waiver or replacement.

(D) The land must be purchased and a progress report submitted to HHSC [DADS] within 24 months after HHSC [DADS] approval of the waiver or replacement.

(E) Entitlements (including municipality, planning and zoning, building permit) and the facility's foundation must be completed within six months after land purchase or 30 months after HHSC [DADS] approval of the waiver or replacement, whichever is later.

(F) Facility construction must be active and ongoing, as evidenced by a construction progress report submitted to HHSC [DADS] within 12 months after land purchase or 36 months after HHSC [DADS] approval of the waiver or replacement, whichever is later.

(G) The facility must be constructed, licensed, and certified within 18 months after land purchase or 42 months after HHSC [DADS] approval of the waiver or replacement, whichever is later.

(5) HHSC [DADS], in its sole discretion, may declare the exemption or the waiver void if the applicant fails or refuses to provide evidence of compliance with each benchmark or deadline, or the evidence of compliance submitted to HHSC [DADS] in accordance with paragraph (4) of this subsection contains false or fraudulent information.

(6) Waiver or exemption recipients may request an extension of the deadlines in this section. At the discretion of the executive commissioner or the executive commissioner's designee, deadlines specified in this section may be extended. The applicant must substantiate every element of its extension request with evidence of good-faith efforts to meet the benchmarks and construction deadlines or evidence confirming that delays were beyond the applicant's control.

(7) Waiver or exemption recipients who receive an extension of their waiver or exemption must submit a progress report every six months after approval of the extension until the nursing facility beds are certified. HHSC [DADS] may declare the waiver or exemption void if the applicant fails or refuses to provide the progress report as required or if the progress report contains false or fraudulent information.

(8) HHSC [DADS] may revoke a bed allocation for failure to meet the requirements of this section.

(j) Loss of Medicaid Beds.

(1) Loss of Medicaid beds that are not available to be occupied.

(A) Medicaid nursing facilities must report certified Medicaid beds that do not comply with requirements of §19.1701 of this chapter (relating to Physical Environment) and are not available for occupancy on monthly Medicaid occupancy reports.

(B) HHSC [DADS] decertifies and de-allocates Medicaid beds that are intended for use in bedrooms that have been converted to other uses if the rooms are not being used for bedroom occupancy use on two consecutive standard surveys.

(C) HHSC [DADS] does not decertify and de-allocate Medicaid beds that are intended for use in rooms that are licensed and certified for multi-occupancy use but are being used for single occupancy only.

(D) HHSC [DADS] decertifies and de-allocates Medicaid beds granted through a criminal justice waiver, Alzheimer's waiver, a teaching nursing facility waiver, state veterans home waiver, or a small house waiver that are no longer being used for the intended purpose for which the waiver was granted.

(2) Loss of Medicaid beds based on sanctions.

(A) A Medicaid nursing facility operated by the person or entity who also owns the property will lose the allocation of all Medicaid beds assigned to the nursing facility property if the nursing facility's license is denied or revoked.

(B) A Medicaid nursing facility operated by one person or entity and owned by another person or entity will lose the allocation of Medicaid beds if two or more of the following actions occur within a 42-month period:

(i) licensure denial;

(ii) licensure revocation; or

(iii) Medicaid termination.

(C) HHSC [DADS] may waive this loss of allocation of Medicaid beds in order to facilitate a change of ownership or other actions that would protect the health and safety of residents or assure reasonable access to acceptable nursing facility care.

(3) Voluntary decertification of Medicaid beds.

(A) Facilities may request to voluntarily decertify Medicaid beds.

(B) The licensee must submit written approval of the Medicaid bed reduction signed by the property owner and all physical plant lien holders.

(C) HHSC [DADS] reduces the number of allocated Medicaid beds equal to the number of beds voluntarily decertified.

(D) Facilities that voluntarily decertify Medicaid beds are eligible to receive an increased allocation of Medicaid beds if the facility qualifies for a bed allocation waiver or exemption.

(4) Nursing facility ceases to operate or participate in Medicaid.

(A) The property owner of a nursing facility that closes or ceases to participate in the Medicaid program must inform HHSC [DADS] in writing of the intended future use of the Medicaid beds within 90 days after closure or ceasing participation in Medicaid.

(B) Unless the Medicaid beds will be used for a replacement nursing facility, the allocated beds must be re-certified within 12 months of the date the Medicaid contract was terminated.

(C) Time limits in subparagraphs (A) and (B) of this paragraph may be extended in accordance with subsection (i)(6) of this section.

(D) HHSC [DADS] may de-allocate Medicaid beds for failure to meet the requirements of this paragraph.

(5) Loss of Medicaid beds based on low occupancy.

(A) HHSC [DADS] may review Medicaid bed occupancy rates annually for the purpose of de-allocating and decertifying unused Medicaid beds. The Medicaid bed occupancy reports for the most recent six-month period that HHSC [DADS] has validated are used to determine the bed occupancy rate of each nursing facility.

(B) HHSC [DADS] de-allocates and decertifies Medicaid beds in facilities with an average occupancy rate below 70 percent. The number of beds decertified is calculated by subtracting the preceding six-month average occupancy rate of Medicaid-certified beds from 70 percent of the number of allocated certified beds and dividing the difference by 2, rounding the final figure down if necessary. For example, for a facility with 100 Medicaid-certified beds and a 50 percent occupancy rate, the difference between 70 percent (70 beds) and 50 percent (50 beds) is 20 beds, divided by 2, is 10 beds to be decertified.

(C) Medicaid beds in a nursing facility that has obtained a replacement nursing facility exemption are not subject to the de-allocation and decertification process.

(D) Medicaid beds in a new or replacement physical plant or a newly constructed wing of an existing physical plant are exempt from this de-allocation and decertification process until the new physical plant or new wing has been certified for 24 months.

(E) Medicaid beds that have been subject to a change of ownership within the past 24 months are exempt from the de-allocation and decertification process.

(F) Medicaid beds in a county or in a precinct in one of the four most populous counties in the state in which a facility approved through the waiver process is constructed are exempt from the de-allocation and decertification process for 24 months after licensure and certification of the facility.

(G) Medicaid beds allocated to a closed nursing facility are exempt from this de-allocation and decertification process.

(H) Nursing facilities that lose Medicaid beds through this process are eligible to receive an additional allocation of Medicaid beds at a later date if the facility qualifies for a bed allocation waiver or exemption.

(I) The de-allocation and decertification of unused beds does not affect the licensed capacity of a nursing facility.

(k) Informal review procedures.

(1) A waiver or exemption applicant, or a Medicaid nursing facility that has been denied an increase in Medicaid bed allocation or was subject to decertification or de-allocation of Medicaid beds, [Applicants] may request an informal review of HHSC [DADS] actions regarding bed allocations. The request must be submitted within 30 days after the date referenced on the notification of the proposed action.

(2) A waiver or exemption [An] applicant or a Medicaid nursing facility that has been denied an increase in Medicaid bed allocation or was subject to decertification or de-allocation of Medicaid beds, must submit a request for an informal review and all documentation or evidence that forms the basis for the informal review in writing.

(3) The executive commissioner or the executive commissioner's designee conducts the informal review.

(l) Medicaid occupancy reports.

(1) Medicaid nursing facilities must submit occupancy reports to HHSC [DADS] each month.

(A) The occupancy data must be reported on a form prescribed by HHSC [DADS]. The form must be completed in accordance with instructions and the occupancy data must be accurate and verifiable. The completed report must be received by HHSC [DADS] no later than the fifth day of the month following the reporting period.

(B) HHSC [DADS] determines the Medicaid occupancy rate by calculating the monthly average of the number of persons who occupy Medicaid beds.

(C) HHSC [DADS] includes all persons residing in Medicaid-certified beds, including Medicaid recipients, Medicare recipients, private-pay residents, or residents with other sources of payment, in the calculation.

(D) Failure or refusal to submit accurate occupancy reports in a timely manner may result in the nursing facility's vendor payment being held in abeyance until the report is submitted.

(2) HHSC [DADS] determines nursing facility and county occupancy rates based on the data submitted by the nursing facilities.

(A) HHSC [DADS] uses the occupancy data to determine eligibility for or compliance with waiver and exemption requirements. HHSC [DADS] also uses the occupancy data to determine if Medicaid beds should be decertified based on low occupancy.

(B) HHSC [DADS] makes the occupancy data available to nursing facilities, licensees, property owners, waiver or exemption applicants, and others in accordance with public disclosure requirements.

(C) HHSC [DADS] may disqualify a facility that provides inaccurate or falsified occupancy data from eligibility for bed allocation exemptions and waivers. HHSC [DADS] may refuse to accept corrections to bed occupancy data submitted more than six months after the due date of the occupancy report.

(m) School-age residents. Any bed allocation waiver or exemption applicant that serves or plans to serve school-age residents must provide written notice to the affected local education agency (LEA) of its intent to establish or expand a nursing facility within the LEA's boundary.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703735

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (210) 619-8292


SUBCHAPTER E. RESIDENT RIGHTS

40 TAC §19.424

The Texas Health and Human Services Commission (HHSC) proposes new §19.424, concerning Wheelchair Self-Release Seat Belts.

BACKGROUND AND PURPOSE

The purpose of the new section is to implement §322.0515, Texas Health and Safety Code, as added by House Bill 284 of the 85th Legislature, Regular Session, 2017.

The proposal requires a nursing facility to allow a resident to use a wheelchair self-release seat belt if the resident meets certain conditions. The rule also specifies when a facility is not required to allow a resident to use a wheelchair self-release seat belt.

SECTION-BY-SECTION SUMMARY

The proposed new §19.424 requires a nursing facility to allow a resident to use a wheelchair self-release seat belt if the resident or resident's legal guardian requests that the resident use the seat belt, the resident consistently demonstrates the ability to release and fasten the seat belt without assistance, the use of the seat belt complies with the resident's comprehensive care plan, and the facility receives written authorization signed by the resident or the resident's legal guardian for the resident to use the seat belt.

The proposed new section also specifies that a facility is not required to allow a resident to use a wheelchair self-release seat belt if a facility advertises itself as a restraint-free facility, the facility provides current and prospective residents a written disclosure stating the facility is restraint-free and is not required to comply with a request to use a wheelchair self-release seat belt, and the facility makes all reasonable efforts to accommodate the concerns of a resident who requests a seat belt.

FISCAL NOTE

David Cook, HHSC Deputy Chief Financial Officer, has determined that, for the first five years the proposed new rule is in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

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

Mr. Cook has determined that the new rule will not have an adverse economic effect on small businesses, micro-businesses, and rural communities because the rule does not impose any economic requirements on small businesses, micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

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

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT

Mary T. Henderson, Associate Commissioner for Long-Term Care Regulation, has determined that, for each year of the first five years the rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit is that a facility and its residents are informed of statutory requirements regarding the use of wheelchair self-release seat belts.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Robert Ochoa at (512) 438-3334 in Long-Term Care Regulation. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030; street address 4900 North Lamar Boulevard, Mail Code H600, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R057" in the subject line.

STATUTORY AUTHORITY

The new rule is proposed 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; Texas Health and Safety Code, §242.307, which authorizes licensing of nursing facilities; and Texas Health and Safety Code §322.0515, which requires a facility to allow a resident to use a wheelchair self-restraint seat belt under certain circumstances.

The new rule implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §242.037 and §322.0515.

§19.424.Wheelchair Self-Release Seat Belts.

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legal guardian requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's individual program plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's comprehensive care plan; or

(3) the resident or the resident's legal guardian revokes in writing the authorization for the resident to use the self-release seat belt.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703741

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-3334


CHAPTER 90. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

SUBCHAPTER C. STANDARDS FOR LICENSURE

40 TAC §90.45

The Texas Health and Human Services Commission (HHSC) proposes new §90.45, concerning Wheelchair Self-Release Seat Belts.

BACKGROUND AND PURPOSE

The purpose of the new section is to implement §322.0515, Texas Health and Safety Code, as added by House Bill 284 of the 85th Legislature, Regular Session, 2017.

The proposal requires an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) to allow a resident to use a wheelchair self-release seat belt if the resident meets certain conditions. The rule also specifies when an ICF/IID is not required to allow a resident to use a wheelchair self-release seat belt.

SECTION-BY-SECTION SUMMARY

The proposed new §90.45 requires an ICF/IID to allow a resident to use a wheelchair self-release seat belt if the resident or resident's legal guardian requests that the resident use the seat belt, the resident consistently demonstrates the ability to release and fasten the seat belt without assistance, the use of the seat belt complies with the resident's individual program plan, and the ICF/IID receives written authorization signed by the resident or the resident's legal guardian for the resident to use the seat belt.

The proposed new section also specifies that an ICF/IID is not required to allow a resident to use a wheelchair self-release seat belt if an ICF/IID advertises itself as a restraint-free facility, the ICF/IID provides current and prospective residents a written disclosure stating the ICF/IID is restraint-free and is not required to comply with a request to use a wheelchair self-release seat belt, and the ICF/IID makes all reasonable efforts to accommodate the concerns of a resident who requests a seat belt.

FISCAL NOTE

David Cook, HHSC Deputy Chief Financial Officer, has determined that, for the first five years the proposed new rule is in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

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

Mr. Cook has determined that the new rule will not have an adverse economic effect on small businesses, micro-businesses, and rural communities because the rule does not impose any economic requirements on small businesses, micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to person who are required to comply with the rule as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT

Mary T. Henderson, Associate Commissioner for Long-Term Care Regulation, has determined that, for each year of the first five years the rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit is that ICF/IIDs and their residents are informed of statutory requirements regarding the allowance of wheelchair self-release seat belts.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Robert Ochoa at (512) 438-3334 in the Regulatory Services Division. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030; street address 4900 North Lamar Boulevard, Mail Code H600, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "comments on Proposed Rule 40R057" in the subject line.

STATUTORY AUTHORITY

The new rule is proposed 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; Texas Health and Safety Code, §252.033, which authorizes HHSC to license ICF/IIDs; Texas Health and Safety Code, §252.008, which requires the HHSC executive commissioner to adopt rules related to the administration and implementation of Chapter 252; and Texas Health and Safety Code, §322.0515, which requires a facility to allow a resident to use a wheelchair self-restraint seat belt under certain circumstances.

The new rule implements Texas Government Code, §531.0055; and Texas Health and Safety Code, §§252.033, 252.008, and 322.0515.

§90.45.Wheelchair Self-Release Seat Belts.

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legal guardian requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's individual program plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's individual program plan; or

(3) the resident or the resident's legal guardian revokes in writing the authorization for the resident to use the self-release seat belt.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703744

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-3334


CHAPTER 92. LICENSING STANDARDS FOR ASSISTED LIVING FACILITIES

SUBCHAPTER G. MISCELLANEOUS PROVISIONS

40 TAC §92.128

The Texas Health and Human Services Commission (HHSC) proposes new §92.128, concerning Wheelchair Self-Release Seat Belts.

BACKGROUND AND PURPOSE

The purpose of the new section is to implement §322.0515, Texas Health and Safety Code as added by House Bill 284 of the 85th Legislature, Regular Session, 2017.

The proposal requires an assisted living facility to allow a resident to use a wheelchair self-release seat belt if the resident meets certain conditions. The rule also specifies when an assisted living facility is not required to allow a resident to use a wheelchair self-release seat belt.

SECTION-BY-SECTION SUMMARY

The proposed new §92.128 requires an assisted living facility to allow a resident to use a wheelchair self-release seat belt if the resident or the resident's legal guardian requires that the resident use the seat belt, the resident consistently demonstrates the ability to release and fasten the seat belt without assistance, the use of the wheelchair self-release seat belt complies with the resident's individual service plan, and the assisted living facility receives written authorization signed by the resident or the resident's legal guardian for the resident to use the seat belt.

The proposed new section also specifies that an assisted living facility is not required to allow a resident to use a wheelchair self-release seat belt if the assisted living facility advertises itself as a restraint-free facility, the assisted living facility provides current and prospective residents a written disclosure stating the facility is restraint-free and is not required to comply with a request to use a wheelchair self-release seat belt, and the assisted living facility makes all reasonable efforts to accommodate the concerns of a resident who requests a seat belt.

FISCAL NOTE

David Cook, HHSC Deputy Chief Financial Officer, has determined that, for the first five years the proposed new rule is in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

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

Mr. Cook has determined that the new rule will not have an adverse economic effect on small businesses, micro-businesses, and rural communities because the rule does not impose any economic requirements on small businesses, micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to person who are required to comply with the rule as proposed.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT

Mary T. Henderson, Associate Commissioner for Long Term Care Regulation, has determined that, for each year of the first five years the rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit is that an assisted living facility and its residents are informed of statutory requirements regarding the allowance of wheelchair self-release seat belts.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Robert Ochoa at (512) 438-3334 in Long Term Care Regulation. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030; street address 4900 North Lamar Boulevard, Mail Code H600, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When e-mailing comments, please indicate "Comments on Proposed Rule 40R057" in the subject line.

STATUTORY AUTHORITY

The new rule is proposed 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; Texas Health and Safety Code, §247.025, which authorizes the licensing of assisted living facilities; and Texas Health and Safety Code §322.0515, which requires an assisted living facility to allow residents to use a wheelchair self-release seat belt under certain circumstances.

The new rule implements Texas Government Code, §531.0055; Texas Health and Safety Code, §247.025; and Texas Health and Safety Code §322.0515.

§92.128.Wheelchair Self-Release Seat Belts.

(a) For the purposes of this section, a "self-release seat belt" is a seat belt on a resident's wheelchair that the resident demonstrates the ability to fasten and release without assistance. A self-release seat belt is not a restraint.

(b) Except as provided in subsection (c) of this section, a facility must allow a resident to use a self-release seat belt if:

(1) the resident or the resident's legal guardian requests that the resident use a self-release seat belt;

(2) the resident consistently demonstrates the ability to fasten and release the self-release seat belt without assistance;

(3) the use of the self-release seat belt is documented in and complies with the resident's individual program plan; and

(4) the facility receives written authorization, signed by the resident or the resident's legal guardian, for the resident to use the self-release seat belt.

(c) A facility that advertises as a restraint-free facility is not required to allow a resident to use a self-release seat belt if the facility:

(1) provides a written statement to all residents that the facility is restraint-free and is not required to allow a resident to use a self-release seat belt; and

(2) makes reasonable efforts to accommodate the concerns of a resident who requests a self-release seat belt in accordance with subsection (b) of this section.

(d) A facility is not required to continue to allow a resident to use a self-release seat belt in accordance with subsection (b) of this section if:

(1) the resident cannot consistently demonstrate the ability to fasten and release the seat belt without assistance;

(2) the use of the self-release seat belt does not comply with the resident's individual service plan; or

(3) the resident or the resident's legal guardian revokes in writing the authorization for the resident to use the self-release seat belt.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703746

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-3334


CHAPTER 97. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

The Health and Human Services Commission (HHSC) proposes amendments to §97.2, concerning Definitions; §97.13, concerning Application Procedures for an Initial License; §97.17, concerning Application for Renewal License; and new §97.30, concerning Operation of an Inpatient Unit at Parent Agency.

BACKGROUND AND PURPOSE

The proposal amends Title 40, Chapter 97, Licensing Standards for Home and Community Support Services Agencies, by adding §97.30, which states the requirements that a home and community support services agency (HCSSA) or an applicant for a HCSSA license must meet to operate an inpatient unit at its parent agency. An inpatient unit is a facility where inpatient hospice services are provided. Current rules address operation of an inpatient unit at an alternate delivery site (ADS), but an ADS may not be a parent agency. Specifically, the proposed rules require a HCSSA or an applicant for a HCSSA license to notify HHSC of its intent to operate the inpatient unit; request and allow a Life Safety Code inspection; obtain verification from HHSC that the inpatient unit is in compliance with all requirements; and, unless the applicant is exempt from a health survey, request a health survey after providing services to one client. This new section is proposed in response to inquiries from HCSSAs about the requirements for operating an inpatient unit at a parent agency.

The proposal also amends definitions in §97.2, including the definition of "parent agency," a term currently used in Chapter 97 and proposed new §97.30. The proposal amends §97.13 and §97.17 to require an applicant for an initial or renewal license to comply with new §97.30 to operate an inpatient unit at its parent agency.

