TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 506. SPECIAL CARE FACILITIES

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §506.37

The Texas Health and Human Services Commission (HHSC) adopts new §506.37, concerning Balance Billing.

The new rule is adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9027). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to comply with Senate Bill (S.B.) 1264, 86th Legislature, Regular Session, 2019, which requires HHSC to adopt rules relating to consumer protections against certain medical and health care billing by out-of-network licensed health care facilities, including abortion facilities, ambulatory surgical centers, birthing centers, chemical dependency treatment facilities, crisis stabilization units, end stage renal disease facilities, freestanding emergency medical care facilities, general and special hospitals, narcotic treatment programs, private psychiatric hospitals, and special care facilities.

COMMENTS

The 31-day comment period ended January 19, 2021.

During this period, HHSC did not receive any comments regarding the proposed rule.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation of and provision of health and human services by the health and human services system; Texas Health and Safety Code §248.026, which requires HHSC to adopt rules establishing minimum standards for special care facilities; and Texas Insurance Code §752.0003, which authorizes regulatory agencies to take action against facilities and providers that violate a balance billing prohibition.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101325

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 15, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 834-4591


CHAPTER 507. END STAGE RENAL DISEASE FACILITIES

SUBCHAPTER D. OPERATIONAL REQUIREMENTS FOR PATIENT CARE AND TREATMENT

26 TAC §507.50

The Texas Health and Human Services Commission (HHSC) adopts new §507.50, concerning Balance Billing.

The new rule is adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9029). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to comply with Senate Bill (S.B.) 1264, 86th Legislature, Regular Session, 2019, which requires HHSC to adopt rules relating to consumer protections against certain medical and health care billing by out-of-network licensed health care facilities, including abortion facilities, ambulatory surgical centers, birthing centers, chemical dependency treatment facilities, crisis stabilization units, end stage renal disease facilities, freestanding emergency medical care facilities, general and special hospitals, narcotic treatment programs, private psychiatric hospitals, and special care facilities.

COMMENTS

The 31-day comment period ended January 19, 2021.

During this period, HHSC did not receive any comments regarding the proposed rule.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation of and provision of health and human services by the health and human services system; and Texas Health and Safety Code §251.003, which requires HHSC to adopt rules for the issuance, renewal, denial, suspension, and revocation of a license to operate an end stage renal disease facility; Texas Health and Safety Code §251.014, which requires these rules to include minimum standards to protect the health and safety of a patient of an end stage renal disease facility; and Texas Insurance Code §752.0003, which authorizes regulatory agencies to take action against facilities and providers that violate a balance billing prohibition.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101327

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 15, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 834-4591


CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §509.67

The Texas Health and Human Services Commission (HHSC) adopts new §509.67, concerning Balance Billing.

The new rule is adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9030). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to comply with Senate Bill (S.B.) 1264, 86th Legislature, Regular Session, 2019, which requires HHSC to adopt rules relating to consumer protections against certain medical and health care billing by out-of-network licensed health care facilities, including abortion facilities, ambulatory surgical centers, birthing centers, chemical dependency treatment facilities, crisis stabilization units, end stage renal disease facilities, freestanding emergency medical care facilities, general and special hospitals, narcotic treatment programs, private psychiatric hospitals, and special care facilities.

COMMENTS

The 31-day comment period ended January 19, 2021.

During this period, HHSC did not receive any comments regarding the proposed amendment.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation of and provision of health and human services by the health and human services system; Texas Health and Safety Code §254.101, which authorizes HHSC to adopt rules regarding freestanding emergency medical care facilities; and Texas Insurance Code §752.0003, which authorizes regulatory agencies to take action against facilities and providers that violate a balance billing prohibition.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101328

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 15, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 834-4591


CHAPTER 510. PRIVATE PSYCHIATRIC HOSPITALS AND CRISIS STABILIZATION UNITS

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §510.45

The Texas Health and Human Services Commission (HHSC) adopts an amendment to §510.45, concerning Facility Billing.

The amendment is adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9031). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to comply with Senate Bill (S.B.) 1264, 86th Legislature, Regular Session, 2019, which requires HHSC to adopt rules relating to consumer protections against certain medical and health care billing by out-of-network licensed health care facilities, including abortion facilities, ambulatory surgical centers, birthing centers, chemical dependency treatment facilities, crisis stabilization units, end stage renal disease facilities, freestanding emergency medical care facilities, general and special hospitals, narcotic treatment programs, private psychiatric hospitals, and special care facilities.

COMMENTS

The 31-day comment period ended January 19, 2021.

During this period, HHSC did not receive any comments regarding the proposed amendment.

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation of and provision of health and human services by the health and human services system; Texas Health and Safety Code §577.010, which requires HHSC to adopt rules and standards necessary and appropriate to ensure the proper care and treatment of patients in a private mental hospital or mental health facility; and Texas Insurance Code §752.0003, which authorizes regulatory agencies to take action against facilities and providers that violate a balance billing prohibition.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101329

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 15, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 834-4591


CHAPTER 558. LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §§558.1 - 558.3, 558.11, 558.13, 558.15, 558.17, 558.19, 558.21, 558.23, 558.25, 558.27, 558.29 - 558.31, 558.202, 558.208, 558.213, 558.214 - 558.220, 558.222, 558.241 - 558.250, 558.252, 558.255 - 558.257, 558.259, 558.260, 558.281 - 558.287, 558.289, 558.290, 558.291, 558.292, 558.295 - 558.299, 558.301 - 558.303, 558.321, 558.322, 558.401, 558.402, 558.404 - 558.407, 558.501, 558.503, 558.505, 558.507, 558.521, 558.523, 558.525, 558.527, 558.601 - 558.604, 558.701, 558.801, 558.810, 558.811, 558.820, 558.821, 558.823, 558.830, 558.832, 558.834, 558.842 - 558.845, 558.852 - 558.857, 558.859, 558.860, 558.870, 558.871, and 558.880; new §§558.12, 558.861, 558.862, 558.863; and the repeal of §558.861; in Title 26, Part 1, Chapter 558, concerning Licensing Standards for Home and Community Support Services Agencies.