Other amendments to §§97.2, 97.13, and 97.17 are proposed to improve their accuracy and readability, and to use consistent terminology.

SECTION-BY-SECTION SUMMARY

The proposed amendment of §97.2, Definitions, changes "DADS," a reference to the Department of Aging and Disability Services, to "HHSC" and adds a definition of "HHSC." These changes reflect the transfer of functions relating to Chapter 97 from DADS to HHSC in accordance with Senate Bill 200, 84th Legislature, 2015. The proposed amendment changes the definition of "JCAHO" to reference the "Joint Commission," instead of the "Joint Commission on Accreditation of Healthcare Organizations." This change reflects the current name of the accrediting organization. The proposed amendment changes the definition of "parent agency," a term currently used in Chapter 97 and proposed new §97.30, to clarify that the term is synonymous with the term "principal place of business," which is removed from the definition of "ADS." The proposed amendment to the definition of "personal assistance services" removes the reference to a memorandum of understanding between the Board of Nursing and DADS because the statute requiring the memorandum has been repealed and health-related services that do not constitute the practice of professional nursing are described in Board of Nursing rules. The proposed amendment to the definition of "presurvey conference" more accurately describes the presurvey conference by stating that HHSC staff provide "information," not a "consultation."

The proposed amendment of §97.13, Application Procedures for an Initial License, requires an applicant for an initial HCSSA license to comply with new §97.30 to operate an inpatient unit at a parent agency. In addition, the proposed amendment specifies that an applicant for a license may not provide incorrect or false information on, or withhold information from, an application or attachment to an application. This change is made to clarify the context of the prohibition. The amendment provides that if an applicant provides false or incorrect information or withholds information, HHSC may deny the application as described in §97.21. The proposed amendment changes "DADS" to "HHSC" throughout the section and makes editing changes to improve the readability of the section.

The proposed amendment of §97.17, Application for a Renewal License, requires an applicant for license renewal to comply with §97.30 to operate an inpatient unit at a parent agency. In addition, the proposed amendment specifies that an applicant for a license renewal may not provide incorrect or false information on, or withhold information from, an application or attachment to an application. This change is made to clarify the context of the prohibition. The amendment provides that if an applicant provides false or incorrect information or withholds information, HHSC may deny the renewal application as described in §97.21, and assess an administrative penalty as described in §97.602(e)(5). The proposed amendment changes "DADS" to "HHSC" throughout the section and makes editing changes to improve the readability of the section and to use terminology consistent with other sections.

Proposed new §97.30, Operation of an Inpatient Unit at Parent Agency, sets forth the requirements for operating an inpatient unit at a parent agency. Specifically, a HCCSA or an applicant for a license must notify HHSC of its intent to operate an inpatient unit at a parent agency; request and receive a Life Safety Code inspection; receive verification of compliance with the requirements for a hospice inpatient unit; admit and provide hospice services to a client in the inpatient unit; and, unless the HCSSA is exempt from an initial health survey, submit a notification of readiness for an initial health survey, and be determined to be in substantial compliance with licensure requirements. The proposed new section provides that a HCSSA must not have proposed enforcement action pending against the license under which it would operate the inpatient unit at the time it notifies HHSC of its intent to operate the inpatient unit. The proposed new section also sets forth the requirements for being exempt from an initial health survey through accreditation and requires an agency operating an inpatient unit to comply with Texas Health and Safety Code, Chapter 142, and 40 TAC Chapter 97.

FISCAL NOTE

David Cook, Deputy Chief Financial Officer, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

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

David Cook has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

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

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas.

PUBLIC BENEFIT

Mary Henderson, Associate Commissioner, has determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as a result of enforcing or administering the sections will be to improve the health and safety of clients who receive services in an inpatient hospice unit located at the parent agency of a HCSSA.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to the Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) e-mailed by midnight on the last day of the comment period. When submitting comments, please indicate "Comments on Proposed Rule 16R19" in the subject line.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §97.2

STATUTORY AUTHORITY

The amendment is proposed 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; and Texas Health and Safety Code, Chapter 142, which authorizes the HHSC executive commissioner to adopt rules regulating home and community support services agencies.

The amendment implements Texas Government Code, §531.0055 and Texas Health and Safety Code, §142.0011 and §142.012.

§97.2.Definitions.

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

(1) Accessible and flexible services--Services that are delivered in the least intrusive manner possible and are provided in all settings where individuals live, work, and recreate.

(2) Administration of medication--The direct application of any medication by injection, inhalation, ingestion, or any other means to the body of a client. The preparation of medication is part of the administration of medication and is the act or process of making ready a medication for administration, including the calculation of a client's medication dosage; altering the form of the medication by crushing, dissolving, or any other method; reconstitution of an injectable medication; drawing an injectable medication into a syringe; preparing an intravenous admixture; or any other act required to render the medication ready for administration.

(3) Administrative support site--A facility or site where an agency performs administrative and other support functions but does not provide direct home health, hospice, or personal assistance services. This site does not require an agency license.

(4) Administrator--The person who is responsible for implementing and supervising the administrative polices and operations of a home and community support services agency and for administratively supervising the provision of all services to agency clients on a day-to-day basis.

(5) ADS--Alternate delivery site. A facility or site, including a residential unit or an inpatient unit:

(A) that is owned or operated by an agency providing hospice services;

(B) that is not the hospice's [principal place of business, which for the purposes of this definition, means it is not the] parent agency;

(C) that is located in the geographical area served by the hospice; and

(D) from which the hospice provides hospice services.

(6) Advanced practice nurse--An advanced practice registered nurse.

(7) Advanced practice registered nurse--A person licensed by the Texas Board of Nursing as an advanced practice registered nurse. The term is synonymous with "advanced practice nurse."

(8) Advisory committee--A committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup, established for the purpose of obtaining advice or recommendations on issues or policies that are within the scope of a person's responsibility.

(9) Affiliate--With respect to an applicant or license holder that is:

(A) a corporation--means each officer, director, and stockholder with direct ownership of at least 5.0 percent, subsidiary, and parent company;

(B) a limited liability company--means each officer, member, and parent company;

(C) an individual--means:

(i) the individual's spouse;

(ii) each partnership and each partner thereof of which the individual or any affiliate of the individual is a partner; and

(iii) each corporation in which the individual is an officer, director, or stockholder with a direct ownership or disclosable interest of at least 5.0 percent.

(D) a partnership--means each partner and any parent company; and

(E) a group of co-owners under any other business arrangement--means each officer, director, or the equivalent under the specific business arrangement and each parent company.

(10) Agency--A home and community support services agency.

(11) Applicant--The owner of an agency that is applying for a license under the statute. This is the person in whose name the license will be issued.

(12) Assistance with self-administration of medication--Any needed ancillary aid provided to a client in the client's self-administered medication or treatment regimen, such as reminding a client to take a medication at the prescribed time, opening and closing a medication container, pouring a predetermined quantity of liquid to be ingested, returning a medication to the proper storage area, and assisting in reordering medications from a pharmacy. Such ancillary aid includes administration of any medication when the client has the cognitive ability to direct the administration of their medication and would self-administer if not for a functional limitation.

(13) Association--A partnership, limited liability company, or other business entity that is not a corporation.

(14) Audiologist--A person who is currently licensed under the Texas Occupations Code, Chapter 401, as an audiologist.

(15) Bereavement--The process by which a survivor of a deceased person mourns and experiences grief.

(16) Bereavement services--Support services offered to a family during bereavement. Services may be provided to persons other than family members, including residents of a skilled nursing facility, nursing facility, or intermediate care facility for individuals with an intellectual disability or related conditions, when appropriate and identified in a bereavement plan of care.

(17) Biologicals--A medicinal preparation made from living organisms and their products, including serums, vaccines, antigens, and antitoxins.

(18) Boarding home facility--An establishment defined in Texas Health and Safety Code §260.001(2).

(19) Branch office--A facility or site in the service area of a parent agency from which home health or personal assistance services are delivered or where active client records are maintained. This does not include inactive records that are stored at an unlicensed site.

(20) Care plan--

(A) a written plan prepared by the appropriate health care professional for a client of the home and community support services agency; or

(B) for home dialysis designation, a written plan developed by the physician, registered nurse, dietitian, and qualified social worker to personalize the care for the client and enable long- and short-term goals to be met.

(21) Case conference--A conference among personnel furnishing services to the client to ensure that their efforts are coordinated effectively and support the objectives outlined in the plan of care or care plan.

(22) Certified agency--A home and community support services agency, or portion of the agency, that:

(A) provides a home health service; and

(B) is certified by an official of the Department of Health and Human Services as in compliance with conditions of participation in Social Security Act, Title XVIII (42 United States Code (USC) §1395 et seq.).

(23) Certified home health services--Home health services that are provided by a certified agency.

(24) CFR--Code of Federal Regulations. The regulations and rules promulgated by agencies of the Federal government that address a broad range of subjects, including hospice care and home health services.

(25) Change of ownership--An event that occurs when an agency's license holder has a different federal taxpayer identification number than a prospective license holder's federal taxpayer identification number, except that the substitution of a personal representative for a deceased license holder is not a change of ownership.

(26) CHAP--Community Health Accreditation Program, Inc. An independent, nonprofit accrediting body that publicly certifies that an organization has voluntarily met certain standards for home and community-based health care.

(27) Chief financial officer--An individual who is responsible for supervising and managing all financial activities for a home and community support services agency.

(28) Client--An individual receiving home health, hospice, or personal assistance services from a licensed home and community support services agency. This term includes each member of the primary client's family if the member is receiving ongoing services. This term does not include the spouse, significant other, or other family member living with the client who receives a one-time service (for example, vaccination) if the spouse, significant other, or other family member receives the service in connection with the care of a client.

(29) Clinical note--A dated and signed written notation by agency personnel of a contact with a client containing a description of signs and symptoms; treatment and medication given; the client's reaction; other health services provided; and any changes in physical and emotional condition.

(30) CMS--Centers for Medicare & Medicaid Services. The federal agency that administers the Medicare program and works in partnership with the states to administer Medicaid.

(31) Complaint--An allegation against an agency regulated by HHSC [DADS] or against an employee of an agency regulated by HHSC [DADS] that involves a violation of this chapter or the statute.

(32) Community disaster resources--A local, statewide, or nationwide emergency system that provides information and resources during a disaster, including weather information, transportation, evacuation, and shelter information, disaster assistance and recovery efforts, evacuee and disaster victim resources, and resources for locating evacuated friends and relatives.

(33) Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of the management, expenditure of money, or policies of an agency or other person.

(A) A controlling person includes:

(i) a management company or other business entity that operates or contracts with others for the operation of an agency;

(ii) a person who is a controlling person of a management company or other business entity that operates an agency or that contracts with another person for the operation of an agency; and

(iii) any other individual who, because of a personal, familial, or other relationship with the owner, manager, or provider of an agency, is in a position of actual control or authority with respect to the agency, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the agency.

(B) A controlling person, as described by subparagraph (A)(iii) of this paragraph, does not include an employee, lender, secured creditor, or other person who does not exercise formal or actual influence or control over the operation of an agency.

(34) Conviction--An adjudication of guilt based on a finding of guilt, a plea of guilty, or a plea of nolo contendere.

(35) Counselor--An individual qualified under Medicare standards to provide counseling services, including bereavement, dietary, spiritual, and other counseling services to both the client and the family.

(36) DADS--HHSC [Department of Aging and Disability Service or its successor agency].

(37) Day--Any reference to a day means a calendar day, unless otherwise specified in the text. A calendar day includes weekends and holidays.

(38) Deficiency--A finding of noncompliance with federal requirements resulting from a survey.

(39) Designated survey office--An HHSC [A DADS] Home and Community Support Services Agencies Program office located in an agency's geographic region.

(40) Dialysis treatment record--For home dialysis designation, a dated and signed written notation by the person providing dialysis treatment which contains a description of signs and symptoms, machine parameters and pressure settings, type of dialyzer and dialysate, actual pre- and post-treatment weight, medications administered as part of the treatment, and the client's response to treatment.

(41) Dietitian--A person who is currently licensed under the laws of the State of Texas to use the title of licensed dietitian or provisional licensed dietitian, or who is a registered dietitian.

(42) Direct ownership interest--Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.

(43) Disaster--The occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or man-made cause, such as fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, epidemic, air contamination, infestation, explosion, riot, hostile military or paramilitary action, or energy emergency. In a hospice inpatient unit, a disaster also includes failure of the heating or cooling system, power outage, explosion, and bomb threat.

(44) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.

(45) ESRD--End stage renal disease. For home dialysis designation, the stage of renal impairment that appears irreversible and permanent and requires a regular course of dialysis or kidney transplantation to maintain life.

(46) Functional need--Needs of the individual that require services without regard to diagnosis or label.

(47) Habilitation--Habilitation services, as defined by Texas Government Code §534.001, provided by an agency licensed under this chapter.

(48) Health assessment--A determination of a client's physical and mental status through inventory of systems.

(49) HHSC--Texas Health and Human Services Commission or its designee.

(50) [(49)] Home and community support services agency--A person who provides home health, hospice, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location.

(51) [(50)] Home health aide--An individual working for an agency who meets at least one of the requirements for home health aides as defined in §97.701 of this chapter (relating to Home Health Aides).

(52) [(51)] Home health medication aide--An unlicensed person issued a permit by HHSC [DADS] to administer medication to a client under the Texas Health and Safety Code, Chapter 142, Subchapter B.

(53) [(52)] Home health service--The provision of one or more of the following health services required by an individual in a residence or independent living environment:

(A) nursing, including blood pressure monitoring and diabetes treatment;

(B) physical, occupational, speech, or respiratory therapy;

(C) medical social service;

(D) intravenous therapy;

(E) dialysis;

(F) service provided by unlicensed personnel under the delegation or supervision of a licensed health professional;

(G) the furnishing of medical equipment and supplies, excluding drugs and medicines; or

(H) nutritional counseling.

(54) [(53)] Hospice--A person licensed under this chapter to provide hospice services, including a person who owns or operates a residential unit or an inpatient unit.

(55) [(54)] Hospice aide--A person working for an agency licensed to provide hospice services who meets the qualifications for a hospice aide as described in §97.843 of this chapter (relating to Hospice Aide Qualifications).

(56) [(55)] Hospice homemaker--A person working for an agency licensed to provide hospice services who meets the qualifications described in §97.845 of this chapter (relating to Hospice Homemaker Qualifications).

(57) [(56)] Hospice services--Services, including services provided by unlicensed personnel under the delegation of a registered nurse or physical therapist, provided to a client or a client's family as part of a coordinated program consistent with the standards and rules adopted under this chapter. These services include palliative care for terminally ill clients and support services for clients and their families that:

(A) are available 24 hours a day, seven days a week, during the last stages of illness, during death, and during bereavement;

(B) are provided by a medically directed interdisciplinary team; and

(C) may be provided in a home, nursing facility, residential unit, or inpatient unit according to need. These services do not include inpatient care normally provided in a licensed hospital to a terminally ill person who has not elected to be a hospice client. For the purposes of this definition, the word "home" includes a person's "residence" as defined in this section.

(58) [(57)] IDR--Informal dispute resolution. An informal process that allows an agency to refute a violation or condition-level deficiency cited during a survey.

(59) [(58)] Independent living environment--A client's residence, which may include a group home, foster home, or boarding home facility, or other settings where a client participates in activities, including school, work, or church.

(60) [(59)] Indirect ownership interest--Any ownership or membership interest in a person that has a direct ownership interest in an applicant or license holder.

(61) [(60)] Individual and family choice and control--Individuals and families who express preferences and make choices about how their support service needs are met.

(62) [(61)] Individualized service plan--A written plan prepared by the appropriate health care personnel for a client of a home and community support services agency licensed to provide personal assistance services.

(63) [(62)] Inpatient unit--A facility, also referred to as a hospice freestanding inpatient facility, that provides a continuum of medical or nursing care and other hospice services to clients admitted into the unit and that is in compliance with:

(A) the conditions of participation for inpatient units adopted under Social Security Act, Title XVIII (42 United States Code §1395 et seq.); and

(B) standards adopted under this chapter.

(64) [(63)] JCAHO--The Joint Commission, previously known as the Joint Commission on Accreditation of Healthcare Organizations. An independent, nonprofit organization for standard-setting and accrediting in-home care and other areas of health care.

(65) [(64)] Joint training--Training provided by HHSC [DADS] at least semi-annually for home and community support services agencies and HHSC [DADS] surveyors on subjects that address the 10 most commonly cited violations of federal or state law by home and community support services agencies as published in HHSC [DADS] annual reports.

(66) [(65)] LAR--Legally authorized representative. A person authorized by law to act on behalf of a client with regard to a matter described in this chapter, and may include a parent of a minor, guardian of an adult or minor, managing conservator of a minor, agent under a medical power of attorney, or surrogate decision-maker under Texas Health and Safety Code, §313.004.

(67) [(66)] License holder--A person that holds a license to operate an agency.

(68) [(67)] Licensed vocational nurse--A person who is currently licensed under Texas Occupations Code, Chapter 301, as a licensed vocational nurse.

(69) [(68)] Life Safety Code (also referred to as NFPA 101)--The Code for Safety to Life from Fire in Buildings and Structures, Standard 101, of the National Fire Protection Association (NFPA).

(70) [(69)] Local emergency management agencies--The local emergency management coordinator, fire, police, and emergency medical services.

(71) [(70)] Local emergency management coordinator-- The person identified as the emergency management coordinator by the mayor or county judge in an agency's service area.

(72) [(71)] Manager--An employee or independent contractor responsible for providing management services to a home and community support services agency for the overall operation of a home and community support services agency including administration, staffing, or delivery of services. Examples of contracts for services that will not be considered contracts for management services include contracts solely for maintenance, laundry, or food services.

(73) [(72)] Medication administration record--A record used to document the administration of a client's medications.

(74) [(73)] Medication list--A list that includes all prescription and over-the-counter medication that a client is currently taking, including the dosage, the frequency, and the method of administration.

(75) [(74)] Mitigation--An action taken to eliminate or reduce the probability of a disaster, or reduce a disaster's severity or consequences.

(76) [(75)] Multiple location--A Medicare-approved alternate delivery site that meets the definition in 42 CFR §418.3.

(77) [(76)] Notarized copy--A sworn affidavit stating that attached copies are true and correct copies of the original documents.

(78) [(77)] Nursing facility--An institution licensed as a nursing home under the Texas Health and Safety Code, Chapter 242.

(79) [(78)] Nutritional counseling--Advising and assisting individuals or families on appropriate nutritional intake by integrating information from the nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status, with the goal being health promotion, disease prevention, and nutrition education. Nutritional counseling may include the following:

(A) dialogue with the client to discuss current eating habits, exercise habits, food budget, and problems with food preparation;

(B) discussion of dietary needs to help the client understand why certain foods should be included or excluded from the client's diet and to help with adjustment to the new or revised or existing diet plan;

(C) a personalized written diet plan as ordered by the client's physician or practitioner, to include instructions for implementation;

(D) providing the client with motivation to help the client understand and appreciate the importance of the diet plan in getting and staying healthy; or

(E) working with the client or the client's family members by recommending ideas for meal planning, food budget planning, and appropriate food gifts.

(80) [(79)] Occupational therapist--A person who is currently licensed under the Occupational Therapy Practice Act, Texas Occupations Code, Chapter 454, as an occupational therapist.

(81) [(80)] Operating hours--The days of the week and the hours of day an agency's place of business is open as identified in an agency's written policy as required by §97.210 of this chapter (relating to Agency Operating Hours).

(82) [(81)] Original active client record--A record composed first-hand for a client currently receiving services.

(83) [(82)] Palliative care--Intervention services that focus primarily on the reduction or abatement of physical, psychosocial, and spiritual symptoms of a terminal illness. It is client and family-centered care that optimizes quality of life by anticipating, preventing, and treating suffering. Palliative care throughout the continuum of illness involves addressing physical, intellectual, emotional, social, and spiritual needs and facilitating client autonomy, access to information, and choice.

(84) [(83)] Parent agency--An agency's principal place of business; the location where an agency [that ] develops and maintains administrative controls and provides supervision of branch offices and alternate delivery sites.

(85) [(84)] Parent company--A person, other than an individual, who has a direct 100 percent ownership interest in the owner of an agency.

(86) [(85)] Person--An individual, corporation, or association.

(87) [(86)] Personal assistance services--Routine ongoing care or services required by an individual in a residence or independent living environment that enable the individual to engage in the activities of daily living or to perform the physical functions required for independent living, including respite services. The term includes:

(A) personal care;

(B) health-related services performed under circumstances that are defined as not constituting the practice of professional nursing by the Texas Board of Nursing [through a memorandum of understanding with DADS in accordance with Texas Health and Safety Code, §142.016]; and

(C) health-related tasks provided by unlicensed personnel under the delegation of a registered nurse or that a registered nurse determines do not require delegation.

(88) [(87)] Personal care--The provision of one or more of the following services required by an individual in a residence or independent living environment:

(A) bathing;

(B) dressing;

(C) grooming;

(D) feeding;

(E) exercising;

(F) toileting;

(G) positioning;

(H) assisting with self-administered medications;

(I) routine hair and skin care; and

(J) transfer or ambulation.

(89) [(88)] Pharmacist--A person who is licensed to practice pharmacy under the Texas Pharmacy Act, Texas Occupations Code, Chapter 558.

(90) [(89)] Pharmacy--A facility defined in the Texas Occupations Code, §551.003(31), at which a prescription drug or medication order is received, processed, or dispensed.

(91) [(90)] Physical therapist--A person who is currently licensed under Texas Occupations Code, Chapter 453, as a physical therapist.

(92) [(91)] Physician--This term includes a person who is:

(A) licensed in Texas to practice medicine or osteopathy in accordance with Texas Occupations Code, Chapter 155;

(B) licensed in Arkansas, Louisiana, New Mexico, or Oklahoma to practice medicine, who is the treating physician of a client and orders home health or hospice services for the client, in accordance with the Texas Occupations Code, §151.056(b)(4); or

(C) a commissioned or contract physician or surgeon who serves in the United States uniformed services or Public Health Service if the person is not engaged in private practice, in accordance with the Texas Occupations Code, §151.052(a)(8).

(93) [(92)] Physician assistant--A person who is licensed under the Physician Assistant Licensing Act, Texas Occupations Code, Chapter 204, as a physician assistant.

(94) [(93)] Physician-delegated task--A task performed in accordance with the Texas Occupations Code, Chapter 157, including orders signed by a physician that specify the delegated task, the individual to whom the task is delegated, and the client's name.

(95) [(94)] Place of business--An office of a home and community support services agency that maintains client records or directs home health, hospice, or personal assistance services. This term includes a parent agency, a branch office, and an alternate delivery site. The term does not include an administrative support site.

(96) [(95)] Plan of care--The written orders of a practitioner for a client who requires skilled services.

(97) [(96)] Practitioner--A person who is currently licensed in a state in which the person practices as a physician, dentist, podiatrist, or a physician assistant, or a person who is a registered nurse registered with the Texas Board of Nursing as an advanced practice nurse.

(98) [(97)] Preparedness--Actions taken in anticipation of a disaster.

(99) [(98)] Presurvey conference--A conference held with HHSC [DADS] staff and the applicant or the applicant's representatives to review licensure standards and survey documents, and to provide information regarding [consultation before] the survey process.

(100) [(99)] Progress note--A dated and signed written notation by agency personnel summarizing facts about care and the client's response during a given period of time.

(101) [(100)] Psychoactive treatment--The provision of a skilled nursing visit to a client with a psychiatric diagnosis under the direction of a physician that includes one or more of the following:

(A) assessment of alterations in mental status or evidence of suicide ideation or tendencies;

(B) teaching coping mechanisms or skills;

(C) counseling activities; or

(D) evaluation of the plan of care.

(102) [(101)] Recovery--Activities implemented during and after a disaster response designed to return an agency to its normal operations as quickly as possible.

(103) [(102)] Registered nurse delegation--Delegation by a registered nurse in accordance with:

(A) 22 TAC Chapter 224 (concerning Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); and

(B) 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).

(104) [(103)] Residence--A place where a person resides, including a home, a nursing facility, a convalescent home, or a residential unit.

(105) [(104)] Residential unit--A facility that provides living quarters and hospice services to clients admitted into the unit and that is in compliance with standards adopted under the Texas Health and Safety Code, Chapter 142.

(106) [(105)] Respiratory therapist--A person who is currently licensed under Texas Occupations Code, Chapter 604, as a respiratory care practitioner.

(107) [(106)] Respite services--Support options that are provided temporarily for the purpose of relief for a primary caregiver in providing care to individuals of all ages with disabilities or at risk of abuse or neglect.

(108) [(107)] Response--Actions taken immediately before an impending disaster or during and after a disaster to address the immediate and short-term effects of the disaster.

(109) [(108)] Restraint--A restraint is:

(A) a manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a client in a hospice inpatient unit to move his or her arms, legs, body, or head freely, but does not include a device, such as an orthopedically prescribed device, a surgical dressing or bandage, a protective helmet, or other method that involves the physical holding of the client for the purpose of:

(i) conducting a routine physical examination or test;

(ii) protecting the client from falling out of bed; or

(iii) permitting the client to participate in activities without the risk of physical harm, not including a physical escort; or

(B) a drug or medication when used as a restriction to manage a client's behavior or restrict the client's freedom of movement in a hospice inpatient unit, but not as a standard treatment or medication dosage for the client's condition.

(110) [(109)] RN--Registered nurse. A person who is currently licensed under the Nursing Practice Act, Texas Occupations Code, Chapter 301, as a registered nurse.

(111) [(110)] Seclusion--The involuntary confinement of a client alone in a room or an area in a hospice inpatient unit from which the client is physically prevented from leaving.

(112) [(111)] Section--A reference to a specific rule in this chapter.

(113) [(112)] Service area--A geographic area established by an agency in which all or some of the agency's services are available.

(114) [(113)] Skilled services--Services in accordance with a plan of care that require the skills of:

(A) a registered nurse;

(B) a licensed vocational nurse;

(C) a physical therapist;

(D) an occupational therapist;

(E) a respiratory therapist;

(F) a speech-language pathologist;

(G) an audiologist;

(H) a social worker; or

(I) a dietitian.

(115) [(114)] Social worker--A person who is currently licensed as a social worker under Texas Occupations Code, Chapter 505.

(116) [(115)] Speech-language pathologist--A person who is currently licensed as a speech-language pathologist under Texas Occupations Code, Chapter 401.

(117) [(116)] Statute--The Texas Health and Safety Code, Chapter 142.

(118) [(117)] Substantial compliance--A finding in which an agency receives no recommendation for enforcement action after a survey.

(119) [(118)] Supervised practical training--Hospice aide training that is conducted in a laboratory or other setting in which the trainee demonstrates knowledge while performing tasks on an individual. The training is supervised by a registered nurse or by a licensed vocational nurse who works under the direction of a registered nurse.

(120) [(119)] Supervising nurse--The person responsible for supervising skilled services provided by an agency and who has the qualifications described in §97.244(c) of this chapter (relating to Administrator Qualifications and Conditions and Supervising Nurse Qualifications). This person may also be known as the director of nursing or similar title.

(121) [(120)] Supervision--Authoritative procedural guidance by a qualified person for the accomplishment of a function or activity with initial direction and periodic inspection of the actual act of accomplishing the function or activity.

(122) [(121)] Support services--Social, spiritual, and emotional care provided to a client and a client's family by a hospice.

(123) [(122)] Survey--An on-site inspection or complaint investigation conducted by an HHSC [a DADS] representative to determine if an agency is in compliance with the statute and this chapter or in compliance with applicable federal requirements or both.

(124) [(123)] Terminal illness--An illness for which there is a limited prognosis if the illness runs its usual course.

(125) [(124)] Unlicensed person--A person not licensed as a health care provider. The term includes home health aides, hospice aides, hospice homemakers, medication aides permitted by DADS, and other unlicensed individuals providing personal care or assistance in health services.

(126) [(125)] Unsatisfied judgments--A failure to fully carry out the terms or meet the obligation of a court's final disposition on the matters before it in a suit regarding the operation of an agency.

(127) [(126)] Violation--A finding of noncompliance with this chapter or the statute resulting from a survey.

(128) [(127)] Volunteer--An individual who provides assistance to a home and community support services agency without compensation other than reimbursement for actual expenses.

(129) [(128)] Working day--Any day except Saturday, Sunday, a state holiday, or a federal holiday.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703727

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-3791


SUBCHAPTER B. CRITERIA AND ELIGIBILITY, APPLICATION PROCEDURES, AND ISSUANCE OF A LICENSE

40 TAC §§97.13, 97.17, 97.30

STATUTORY AUTHORITY

The amendments and new section are proposed 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; and Texas Health and Safety Code, Chapter 142, which authorizes the HHSC executive commissioner to adopt rules regulating home and community support services agencies.

The amendments and new section implement Texas Government Code, §531.0055 and Texas Health and Safety Code, §142.0011 and §142.012.

§97.13.Application Procedures for an Initial License.

(a) The following staff must complete a presurvey conference training [seminar] before submitting an application for a license:

(1) the administrator and alternate administrator [(all license categories)]; and

(2) the supervising nurse and alternate supervising nurse of an agency that provides [(]licensed home health services with or without home dialysis designation, licensed and certified home health services with or without home dialysis designation, or [and] hospice services [license categories)].

(b) When applying for a license, an applicant must not[:]

[(1)] provide incorrect or false information on an application or an attachment to an application[;] or

[(2)] withhold information from an application or an attachment to an application. If an applicant provides incorrect or false information on, or withholds information from, an application or an attachment to an application, HHSC may deny the application as described in §97.21 of this subchapter (relating to Denial of an Application or a License).

(c) Upon request, HHSC [DADS] furnishes a person with an application packet for a license.

(d) An applicant may request to be licensed in one or more of the following categories:

(1) licensed and certified home health services;

(2) licensed and certified home health services with home dialysis designation;

(3) licensed home health services;

(4) licensed home health services with home dialysis designation;

(5) hospice services; or

(6) personal assistance services.

(e) HHSC [DADS] does not require an agency to be licensed in more than one category if the category for which the agency is licensed includes [covers] the services the agency provides.

(f) An applicant must complete and furnish all documents and information that HHSC [DADS] requests in accordance with instructions provided with the application packet. All submitted documents must be notarized copies or originals.

(g) After receiving [Upon receipt of] an application packet and license fee, HHSC [DADS] reviews the material to determine if [whether] it is complete and correct. A complete and correct application packet includes all documents and information that HHSC [DADS] requests as part of the application process. If HHSC [DADS ] receives no fee or a partial fee, HHSC returns the application packet and the fee [monies are returned] to the applicant.

(1) HHSC [DADS] processes the application packet in accordance with time frames established in §97.31 of this chapter (relating to Time Frames for Processing and Issuing a License).

(2) If an applicant decides not to continue the application process for an initial license after submitting the application packet and license fee, the applicant must submit to HHSC [DADS] a written request to withdraw the application. HHSC [DADS ] does not refund the license fee.

(3) If an applicant receives a notice from HHSC [DADS] that some or all of the information required by this section has been omitted [is missing or incomplete], the applicant must submit the required information to HHSC no later than 30 days after the date of the notice. If an applicant fails to submit the required information within 30 days after the notice date, HHSC [DADS] considers the application packet incomplete and denies the application. If HHSC [DADS ] denies the application, HHSC [DADS] does not refund the license fee.

(h) An applicant who has requested the category of licensed and certified home health services on the initial license application must also apply to CMS [make an application] for certification [by CMS] as a Medicare-certified agency under the Social Security Act, Title XVIII.

(1) While the applicant is waiting for [Pending approval by] CMS to certify it as a Medicare-certified agency[, the applicant]:

(A) HHSC issues [receives] an initial license reflecting the category of licensed home health services if the applicant meets the criteria for the [a] license; and

(B) the applicant must comply [complies] with the Medicare conditions of participation for home health agencies in 42 Code of Federal Regulations, Part 484, as if the applicant were dually certified.

(2) If CMS certifies an agency to participate in the Medicare program during the initial license period, HHSC [DADS] sends a notice to the agency that the category of licensed and certified home health services has been added to the license. If the agency wants to remove [delete] the licensed home health services category from the agency's license after [once] the category of licensed and certified home health services has been added, the agency must submit to HHSC a written request to remove [for deletion of] that category from the agency's license.

(3) If CMS denies certification to an agency or an agency [an applicant or if the applicant] withdraws the application for participation in the Medicare program, the agency may retain the category of licensed home health services on its license.

(i) An applicant for an initial license must comply with §97.30 of this subchapter (relating to Operation of an Inpatient Unit at Parent Agency) to operate an inpatient unit at the applicant's parent agency.

§97.17.Application Procedures for a Renewal License.

(a) An agency license is valid for two years. To [In order to] continue providing services to clients after a license expires, an agency must renew the [its] license.

(b) An [When applying for a renewal license an] agency must not provide incorrect [inaccurate ] or false information on a renewal application or an attachment to a renewal application [statements] or withhold information from a [the] renewal application or an attachment [and attachments] to a renewal [the] application. If an agency provides incorrect [inaccurate] or false information on a renewal application or an attachment to a renewal application [statements] or withholds information from a renewal application or an attachment to a renewal [the] application, HHSC [DADS] may deny the renewal application as described in §97.21 of this subchapter (relating to Denial of an Application or a License) and assess an administrative penalty, as described in §97.602(e)(5) of this chapter (relating to Administrative Penalties). [assess the same range of penalties against the agency that apply in §97.13 of this chapter (relating to Application Procedures for an Initial License) for providing inaccurate or false statements or withholding information from an initial application for a license.]

(c) For each license period, an agency must provide services to at least one client to be eligible to renew its license.

(d) HHSC [DADS] does not require an agency to admit a client under each category of service authorized under the license to be eligible to renew its license [as a condition for renewal of the license].

(e) An agency must document the [provision of] services that the agency provided to a client and keep the documentation readily available for review by an HHSC [a DADS] surveyor.

(f) With each renewal application, an accredited agency must submit to HHSC a copy of the accreditation documentation [of its accreditation] that the agency receives from the accreditation organization.

(g) HHSC [DADS] sends written notice of expiration of a license to an agency at least 120 days before the expiration date of the license. The written notice includes an application to renew the license and instructions for completing the application.

(1) If an agency does not receive notice of expiration from HHSC in accordance with this subsection [DADS at least 90 days before the expiration date of a license], the agency must, at least 90 days before the expiration date of a license, notify HHSC in writing that it has not received notice of expiration [DADS] and [submit a written] request [for] a renewal application.

(2) An agency must submit to HHSC [DADS] a complete and correct renewal application and the required license fee specified in §97.3 of this chapter (relating to License Fees), postmarked no later than the 45th day before the expiration date of the license.

(3) If an agency submits a renewal application that is postmarked after [later] the 45th day before the expiration date of a license, but before [no later than] the expiration date of the license, HHSC [DADS ] assesses the late fee set out in §97.3(b) of this chapter for failure to comply with paragraph (2) of this subsection.

(4) An agency must submit [All] documents [submitted] with the renewal application that are [must be] notarized copies or originals.

(h) After receiving [Upon receipt of] a renewal application and the renewal license fee, HHSC [DADS] reviews the application to determine if [whether ] it is complete and correct. A complete and correct renewal application includes all requested documents and[,] information, and the required fee [that DADS requests as part of the application process].

(1) HHSC [DADS] processes the renewal application according to the time frames in §97.31 of this chapter (relating to Time Frames for Processing and Issuing a License).

(2) If an agency decides not to continue [discontinue] the application process for a renewal license after submitting the renewal application and the renewal license fee, the agency must submit to HHSC [DADS] a notarized statement requesting to withdraw the renewal application. HHSC [DADS] does not refund the renewal license fee.

(3) HHSC [DADS] notifies an agency, in writing, if an application does not include all documents and[,] information[, or the license fee required by this section]. An agency must submit the missing documents[,] or information[, or fee] to HHSC [DADS] postmarked no later than 30 days after the date of the notice or HHSC [DADS] considers the renewal application incomplete and denies the application. If HHSC [DADS] denies the renewal application, HHSC [DADS] does not refund the renewal license fee.

(4) If an agency receives a written notice from HHSC [DADS] that a late fee is assessed in accordance with subsection (g) of this section, the agency's payment of the late fee must be postmarked no later than 30 days after the date of the notice or HHSC [DADS] considers the renewal application incomplete and denies the application. If HHSC [DADS] denies the renewal application, HHSC [DADS] does not refund the renewal license fee.

(i) If an agency submits a renewal application to HHSC [DADS] that is postmarked after the expiration date of the license, HHSC [DADS] denies the renewal application and does not refund the renewal license fee. The agency is not eligible to renew the license and must cease operation on the date the license expires. An agency whose license expires must apply for an initial license in accordance with §97.13 of this subchapter (relating to Application Procedures for an Initial License).

(j) If an agency submits a timely renewal application in accordance with this section, and an action to revoke, suspend, or deny renewal of the license is pending at the time of submission, the agency may continue to operate, and the license is valid until the agency has had an opportunity for a formal hearing as described in §97.601 of this chapter (relating to Enforcement Actions). Until the action to revoke, suspend, or deny renewal of the license is completed, the agency must continue to submit a renewal application in accordance with this section. HHSC [DADS] issues a renewal license only if HHSC [DADS] determines the reason for the proposed action no longer exists.

(k) If a license holder fails to submit a timely renewal application in accordance with this section because the license holder is or was on active duty with the armed forces of the United States of America outside the state of Texas, the license holder may renew the license pursuant to this subsection.

(1) An individual having power of attorney from the license holder or other authority to act on behalf of the license holder may request renewal of the license. The renewal application must include a current address and telephone number for the individual requesting the renewal.

(2) An agency may request a renewal application before or after the expiration of the license.

(3) A copy of the official orders or other official military documentation showing that the license holder is or was on active military duty serving outside the state of Texas must be submitted to HHSC [filed with DADS along] with the renewal application.

(4) A copy of the power of attorney from the license holder or other authority to act on behalf of the license holder must be submitted to HHSC [filed with DADS along] with the renewal application.

(5) A license holder renewing a license under this subsection must pay the required [applicable] renewal fee.

(6) A license holder may [is] not [authorized to] operate the agency for which the license was obtained after the expiration of the license unless and until HHSC [the license holder actually] renews the license.

(7) This subsection applies to a license holder who is an individual or a partnership comprised of individuals, all of whom are or were on active duty with the armed forces of the United States of America serving outside the state of Texas.

(l) An applicant for a renewal license must comply with §97.30 of this subchapter (relating to Operation of an Inpatient Unit at Parent Agency) to operate an inpatient unit at the applicant's parent agency.

§97.30.Operation of an Inpatient Unit at Parent Agency.

(a) To operate an inpatient unit at the parent agency, an agency or an applicant for an initial license to provide hospice services must:

(1) notify HHSC of its intent to operate an inpatient unit at the parent agency by:

(A) indicating its intent on an initial or renewal license application submitted to HHSC; or

(B) sending written notice of its intent to HHSC;

(2) send written notice to HHSC that it is ready for a Life Safety Code inspection;

(3) allow HHSC to conduct an on-site Life Safety Code inspection to determine if the inpatient unit is in compliance with §97.871 of this chapter (relating to Physical Environment in a Hospice Inpatient Unit);

(4) obtain verification from HHSC that the inpatient unit is in compliance with Subchapter H, Division 7 of this chapter (relating to Hospice Inpatient Units) before admitting a client to the inpatient unit;

(5) admit and provide hospice services to a client in the inpatient unit; and

(6) except as provided in subsection (c) of this section:

(A) submit the Notification of Readiness for a Health Survey of a Hospice Inpatient Unit (HHSC Form 2020-A) to HHSC after providing services to at least one client in the inpatient unit; and

(B) be determined by HHSC to be in substantial compliance with the statute and this chapter, including Subchapter H of this chapter (relating to Standards Specific to Agencies Licensed to Provide Hospice Services).

(b) At the time an agency notifies HHSC in accordance with subsection (a)(1) of this section, the agency must not have enforcement action pending against the license under which the agency would operate the inpatient unit.