Sections 558.19 and 558.30 are adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9033). These sections will be republished.

All other sections are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9033). These sections will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments, new sections, and repeal are necessary to comply with changes to the Texas Health and Safety Code Chapter 142, and the Texas Occupations Code Chapters 56 and 57, made by Senate Bills 916 and 37, and House Bills 2594 and 3193, all enacted during the 86th Legislature, Regular Session, 2019.

House Bill (HB) 3193 increases the licensing period from two years to three years and increases the maximum amount that HHSC may charge for licensure fee.

Senate Bill (SB) 916 removes "palliative care for terminally ill clients" from services described as being included in the statutory definition of "hospice services."

SB 37 amends the subparagraph that prohibits certain disciplinary action against a person based on the person's default on a student loan default based on the amendments to the Texas Occupations Code.

HB 3079 gives HHSC the authority to investigate abuse, neglect, and exploitation of a home and community support services agency (HCSSA) client receiving inpatient hospice services.

HB 2594 allows a health care professional employee of a hospice provider who meets certain requirements to dispose of a patient's controlled substance prescriptions.

The amendments are also necessary to update the licensure process to reflect the transition from paper applications to the use of the online licensure portal called Texas Unified Licensure Information Portal (TULIP) and clarifying other processes relating to licensure.

Additionally, the amendments change the agency's name from "DADS" to "HHSC" throughout the chapter and update rule references throughout the chapter as a result of the administrative transfer of the chapter from 40 TAC Chapter 97 to 26 TAC Chapter 558 in May 2019.

COMMENTS

The 31-day comment period ended January 19, 2021.

During this period, HHSC received comments regarding the proposed rules from six commenters: the Texas New Mexico Hospice Organization and five individuals. All commenters expressed overall support for adoption of the rules. None opposed the adoption of the rules. However, some of the commenters requested that the adopted rule include changes to the text of the proposed rule while others requested further guidance on how the rule will be implemented. A summary of comments relating to the proposed rules and HHSC's responses follows.

Comment: Several commenters requested clarification about how the extension of licensure from 2-3 years will be implemented and whether it would affect the expiration date of a current license.

Response: Long-term Care Regulation (LTCR) Policy has posted Provider Letter 2021-03 that describes how LTCR will implement the provisions of the rule. Current license terms are not affected.

Comment: One commenter requested that the rule not reference "50 percent of the direct or indirect ownership interest" in §558.23(d)(1), relating to Change of Ownership, because the definition of "change of ownership" does not include the same reference to 50 percent ownership.

Response: The reference to 50 percent ownership in §558.23(d)(1) relates to whether HHCS chooses to conduct a desk review or an on-site health inspection for a change of ownership. The definition of "change of ownership" is unrelated to the type of review HHSC chooses to conduct. HHSC declines to change the rule language as requested by the commenter.

Comment: A commenter asked whether an agency's policies should no longer use the term "DADS" in its policies and if an agency will be cited for not updating policies to reflect current rule references.

Response: HHSC responds that the rules do not require an HCSSA's policies to reference HHSC or DADS or a particular rule citation. A surveyor will only cite an outdated reference in a policy if the reference compromises the accuracy or effectiveness of the policy.

Comment: One commenter stated concerns regarding supported palliative care and a hospice's responsibility of keeping track what out-patient palliative care services are available in their area and educating their clients. The commenter asked why hospice providers are the only medical provider or a provider with a medical component under HHSC identified to educate and refer people to supportive palliative care. The commenter also stated that supported palliative care should be a separate service under Chapter 558, like home health, hospice and personal assistance services. The commenter noted that, according to the proposed rules, a person will be educated about supported palliative care when they are discussing hospice election but the person, by this time, is clearly hospice appropriate. The commenter stated that supportive palliative care should be discussed by medical professionals prior to requiring hospice services.

Response: HHSC understands the commenter's concerns and intends to provide additional guidance and training for hospice agencies in order to comply with the rule. HHSC anticipates future rule initiatives will further address supportive palliative care in this chapter.

HHSC made a correction in §558.19(e) and (f) to reflect HHSC's January 1, 2021, implementation of the transition to a three-year license term for HCSSAs. Also, a semicolon was added at the end of paragraph (1) in §558.30(a)(1).

SUBCHAPTER A. GENERAL PROVISIONS

26 TAC §§558.1 - 558.3

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101339

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


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

26 TAC §§558.11 - 558.13, 558.15, 558.17, 558.19, 558.21, 558.23, 558.25, 558.27. 558.29 - 558.31

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

§558.19.Issuance of a Renewal License.

(a) A license issued under this chapter expires three years after the date HHSC issues it, except as provided in subsections (e)(1) and (f)(1) of this section.

(b) Except as specified in §558.503 of this chapter (relating to Exemption From a Survey), HHSC may not renew an initial license unless HHSC conducts an initial survey of the agency. For renewal of an initial license, an agency must:

(1) meet the requirements for an initial survey as specified in Subchapter E of this chapter (relating to Licensure Surveys);

(2) demonstrate substantial compliance with the Statute and this chapter for the services authorized under the license as confirmed by an initial survey; and

(3) apply for renewal of the license in accordance with §558.17 of this subchapter (relating to Application Procedures for a Renewal License).

(c) For renewal of a license other than an initial license, an agency must:

(1) maintain substantial compliance with the Statute and this chapter for the services authorized under the license; and

(2) apply for renewal of the license in accordance with §558.17 of this subchapter.

(d) If HHSC grants the renewal application, it issues a renewal license effective on the day after the previous license expires.

(e) If HHSC renews a license that expires after December 31, 2020, and before January 1, 2022, HHSC:

(1) issues a license that is valid for two years, if the license is for an agency with a license number that ends in 0-3 or 7-9; and

(2) issues a license that is valid for three years, if the license is for an agency with a license number that ends in 4-6.

(f) If HHSC renews a license that expires after December 31, 2020, and before January 1, 2023, HHSC:

(1) issues a license that is valid for two years, if the license is for an agency with a license number that ends in 4-6; and

(2) issues a license that is valid for three years, if the license is for an agency with a license number that ends in 0-3 or 7-9.

(g) HHSC may deny a renewal application:

(1) if an agency fails to meet the eligibility criteria in §558.11 of this subchapter (relating to Criteria and Eligibility for Licensing);

(2) if the agency fails to meet the requirements for renewal of a license as specified in this subchapter; or

(3) for any of the reasons specified in §558.21 of this subchapter (relating to Denial of an Application or a License).

(h) A renewal license designates an agency's place of business from which services are to be provided or directed and designates an agency's authorized category or categories of service.

§558.30.Operation of an Inpatient Unit at a Parent Agency.

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

(1) submit an initial parent application through the online portal according to applicable instructions for requesting HHSC approval to operate an inpatient unit at the parent agency;

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

(3) allow HHSC to conduct an on-site Life Safety Code inspection to determine if the inpatient unit is in compliance with §558.871 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) after HHSC issues a license authorizing the inpatient unit, 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 admitting and 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) If the applicant is currently licensed 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 §558.503 of this chapter (relating to Exemption From a Survey). The agency may demonstrate that it is exempt from the initial health survey described in §558.521 of this chapter (relating to Requirements for an Initial Survey) by submitting the accreditation documentation from an approved accreditation organization referenced in §558.503 of this chapter to the designated HHSC survey office within seven days after the agency receives the accreditation documentation.

(d) If HHSC grants an application for an initial parent agency license with an inpatient unit or to add an inpatient unit to a licensed parent agency, the licensed agency and the license holder must comply with the Statute and this chapter, including Subchapter H of this chapter.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101340

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER C. MINIMUM STANDARDS FOR ALL HOME AND COMMUNITY SUPPORT SERVICES AGENCIES

DIVISION 1. GENERAL PROVISIONS

26 TAC §558.202

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101341

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 2. CONDITIONS OF A LICENSE

26 TAC §§558.208, 558.213 - 558.220, 558.222

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101343

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 3. AGENCY ADMINISTRATION

26 TAC §§558.241 - 558.250, 558.252, 558.255 - 558.257, 558.259, 558.260

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101344

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 4. PROVISION AND COORDINATION OF TREATMENT SERVICES

26 TAC §§558.281 - 558.287, 558.289 - 558.292, 558.295 - 558.299, 558.301 - 558.303

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101345

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 5. BRANCH OFFICES AND ALTERNATE DELIVERY SITES

26 TAC §558.321, §558.322

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101346

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER D. ADDITIONAL STANDARDS SPECIFIC TO LICENSE CATEGORY AND SPECIFIC TO SPECIAL SERVICES

26 TAC §§558.401, 558.402, 558.404 - 558.407

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101347

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER E. LICENSURE SURVEYS

DIVISION 1. GENERAL

26 TAC §§558.501, 558.503, 558.505, 558.507

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101348

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 2. THE SURVEY PROCESS

26 TAC §§558.521, 558.523, 558.525, 558.527

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101349

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER F. ENFORCEMENT

26 TAC §§558.601 - 558.604

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101350

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER G. HOME HEALTH AIDES

26 TAC §558.701

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101351

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


SUBCHAPTER H. STANDARDS SPECIFIC TO AGENCIES LICENSED TO PROVIDE HOSPICE SERVICES

DIVISION 1. HOSPICE GENERAL PROVISIONS

26 TAC §558.801

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101352

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 2. INITIAL AND COMPREHENSIVE ASSESSMENT OF A HOSPICE

26 TAC §558.810, §558.811

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101353

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 3. HOSPICE INTERDISCIPLINARY TEAM, CARE PLANNING, AND COORDINATION OF SERVICES

26 TAC §§558.820, 558.821, 558.823

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101354

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 4. HOSPICE CORE SERVICES

26 TAC §§558.830, 558.832, 558.834

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101355

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 5. HOSPICE NON-CORE SERVICES

26 TAC §§558.842 - 558.845

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101356

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 6. HOSPICE ORGANIZATION AND ADMINISTRATION OF SERVICES

26 TAC §§558.852 - 558.857, 558.859 - 558.863

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101357

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


26 TAC §558.861

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101358

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 7. HOSPICE INPATIENT UNITS

26 TAC §558.870, §558.871

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101359

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


DIVISION 8. HOSPICES THAT PROVIDE HOSPICE CARE TO RESIDENTS OF A SKILLED NURSING FACILITY, NURSING FACILITY, OR INTERMEDIATE CARE FACILITY FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS

26 TAC §558.880

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§142.012, 142.010, and 142.006(b), which respectively authorize the Executive Commission of HHSC to adopt rules in accordance with those sections that are necessary to implement Chapter 142 and set minimum standards for home and community support services agencies licensed under that Chapter, set reasonable license fees for such agencies, and establish a system for staggered three-year license expiration dates.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101360

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 25, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3161


CHAPTER 564. TREATMENT FACILITIES FOR INDIVIDUALS WITH SUBSTANCE-RELATED DISORDERS

SUBCHAPTER B. LICENSING REQUIREMENTS

26 TAC §564.28

The Texas Health and Human Services Commission (HHSC) adopts new §564.28, concerning Balance Billing.