(c) An agency that provides hospice services is not required to submit the Notification of Readiness for a Health Survey of a Hospice Inpatient Unit (HHSC Form 2020-A) in accordance with subsection (a)(6)(A) of this section if the agency demonstrates that it is exempt from a health survey, as described in §97.503 of this chapter (relating to Exemption From a Survey). The agency may demonstrate that it is exempt from the initial health survey described in §97.521 of this chapter (relating to Requirements for an Initial Survey) by submitting the accreditation documentation from an approved organization to the HHSC designated survey office within seven days after the agency receives the accreditation documentation.

(d) An agency operating an inpatient unit at a parent agency must comply with the statute and this chapter, including Subchapter H of this chapter.

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

Filed with the Office of the Secretary of State on September 21, 2017.

TRD-201703728

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-3791


PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

CHAPTER 743. MINIMUM STANDARDS FOR SHELTER CARE

SUBCHAPTER B. PERSONNEL AND TRAINING

The Texas Health and Human Services Commission (HHSC) proposes the repeal of §743.105; and new §743.105 in Chapter 743, concerning Minimum Standards for Shelter Care. The purpose of the repeal and new section is to update this chapter to be consistent with the changes to Chapter 745, Subchapter F, Background Checks, which implemented the Child Care and Development Block Grant Act of 2014 and House Bill 4094, 85th Regular Legislative Session.

BACKGROUND AND PURPOSE

The Child Care Development Block Grant (CCDBG) of 2014 (the "Act") is the first comprehensive revision of the Child Care Development Fund (CCDF) program since 1988. (The CCDF is codified in 42 USC §9857 et seq.) The Texas Workforce Commission (TWC) administers the CCDF, which is the primary federal funding source devoted to providing low-income families with access to child care. The Act made significant reforms to the CCDF programs to raise the health, safety, and quality of child care by mandating that states comply with a multitude of additional requirements, including background checks, in order to continue to receive the CCDF funding. Although TWC is the lead agency for determining eligibility and distributing the subsidy monies, HHSC through the Child Care Licensing Division (CCL) is the agency responsible for licensing child care operations, establishing health and safety regulations, and monitoring eligible operations for compliance. Many of the Act's additional requirements relate to the responsibilities of CCL. One of the provisions of the Act that has a significant impact on CCL and this chapter is background checks. One of the Act's requirements related to mandated fingerprint-based criminal history checks for home-based day care providers was implemented last year in a phased-in approach. However, many of the Act's other background check requirements needed significant technological changes. Since those technological changes are now nearing completion, the Act's other background check requirements are being implemented at this time.

In regards to background checks, House Bill (HB) 4094, 85th Regular Legislative Session, amended Human Resources Code §42.056 in order to comply with the Act's requirements. A summary of the background check changes in response to the Act and HB 4094 include: (1) mandating national fingerprint-based criminal history checks every five years; (2) adding new out-of-state criminal history checks, out-of-state child abuse and neglect registry checks, and out-of-state sex offender registry checks for persons who have lived out-of-state in the last five years or where there is a reason to believe an out-of-state check is needed; (3) clarifying which persons require which types of background checks based on federal definitions; (4) waiving the resubmission of fingerprints if CCL has an active subscription to the Federal Bureau of Investigation's (FBI's) national rap back service for the person for whom the submission is required. The FBI national rap back services also requires operations to indicate when a person is no longer associated with an operation; (5) setting a time frame of 45 days for issuing a background check determination; (6) not releasing details of criminal history or child abuse and neglect history, the consequences of which require greater detail regarding the background check determination, what the determination means, and changing who can request a risk evaluation; (7) changing the period for renewing criminal history checks to five years (currently it is two years); (8) establishing a review process if the subject of the background check disputes the accuracy or completeness of the information contained in the results of the background check; (9) clarifying that a risk evaluation must be requested by the subject of the background check (currently this request is made by an operation, but this is changing because operations are now generally not provided with the results of the background check); and (10) in other subchapters updating terminology, cites, and requirements to be consistent with the new changes.

In addition, two updates to the rules were made, which were not in response to the Act or HB 4094: (1) requiring all operations except listed family homes to submit requests for background checks through the on-line Licensing website. Currently, licensed child-care homes, registered child-care homes, employer-based child care operations, and shelter care operations may submit requests for background checks manually; and (2) clarifying that Licensing may consider deferred adjudication community supervision as a criminal conviction when revoking a permit.

The repeal and new rule clarifies that shelter care operations must comply with Chapter 745, Subchapter F, Background Checks, which are now consistent with the changes required by the Act and HB 4094.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §743.105 deletes the rule, because the content has been incorporated into the proposed and updated Chapter 745, Subchapter F, Background Checks.

Proposed new §743.105 requires shelter care operation to comply with the background check requirements in Chapter 745, Subchapter F, Background Checks, except background checks do not have to be made on persons who reside at the shelter who are not caregivers.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each of the first five years that the repeal and new section will be in effect there will not be costs or revenues to state or local government as a result of enforcing or administering the sections.

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

Ms. Rymal has also determined that there is no anticipated adverse impact on small businesses, micro businesses, or rural communities as a result of the proposed rule changes.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; to receive a source of federal funds or comply with federal law; and to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT

Ms. Rymal also has determined that for each of the first five years that the proposed repeal and new section will be in effect, the public benefit anticipated as a result of the rule change will be that (1) more robust background checks will improve the safety and quality of child care; (2) CCL will be in compliance with the Act; (3) CCL will be in compliance with HB 4094 and HRC §42.056; and (4) there will be a better understanding of the requirements relating to Background Checks.

TAKING IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of the proposal may be directed to Gerry Williams at (512) 438-5559 in the Child Care Licensing Division of HHSC. Electronic comments may be submitted to HHSRulesCoordinationOffice@hhsc.state.tx.us. Written comments on the proposal may be submitted to Gerry Williams, Rules Developer (40R026), Child Care Licensing, Health and Human Services Commission E-550, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

40 TAC §743.105

STATUTORY AUTHORITY

The repeal is proposed 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 health and human services agencies.

The repeal implements Human Resources Code §42.042 and §42.056.

§743.105.What are the background check requirements?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703776

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


40 TAC §743.105

STATUTORY AUTHORITY

The new section is proposed 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 health and human services agencies.

The new section implements Human Resources Code §42.042 and §42.056.

§743.105.What are the background check requirements?

(a) Shelter care operations must comply with the background check requirements found in Subchapter F of Chapter 745 of this title (relating to Background Checks).

(b) You do not have to submit a request for a background check on a person 14 years of age or older who resides at the shelter, as required by §745.605(a)(6)(A) of this title (relating to For whom must I submit requests for background checks?), unless the person is otherwise required to have a background check under §745.605(a). For example, a caregiver that resides at the shelter would be required to have a background check.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703777

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


CHAPTER 745. LICENSING

The Texas Health and Human Services Commission (HHSC) proposes amendments to §745.601 and the repeal of §745.603 in Division 1 of Subchapter F, Definitions.

In Division 2 of Subchapter F, Requesting Background Checks, HHSC proposes new §§745.605, 745.607, and 745.609; repeals and proposes as new §§745.611, 745.613, 745.615, 745.617, 745.619, 745.621, 745.623, and 745.625; and proposes the repeal of §§745.616, 745.626, 745.629, 745.630, 745.631, 745.633, 745.635, and 745.637.

HHSC proposes the repeal of Division 3 of Subchapter F, Criminal Convictions and Central Registry Findings of Child Abuse or Neglect, including the proposed repeal of §§745.651, 745.653, 745.655, 745.656, 745.657, 745.659, 745.661, and 745.663. HHSC proposes new Division 3 of Subchapter F, Determinations Regarding Background Checks, including proposed new §§745.627, 745.629, 745.631, 745.633, 745.635, 745.637, 745.639, 745.641, 745.643, 745.645, 745.647, 745.648, 745.649, and 745.650.

HHSC proposes the repeal of Division 4 of Subchapter F, Evaluation of Risk Because of a Criminal Conviction or a Central Registry Finding of Child Abuse or Neglect, including the proposed repeal of §§745.681, 745.683, 745.685, 745.686, 745.687, 745.689, 745.691, 745.693, 745.695, 745.696, 745.697, 745.699, 745.701, 745.703, 745.705, 745.707, 745.709, and 745.711. HHSC proposes new Division 4 of Subchapter F, Criminal History, Sex Offender Registry, and Child Abuse or Neglect Findings, including proposed new §§745.651, 745.652, 745.653, 745.655, 745.656, 745.657, and 745.659.

HHSC proposes the repeal of Division 5 of Subchapter F, Designated and Sustained Perpetrators of Child Abuse or Neglect, including the proposed repeal of §§745.731, 745.733, and 745.735. HHSC proposes new Division 5 of Subchapter F, Evaluation of Risk Because of Criminal History or a Child Abuse or Neglect Finding, including proposed new §§745.679, 745.681, 745.683, 745.685, 745.687, 745.689, 745.691, 745.693, and 745.695.

HHSC proposes the repeal of Division 6 of Subchapter F, Immediate Threat or Danger to the Health or Safety of Children, including the proposed repeal of §745.751 and §745.753. HHSC proposes new Division 6 of Subchapter F, Designated and Sustained Perpetrators of Child Abuse or Neglect, including proposed new §745.731.

HHSC proposes new Division 7 of Subchapter F, Immediate Threat or Danger to the Health or Safety of Children, including proposed new §745.751.

HHSC proposes new Division 8 of Subchapter F, Licensed Administrators, including proposed new §745.775.

HHSC proposes amendments to §745.8713 in Division 5 of Suchapter L.

HHSC proposes a name change to Subchapter N, Administrator Licensing. HHSC proposes a name change to Division 4 of Subchapter N, Renewing Your Administrator License. HHSC proposes amendments to §§745.8915, 745.8917, 745.8934, 745.8993, 745.9009, 745.9026, 745.9029, and 745.9037.

BACKGROUND AND PURPOSE

The Child Care Development Block Grant (CCDBG) of 2014 (the "Act") is the first comprehensive revision of the Child Care Development Fund (CCDF) program since 1988. (The CCDF is codified in 42 USC §9857 et seq.) The Texas Workforce Commission (TWC) administers the CCDF, which is the primary federal funding source devoted to providing low-income families with access to child care. The Act made significant reforms to the CCDF programs to raise the health, safety, and quality of child care by mandating that states comply with a multitude of additional requirements, including background checks, in order to continue to receive the CCDF funding. Although TWC is the lead agency for determining eligibility and distributing the subsidy monies, HHSC through the Child Care Licensing Division (CCL) is the agency responsible for licensing child care operations, establishing health and safety regulations, and monitoring eligible operations for compliance. Many of the Act's additional requirements relate to the responsibilities of CCL. One of the provisions of the Act that has a significant impact on CCL and this chapter is background checks. One of the Act's requirements related to mandated fingerprint-based criminal history checks for home-based day care providers was implemented last year in a phased-in approach. However, many of the Act's other background check requirements needed significant technological changes. Since those technological changes are now nearing completion, the Act's other background check requirements are being implemented at this time.

In regards to background checks, House Bill (H.B.) 4094, 85th Regular Legislative Session, amended Human Resources Code §42.056 in order to comply with the Act's requirements. A summary of the background check changes in response to the Act and H.B. 4094 include: (1) mandating national fingerprint-based criminal history checks every five years; (2) adding new out-of-state criminal history checks, out-of-state child abuse and neglect registry checks, and out-of-state sex offender registry checks for persons who have lived out-of-state in the last five years or where there is a reason to believe an out-of-state check is needed (See §745.607); (3) clarifying which persons require which types of background checks based on federal definitions (See §§745.609, 745.611, 745.613, and 745.615); (4) waiving the resubmission of fingerprints if CCL has an active subscription to the Federal Bureau of Investigation's (FBI's) national rap back service for the person for whom the submission is required. The FBI's national rap back service also requires operations to indicate when a person is no longer associated with an operation (See §745.625 and §745.648); (5) setting a time frame of 45 days for issuing a background check determination (See §745.627); (6) not releasing details of criminal history or child abuse and neglect history, the consequences of which require greater detail in rules regarding the background check determination, what the determination means, and changing who can request a risk evaluation (See §§745.629, 745.633, and 745.637); (7) changing the period for renewing criminal history checks to five years; currently the requirement is two years (See §745.621(b)); (8) establishing a review process if the subject of the background check disputes the accuracy or completeness of the information contained in the results of the background check (See §745.641 and §745.643); (9) clarifying that a risk evaluation must be requested by the subject of the background check. Currently this request is made by an operation, but this is changing because operations are now generally not provided with the results of the background check (See §745.679); and (10) in other subchapters updating terminology, cites, and requirements to be consistent with the new changes (See §§745.8713, 745.8915, 745.8917, 745.8934, 745.8993, and 745.9009, 745.9026, 745.9029, and 745.9037).

In addition, two updates to the rules were made, which were not in response to the Act or H.B. 4094: (1) requiring all operations except listed family homes to submit requests for background checks through the online Licensing website. Currently licensed child-care homes, registered child-care homes, employer-based child care operations, and shelter care operations may submit requests for background checks manually (See §745.617); and (2) clarifying that Licensing may consider deferred adjudication community supervision as a criminal conviction when revoking a permit (See §745.652(b)).

SECTION-BY-SECTION SUMMARY

Regarding Subchapter F, Background Checks:

The proposed amendment of §745.601: (1) adds definitions for "Central Registry", "client in care", "criminal history", "DFPS", "DPS", "FBI", "HHSC", "Licensing", "present at an operation", "subject", and "sustained finding"; (2) deletes the definitions for "continuous stay" (which has been incorporated into the definition for "regularly or frequently present at an operation"), "non-continuous visit" (which has been incorporated into the definition for "regularly or frequently present at an operation"), and "owner" (which has been incorporated into proposed new §745.605(a)(1)); (3) updates the definitions for "CBCU", "initial background check", "regularly or frequently present at an operation", "renewal background check", "risk evaluation", "substitute employee", and "unsupervised access"; and (4) renumbers the definitions accordingly.

The proposed repeal of §745.603 deletes the rule, because the content has been added with updates to a new definition for "present at an operation" in the proposed amendment of §745.601(12).

Proposed new §745.605: (1) adds portions of the content from the proposed repeal of §745.615(a) and (d) regarding on whom must an operation submit requests for background checks; (2) reorganizes the list of persons who require a background check; (3) incorporates the definition of "owner" from the proposed amendment of §745.601; (4) adds the content from the proposed repeal of §745.621 to clarify that a background check is only required for a board member or officer of a governing body that is involved in the everyday management of the operation; (5) adds that any person that provides direct care and supervision of children in care must have a background check; and (6) adds in subsection (b) a specific list of persons for whom an operation does not have to submit a request for a background check.

Proposed new §745.607: (1) adds the content from the proposed repeal of §745.611 regarding the types of background checks with some non-substantive clarifications to the title and description for each type of background check; (2) adds out-of-state criminal history checks and out-of-state sex offender registry checks as two new types of background checks; and (3) improves the readability and understanding of the rule by placing the information in a chart.

Proposed new §745.609 describes the different types of background checks that are required for persons at an operation. This rule incorporates portions of the content from the proposed repeal of §745.615(b) and (c), with many substantive changes required by the Act. The changes include requiring a national fingerprint-based criminal history check, a Texas and national sex offender registry check, and in certain situations an out-of-state criminal history check, child abuse and neglect registry check, and sex offender registry check.

The proposed repeal of §745.611 deletes the rule, because the content regarding the types of background checks has been added to proposed new §745.607 with two additional types of background checks.

Proposed new §745.611 describes which persons at an operation are required to have a fingerprint-based criminal history check or a name-based criminal history check. This rule incorporates portions of the content from the proposed repeal of §745.615(b), with clarifications that a fingerprint-based criminal history check is always required if the person resided outside of Texas within the last five years or there is reason to believe the person has a criminal history in another state.

The proposed repeal of §745.613 deletes this rule as no longer necessary, because the purpose of a background check is self-evident.

Proposed new §745.613 requires all persons required to have a background check and who have lived outside of Texas in the last five years to have an out-of-state criminal history check, out-of-state child abuse and neglect registry check, and out-of-state sex offender registry check, except persons at a residential child care operation do not have to have an out-of-state criminal history check. This rule incorporates portions of the content from the proposed repeal of §745.615(c), with substantive clarifications required by the Act.

The proposed repeal of §745.615 deletes the rule, because the content regarding: (1) on whom must an operation submit requests for background checks has been added with substantive and non-substantive changes to proposed new §745.605; and (2) what types of background checks are required for persons has been added with substantive changes to proposed new §745.609, §745.611, §745.613, and §745.615.

Proposed new §745.615 describes the different types of background checks that are required for persons at a listed family home that only provides care to related children, employer-based child care operations, and shelter care operations. This rule incorporates the content from the proposed repeal of §745.615(b)(1).

The proposed repeal of §745.616 deletes the rule as no longer necessary, because it is a transitional rule that expires on December 31, 2017. This is the rule that mandated fingerprint-based criminal history checks for home-based day care providers, which was implemented last year in a phased-in approach and was discussed previously under the Background and Justification section.

The proposed repeal of §745.617 deletes the rule as no longer necessary, because proposed new §745.605 clarifies that background checks are only required for persons who are regularly and frequently present at an operation and so are not required for persons associated with another business or service that is located in the same large office building. However, on the CCL provider website the online version of Subchapter F, Background Checks, will have a Helpful Information box that further clarifies this issue.

Proposed new §745.617 describes how operations must submit a request for a background check, which incorporates the proposed repeal of §745.623(b) - (d). However, the new rule now requires licensed child-care homes, registered child-care homes, employer-based child care operations, and shelter care operations (all operations except listed family homes) to submit requests for background checks through the online Licensing website. Though this change is not required by the Act or H.B 4094, this new requirement will speed up the background check process for these newly included operations, besides allowing for a more streamlined and efficient review of background checks. In addition, more and more homes and operations have access to a computer or a smart phone by which the online submission of requests for background checks can be made.

The proposed repeal of §745.619 deletes this rule as no longer necessary, because the content of the rule is clarified in the new definition for "client in care" in the proposed amendment of §745.601(3). The new definition clarifies that a "client in care" includes foster children, and proposed new §745.605(b)(1) clarifies that an operation does not have to submit a background check for a "client in care."

Proposed new §745.619 describes a list of identifying information that must be included in a request for a background check. This incorporates the proposed repeal of §745.623(a) and adds to the rule what has already been required in practice: the role of the person at the operation, including the person's title and job duties, whether the person will be supervised by a caregiver counted in the child-to-caregiver ratio, and the ages of the children the person will be caring for.

The proposed repeal of §745.621 deletes the rule as no longer necessary, because proposed new §745.605(a)(1)(C) clarifies that a background check is only required for a board member or officer of a governing body that is involved in the everyday management of the operation.

Proposed new §745.621 adds the content from the proposed repeal of §745.625 regarding when must a request for an initial or renewal background check be submitted. However, the deadlines for submission have been updated to coincide with the new federal requirements: (1) renewal background checks must be submitted within five years from the date of the last fingerprint-based criminal history check; (2) name-based checks must be submitted within two years from the date of the last named-based criminal history check; (3) new requests must be submitted when there has been a change in the person's state of residence; and (4) new requests must be submitted when there is a change in the person's role at the operation that requires a fingerprint-based check instead of a name-based check.

The proposed repeal of §745.623 deletes the content of this rule and moves: (1) subsection (a) regarding what information must be included in a request for a background check to proposed new §745.619 with additions; and (2) subsections (b) - (d) regarding how to submit a background check to §745.617 with substantive changes.

Proposed new §745.623 adds the content from the proposed repeal of §745.629 regarding how to submit fingerprints for a fingerprint-based check with non-substantive changes to the wording of the rule to improve readability and understanding.

The proposed repeal of §745.625 deletes this rule regarding when must a request for an initial or renewal background check be submitted, because the content of this rule has been added to §745.621 with substantive changes regarding the deadlines for submission.

Proposed new §745.625 adds the content from the proposed repeal of §745.630 regarding whether new fingerprints must be submitted with substantive changes to clarify that new fingerprints are not required if the CBCU has an active subscription or can reactivate a subscription to the FBI's national rap back service for the person.

The proposed repeal of §745.626 deletes this rule, because it is no longer accurate. The process regarding what information will be released to an operation has changed, which also changes the answer to when a person can be present at an operation. The updated question and response is in proposed new §745.639.