The new rule is adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9108). This rule will not be republished.

BACKGROUND AND JUSTIFICATION

The new rule is necessary to comply with Senate Bill (S.B.) 1264, 86th Legislature, Regular Session, 2019, which requires HHSC to adopt rules relating to consumer protections against certain medical and health care billing by out-of-network licensed health care facilities, including abortion facilities, ambulatory surgical centers, birthing centers, chemical dependency treatment facilities, crisis stabilization units, end stage renal disease facilities, freestanding emergency medical care facilities, general and special hospitals, narcotic treatment programs, private psychiatric hospitals, and special care facilities.

COMMENTS

The 31-day comment period ended January 19, 2021.

During this period HHSC did not receive any comments regarding the proposed rule.

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation of and provision of health and human services by the health and human services system; Texas Health and Safety Code §464.009, which authorizes the Executive Commissioner to adopt rules governing organization and structure, policies and procedures, staffing requirements, services, client rights, records, physical plant requirements, and standards for licensed chemical dependency treatment facilities; and Texas Insurance Code §752.0003, which authorizes regulatory agencies to take action against facilities and providers that violate a balance billing prohibition.

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

Filed with the Office of the Secretary of State on March 26, 2021.

TRD-202101330

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 15, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 834-4591


CHAPTER 744. MINIMUM STANDARDS FOR SCHOOL-AGE AND BEFORE OR AFTERSCHOOL PROGRAMS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§744.201, 744.305, 744.307, 744.701, 744.801, 744.2575, and 744.2577; and new §§744.203, 744.205, 744.207, 744.309, and 744.311 in Title 26, Texas Administrative Code, Chapter 744, Minimum Standards for School-Age and Before and After-School Programs.

New §744.203 is adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9109). This rule will be republished.

The amendments to §§744.201, 744.305, 744.307, 744.701, 744.801, 744.2575, and 744.2577; and new §§744.205, 744.207, 744.309, and 744.311 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9109). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new rules are necessary to implement the portions of Senate Bill 568, 86th Legislature, Regular Session, 2019, that amended Chapter 42, Texas Human Resources Code to require HHSC Child Care Regulation (CCR) to expand liability insurance requirements and alter reporting requirements for certain incidents and deficiencies.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC did not receive any comments regarding the proposed rules.

HHSC did receive comments on parallel rules for liability insurance in Chapter 748, Minimum Standards for General Residential Operations, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9157) and Chapter 749, Minimum Standards for Child-Placing Agencies, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9162). HHSC is amending the proposed text in new §744.203 to ensure the minimum standards for liability insurance remain congruent throughout Chapters 744, 746, 747, 748, and 749. For a more detailed description of comments received for Chapters 748 and 749, and HHSC's response, please see the preambles for Chapters 748 and 749, which are published elsewhere in this issue of the Texas Register.

SUBCHAPTER B. ADMINISTRATION AND COMMUNICATION

DIVISION 1. PERMIT HOLDER RESPONSIBILITIES

26 TAC §§744.201, 744.203, 744.205, 744.207

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

§744.203.What are the liability insurance requirements?

Unless you have an acceptable reason not to have the insurance, you must:

(1) Maintain liability insurance coverage in the amount of $300,000 for each occurrence of negligence that covers injury to a child while the child is on your premises or in your care; and

(2) Provide proof of coverage to Licensing each year by the anniversary date of the issuance of your permit.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101205

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 2. REQUIRED NOTIFICATIONS

26 TAC §§744.305, 744.307, 744.309, 744.311

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101206

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER C. RECORD KEEPING

DIVISION 2. RECORDS OF ACCIDENTS AND INCIDENTS

26 TAC §744.701

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101207

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 3. RECORDS THAT MUST BE KEPT ON FILE AT THE OPERATION

26 TAC §744.801

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101208

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER K. HEALTH PRACTICES

DIVISION 3. ILLNESS AND INJURY

26 TAC §744.2575, §744.2577

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101209

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


CHAPTER 745. LICENSING

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§745.11, 745.21, 745.101, 745.115, 745.117, 745.119, 745.125, 745.127, 745.129, 745.131, 745.135, 745.141, 745.143, 745.211, 745.215, 745.241, 745.243, 745.249, 745.251, 745.273, 745.275, 745.323, 745.325, 745.341, 745.345, 745.347, 745.349, 745.351, 745.353, 745.371, 745.373, 745.375, 745.379, 745.385, 745.403, 745.429, 745.431, 745.433, 745.435, 745.437, 745.461, 745.464, 745.467, 745.471, 745.473, 745.475, 745.477, 745.481, 745.483, 745.8600, 745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8611, 745.8613, 745.8631, 745.8633, 745.8637, 745.8641, 745.8643, 745.8649, 745.8650, 745.8651, 745.8652, 745.8654, 745.8659, 745.8661, 745.8681, 745.8685, 745.8687, 745.8711, 745.8713, and 745.8715; new §§745.253, 745.255, 745.301, 745.321, 745.339, 745.340, 745.343, 745.344, 745.355, 745.436, 745.478, 745.485, 745.487, 745.489, 745.8635, 745.8653, 745.8655, 745.8656, 745.8657, 745.8683, and 745.8714; and the repeal of §§745.253, 745.279, 745.301, 745.321, 745.343, 745.383, 745.407, 745.485, 745.8635, 745.8639, 745.8653, 745.8655, 745.8657, and 745.8683 in Title 26, Texas Administrative Code (TAC), Chapter 745, Licensing.

The amendment to §745.249 is adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9121). This rule will be republished.

The amendments to §§745.11, 745.21, 745.101, 745.115, 745.117, 745.119, 745.125, 745.127, 745.129, 745.131, 745.135, 745.141, 745.143, 745.211, 745.215, 745.241, 745.243, 745.251, 745.273, 745.275, 745.323, 745.325, 745.341, 745.345, 745.347, 745.349, 745.351, 745.353, 745.371, 745.373, 745.375, 745.379, 745.385, 745.403, 745.429, 745.431, 745.433, 745.435, 745.437, 745.461, 745.464, 745.467, 745.471, 745.473, 745.475, 745.477, 745.481, 745.483, 745.8600, 745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8611, 745.8613, 745.8631, 745.8633, 745.8637, 745.8641, 745.8643, 745.8649, 745.8650, 745.8651, 745.8652, 745.8654, 745.8659, 745.8661, 745.8681, 745.8685, 745.8687, 745.8711, 745.8713, and 745.8715; new §§745.253, 745.255, 745.301, 745.321, 745.339, 745.340, 745.343, 745.344, 745.355, 745.436, 745.478, 745.485, 745.487, 745.489, 745.8635, 745.8653, 745.8655, 745.8656, 745.8657, 745.8683, and 745.8714; and the repeal of §§745.253, 745.279, 745.301, 745.321, 745.343, 745.383, 745.407, 745.485, 745.8635, 745.8639, 745.8653, 745.8655, 745.8657, and 745.8683 are adopted without changes to the proposed text, as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9121). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

Certain bills from the 86th Legislature, Regular Session, 2019, amended Chapter 42, Texas Human Resources Code (HRC). The purpose of the new, amended, and repealed rules is to implement those amendments as they apply to 26 TAC Chapter 745.

Senate Bill (S.B.) 568 amended (1) HRC §42.049 to (A) extend liability insurance requirements to registered and licensed child-care homes; and (B) add a requirement that all operation types provide timely notice to the parents of each child in care if an operation does not carry the required insurance; (2) HRC §42.050 and §42.052 to create a more robust process for evaluating renewal applications; (3) HRC §42.072 to add "refusal to renew a permit" as a type of adverse action that will affect a person's ability to apply for a permit for a period of five years; and (4) HRC §42.078 to provide additional bases for issuing an administrative penalty and the recommended amounts for those penalties.

S.B. 569 (1) created HRC §42.0495 to establish liability insurance requirements for listed family homes, including a requirement that a home provide timely notice to the parents of each child in care if a home does not carry the required insurance; and (2) amended HRC §42.046 to add a safe sleep training requirement for listed family home applicants.

S.B. 781 (1) amended HRC §42.071 to eliminate "evaluation" as a type of enforcement action that HHSC Child Care Regulation (CCR) can take against an operation, and amended a multitude of other sections to eliminate the mention of "evaluation" in HRC Chapter 42; (2) amended HRC §42.072 to prohibit CCR from issuing a permit to an applicant for five years from when the applicant voluntarily closes or relinquishes a permit after receiving notice that CCR was taking a certain type of enforcement action; and (3) created Chapter 42, Subchapter H, which contains requirements for a General Residential Operation (GRO) that will provide treatment services to children with emotional disorders, including: (A) a requirement that an application must include an operational plan; (B) guidelines for how CCR must evaluate or deny a permit; and (C) a public hearing for a renewal permit upon request by the Commissioner's Court located in the same county as the GRO.

House Bill (H.B) 3390 amended an exemption in HRC §42.041 that applies to a child or sibling group that is placed by the Department of Family and Protective Services.

H.B. 4090 amended HRC §42.048 to state that a change in location for a school-age program operating exclusively during the summer or any other time school is not in session does not automatically revoke the program's license or certification.

These legislative changes impact Subchapters A, C, D, and L of Chapter 745. CCR is also updating these subchapters with non-legislative changes to (1) update names of entities and titles; (2) update citations, including changing all of the figures from Title 40 to Title 26; (3) delete outdated definitions and rules; (4) add definitions for clarity throughout the chapter; (5) update the rules to be consistent with current statutes and policy; (6) amend the rules so the language is consistent throughout the chapter; and (7) clarify the rules by making them more readable and easier to understand.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received five comments regarding the proposed rules from two commenters. The commenters were the Texas Press Association and Country Home Learning Center, a licensed child care center. A summary of the comments relating to the rules and CCR's responses follows.

Comment: Regarding §745.8633 and §745.8637, the commenter stated that compliance history of multiple operations should not be considered in determining a voluntary plan of action or probation when the issue identified is related to caregivers. The commenter states that caregiver issues will naturally arise with large numbers of caregivers.

Response: HHSC disagrees with the commenter and declines to revise the rules. When identifying risks at an operation, and the operation's ability to make corrections or reduce risks, CCR would be remiss to ignore the extent to which similar issues exist at another operation operated by the permit holder. For example, if CCR is seeking to address a lack of caregiver supervision at an operation through a voluntary plan of action or probation, the presence of similar issues at another operation with the same governing body would be very relevant to CCR's decision to determine what kind of action to take and what action plans to put in place.

Comment: Regarding §745.8654 and §745.8655, the commenter stated (1) "you" in these two rules need to be defined as a governing body or controlling person; and (2) it is unclear what constitutes "a finding of abuse or neglect."