Proposed new §745.627 adds a maximum timeframe (as soon as possible, but no later than 45 days) for when the operation and the subject of the background check will be notified of the background check determination.

The proposed repeal of §745.629 deletes the rule regarding how to submit fingerprints for a fingerprint-based check, because the content of the rule has been added to §745.623 with non-substantive changes.

Proposed new §745.629 adds four types of background check determinations (provisionally eligible with conditions, eligible, eligible with conditions, and ineligible) and a description for each one. These determinations are now needed, because the Act does not allow for the actual release of criminal history and child abuse and neglect findings directly to an operation.

The proposed repeal of §745.630 deletes this rule regarding whether new fingerprints must be submitted, because the content of the rule has been added to §745.625 with substantive changes.

The proposed repeal of §745.631 deletes this rule regarding whether background checks must be completed before Licensing issues a permit, because the content of the rule has been added to §745.645 with substantive and non-substantive changes.

Proposed new §745.631 adds the content from the proposed repeal of §745.691 regarding whether conditions or restrictions may be placed on a person's presence at an operation with: (1) non-substantive changes to make the wording of the rule consistent with the new changes in this subchapter; and (2) a substantive addition to clarify that the CBCU may place conditions or restrictions on a person when the person's out-of-state checks are pending and there is no information that renders the person ineligible to be present at the operation.

The proposed repeal of §745.633 deletes this rule regarding whether background checks must be completed on foster homes and adoptive homes before a child-placing agency (CPA) may verify a home, because the content is not consistent with the changes in this subchapter. However, a similar question has been added at §745.647 with an updated answer.

Proposed new §745.633 describes the information that will be included in a notice letter to an operation regarding the subject of a background check. The notice letter will include the background check determination related to whether the person may be present at an operation and any conditions or restrictions placed on the subject. This is substantially different from previous notifications, because the Act does not allow the release of criminal history and child abuse and neglect findings directly to operations. The one exception is background checks in foster or adoptive homes, for which the CPA will be given specific information regarding criminal history and child abuse and neglect findings, because the CPA must conduct home screenings on foster and adoptive homes.

The proposed repeal of §745.635 deletes this rule regarding whether an operation can conduct their own background checks, because the rule has been added to the proposed new §745.649 with non-substantive changes.

Proposed new §745.635 describes what actions an operation must take regarding a subject's background check determination, and the actions that may be taken against an operation when conditions or restrictions are not followed. This proposed new rule includes the content from the proposed repeal of §745.693 with non-substantive changes.

The proposed repeal of §745.637 deletes this rule regarding what information may be obtained from Licensing's records on a person's previous history at an operation, because the rule has been added to the proposed new §745.650 with non-substantive changes.

Proposed new §745.637 describes the information that will be included in a notice letter to the subject of the background check.

Proposed new §745.639 describes how soon a person may be present at an operation after the submission of a request for a background check.

Proposed new §745.641 explains how a subject can dispute the accuracy and completeness of the results from a background check.

Proposed new §745.643 explains how a subject can request a review of the background check determination.

Proposed new §745.645 adds the content from the proposed repeal of §745.631 regarding whether background checks must be completed before Licensing issues a permit with: (1) a substantive change in new subsection (b) to clarify that background checks must be completed on owners before a permit may be issued; and (2) non-substantive changes were made to improve readability and understanding of the rule.

Proposed new §745.647 adds a similar question as the proposed repeal of §745.633 regarding whether background checks must be completed on foster homes and adoptive homes before a CPA may verify a home. The answer is now consistent with the changes being made in this subchapter, specifically a CPA cannot verify a home until the CPA receives notification from CBCU that all household members are eligible or eligible with conditions to be present at the home.

Proposed new §745.648 adds new requirements for operations to indicate when a person is no longer associated with an operation. The FBI does not allow continued access to the FBI's national rap back service once a person is no longer associated with the operation, so this information needs to be updated immediately and regularly (every three months for all operations except day care homes - which is once a year).

Proposed new §745.649 adds the content from the proposed repeal of §745.635 regarding whether an operation can conduct their own background checks with non-substantive changes to improve the readability and understanding of the rule.

Proposed new §745.650 adds the content from the proposed repeal of §745.637 regarding what information may be obtained from Licensing's records on a person's previous history at an operation with non-substantive changes to update the wording of the rule and to improve the readability and understanding of the rule.

The proposed repeal and new §745.651: (1) updates the wording of the rule to be consistent with the definition for "present at an operation"; (2) moves a website from the rule to a Helpful Information box that will be included in the in the online version of Subchapter F, Background Checks, on the CCL provider website; and (3) updates the wording of the rule to be consistent with the fact that CCL is moving to HHSC.

Proposed new §745.652 adds the content from the proposed repeal of §745.655 regarding whether criminal convictions include deferred adjudication with: (1) non-substantive changes, including changing "deferred adjudication" to the legally correct term "deferred adjudication community supervision"; and (2) the substantive change of allowing any deferred adjudication community supervision to be used in the revocation of a permit because it is currently allowed in Article 42A.111(d)(2) and Article 42A.701(f)(2) of the Code of Criminal Procedure.

The proposed repeal of §745.653 deletes this rule regarding the release of non-enumerated crimes as no longer necessary, because the rule is no longer accurate. In the limited situations when non-enumerated crimes may be released to CPAs for foster and adoptive parents, this information is now located in proposed new §745.633.

Proposed new §745.653 adds the content from the proposed repeal of §745.699 regarding what an operation should do if a person is the subject of a criminal investigation with non-substantive changes to update the wording of the rule to be consistent with the other changes made in this subchapter.

The proposed repeal of §745.655 deletes this rule regarding whether criminal convictions include deferred adjudication, because the content of the rule has been added to proposed new §745.652 with non-substantive changes and a substantive change.

Proposed new §745.655 adds the content from the proposed repeal of §745.701 regarding when a person that is charged with a crime may be present at an operation with non-substantive changes to clarify the CBCU now makes this determination.

The proposed repeal and new §745.656 adds that a person required to register as a sex offender in another state or territory may not be present at an operation.

The proposed repeal and new §745.657: (1) clarifies that this rule also applies to findings in out-of-state child abuse and neglect registries; (2) updates the wording of the rule to be consistent with the definition for "present at an operation"; (3) adds how a risk evaluation would be handled for a child abuse or neglect finding that has not been sustained and has not been determined to be an immediate threat; and (4) updates the wording of the rule to be consistent with the fact that CCL is moving to HHSC.

The proposed repeal of §745.659 deletes this rule as no longer necessary, because much of the content is no longer accurate. Any information that is accurate, was added to proposed new §745.633.

Proposed new §745.659 adds the content from the proposed repeal of §745.705 regarding what an operation should do if a person is the subject of a child abuse or neglect investigation with non-substantive changes to update the wording of the rule to be consistent with the other changes made in this subchapter.

The proposed repeal of §745.661 deletes the rule regarding what operation actions are required when there is criminal history or child abuse or neglect history, because the content is outdated. However, a similar question with updated requirements has been added at §745.635.

The proposed repeal of §745.663 deletes the rule as no longer necessary, because the rule has been replaced by proposed new §745.641 and §745.643 regarding how a subject can dispute the accuracy and completeness of the results from a background check and request a review of the background check determination, respectively.

Proposed new §745.679 requires that the subject of the background check must request a risk evaluation.

The proposed repeal of §745.681 deletes the rule as no longer necessary, because the contents of the rule are no longer accurate. Proposed new §745.681 is a similar question with an updated answer.

Proposed new §745.681 describes when the subject of a background check may request a risk evaluation.

The proposed repeal of §745.683 deletes the rule as no longer necessary, because the contents of the rule are no longer accurate. Proposed new §745.679 is a similar question with an updated answer.

Proposed new §745.683 adds a time frame for when the subject of a background check may request a risk evaluation.

The proposed repeal and new §745.685 clarifies the wording of the rule to improve readability and understanding, including the addition of two cites.

The proposed repeal of §745.686 deletes the rule as no longer necessary, because the contents of the rule are no longer accurate. Proposed new §745.683 is a similar question with an updated answer.

The proposed repeal and new §745.687 regarding what must be included in a request for a risk evaluation based on criminal history: (1) clarifies the wording of the rule to be consistent with other changes made to this subchapter and to improve readability and understanding of the rule; (2) adds a requirement to provide an official copy of the police report regarding the circumstances of the arrest; (3) deletes the requirement to provide information regarding the subject's role at the operation, because most of this information is being provided by the operation at the time of the submission of the request for a risk evaluation; and (4) the deletion of a valid rationale from the operation as to why the subject would not pose a risk to the health and safety of children (except for a foster or adoptive placement), because the subject is now submitting the request for a risk review (not the operation).

The proposed repeal and new §745.689 regarding what must be included in a request for a risk evaluation based on a child abuse or neglect finding: (1) clarifies the wording of the rule to be consistent with other changes made to this subchapter and to improve readability and understanding of the rule; (2) deletes the requirement to provide information regarding the subject's role at the operation, because most of this information is being provided by the operation at the time of the submission of the request for background check; and (3) the deletion of a valid rationale from the operation as to why the subject would not pose a risk to the health and safety of children (except for a foster or adoptive placement), because the subject is now submitting the request for a risk review (not the operation).

The proposed repeal of §745.691 deletes the rule regarding whether conditions or restrictions may be placed on a person's presence at an operation, because the content of the rule has been added to the proposed new §745.631 with non-substantive changes and one substantive change.

Proposed new §745.691 adds the content from the proposed repeal of §745.707 regarding who makes the final decision on a risk evaluation with non-substantive changes.

The proposed repeal of §745.693 deletes the rule regarding whether an operation must follow conditions or restrictions, because the content has been added to proposed new §745.635 with non-substantive changes. The requirement that Licensing may put in a safety plan when conditions are not followed was deleted, because safety plans are only implemented during investigations and not in response to an operation not following conditions or restrictions.

Proposed new §745.693 adds: (1) the content of the proposed repeal of §745.709 regarding the basis of a risk evaluation decision; (2) non-substantive changes to improve the readability and understanding of the rule, including breaking the rule into numbered paragraphs; and (3) a criminal history, child abuse and neglect findings, and any other relevant factors as a basis of the risk evaluation decision.

The proposed repeal of §745.695 deletes the rule regarding what criminal history and Central Registry findings are relevant to a person's ability to be a licensed administrator, because the content of the rule was added to proposed new §745.775 with substantive changes.

Proposed new §745.695 adds requirements for when and how a subject can request a review of a risk evaluation decision, including that a request may be made any time there is new information available, the process for requesting the review, and the time frame for CBCU to respond (30 days).

The proposed repeal of §745.696 deletes the rule regarding whether criminal history or Central Registry findings prohibit a person from becoming a licensed administrator, because the content of the rule was added to proposed new §745.775 with substantive changes.

The proposed repeal of §745.697 deletes the rule as no longer necessary, because the content of the rules is not accurate and has been subsumed by proposed new §745.695, which is also more consistent with the Act's requirements for an appeal process for the background check determinations.

The proposed repeal of §745.699 deletes the rule regarding what an operation should do if a person is the subject of a criminal investigation, because the content of the rule has been added to proposed new §745.653 with non-substantive changes.

The proposed repeal of §745.701 deletes the rule regarding when a person that is charged with a crime may be present at an operation, because the content of the rule has been added to proposed new §745.655 with non-substantive changes.

The proposed repeal of §745.703 deletes the rule as no longer necessary, because the content of the rule was redundant and has been answered by several other rules.

The proposed repeal of §745.705 deletes the rule regarding what an operation should do if a person is the subject of a child abuse or neglect investigation, because the content of the rule has been added to proposed new §745.659 with non-substantive changes.

The proposed repeal of §745.707 deletes the rule regarding who makes the final decision on a risk evaluation, because the content of the rule has been added to proposed new §745.691 with non-substantive changes.

The proposed repeal of §745.709 deletes the rule regarding the basis of a risk evaluation decision, because the content of the rule has been added to proposed new §745.693 with non-substantive changes and the substantive addition of several factors.

The proposed repeal of §745.711 deletes the rule as no longer necessary, because the content of the rules is not accurate and has been subsumed by proposed new §745.695.

The proposed repeal and new §745.731 moves the rule from Division 5 to Division 6. No changes are made to the rule heading or content.

The proposed repeal of §745.733 deletes the rule as no longer necessary, because the content is either: (1) no longer accurate; (2) already covered in Subchapter K, Inspections and Investigations, Division 3, Confidentiality, of this title; or (3) already covered at proposed new §745.633, regarding what information is in a notice letter sent to an operation.

The proposed repeal of §745.735 deletes the rule as no longer necessary, because the content is either: (1) no longer accurate; (2) already covered at proposed new §745.633 and §745.637, regarding what information is in a notice letter sent to an operation and a subject; or (3) unnecessary and irrelevant to background checks.

The proposed repeal and new §745.751 clarifies that the immediate threat decisions may be made by the CBCU (when it relates to background checks and risk evaluations) or by Licensing (when conducting a child abuse or neglect investigation).

The proposed repeal of §745.753 deletes the rule as no longer necessary, because the content of the rule is no longer accurate, and the issue has been clarified and updated at proposed new §745.633 and §745.637.

Proposed new §745.775 adds the content from the proposed repeal of §745.695 and §745.696 regarding what criminal history and child abuse and neglect history impact a person's ability to be a licensed administrator, with non-substantive changes to improve readability and understanding and substantive changes that state: (1) all background check requirements must be complied with; (2) operations must also submit a request for a background check on Licensed Administrators even though the Licensed administrator had a background check conducted through the licensure process; and (3) being on a sex offender registry will prohibit a person from being a licensing administrator.

Regarding Subchapter L, Enforcement Actions:

The proposed amendment of §745.8713 deletes an outdated cite and updates when a monetary penalty may be imposed before imposing a corrective action to be consistent with the new changes in Subchapter F.

The proposed amendment of Subchapter N, Administrator's Licensing, updates the title to the subchapter.

The proposed amendment of §745.8915 simplifies and clarifies that to qualify for a Child-Care Administrator's License (CCAL), the applicant must be in compliance with Subchapter F, including not having a criminal history or child abuse or neglect finding that would prohibit the applicant from working in residential child-care operation.

The proposed amendment of §745.8917 simplifies and clarifies that to qualify for a Child-Placing Agency Administrator's License (CPAAL), the applicant must be in compliance with Subchapter F, including not having a criminal history or child abuse or neglect finding that would prohibit the applicant from working in residential child-care operation.

The proposed amendment of §745.8934 updates terminology and outdated cites.

The proposed amendment of §745.8993: (1) deletes outdated cites; and (2) simplifies and clarifies that to renew an administrator's license, the administrator must be in compliance with Subchapter F.

The proposed amendment of §745.9009 updates the wording of the rule to improve readability and understanding; and deletes an outdated requirement to submit background check forms every two years.

The proposed amendment of §745.9026 updates terminology an outdated cite.

The proposed amendment of §745.9029 updates terminology and outdated cite.

The proposed amendment of §745.9037 simplifies that Licensing can take remedial action against an administrator's license when the administrator does not comply with Subchapter F, Background Checks.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years the proposed rule is in effect, there will be a savings to state government; specifically $74,364 General Revenue (GR) ($1,532,987 All Funds (AF)) for State Fiscal Year (SFY) 2018, $111,547 GR ($2,299,481 AF) for SFY 2019, $111,547 GR ($2,299,481 AF) for SFY 2020, $111,547 GR ($2,299,481 AF) for SFY 2021, and $111,547 GR ($2,299,481 AF) SFY 2022. There will be a reduction in cost to the state for name-based criminal history checks. The proposed rule changes remove the need for CCL to complete a name-based criminal history check for a person who already has a fingerprint background check on file. CCL anticipates there will be a reduction in name-based searches, since the majority of the licensing population already has a fingerprint background check on file.

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

Ms. Rymal has determined that there is no anticipated adverse impact to rural communities as a result of the proposed rule changes. Ms. Rymal has determined that the only anticipated adverse impact on small or micro businesses is as a result of the proposed rule changes to §745.617 and §745.625. Ms. Rymal has also determined that the new requirements under Government Code, §2001.0045 do not apply because the changes to: (1) §745.617 are necessary to protect the health, safety, and welfare of the children of this state; and (2) §745.625 are necessary to receive the CCDF and comply with the Act, protect the health, safety, and welfare of children in this state, and implement H.B. 4094.

The proposed change to §745.617 will impact licensed child-care homes, registered child-care homes, employer-based child care operations, and shelter care operations that meet the definition of a small and micro-business that do not already have a computer or smart phone to access the online Licensing website. The proposed change to §745.625 will impact any child care operation (excluding listed family homes that only care for related children, employer-based child care operations, and shelter care operations) that has had a person (employee, foster parents, etc.) fingerprinted before June 1, 2015.

According to the DFPS FY 2016 Annual Report and Data Book as of August 31, 2016, there were 7,957 licensed child-care centers, 1,567 school age and before or after-school programs, 1,738 licensed child-care homes, 4,433 registered child-care homes, 4,485 listed family homes (only a very few of the listed homes only provide care for related children), ten employer-based child care operations, eleven shelter care operations, 242 General Residential Operations (GROs), and 242 CPAs with 9629 agency foster homes and foster group homes, in Texas. Independent foster homes and foster group homes are not included here because there are only five of them and no more independent foster homes may be verified after September 1, 2017. It is not anticipated that either rule will impact independent foster homes.

Chapter 2006 of the Government Code defines a small business as one that is for-profit, independently owned, and has fewer than 100 employees or less than six million dollars in annual gross receipts. A small business that has no more than 20 employees is also defined as a micro-business. A 2010 survey conducted by CCL indicated that approximately 55% of licensed child-care centers, including school age and before or after-school programs, are for-profit business [(7,957 + 1,567) X 70% = 5,238)]. Of those, 70% are independently owned (5,238 X 70% = 3,666), and 98% of those (3,666 X 98% = 3,592) have fewer than 100 employees and 68% (3,666 X 68% = 2,492) have fewer than 20 employees. CCL is assuming that virtually all licensed child-care homes, registered child-care homes, listed family homes (only a very few of the listed homes only provide care for related children), and employer-based child care operations are small and micro-businesses. It is estimated that only 25% of GROs (242 X 25% = 60) are small businesses and only 16% (242 X 16% = 38) micro businesses. Of the CPAs and shelter care operations, it is estimated that only 10 % fall within the definition of a small or micro-business, because only 22 of them are for-profit businesses. Of those 22, it is estimated that most of them are small businesses and half of them are micro-businesses.

Licensing staff developed the methodologies used to calculate the fiscal impact of these rules. The impacts were calculated using cost research conducted by staff and assumptions regarding child-care practices. The key assumptions and methodologies are described in detail below, as these underlie the individual impact calculations for the rule that is projected to have a fiscal impact.

Fiscal Impact for Proposed §745.617: This section requires licensed child-care homes, registered child-care homes, employer-based child care operations, and shelter care operations to submit requests for background checks through the online Licensing website, which would require a basic computer (low functioning, no gaming required) or smart phone to submit the requests.

It is anticipated that this change will only affect a small number of homes or operations. While a little less than a third of the licensed child-care homes (527) and little less than half of the registered child-care homes (2093) do not currently have provider accounts through the online Licensing website, only 98 combined licensed child-care homes and registered child-care homes do not have contact e-mail addresses. While several of the employer-based child care operations and shelter care operations do not currently have provider accounts through the online Licensing website, all of them have contact e-mail addresses. The assumption is that the vast majority of these homes and operations have access to a computer or smart phone. The Pew Foundation in a 2015 study found that 73% of homes have a laptop or desktop computer and 68% have a smartphone. However, for those homes or operations that do not currently have a computer or smartphone, the costs would be a one-time cost and relatively small. While computers can be expensive, only a very modest computer is needed to access the online Licensing website. A pocket computer could be bought for as low as $99. Other low functioning laptops can be bought for $200 - $ 400. CCL is assuming that a maximum of 98 home providers will need to make a one-time purchase for a computer to access the online Licensing website at an average cost of $250.00 per computer.