Response: HHSC disagrees with the commenter regarding both issues and declines to revise the rules. (1) "You" is already defined at §745.11(1) as the permit holder. Whether persons, including members of a governing body, are ineligible to serve as a controlling person at a child-care operation is addressed in Subchapter G of this chapter (relating to Controlling Persons). (2) "A finding of abuse or neglect" that may result in a person being ineligible for a permit is a complicated issue that is described in Subchapter F of this chapter (relating to Background Checks), which is already cited in this rule.

Comment: Regarding §745.8656, the commenter stated that notices of adverse actions should not have to be posted until after due process is completed.

Response: HHSC disagrees with the commenter and declines to revise the rule. This is not a change to the current rule; the rule was just renumbered (previously §745.8655). In addition, parents need to know if there are serious problems at the operation and if there is a possibility of closure, so the parents can plan for the care of their child.

Comment: Regarding §745.8687, the commenter disagreed with allowing a notice of judicial action to be published on Licensing's consumer website instead of being published in the local newspaper. The commenter indicated several reasons for objecting to this change, including (1) reducing public awareness of important issues relating to children's health, oversight safety, and well-being; (2) disproportionately impacting demographic groups like the elderly, communities of color, and low-income populations; and (3) reducing government accountability by eliminating any third-party, leaving government entities to self-regulate their compliance with the public notice requirements.

Response: HHSC disagrees with the commenter and declines to revise the rule. There is no statutory requirement for HHSC to publish a notice of judicial action in any forum, as there once was for the revocation or suspension of a permit. HHSC currently publishes the revocation or suspension of a permit on Licensing's consumer website rather than in a local newspaper, as allowed by HRC §42.077(a)(2). In accordance with HRC 42.025, HHSC also established a searchable database that displays a list of registered and listed homes that have had their permit revoked or suspended; HHSC subsequently broadened the database to include licensed operations that have had their permit revoked or suspended. Licensing's consumer website is a tool frequently used by both parents and child advocates who are aware of the information that can be found on the site, including searching for child care operations and reviewing an operation's compliance history. While HHSC appreciates the concern regarding the possible disproportionate impact of publishing online in lieu of a newspaper, HHSC sees a greater benefit in a permanent, online repository of judicial actions that the public may search rather than a one-time publication in a local newspaper. Moreover, §745.8685 also requires the operation that is the subject of the judicial action to provide written notification of the temporary restraining order to the parent of each child enrolled in the operation. With respect to the concern about the lack of third-party oversight, the subject matter of these notices is relatively straightforward because the orders were instituted by a third-party judge. In addition to posting the information on the website and requiring the operation to send a copy of the restraining order to the parents of each child in care, Licensing also communicates with other state agencies and federal programs, as appropriate, when a judicial action is pending and following any subsequent final judicial action. Thus, parents and entities who would have a specific interest in the judicial action will not have to rely on the notice, regardless of where it is posted.

Comment: Regarding §745.8714, the commenter appears to be recommending that CCR should not issue penalties, but instead should educate and guide providers. The commenter stated that motivation of income can unwittingly motivate a citation of deficiencies to produce an income, much like police officers seek to produce revenue by ticketing drivers.

Response: HHSC disagrees with the commenter and declines to revise the rule. The basis and amounts for issuing administrative penalties are statutorily mandated by HRC §42.078. HRC §42.04215 requires any administrative penalties collected by CCR to be deposited into a dedicated account in the general revenue fund of the Comptroller and only used to pay for provider training.

HHSC also received comments on parallel rules regarding liability insurance in Chapter 748, Minimum Standards for General Residential Operations, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9157) and Chapter 749, Minimum Standards for Child-Placing Agencies, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9162). HHSC is amending the proposed text in §745.249 to ensure the minimum standards for liability insurance remain congruent throughout Chapters 745, 748, and 749. For a more detailed description of comments received for Chapters 748 and 749, and HHSC's response, please see the preambles for Chapter 748 and 749, which are published elsewhere in this issue of the Texas Register.

SUBCHAPTER A. PRECEDENCE AND DEFINITIONS

DIVISION 1. DEFINITIONS FOR THE LANGUAGE USED IN THIS CHAPTER

26 TAC §745.11

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendment is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101236

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 2. DEFINITIONS FOR LICENSING

26 TAC §745.21

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendment is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101237

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER C. OPERATIONS THAT ARE EXEMPT FROM REGULATION

DIVISION 1. DEFINITIONS

26 TAC §745.101

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendment is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101238

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 2. DEFINITIONS

26 TAC §§745.115, 745.117, 745.119, 745.125, 745.127, 745.129, 745.131, 745.135, 745.141, 745.143

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101239

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER D. APPLICATION PROCESS

DIVISION 2. STAGES OF THE APPLICATION PROCESS AND PRE-APPLICATION INTERVIEW

26 TAC §745.211, §745.215

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101240

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 3. SUBMITTING THE APPLICATION MATERIALS

26 TAC §§745.241, 745.243, 745.249, 745.251, 745.253, 745.255

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

§745.249.What are the liability insurance requirements for a licensed operation, registered child-care home, or listed family home?

(a) Unless you have an acceptable reason not to have the insurance as specified in §745.251 of this division (relating to What are acceptable reasons not to have liability insurance?), a licensed operation, registered child-care home, or listed family home must:

(1) Have liability insurance coverage in the amount of $300,000 for each occurrence of negligence that covers injury to a child while the child is on your premises or in your care; and

(2) Provide proof of coverage to Licensing each year by the anniversary date of the issuance of your permit.

(b) A listed family home that only provides care to related children under Chapter 313 of the Texas Labor Code (relating to Requirements for Providers of Relative Child Care) does not have to meet these liability insurance requirements.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101241

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.253

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101242

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 4. PUBLIC NOTICE AND HEARING REQUIREMENTS FOR RESIDENTIAL CHILD- CARE OPERATIONS

26 TAC §745.273, §745.275

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101243

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 4. PUBLIC NOTICE AND HEARING REQUIREMENTS FOR RESIDENTIAL CHILD-CARE OPERATIONS

26 TAC §745.279

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101244

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 5. ACCEPTING OR RETURNING THE APPLICATION

26 TAC §745.301

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101245

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.301

STATUTORY AUTHORITY

The new section is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The new section is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101246

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 6. REVIEWING THE APPLICATION FOR COMPLIANCE WITH MINIMUM STANDARDS, RULES, AND STATUTES

26 TAC §745.321

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101247

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §§745.321, 745.323, 745.325

STATUTORY AUTHORITY

The new section and amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The new section and amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101248

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 7. THE DECISION TO ISSUE OR DENY A PERMIT

26 TAC §§745.339 - 745.341, 745.343 - 745.345, 745.347, 745.349, 745.351, 745.353, 745.355

STATUTORY AUTHORITY

The new sections and amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The new sections and amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101249

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.343

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101250

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 8. DUAL AND MULTIPLE PERMITS

26 TAC §§745.371, 745.373, 745.375, 745.379, 745.385

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101251

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.383

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101252

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 9. REAPPLYING FOR A PERMIT

26 TAC §745.403

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendment also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101253

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.407

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101254

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 10. RELOCATION OF OPERATION

26 TAC §§745.429, 745.431, 745.433, 745.435 - 745.437

STATUTORY AUTHORITY

The amendments adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101255

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 11. EMPLOYER-BASED CHILD CARE

26 TAC §§745.461, 745.464, 745.467

STATUTORY AUTHORITY

The amendments adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101256

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 12. PERMIT RENEWAL

26 TAC §§745.471, 745.473, 745.475, 745.477, 745.478, 745.481, 745.483, 745.485, 745.487, 745.489

STATUTORY AUTHORITY

The amendments adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101257

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.485

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101258

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER L. ENFORCEMENT ACTIONS

DIVISION 1. OVERVIEW OF ENFORCEMENT ACTIONS

26 TAC §§745.8600, 745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8611, 745.8613

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101259

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 2. VOLUNTARY AND CORRECTIVE ACTIONS

26 TAC §§745.8631, 745.8633, 745.8635, 745.8637, 745.8641, 745.8643

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments and new section also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101260

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.8635, §745.8639

STATUTORY AUTHORITY

The repeals are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeals are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101261

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 3. ADVERSE ACTIONS

26 TAC §§745.8649 - 745.8657, 745.8659, 745.8661

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments and new section also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101262

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §§745.8653, 745.8655, 745.8657

STATUTORY AUTHORITY

The repeals are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeals are also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101263

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 4. JUDICIAL ACTIONS

26 TAC §§745.8681, 745.8683, 745.8685, 745.8687

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments and new section also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101264

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


26 TAC §745.8683

STATUTORY AUTHORITY

The repeal is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The repeal is also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101265

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 5. MONETARY ACTIONS

26 TAC §§745.8711, 745.8713, 745.8714

STATUTORY AUTHORITY

The amendments and new section are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendments and new section also adopted to be consistent with HRC §§42.041(b), 42.042, 42.046, 42.0462, 42.048, 42.049, 42.0495, 42.050, 42.052, 42.0704, 42.071, 42.072, 42.078, 42.251, 42.252, 42.253, and 42.255.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101266

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


CHAPTER 746. MINIMUM STANDARDS FOR CHILD-CARE CENTERS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§746.201, 746.305, 746.307, 746.701, 746.801, 746.3605, and 746.3607; and new §§746.203, 746.205, 746.207, 746.309, and 746.311 in Title 26, Texas Administrative Code, Chapter 746, Minimum Standards for Child-Care Centers.

New §746.203 is adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9146). This rule will be republished.

The amendments to §§746.201, 746.305, 746.307, 746.701, 746.801, 746.3605, and 746.3607; and new §§746.205, 746.207, 746.309, and 746.311 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9146). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new rules are necessary to implement the portions of Senate Bill 568, 86th Legislature, Regular Session, 2019, that amended Chapter 42, Texas Human Resources Code to require HHSC Child Care Regulation (CCR) to establish minimum standards for safe sleeping, expand liability insurance requirements, and alter reporting requirements for certain incidents and deficiencies.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received comments regarding the proposed rules from three commenters, including Foundations Academy, Country Home Learning Center, and Disability Rights Texas. Each of the commenters had at least two comments. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Regarding §746.305(3), one commenter requested HHSC clarify the circumstances under which a licensed child-care center must notify CCR that a child in care required hospitalization due to illness. The commenter requested specific clarification of the phrase "in your care."

Response: HHSC declines to revise the rule. However, HHSC added information to a Helpful Information box, following the rule in the Minimum Standards publications on the HHSC provider webpage, to clarify that the rule applies to when the child-care center sends a child to the hospital for an illness.

Comment: Regarding §746.307(a), one commenter issued a statement of support for the rule that requires a licensed child-care center to notify a parent immediately if there is an allegation that the child has been abused, neglected, or exploited.

Response: HHSC appreciates support of the rule.

Comment: Regarding §746.309(a)(2), one commenter issued a statement of support for the rule that requires a licensed child-care center to report a deficiency in abuse, neglect, or exploitation to the parent of each child attending the child-care center.