Regulatory Flexible Analysis: The projected fiscal impact on small and micro-businesses for §745.617 is addressed in the foregoing sections. CCL did consider allowing homes to continue to submit requests for background checks through a manual process. However, though this change is not required by the Act or H.B 4094, this new requirement will speed up the background check process for these newly included homes and operations, be safer for children, and allow for a more streamlined and efficient review of background checks. CCL also considered instituting a grandfather clause. However, with only approximately 98 homes not having access to a computer, a grandfather clause was determined to be unnecessary.

Fiscal Impact for Proposed §745.625: One of the changes to the background check rules is to require a FBI national fingerprint-based criminal history check every five years, which CCL has decided to do by instituting the FBI national fingerprint-based rap back service for all individuals working in child care. This service would allow CCL to be immediately informed if there was a crime committed by an individual working for a child care operation. In addition, continued fingerprinting would not be required. The current costs for an individual to be fingerprinted is approximately $40. This cost is paid for by either the individual or the child care operation. For individuals that will be fingerprinted in the future or for individuals that were originally fingerprinted after 6/1/15, there will be no additional costs and no additional fingerprints in the future. Since 6/1/15, all fingerprints processed for CCL have been retained at the FBI level and CCL will be able to subscribe to the national rap back for these individuals without further costs. However, for the individuals fingerprinted prior to 6/1/15, a new fingerprint-based check will be required when a renewal background check is required in five years. It is estimated that there are 22,750 individuals that were fingerprinted prior to 6/1/15 that will need to be re-fingerprinted for a fingerprint-based criminal history check over the next five years. The $40 costs per individual will need to be paid for by the individual or the operation. Since these individuals cross all operation types, it is impossible to know the net effect on each operation type or individual operation. However, by allowing the fingerprint-based checks to be conducted over a five year period, the costs for an individual or costs associated with each operation will be extended over as much time as allowed by the Act.

Regulatory Flexible Analysis: The projected fiscal impact on small and micro-businesses for §745.625 is addressed in the foregoing sections. A requirement to have a national FBI fingerprint-based check every five years is mandated by the Act to improve the safety and quality of child care. CCL considered requiring new fingerprints immediately or over the next two years, but ultimately determined that allowing these costs to be spread over a five year period, depending upon when each individual's renewal background check will be due, was the most efficient method to obtain fingerprints for the national rap back service with the least cost impact. This change will increase safety for children.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; to receive a source of federal funds or comply with federal law; and to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT

Ms. Rymal also has determined that for each of the first five years that the proposed sections will be in effect, the public benefit anticipated as a result of the rule change will be that (1) more robust background checks will improve the safety and quality of child care; (2) CCL will be in compliance with the Act; (3) CCL will be in compliance with H.B. 4094 and HRC §42.056; and (4) there will be a better understanding of the requirements relating to Background Checks.

TAKING IMPACT ASSESSMENT

Ms. Rymal has determined that the proposed amendments, repeals, and new sections do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

PUBLIC COMMENT

Questions about the content of the proposal may be directed to Gerry Williams at (512) 438-5559 in the Child Care Licensing Division of HHSC. Electronic comments may be submitted to HHSRulesCoordinationOffice@hhsc.state.tx.us. Written comments on the proposal may be submitted to Gerry Williams, Rules Developer (40R026), Child Care Licensing, Health and Human Services Commission E550, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

SUBCHAPTER F. BACKGROUND CHECKS

DIVISION 1. DEFINITIONS

40 TAC §745.603

STATUTORY AUTHORITY

The repeal is proposed 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 Human Resources Code §42.042 and §42.056.

§745.603.Who does DFPS consider to be present at an operation while children are in care?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703757

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 2. REQUESTING BACKGROUND CHECKS

40 TAC §§745.611, 745.613, 745.615 - 745.617, 745.619, 745.621, 745.623, 745.625, 745.626, 745.629 - 745.631, 745.633, 745.635, 745.637

STATUTORY AUTHORITY

The repeals are proposed 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 Human Resources Code §42.042 and §42.056.

§745.611.What are background checks?

§745.613.What is the purpose of background checks?

§745.615.On whom must I request background checks?

§745.616.Transitional rule for requesting fingerprint-based criminal history checks for listed family homes, registered child-care homes, and licensed child-care homes as required by the 84th Texas Legislature.

§745.617.If my operation is located in a large building that includes other businesses or services, must I request a background check on people working in the building who are not involved in my operation?

§745.619.For a registered child-carehome that is also a foster home, must I request background checks on foster children who are over 14 years old?

§745.621.Must I request background checks on board members of corporations or associations who own or govern the operation?

§745.623.How do I request a background check?

§745.625.When must I submit a request for an initial or renewal background check?

§745.626.How soon after I request a background check on a person can that person provide direct care or have direct access to a child?

§745.629.How do I submit fingerprints for a fingerprint-based criminal history check?

§745.630.If a fingerprint-based criminal history check has already been completed on a person, must that person submit new fingerprints at the time my initial or renewal background check on that person is due?

§745.631.Must Licensing complete the background check(s) before issuing my permit?

§745.633.Can a child-placing agency (CPA) verify a foster home, foster group home, or adoptive home prior to receiving the results of the background checks?

§745.635.Can I do my own criminal history background checks?

§745.637.What information may I obtain from Licensing's records regarding a person's previous history in a child-care operation?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703758

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 3. CRIMINAL CONVICTIONS AND CENTRAL REGISTRY FINDINGS OF CHILD ABUSE OR NEGLECT

40 TAC §§745.651, 745.653, 745.655 - 745.657, 745.659, 745.661, 745.663

STATUTORY AUTHORITY

The repeals are proposed 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 Human Resources Code §42.042 and §42.056.

§745.651.What types of criminal convictions may affect a person's ability to be present at an operation?

§745.653.If a criminal history check reveals a criminal conviction other than those enumerated in the relevant chart listed in §745.651 of this title (relating to What types of criminal convictions may affect a person's ability to be present at an operation?), will Licensing notify me of the results?

§745.655.Do criminal convictions include deferred adjudication for an offense that may affect a person's ability to be present at an operation?

§745.656.Will a requirement that a person register with the Texas Sex Offender Registry affect the person's ability to be present at an operation?

§745.657.What types of Central Registry findings may affect a person's ability to be present at an operation?

§745.659.What will happen if a person at my child-care operation has a criminal conviction or a Central Registry finding?

§745.661.What must I do after Licensing notifies me that a person at my operation has one of these types of criminal convictions or Central Registry findings?

§745.663.What if the person with the criminal conviction or central registry finding believes the information obtained is incorrect?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703760

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 4. EVALUATION OF RISK BECAUSE OF A CRIMINAL CONVICTION OR A CENTRAL REGISTRY FINDING OF CHILD ABUSE OR NEGLECT

40 TAC §§745.681, 745.683, 745.685 - 745.687, 745.689, 745.691, 745.693, 745.695 - 745.697, 745.699, 745.701, 745.703, 745.705, 745.707, 745.709, 745.711

STATUTORY AUTHORITY

The repeals are proposed 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 Human Resources Code §42.042 and §42.056.

§745.681.When may I request a risk evaluation?

§745.683.Who is responsible for submitting a request for a risk evaluation?

§745.685.How do I submit a request for a risk evaluation?

§745.686.What are the time frames for requests for a risk evaluation?

§745.687.What must I include in my request for a risk evaluation based on criminal history?

§745.689.What must I include in my request for a risk evaluation based on a Central Registry finding?

§745.691.May conditions or restrictions be placed on a person's presence at an operation?

§745.693.Must I follow conditions or restrictions that have been placed on a person's presence at an operation?

§745.695.What criminal history and Central Registry findings are relevant to a person's ability to be a licensed administrator?

§745.696.Does having a criminal history or Central Registry finding prohibit me from becoming a licensed administrator?

§745.697.Is an approved risk evaluation permanent?

§745.699.What should I do if a person in my child-care operation is currently the subject of a criminal investigation?

§745.701.May a person arrested or charged with a crime be present at an operation while children are in care?

§745.703.If I have knowledge that a person has a criminal conviction or Central Registry finding, can the person be present at my operation while children are in care?

§745.705.What must I do if a person in my child-care operation is the subject of an abuse or neglect investigation?

§745.707.Who makes the final decision on a risk evaluation?

§745.709.What is the basis of the risk evaluation decision?

§745.711.What can I do if I disagree with the risk evaluation decision?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703762

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 5. DESIGNATED AND SUSTAINED PERPETRATORS OF CHILD ABUSE OR NEGLECT

40 TAC §§745.731, 745.733, 745.735

STATUTORY AUTHORITY

The repeals are proposed 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 Human Resources Code §42.042 and §42.056.

§745.731.What are designated perpetrators and sustained perpetrators of child abuse or neglect?

§745.733.Will Licensing release a central registry finding on a designated perpetrator or sustained perpetrator to my operation?

§745.735.What notice will Licensing send a designated perpetrator or a sustained perpetrator working at an operation?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703764

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 6. IMMEDIATE THREAT OR DANGER TO THE HEALTH OR SAFETY OF CHILDREN

40 TAC §745.751, §745.753

STATUTORY AUTHORITY

The repeals are proposed 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 Human Resources Code §42.042 and §42.056.

§745.751.What factors does Licensing consider when determining if a person or an operation is an immediate threat to the health or safety of children?

§745.753.How will I know whether Licensing has determined that a person or my operation poses an immediate threat or danger to the health or safety of children?

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703766

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 1. DEFINITIONS

40 TAC §745.601

STATUTORY AUTHORITY

The amendment is proposed 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 health and human services agencies.

The amendment implements Human Resources Code §42.042 and §42.056.

§745.601.What words must I know to understand this subchapter?

These words have the following meanings:

(1) CBCU--The Centralized Background Check Unit is a subdivision [division] of Licensing [DFPS] that conducts background checks and risk evaluations [for various DFPS divisions, including Licensing].

(2) Central Registry--A DFPS database of persons who have been found by Licensing or an investigations division within DFPS to have abused or neglected a child. [Continuous stay--Staying overnight or consecutive nights at an operation.]

(3) Client in care--A child, young adult, or adult in the care of your operation, including foster children or young adults for whom your operation is receiving foster care payments, adults in care through the Health and Human Services System, court-ordered placements, and kinship care. A biological or adopted child is not a client in care.

(4) Criminal history--Includes arrests, dispositions, and deferred adjudication community supervision. Criminal history does not include expunged criminal history or non-disclosure history. It does not include juvenile history, although the CBCU may determine that a person poses an immediate threat or danger to the health or safety of children based on a juvenile adjudication that the CBCU receives with the person's criminal history.

(5) DFPS--Department of Family and Protective Services.

(6) DPS--Department of Public Safety.

(7) [(3)] Direct care or direct access--Being counted in the child-to-caregiver ratio or having any responsibility that requires contact with children in care.

(8) FBI--Federal Bureau of Investigation.

(9) HHSC--Health and Human Services Commission.

(10) [(4)] Initial background check--The first background check that your operation submits for [requests on] a person required to have a background check, as specified in §745.605 of this title (relating to For whom must I submit requests for background checks?). [who is required to undergo a background check, as provided in this subchapter.]

[(5) Non-continuous visit--Being physically present at an operation for a period of time of less than 24 hours. Multiple or periodic visits to an operation within the same day is one visit.]

[(6) Owner--A person who owns a child-care operation. An owner includes:]

[(A) A sole proprietor;]

[(B) A partner in a partnership; or]

[(C) An officer of the governing body if the officer:]

[(i) Has a role in the everyday operation of the facility;]

[(ii) Participates in making policies that address the everyday operation of the child-care operation or DFPS requirements; or]

[(iii) Signs background check requests or requests risk evaluations for the operation.]

(11) Licensing--Child Care Licensing, a division of HHSC.

(12) Present at an operation--A person is present at an operation if the person has or may have contact with children in care as follows:

(A) The person is physically present at an operation while any child is in care;

(B) The person has responsibilities that may require the person to be present at an operation while any child is in care;

(C) The person resides at an operation or is present at an operation on a regular or frequent basis; or

(D) The person provides direct care or has direct access to any child in care, including supervised or unsupervised direct access to any child.

(13) [(7)] Regularly or frequently present at an operation--The definition means:

(A) A person is regularly or frequently present at an operation if the person [is at an operation]:

(i) Is present at an operation on [On] a scheduled basis;

(ii) Visits the operation [For] three or more times [non-continuous visits] in a 30-day period, with "isit"meaning being present at an operation for a period of time of less than 24 hours, and multiple or periodic visits to an operation within the same day counting as one visit;

(iii) Stays or resides at the operation for more than [For one continuous stay that exceeds] seven consecutive days; or

(iv) Stays or resides at the operation [For ] three or more times [continuous stays] per year, and the duration of each stay exceeds 48 hours.

(B) For foster homes, the following persons are not considered to be regularly or frequently present at a foster home:

(i) A child unrelated to a foster parent who visits the foster home unless:

(I) The child is responsible for the care of a foster child; or

(II) There is a reason to believe that the child has a criminal history or previously abused or neglected a [another ] child; and

(ii) An adult unrelated to a foster parent who visits the foster home unless:

(I) The adult has unsupervised access to children in care; or

(II) There is a reason to believe that the adult has a criminal history or previously abused or neglected a child.

(C) For a child day-care operation, parents are not regularly or frequently present at an operation solely because they are visiting their child, which may include dropping off or picking up their child, eating lunch with their child, visiting or observing their child, or consoling their child. However, a parent may be regularly or frequently present at an operation if he or she volunteers at an operation or is otherwise present at an operation for a reason other than visiting his or her child.

(14) [(8)] Renewal background check--A subsequent [recurring] background check that your operation submits for a person who has already had an initial background check at [must request for someone periodically after] your operation as required in §745.605 of this title [submits an initial background check for that person, as provided in this subchapter].

(15) [(9)] Risk evaluation--A process conducted by the CBCU that is initiated by a person with a criminal history or child abuse and neglect history. [an operation whereby the Centralized Background Check Unit (CBCU)] During this process the CBCU reviews information and determines whether a person with a criminal conviction or child abuse or neglect [Central Registry] finding or a person who has been arrested or charged with a crime poses a risk to the health or safety of children in a particular operation.

(16) Subject--The subject of a background check.

(17) [(10)] Substitute employee--A person present at an [on the premises of a child-care] operation usually for the purpose of fulfilling an absent employee or caregiver role [in the absence of an employee or caregiver usually present at the operation].

(18) Sustained finding--A child abuse or neglect finding against a person on the Central Registry where the person has already been offered rights to an administrative review and due process hearing, and the:

(A) Designated perpetrator's rights to the administrative review and due process hearing have expired; or

(B) Child abuse or neglect finding was upheld in the due process hearing.

(19) [(11)] Unsupervised access--The person is allowed to be with children without the presence of a [qualified ] caregiver that is counted in the child-to-caregiver ratio and meets the minimum education requirements, work experience, training qualifications, and background check requirements.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703756

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 2. REQUESTING BACKGROUND CHECKS

40 TAC §§745.605, 745.607, 745.609, 745.611, 745.613, 745.615, 745.617, 745.619, 745.621, 745.623, 745.625

STATUTORY AUTHORITY

The new rules are proposed 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 health and human services agencies.

The new rules implement Human Resources Code §42.042 and §42.056.

§745.605.For whom must I submit requests for background checks?

(a) You must submit a request for a background check for:

(1) The owner of the operation, including:

(A) A sole proprietor;

(B) Each partner in a partnership; and

(C) A board member or an officer of a governing body that is involved in the everyday management of the operation, including participating in the development of policies that address the Licensing requirements or the everyday running of the operation, or submitting requests for background checks for the operation;

(2) Each person employed at the operation, including:

(A) All directors and administrators of the operation;

(B) Prospective employees; and

(C) Substitutes, unless you confirm that the organization providing the substitute has:

(i) Submitted a request for a background check for the substitute through the CBCU within the last five years; and

(ii) You have a copy of the background check determination that allows the substitute to be present at an operation;

(3) Each current or prospective foster parent providing foster care through a child-placing agency;

(4) Each prospective adoptive parent seeking to adopt through a child-placing agency;

(5) Each person 14 years of age or older, including a contract employee, self-employed person, or volunteer who:

(A) Is counted in the child-to-caregiver ratio in accordance with the relevant minimum standards;

(B) Provides direct care or supervision to children in care; or

(C) Has unsupervised access to children in care;

(6) Each person 14 years of age or older, who:

(A) Resides in the operation; or

(B) Will reside in a prospective adoptive home if the adoption is through a child-placing agency; and

(7) Each person 14 years of age or older, who is regularly or frequently present at an operation or prospective adoptive home.

(b) You do not have to submit a request for a background check on:

(1) A client in care;

(2) A professional who is licensed or is required to have a background check to meet compliance with another governmental entity's requirements, so long as:

(A) You do not employ or contract with the professional;

(B) The professional will only be present at an operation in an official capacity; and

(C) For day care operations, you obtain written parental consent before allowing the professional to have unsupervised access to a child in care; and

(3) Controlling persons who do not fulfill a role specified in subsection (a) of this section, such as a board member of a corporation or association that owns or governs the operation.

§745.607.What are the different types of background checks?

There are six types of background checks:

Figure: 40 TAC §745.607 (.pdf)

§745.609.What types of background checks are required for persons at my operation?

(a) Except as described in subsection (b) of this section, persons required to have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?) must have the following types of background checks:

(1) As further described in §745.611 of this title (relating to Which persons at my operation are subject to either a fingerprint-based criminal history check or a name-based Texas criminal history check?), either a:

(A) Fingerprint-based criminal history check, with a Texas sex offender registry check; or

(B) Name-based Texas criminal history check, with a Texas sex offender registry check;

(2) A Central Registry check; and

(3) As further described in §745.613 of this title (relating to Which persons at my operation are subject to the out-of-state criminal history check, out-of-state child abuse and neglect registry check, and out-of-state sex offender registry check?), for certain persons, an:

(A) Out-of-state criminal history check;

(B) Out-of-state child abuse and neglect registry check; and

(C) Out-of-state sex offender registry check.

(b) This rule does not apply to listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations. See §745.615 of this division (relating to What types of background checks are required for persons at listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations?).

§745.611.Which persons at my operation are subject to either a fingerprint-based criminal history check or a name-based Texas criminal history check?

(a) Except as described in subsection (b) of this section, a person required to have a background check under:

(1) §745.605(a)(1) - (6) of this title (relating to For whom must I submit requests for background checks?) must have a fingerprint-based criminal history check; and

(2) §745.605(a)(7) of this title is only required to have a name-based Texas criminal history check, except the person must have a fingerprint-based criminal history check if:

(A) The person has resided outside of Texas any time during the five-year period prior to the date you submit a request for a background check; or

(B) There is reason to believe the person has criminal history in another state.

(b) This rule does not apply to listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations. See §745.615 of this title (relating to What types of background checks are required for persons at listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations?).

§745.613.Which persons at my operation must have an out-of-state criminal history check, an out-of-state child abuse and neglect registry check, and an out-of-state sex offender registry check?

(a) Except as described in subsections (d) and (e) of this section, a person required to have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?) must have an out-of-state criminal history check, an out-of-state abuse and neglect registry check, and an out-of-state sex offender registry check, if:

(1) The person has lived outside of Texas any time during the five-year period prior to the date you submit a request for a background check, including a check in each state where the person resided during the preceding five-year period; or

(2) There is reason to believe the person has criminal history, has abuse or neglect history, or is a registered as sex offender in another state.

(b) The out-of-state criminal history check must be a fingerprint-based criminal history check if the person currently resides in a state outside of Texas, but is employed at an operation regulated by Licensing.

(c) The CBCU will inform a person when the person requires any out-of-state checks. The person must ensure that the person's own out-of-state criminal history check and out-of-state child abuse and neglect registry check are provided to the CBCU. The CBCU will conduct the person's out-of-state sex offender registry check.

(d) A person does not have to have an out-of-state criminal history check if the operation submitting the request for a background check is a residential child-care operation, including a child-placing agency, agency foster home, or general residential operation.

(e) This rule does not apply to listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations. See §745.615 of this title (relating to What types of background checks are required for persons at listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations?).

§745.615.What types of background checks are required for persons at listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations?

For listed family homes that only provide care to related children, employer-based child care operations, and shelter care operations, persons required to have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?) must have the following types of background checks:

(1) A name-based Texas criminal history check with a Texas sex offender registry check, except the person must have a fingerprint-based criminal history check if:

(A) The person has resided outside of Texas any time during the five-year period prior to the date you submit a request for a background check; or

(B) There is reason to believe the person has criminal history in another state; and

(2) A Central Registry check.

§745.617.How do I submit a request for a background check?

(a) The process for submitting a request for a background check depends on the type of operation submitting the request:

Figure: 40 TAC §745.617 (.pdf)

(b) You do not have to submit a request for a background check for a person who requires a background check under this subchapter because of the person's responsibilities as a DFPS employee or volunteer or a Licensing employee. The person will have a background check conducted by DFPS or HHSC as part of the person's application to become an employee or volunteer.

§745.619. What information must be included when an operation submits a request for a background check?

You must verify and send the following information to the CBCU for every person required to have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?):

(1) Name (first, middle, and last), including any maiden or married names or aliases;

(2) Social security number, if one exists;

(3) Driver's license or a state issued identification card number;

(4) Date of birth;

(5) Sex;

(6) Ethnicity and race (this information does not have to be verified);

(7) Current and previous addresses in Texas;

(8) The city and state of each residence where the person has lived outside of the state of Texas any time during the five-year period prior to the date you submit a request for a background check;

(9) An e-mail address for the person, if available; and

(10) The role of the person at the operation, including:

(A) The person's title and job duties;

(B) Whether the person will be supervised by a caregiver counted in the child-to-caregiver ratio; and

(C) The ages of children the person will be caring for.

§745.621.When must I submit a request for an initial or renewal background check for a person?

(a) You must submit a request for an initial background check for each person required to have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?):

(1) When you submit your application for a permit to us;

(2) When you hire someone;

(3) When you contract with someone who requires a background check;

(4) When a person applies to be a foster or adoptive parent;

(5) When a resident 14 years or older moves into your home or operation;

(6) Between 90 days before and 90 days after a resident living in your home or operation becomes 14 years old; and

(7) When you become aware of anyone requiring a background check under §745.605 of this title, on whom you have not previously submitted a request for a background check.

(b) You must submit a request for a renewal background check for each person required to have a background check under §745.605 of this title:

(1) No later than:

(A) Five years from the date you last submitted a request for an initial or renewal background check on a person that had a fingerprint-based criminal history check; or

(B) Two years from the date you last submitted a request for an initial or renewal background check on a person that only had a name-based Texas criminal history check;

(2) When you become aware that a person has had a change in the person's state of residence; and

(3) When there is a change in the person's role at the operation that requires the person to have a fingerprint-based criminal history check instead of a previously conducted name-based Texas criminal history check.

§745.623.How does a person submit fingerprints for a fingerprint-based criminal history check?

After you submit a request for an initial or renewal background check to the CBCU for a person required to have a fingerprint-based criminal history check, the CBCU will send the person a notification with information on how to schedule an appointment to submit fingerprints with the DPS approved fingerprinting vendor.

§745.625.Does a person who has already undergone a fingerprint-based criminal history check have to submit new fingerprints?

(a) When you submit a request for a background check for a person who has previously undergone a fingerprint-based criminal history check, the CBCU will determine whether the previous fingerprint-based criminal history check remains valid or whether the person must resubmit fingerprints for a new fingerprint-based criminal history check.

(b) A previously completed fingerprint-based criminal history check remains valid, and Licensing will waive the requirement to submit new fingerprints, if the CBCU has an active subscription or can reactivate a subscription to the FBI's national rap back service for the person.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703759

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 3. DETERMINATIONS REGARDING BACKGROUND CHECKS

40 TAC §§745.627, 745.629, 745.631, 745.633, 745.635, 745.637, 745.639, 745.641, 745.643, 745.645, 745.647 - 745.650

STATUTORY AUTHORITY

The new rules are proposed 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 health and human services agencies.

The new rules implement Human Resources Code §42.042 and §42.056.

§745.627.How soon will the subject of the background check and I be notified of the determination of the background check?

The CBCU will notify the subject of the background check and the operation with a written determination of the background check as soon as possible, but no later than 45 days from the date the background check was submitted.

§745.629.What are the possible determinations for the subject of a background check?

There are four possible determinations regarding a background check:

Figure: 40 TAC §745.629 (.pdf)

§745.631.In what situations may the CBCU place conditions or restrictions on a person's presence at an operation?

The CBCU may place conditions or restrictions on a person's presence at an operation that the CBCU determines to be necessary to protect the health or safety of children in the following situations:

(1) While a person's out-of-state criminal history and/or out-of-state child abuse or neglect registry checks are pending, if applicable, and the CBCU has not received information that renders the person ineligible to be present at an operation;

(2) Pending the outcome of a risk evaluation for an eligible criminal conviction, child abuse and neglect finding, or crime for which the person has been arrested or charged; or

(3) For an approved risk evaluation.

§745.633.What information will a notice letter that the CBCU sends to an operation include?

(a) The notice letter that the CBCU sends to an operation regarding the subject of the background check will include the following information:

(1) A determination of whether the subject may be present at an operation, as defined in §745.629 of this title (relating to What are the possible determinations for the subject of a background check?); and

(2) Any conditions or restrictions placed on the subject's presence at an operation, if applicable.

(b) If the subject of the background check is required to undergo a background check in a current or prospective foster or adoptive home, including a current or prospective foster or adoptive parent, the notice letter to the child-placing agency will also include:

(1) The sources of information that were used for the background check, as specified in §745.607 of this subchapter (relating to What are the different types of background checks?);

(2) Any criminal history, if applicable;

(3) Any sustained Central Registry finding listed in §745.657 of this title (relating to What types of findings from the Central Registry or out-of-state child abuse and neglect registries may affect a person's ability to be present at an operation?), if applicable;

(4) Whether the subject is eligible to request a risk evaluation, if applicable, and whether the subject may be present at your operation pending the outcome of the risk evaluation; and

(5) Any Central Registry finding of child abuse or neglect that is not sustained, if the CBCU has determined the subject is ineligible to be present at the operation. The notification letter will inform you that this subject has not at this time had any due process regarding this matter; however, you must immediately remove the subject from being present at the operation. The CBCU will subsequently notify you of any future determination regarding this matter, such as the subject is now eligible to be present at the operation because the child abuse or neglect finding was overturned.

§745.635.What must I do after the CBCU notifies my operation of the subject's background check determination?

(a) If the subject's determination is:

(1) Eligible, you do not need to take any further action;

(2) Ineligible, you must immediately remove the subject from being present at your operation and confirm to the CBCU the receipt of the CBCU notice letter; or

(3) Provisionally eligible with conditions or eligible with conditions, you must restrict the person's duties in a manner that follows the conditions and/or restrictions that the CBCU has placed on subject's presence at your operation.

(b) If you do not follow the conditions and restrictions that the CBCU has placed on a subject's presence at an operation, then:

(1) The CBCU may amend, deny, or rescind the risk evaluation; and/or

(2) Licensing may take an enforcement action against you.

§745.637.What information will a notice letter that the CBCU sends to the subject of a background check include?

The notice letter that the CBCU sends to the subject of the background check will include the following information:

(1) The sources of information that were used for the background check, as specified in §745.607 of this title (relating to What are the different types of background checks);

(2) Whether the CBCU needs any additional information to complete the background check and when the information is due;

(3) Any criminal history, if applicable;

(4) Any sustained Central Registry finding listed in §745.657 of this title (relating to What types of findings from the Central Registry or out-of-state child abuse and neglect registries may affect a person's ability to be present at an operation?), if applicable;

(5) Whether the subject is eligible to request a risk evaluation, if applicable, and whether the subject may be present at an operation pending the outcome of the risk evaluation;

(6) A determination of whether the subject may be present at an operation, as defined in §745.629 of this title (relating to What are the possible determinations for the subject of a background check?);

(7) Any conditions or restrictions placed on a subject's presence at an operation, if applicable;

(8) Any Central Registry finding of child abuse or neglect that is not sustained, and when the CBCU has determined the presence of the subject at an operation:

(A) Does not pose an immediate threat or danger to the health or safety of children, the notification letter will also state:

(i) That the subject is provisionally eligible with conditions to be present at the operation;

(ii) That the subject may request a hearing before the State Office of Administrative Hearings (SOAH); and

(iii) Whether the subject is entitled to a risk evaluation regarding the finding pending a hearing before SOAH; or

(B) Poses an immediate threat or danger to the health or safety of children, the notification letter will also state that the subject:

(i) Is ineligible to be present at the operation; and

(ii) May request a hearing before SOAH; and

(9) The rights the subject has to dispute the accuracy or completeness of the results of the background check and to request a review of the background check determination.

§745.639.How soon after I submit a request for a background check on a person can that person be present at an operation?

You must receive notification from the CBCU that a person is eligible, eligible with conditions, or provisionally eligible with conditions before allowing the person to be present at your operation.

§745.641.How can the subject of the background check dispute the accuracy or completeness of the information contained in the results of the background check?

If the subject disputes the accuracy or completeness of the information contained in the results of the background check:

(1) The subject should first work with the CBCU representative that made the background check determination to provide updated disposition information or additional documentation; and

(2) If the subject is unable to resolve the dispute in this manner, then the subject may seek resolution of the issue from the agency that provided the results upon which the CBCU background check determination was made.

§745.643.How can the subject request that the CBCU review the background check determination?

(a) The subject may request that the CBCU review the background check determination, if the subject:

(1) Disputes the determination; or

(2) Has new information that was not previously available at the time of the determination.

(b) The subject may request that the CBCU review the background check determination:

(1) Within 30 days from the date on the notice letter from the CBCU that informs the subject of the determination; or

(2) Anytime the subject can provide new information that was not previously available at the time of the determination.

(c) The request for the CBCU to review the background check determination must:

(1) Be in writing;

(2) Be addressed to the CBCU staff member that issued the determination;

(3) Include:

(A) The name of the subject of the background check;

(B) The date the CBCU issued the background check determination;

(C) The reason the subject disputes the background check determination, if applicable; and

(D) Any new information that was not previously available at the time of the determination, if applicable; and

(4) Be sent by e-mail, regular mail, or fax to the specified address or fax number.

(d) The CBCU has 30 days to provide the subject with a written response regarding the review of the background check determination. The CBCU may extend the 30-day time period for good cause.

(e) While conducting the review, the CBCU will consider any reason noted for the dispute, any new information provided, and whether the rules in this subchapter were followed. A review will have a limited ability to look at issues of accuracy and completeness, because the CBCU does not have control over the background check results from other agencies. As much as possible, subjects should resolve those issues at the agency that provided the results upon which the background check determination was made, see §745.641 of this title (relating to How can the subject of the background check dispute the accuracy or completeness of the information contained in the results of the background check?).

(f) If the subject disagrees with the CBCU's review determination, the subject may request that the Director of the CBCU review the accuracy of the CBCU's determination. The CBCU Director may conduct this review or assign the review to a designee that was not previously involved in the background check determination. The determination by the CBCU Director or designee is final.

§745.645.Must the CBCU complete the background checks before Licensing issues my permit?

(a) If you are applying to operate a licensed child-care home, a registered child-care home, or a listed family home, the CBCU must have made a determination that all household members who must have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?) are eligible or eligible with conditions before issuing you a permit.

(b) Except as described in subsection (a) of this section, Licensing may issue a permit to an applicant after the CBCU has made a determination that any owner who must have a background check under §745.605(a)(1) of this title is eligible or eligible with conditions.

§745.647.Can a child-placing agency (CPA) verify a foster family home or approve an adoptive home prior to receiving the background check determinations?

No, a CPA must receive notification from the CBCU that all household members of a foster family home who must have a background check under §745.605 of this title (relating to For whom must I submit requests for background checks?) are eligible or eligible with conditions before verifying the home.

§745.648.Am I required to indicate when a person is no longer associated with my operation?

Yes, you must indicate that a person is no longer associated with your operation by:

(1) Inactivating the person within seven days of when the person is no longer associated with your operation; and

(2) Validating your current list of persons associated with your operation:

(A) Every three months through the Licensing website for all operations except licensed child-care homes, registered child-care homes, and listed family homes; and

(B) Once a year through the:

(i) Licensing website for licensed child-care homes and registered child-care homes; and

(ii) Licensing website or your local Licensing office for listed family homes.

§745.649.Can I do my own criminal history background checks?

Yes, but any background checks you conduct on your own will not replace the requirement to complete background checks through the CBCU. You must still complete the background check requirements in this subchapter.

§745.650.What information may I obtain from Licensing's records regarding a person's previous history at an operation?

The CBCU will provide you with a list of each operation that has submitted a request for a background check on the person and when the operation submitted the request.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703761

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 4. CRIMINAL HISTORY, SEX OFFENDER REGISTRY, AND CHILD ABUSE OR NEGLECT FINDINGS

40 TAC §§745.651 - 745.653, 745.655 - 745.657, 745.659

STATUTORY AUTHORITY

The new rules are proposed 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 health and human services agencies.

The new rules implement Human Resources Code §42.042 and §42.056.

§745.651.What types of criminal convictions may affect a person's ability to be present at an operation?

(a) A felony or misdemeanor conviction under Texas law, the laws of another state, or federal law may affect a person's ability to be present at an operation. There are three charts with information regarding specific crimes that may affect a person's ability to be present at an operation. Each chart specifies whether a conviction permanently or temporarily bars a person from being present at an operation, whether a person is eligible for a risk evaluation, and whether a person who is eligible for a risk evaluation may be present at an operation pending the outcome of the risk evaluation. The three charts are:

(1) Licensed or Certified Child Care Operations: Criminal History Requirements;

(2) Foster or Adoptive Placements: Criminal History Requirements; and

(3) Registered Child Care Homes and Listed Family Homes: Criminal History Requirements.

(b) The three charts listed in subsection (a) of this section will be reviewed and updated annually, published every January as an "In Addition" document in the Texas Register, and are available on the Licensing provider website.

(c) A person currently on parole for a felony offense must have an approved risk evaluation prior to being present at an operation.

(d) For any felony offense that is not specifically enumerated in the relevant chart listed in subsection (a) of this section, a person convicted within the past 10 years for the offense must have an approved risk evaluation prior to being present at an operation.

(e) Substantially similar federal offenses and offenses in other states will be treated the same as the similar Texas offense.

(f) This rule does not apply to a person who requires a background check under this subchapter because of the person's responsibilities as a DFPS employee or volunteer or a Licensing employee. The person will have a background check determination conducted under the criteria used by the Human Resources Division of DFPS or HHSC, as part of the person's application to become an employee or volunteer.

§745.652.Do criminal convictions include deferred adjudication community supervision for an offense that may affect a person's ability to be present at an operation?

(a) Except as provided under subsection (b) of this section, a criminal conviction includes deferred adjudication community supervision unless the court has dismissed the proceedings and discharged the defendant.

(b) For permit holders, when Licensing is issuing, denying, or revoking a permit a criminal conviction includes deferred adjudication community supervision regardless of whether the court has dismissed the proceedings and discharged the defendant.

§745.653.What must I do if a person at my operation is currently the subject of a criminal investigation?

If you have knowledge that a person at your operation has been arrested or charged with a crime, you must report the investigation to Licensing and the CBCU immediately. The person may be present at the operation unless the CBCU notifies you that the person is ineligible to be present at the operation.

§745.655.How will the CBCU determine whether a person arrested or charged with a crime may be present at an operation?

(a) A person arrested or charged with a crime may not be present at an operation if:

(1) A conviction for the arrest or charged offense would:

(A) Bar the person from being present at an operation permanently or on a time-limited basis; or

(B) Prohibit the person from being present at an operation pending the outcome of a risk evaluation; or

(2) The CBCU determines that the person poses an immediate threat to the health or safety of children.

(b) The CBCU may place conditions or restrictions on a person's presence at an operation as the CBCU finds necessary to protect the health or safety of children for a person arrested or charged with a crime:

(1) If a conviction for the arrest or charged offense does not:

(A) Bar the person from being present at an operation permanently or on a time-limited basis; or

(B) Prohibit the person from being present at an operation pending the outcome of a risk evaluation; and

(2) The CBCU does not determine that the person poses an immediate threat to the health or safety of children.

§745.656.Will a requirement that a person register with the Texas Sex Offender Registry or an out-of-state sex offender registry affect the person's ability to be present at an operation?

Yes, a person who is required to register as a sex offender in Texas or any other state or territory may not be present at an operation.

§745.657.What types of findings from the Central Registry or out-of-state child abuse and neglect registries may affect a person's ability to be present at an operation?

(a) Except for a person described in subsection (b) of this section, the following chart lists the types of findings from the Central Registry and out-of-state child abuse and neglect registries that may affect a person's ability to be present at an operation. The chart specifies whether a person with a finding is barred from being present at an operation or is eligible for a risk evaluation, and whether a person eligible for a risk evaluation may be present at an operation pending the outcome of the risk evaluation:

Figure: 40 TAC §745.657 (.pdf)

(b) Any person that is required to undergo a background check in a current or prospective foster or adoptive home is eligible for a risk evaluation for a sustained finding of physical abuse, if:

(1) It has been more than five years since the date of the physical abuse finding; and

(2) The prospective foster or adoptive parent is related to or has a significant longstanding relationship with the foster or adoptive child.

(c) This rule does not apply to a person who requires a background check under this subchapter because of the person's responsibilities as a DFPS employee or volunteer or a Licensing employee. The person will have a background check determination conducted under the criteria used by the Human Resources Division of DFPS or HHSC, as part of the person's application to become an employee or volunteer.

§745.659.What must I do if a person at my operation is the subject of an abuse or neglect investigation?

If you have knowledge that DFPS or a similar agency in another state is conducting an investigation of child abuse or neglect on a person at your operation, you must report the investigation to Licensing and the CBCU immediately. The person under investigation may be present at your operation unless the CBCU notifies you that the person is ineligible to be present at the operation.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703763

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 5. EVALUATION OF RISK BECAUSE OF CRIMINAL HISTORY OR A CHILD ABUSE OR NEGLECT FINDING

40 TAC §§745.679, 745.681, 745.683, 745.685, 745.687, 745.689, 745.691, 745.693, 745.695

STATUTORY AUTHORITY

The new rules are proposed 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 health and human services agencies.

The new rules implement Human Resources Code §42.042 and §42.056.

§745.679.Who is responsible for requesting a risk evaluation?

The subject of a background check must request the risk evaluation.

§745.681.When may the subject of a background check request a risk evaluation?

The subject of a background check may request a risk evaluation when the CBCU has provided the subject with written notice that the subject is eligible for a risk evaluation for a criminal conviction, child abuse or neglect finding, or crime for which the person has been arrested or charged.

§745.683.How long does the subject of the background check have to request a risk evaluation?

The subject of the background check must submit a request for a risk evaluation within 30 calendar days from when the request for a background check was submitted by the operation. The CBCU will provide in a notice letter the due date by which the subject may request a risk evaluation.

§745.685.How does the subject of a background check request a risk evaluation?

The subject of a background check must submit a completed risk evaluation packet to the CBCU by e-mail, regular mail, or fax to the specified address or fax number. The risk evaluation packet must include the completed risk evaluation request form and all required supporting documentation, as specified in §745.687 of this title (relating to What must a request for a risk evaluation based on criminal history include?) or §745.689 of this title (relating to What must a request for a risk evaluation based on a child abuse or neglect finding include?).

§745.687.What must a request for a risk evaluation based on criminal history include?

The subject of the background check must include the following in a request for a risk evaluation based on criminal history:

(1) A completed Form 2974, Request for Risk Evaluation Based on Past Criminal History or Child Abuse or Neglect Findings;

(2) A copy of the police report regarding the circumstances of the arrest;

(3) An official copy of the final record of judicial finding or conviction (signed by a judge and file stamped);

(4) If the subject was incarcerated:

(A) A copy of local, state, or federal release order;

(B) The date the subject was released from incarceration; and

(C) If applicable, the terms and conditions of parole;

(5) If the subject was given a probated sentence (including deferred adjudication community supervision), the dates of the probation and information related to the terms and conditions of the probation, including documentation regarding whether or not the subject successfully completed the terms of probation and paid all court costs, supervision fees, and court-ordered restitution and fines. If the subject is presently on probation, a statement from the subject's probation officer regarding the status of the subject's probation;

(6) Age of the subject at the time the crime was committed;

(7) A detailed, signed statement from the subject regarding the nature and seriousness of the crime for which the subject was arrested, charged, or convicted, including:

(A) Why the subject was arrested;

(B) Where the subject was when arrested;

(C) Who else was involved in the criminal incident;

(D) Whether anyone was injured;

(E) The extent and nature of other arrests within the subject's past criminal history;

(F) What has changed for this subject since the time of the arrest; and

(G) Why the subject does not feel that he or she poses a risk to children in care;

(8) Evidence of rehabilitative effort;

(9) The work history of the subject over the past 10 years, including names of employers, dates of employment, and positions held;

(10) At least three reference letters from persons who are not related to the subject (professionals, employers, law enforcement, etc.) and who have knowledge about the subject's character and, if applicable, the subject's ability to work with children;

(11) If the risk evaluation is for a foster or adoptive placement, then:

(A) The names and dates of birth of any foster or adoptive children who have been or are expected to be placed in the home (if known);

(B) A description of the foster or adoptive parent's relationship to each child;

(C) A copy of a home assessment or home screening, if one has been completed; and

(D) A valid rationale from the child-placing agency's owner, executive director, administrator, or some other similar position of authority explaining why the subject does not pose a risk to the health or safety of children; and

(12) Any additional items requested by the CBCU Manager to assist with the risk evaluation decision.

§745.689.What must a request for a risk evaluation based on a child abuse or neglect finding include?

The subject of a background check must include the following in a request for a risk evaluation based on a child abuse or neglect finding:

(1) A completed Form 2974, Request for Risk Evaluation Based on Past Criminal History or Child Abuse or Neglect Findings;

(2) Age of the subject at the time of the abuse or neglect;

(3) The amount of time that has elapsed since the subject's last abuse or neglect finding;

(4) A detailed, signed statement from the person regarding the nature and seriousness of the abuse and/or neglect finding, including:

(A) The circumstances involved in the abuse and/or neglect incident and investigation;

(B) The extent and nature of the subject's past abuse and/or neglect history;

(C) What has changed for this subject since the time of the abuse or neglect finding; and

(D) Why the subject does not feel that he or she poses a risk to children in care;

(5) Evidence that factors which impact the risk of future abuse or neglect have changed;

(6) At least three reference letters from persons who are not related to the subject (professionals, employers, caseworkers, etc.) and who have knowledge about the subject's character and, if applicable, the subject's ability to work with children;

(7) The work history of the subject over the past 10 years, including names of employers, dates of employment, and positions held;

(8) If the risk evaluation is for a foster or adoptive placement, then:

(A) The names and dates of birth of any foster or adoptive children who have been or are expected to be placed in the home (if known);

(B) A description of the foster or adoptive parent's relationship to each child;

(C) A copy of a home assessment or home screening, if one has been completed; and

(D) A valid rationale from the child-placing agency's owner, executive director, administrator, or some other similar position of authority explaining why the subject does not pose a risk to the health or safety of children; and

(9) Any additional items requested by the CBCU Manager to assist with the risk evaluation decision.

§745.691.Who makes the final decision on a risk evaluation?

A manager of the CBCU or a designee reviews the request for a risk evaluation and decides whether or not a person poses a risk to the health or safety of children in a particular operation.

§745.693.What is the basis of the risk evaluation decision?

The CBCU bases the risk evaluation decision upon:

(1) All of the information submitted under §745.687 or §745.689 of this title (relating to What must a request for a risk evaluation based on criminal history include? and What must a request for a risk evaluation based on a child abuse or neglect finding include?, respectively);

(2) The compliance history and regulatory status of the operation;

(3) The role and responsibility of the person;

(4) The criminal conviction, child abuse and neglect finding, or crime for which the person has been arrested or charged;

(5) Any federal requirements regarding criminal history and child abuse and neglect findings; and

(6) Any other relevant factor.

§745.695.Can a subject request that the CBCU review a risk evaluation?

(a) The subject of the background check may request that the risk evaluation decision, including conditions or restrictions, be reviewed if there is new information that was not previously available at the time of the risk evaluation decision.

(b) The request for the CBCU to review the risk evaluation decision must:

(1) Be in writing;

(2) Be addressed to the CBCU staff member that issued the decision;

(3) Include:

(A) The name of the subject of the background check;

(B) The date the CBCU issued the risk evaluation decision; and

(C) Any new information that was not previously available at the time of the decision; and

(4) Be sent by e-mail, regular mail, or fax to the specified address or fax number.

(c) The Director of the CBCU or a designee has 30 days to provide the subject with a written response regarding the review of the risk evaluation decision. The CBCU may extend the 30-day time period for good cause. While conducting the review, the CBCU will consider any new information provided. The decision by the CBCU Director or designee is final.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703765

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 6. DESIGNATED AND SUSTAINED PERPETRATORS OF CHILD ABUSE OR NEGLECT

40 TAC §745.731

STATUTORY AUTHORITY

The new rule is proposed 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 health and human services agencies.

The new rule implements Human Resources Code §42.042 and §42.056.

§745.731.What are designated perpetrators and sustained perpetrators of child abuse or neglect?

(a) A designated perpetrator is a person on the DFPS central registry found by DFPS to have abused or neglected a child, but who has not exhausted his right to an administrative review or due process hearing. See Subchapter M of this chapter (relating to Administrative Reviews and Due Process Hearings).

(b) A sustained perpetrator is also a person on the DFPS central registry found by DFPS to have abused or neglected a child, but who has already been offered his rights to an administrative review and due process hearing, and the:

(1) Designated perpetrator's rights to the administrative review and due process hearing have expired; or

(2) Finding was upheld in the due process hearing.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703767

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 7. IMMEDIATE THREAT OR DANGER TO THE HEALTH OR SAFETY OF CHILDREN

40 TAC §745.751

STATUTORY AUTHORITY

The new rule is proposed 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 health and human services agencies.

The new rule implements Human Resources Code §42.042 and §42.056.

§745.751.What factors do the CBCU or Licensing consider when determining if a person or an operation is an immediate threat to the health or safety of children?

The CBCU or Licensing considers the following:

(1) The severity of the deficiency, including abuse or neglect;

(2) The circumstances surrounding the deficiency, including abuse or neglect:

(3) The seriousness of any injuries to children;

(4) The length of time since the deficiency, including abuse or neglect, occurred;

(5) Whether the deficiency has been repeated;

(6) The compliance history of the operation;

(7) The current regulatory status of the operation;

(8) How quickly corrections to the deficiency can be made;

(9) If any corrections have already been made:

(10) The role of the person in the abuse or neglect;

(11) The current position, role, and responsibilities of the person; and

(12) The degree and/or immediacy of the threat or danger.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703768

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 8. LICENSED ADMINISTRATORS

40 TAC §745.775

STATUTORY AUTHORITY

The new rule is proposed 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 health and human services agencies.

The new rule implements Human Resources Code §42.042 and §42.056.

§745.775.Does having a criminal history or a child abuse or neglect finding prohibit a person from becoming a licensed administrator?

(a) A licensed administrator must comply with all of the background check requirements in this subchapter. Even though as a Licensed Administrator a background check was previously conducted, an operation is also required to submit a request for a background check on the administrator, as required by §745.605 of this title (relating to For whom must I submit requests for background checks?).

(b) In addition to complying with the relevant criminal history requirements in this subchapter, a licensed administrator is also monitored for offenses related to financial crimes, including all Title 7 Offenses Against Property, Title 8 Offenses Against Administration, and Title 11 Organized Crime offenses in the Penal Code.

(c) You are prohibited from being a licensed administrator if you:

(1) Have a criminal history or a child abuse or neglect finding that would bar you from being present at an operation;

(2) Are on a sex offender registry; or

(3) Have a felony conviction of a financial crime, as specified in subsection (b) of this section, within the past 10 years.

(d) You are not prohibited from being a licensed administrator if you have a felony conviction of a financial crime older than 10 years or a misdemeanor conviction of a financial crime. However, these crimes do require a risk evaluation and Licensing may place restrictions on your license. You must have an approved risk evaluation before you may be present at an operation.

(e) You are not prohibited from being a licensed administrator if you have a criminal history or a child abuse or neglect finding that only requires a risk evaluation. However, Licensing may place restrictions on your license. You must have an approved risk evaluation before you may be present at an operation.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703769

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


SUBCHAPTER L. ENFORCEMENT ACTIONS

DIVISION 5. MONETARY ACTIONS

40 TAC §745.8713

STATUTORY AUTHORITY

The amended rule is proposed 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 health and human services agencies.

The amended rule implements Human Resources Code §42.042 and §42.056.

§745.8713.When may Licensing impose a monetary penalty before a corrective action?

We may impose a monetary penalty before imposing a corrective action any time we find:

(1) A [a] violation of a high risk standard, as identified on the DFPS public website, along with the Licensing enforcement methodology; or

(2) One [one] of the following:

(A) A [a] failure to timely submit the information required to conduct a background [and criminal history] check under Subchapter F of this chapter (relating to Background Checks) on two or more occasions;

(B) You knowingly allow a person to be present at your operation before you receive notification from the CBCU that a person is eligible, eligible with conditions, or provisionally eligible with conditions to be present at your operation; [except as provided in §745.626 of this title (relating to How soon after I request a background check on a person can that person provide direct care or have direct access to a child?), you knowingly allow a person to be present in your child-care operation before you have received the results of the person's background and criminal history check;]

(C) You knowingly allow a person to be present at your operation after you have received notification from the CBCU that the person is ineligible to be present at your operation; [in your child-care operation after you have received the person's background and criminal history check, if the results contain criminal history or central registry findings that preclude the person from being present in the child-care operation;] or

(D) You violate a condition or restriction that the CBCU has [we have] placed on a person's presence at your [child-care] operation as part of the CBCU background check determination or a Licensing safety plan. [a pending or approved risk evaluation of the person's background and criminal history or central registry findings.]

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703770

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


SUBCHAPTER N. ADMINISTRATOR LICENSING

DIVISION 1. OVERVIEW OF ADMINISTRATOR'S LICENSING

40 TAC §745.8915, §745.8917

STATUTORY AUTHORITY

The amended rules are proposed 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 health and human services agencies.

The amended rules implement Human Resources Code §42.042 and §42.056.

§745.8915.Do I qualify for a CCAL?

You qualify for a CCAL if you:

(1) Pass an examination, which is offered by DFPS, that demonstrates competence in the field of child-care administration;

(2) Be in compliance with Subchapter F of this chapter (relating to Background Checks), including not having a criminal history or child abuse or neglect finding that would prohibit you from working in a residential child-care operation; [Undergo a criminal history and central registry background check and do not have a criminal history or central registry history that would prohibit you from working in a residential child-care operation, as specified in Subchapter F of this chapter (relating to Background Checks);]

(3) Have one year of full-time experience in management or supervision of personnel and programs as specified in §745.8919 of this title (relating to What qualifies as one year of experience in management or supervision of personnel and programs?); and

(4) Have one of the following qualifications:

(A) A master's or doctor of philosophy degree in social work or other area of study; or

(B) A bachelor's degree and two years' full-time experience in residential child care or a closely related field.

§745.8917.Do I qualify for a CPAAL?

You qualify for a CPAAL if you:

(1) Pass an examination, which is offered by DFPS, that demonstrates competence in the field of child-placing administration;

(2) Be in compliance with Subchapter F of this chapter (relating to Background Checks), including not having a criminal history or child abuse or neglect finding that would prohibit you from working in a residential child-care operation; [Undergo a criminal history and central registry background check and do not have a criminal history or central registry history that would prohibit you from working in a residential child-care operation, as specified in Subchapter F of this chapter (relating to Background Checks);]

(3) Have one year of full-time experience in management or supervision of personnel and programs as specified in §745.8919 of this title (relating to What qualifies as one year of experience in management or supervision of personnel and programs?); and

(4) Have one of the following qualifications:

(A) A master's or doctor of philosophy degree in social work or other area of study; or

(B) A bachelor's degree and two years' full-time experience in residential child care or a closely related field.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703771

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 2. SUBMITTING YOUR APPLICATION MATERIALS

40 TAC §745.8934

STATUTORY AUTHORITY

The amended rule is proposed 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 health and human services agencies.

The amended rule implements Human Resources Code §42.042 and §42.056.

§745.8934.What other actions must I take to become a licensed administrator?

In addition to submitting the background check request form required by §745.8933 of this title (relating to What does a complete application to become a licensed administrator include?), you must submit fingerprints for a fingerprint-based criminal history check, as specified in §745.623 [provided under §745.629 ] of this title (relating to How does a person [do I] submit fingerprints for a fingerprint-based criminal history check?), unless the CBCU determines that you have previously undergone a fingerprint-based criminal history check that remains valid, as specified in §745.625 [provided under §745.630] of this title (relating to Does a person who has already undergone [If] a fingerprint-based criminal history check have to [has already been completed on a person, must that person] submit new fingerprints [at the time my initial or renewal background check on that person is due]?).

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703772

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 4. RENEWING YOUR ADMINISTRATOR LICENSE

40 TAC §745.8993, §745.9009

STATUTORY AUTHORITY

The amended rules are proposed 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 health and human services agencies.

The amended rules implement Human Resources Code §42.042 and §42.056.

§745.8993.Am I eligible to renew my administrator's license?

[(a)] To be eligible to renew your administrator's license, you must:

(1) Be in current compliance with all applicable laws, including these rules;

(2) Have completed 15 clock hours of continuing education each year during the two-year period before renewal;

(3) Be in compliance with Subchapter F of this chapter (relating to Background Checks), including not having [Undergo a new name-based criminal history and central registry background check and may not have] a criminal history or child abuse or neglect finding [central registry history] that would prohibit you from working in a residential child-care operation[, as specified in Subchapter F of this chapter (relating to Background Checks)]; and

(4) Submit the appropriate renewal fee.

[(b) In addition to undergoing a name-based background check as provided under subsection (a) of this section, you must submit fingerprints for a fingerprint-based criminal history check, as provided under §745.629 of this title (relating to How do I submit fingerprints for a fingerprint-based criminal history check?), unless you have previously undergone a fingerprint-based criminal history that remains valid, as provided under §745.630 of this title (relating to If a fingerprint-based criminal history check has already been completed on a person, must that person submit new fingerprints at the time my initial or renewal background check on that person is due?).]

§745.9009.What are the renewal requirements if I have both a CCAL and a CPAAL?

[(a)] You must:

(1) Pay [pay] the appropriate renewal fee for each license;[.]

(2) [(b)] Complete [You must complete] the renewal form for each license; and[.]

[(c) You must submit a completed background check form and fee every two years, or present evidence every two years of your cleared criminal history and central registry checks as required in Subchapter F of this chapter (relating to Background Checks).]

(3) [(d)] Submit [You must submit] evidence that you have completed 15 clock hours of continuing education each year during the two-year renewal period for each license. The same training hours may be counted toward both licenses only if the training appropriately applies to both license types. (For example, training on adoption law would count toward renewal of a Child-Placing Agency Administrator's License but not a Child Care Administrator's License, whereas training on federal equal employment opportunity hiring requirements and guidelines would count toward renewal of both licenses.)

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703773

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 5. MILITARY MEMBERS, MILITARY SPOUSES, AND MILITARY VETERANS

40 TAC §745.9026, §745.9029

STATUTORY AUTHORITY

The amended rules are proposed 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 health and human services agencies.

The amended rules implement Human Resources Code §42.042 and §42.056.

§745.9026.What special considerations can Licensing give to a military member, military spouse, or military veteran that applies for an administrator's license?

(a) The following special considerations are applicable to a military member, military spouse, or military veteran that applies for an administrator's license:

(1) In addition to Licensing's authority to waive prerequisites for an administrator's license in §745.8913 of this title (relating to Can my licensure in another state qualify me for an administrator's license?), the Assistant Commissioner for Licensing or a designee may waive any prerequisite to get an administrator's license if you held an administrator's license in Texas within five years preceding the application date and your credentials provide compelling justification that your experience and education qualifies you to act as a licensed administrator;

(2) In place of the experience or educational qualifications described in this subchapter, the Assistant Commissioner for Licensing or a designee may:

(A) Credit a military member or military veteran for verified military service, training, or education; or

(B) Substitute any demonstrated competency a military member, military spouse, or military veteran has that in the opinion of the Assistant Commissioner or a designee meets the qualifications;

(3) Licensing will waive the application and examination fees for:

(A) A military member or military veteran whose military service, training, or education substantially meets all of the qualifications for an administrator's license; or

(B) A military member, military spouse, or military veteran who holds a current license issued by another state whose license requirements are substantially equivalent to those in Texas.

(b) If Licensing issues you an administrator's license under subsection (a)(1) or (2) of this section, the license will be a full license and not a provisional license.

(c) To be eligible for any special consideration under subsection (a)(1) or (2) of this section, you may not be prohibited from being a licensed administrator, as specified in §745.775(c) [have criminal history or central registry history that would prohibit you from obtaining an administrator's license, as provided by §745.696 ] of this title (relating to Does having a criminal history or a child abuse or neglect [Central Registry] finding prohibit a person [me] from becoming a licensed administrator?).

§745.9029.What special considerations may apply to the renewal of a military member's administrator's license?

(a) The following special considerations are applicable to the renewal of a military member's administrator's license:

(1) Your administrator's license will no longer be valid after two years, but the license will be considered dormant until you request Licensing to renew it or for two additional years, whichever comes first;

(2) No continuing education will be required prior to renewal; and

(3) Licensing will waive late renewal fees required under §745.9003(a)(2) and (3) of this title (relating to How much is the renewal fee?) if you establish that your failure to renew the license in a timely manner was due to your service as a military member.

(b) To be eligible for any special consideration [as provided] under this section, you may not be prohibited from being a licensed administrator, as specified in §745.775(c) [have criminal history or central registry history that would prohibit you from obtaining an administrator's license, as provided by §745.696 ] of this title (relating to Does having a criminal history or a child abuse or neglect [Central Registry] finding prohibit a person [me] from becoming a licensed administrator?).

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703774

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559


DIVISION 6. REMEDIAL ACTIONS

40 TAC §745.9037

STATUTORY AUTHORITY

The amended rule is proposed 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 health and human services agencies.

The amended rule implements Human Resources Code §42.042 and §42.056.

§745.9037.Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?

(a) We may take remedial action against your administrator's license or administrator's license application if you:

(1) Violate Chapter 43 of the Human Resources Code or a rule of DFPS;

(2) Circumvent or attempt to circumvent the requirements of Chapter 43 of the Human Resources Code or a Licensing rule;

(3) Engage in fraud or deceit related to the requirements of Chapter 43 of the Human Resources Code or a Licensing rule;

(4) Provide false or misleading information to us during the application or renewal process for your own or someone else's application or license;

(5) Make a statement about a material fact during the license application or renewal process that you know or should know is false;

(6) Do not comply with [Have a criminal history or central registry record that:]

[(A)] [Would prohibit you from working in a facility as specified in] Subchapter F of this chapter (relating to Background Checks); [or]

[(B) Is relevant to the duties of a licensed administrator, as outlined in §745.696 of this title (relating to What criminal history and central registry findings are relevant to a person's ability to be a licensed administrator?);]

(7) Use or abuse drugs or alcohol in a manner that jeopardizes your ability to function as an administrator;

(8) Perform your duties as a licensed administrator in a negligent manner; or

(9) Engage in conduct that makes you ineligible to:

(A) Receive a permit under Human Resources Code (HRC) §42.072; or

(B) Be employed as a controlling person or serve in that capacity in a facility or family home under HRC §42.062.

(b) If we revoke your administrator's license, you are not eligible to apply for another administrator's license for five years after the date the license was revoked.

(c) If you have both a Child Care Administrator's License and a Child-Placing Agency Administrator's License, remedial action may be taken against both licenses. If we take remedial action against both of your licenses, you will be notified that the action applies to both licenses. In such a case, any administrative review and/or due process hearing for both licenses may be combined at our discretion.

(d) If we revoke or do not renew your license, you must return your license certificate to us.

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

Filed with the Office of the Secretary of State on September 22, 2017.

TRD-201703775

Karen Ray

Chief Counsel

Department of Family and Protective Services

Earliest possible date of adoption: November 5, 2017

For further information, please call: (512) 438-5559