Response: HHSC appreciates support of the rule.

Comment: Regarding §746.309 and §746.311, one commenter was opposed to providing notification of deficiencies in safe sleeping and abuse, neglect, or exploitation to parents of all children in care and prior to the operation's due process. The commenter recommended HHSC revise the rules to require notification to the parents of the children in the same classroom once due process is complete.

Response: HHSC disagrees with the comment and declines to revise the rules. Statute requires the operation to notify parents of all children in care. To account for concerns regarding due process, CCR has added language to the required reporting form that allows an operation to indicate to parents whether it has requested due process for the deficiency.

Comment: Regarding §746.311(a), one commenter was concerned that the five-day timeframe for a licensed child-care center to notify parents of an abuse, neglect, or exploitation deficiency is too delayed. The commenter recommended changing the notification timeframe to 24 hours.

Response: HHSC understands the reason for the comment but declines to revise the rule. HHSC and the Texas Department of Family and Protective Services have processes in place to mitigate risk to children during an investigation involving the alleged abuse, neglect, or exploitation of a child. HHSC has determined that the proposed timeframe is an appropriate amount of time to make the notification.

Comment: Regarding §746.701(1) and (2), one commenter stated that the term "a child in care" in this rule and throughout Chapter 746 is confusing and needs clarification. The commenter recommended HHSC update the term to specify "enrolled" vs. "physically present" throughout Chapter 746.

Response: HHSC disagrees with the comment and declines to revise the rule. This recommendation is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 746. This will ensure the public can comment on any proposed changes.

Comment: Regarding §746.701(3), one commenter stated that the CCR form required by the rule does not capture communicable disease reporting accurately, particularly for an employee. The commenter was also unclear on the entire purpose of the form and the reporting requirements for communicable diseases.

Response: HHSC declines to revise the rule. However, HHSC will evaluate the form to ensure it captures all reporting requirements and adjust as needed prior to the effective date of the rule. To address the commenter's additional questions regarding use of the form, HHSC added clarifying information to a Helpful Information box following the rule in the Minimum Standards publications on the HHSC provider webpage. The requirement to report communicable diseases to CCR is not new; however, CCR has added a reference to the rule in the same Helpful Information box to help licensed child-care centers locate the specific rule when reporting.

HHSC also received comments on parallel rules for liability insurance in Chapter 748, Minimum Standards for General Residential Operations, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9157) and Chapter 749, Minimum Standards for Child-Placing Agencies, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9162). HHSC is amending the proposed text in new §746.203 to ensure the minimum standards for liability insurance remain congruent throughout Chapters 744, 746, 747, 748, and 749. For a more detailed description of comments received for Chapters 748 and 749 and HHSC's response, please see the preambles for Chapters 748 and 749, which are published elsewhere in this issue of the Texas Register.

SUBCHAPTER B. ADMINISTRATION AND COMMUNICATION

DIVISION 1. PERMIT HOLDER RESPONSIBILITIES

26 TAC §§746.201, 746.203, 746.205, 746.207

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

§746.203.What are the liability insurance requirements?

Unless you have an acceptable reason not to have the insurance, you must:

(1) Maintain liability insurance coverage in the amount of $300,000 for each occurrence of negligence that covers injury to a child while the child is on your premises or in your care; and

(2) Provide proof of coverage to Licensing each year by the anniversary date of the issuance of your permit.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101210

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 2. REQUIRED NOTIFICATION

26 TAC §§746.305, 746.307, 746.309, 746.311

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101211

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER C. RECORD KEEPING

DIVISION 2. RECORDS OF ACCIDENTS AND INCIDENTS

26 TAC §746.701

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101212

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


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

26 TAC §746.801

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101213

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER R. HEALTH PRACTICES

DIVISION 3. ILLNESS AND INJURY

26 TAC §746.3605, §746.3607

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101214

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


CHAPTER 747. MINIMUM STANDARDS FOR CHILD-CARE HOMES

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§747.207, 747.303, 747.305, 747.701, 747.801, 747.3405, and 747.3407; and new §§747.209, 747.211, 747.213, 747.307, and 747.309 in Title 26, Texas Administrative Code, Chapter 747, Minimum Standards for Child-Care Homes.

New §747.209 is adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9151). This rule will be republished.

The amendments to §§747.207, 747.303, 747.305, 747.701, 747.801, 747.3405, and 747.3407; and new §§747.211, 747.213, 747.307, and 747.309 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9151). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new rules are necessary to implement the portions of Senate Bill 568, 86th Legislature, Regular Session, 2019, that amended Chapter 42, Texas Human Resources Code to require HHSC Child Care Regulation (CCR) to establish minimum standards for safe sleeping, expand liability insurance requirements, and alter reporting requirements for certain incidents and deficiencies.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received comments regarding the proposed rules from three commenters, including Momma Pearls Daycare, Turtle Creek Kids, and Disability Rights Texas. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Regarding §747.209, two commenters opposed the rule due to concerns of a negative fiscal impact to licensed and registered child-care homes required to carry liability insurance.

Response: HHSC disagrees with the comment and declines to revise the rule. Statute requires that licensed and registered child-care homes carry liability insurance. For homes that determine liability insurance to be cost prohibitive, proposed §747.211 lists acceptable reasons for a licensed or registered child-care home not to have liability insurance.

Comment: Regarding §747.305(a), one commenter issued a statement of support for the rule that requires a licensed or registered child-care home to notify a parent immediately if there is an allegation that the child has been abused, neglected, or exploited.

Response: HHSC appreciates support of the rule.

Comment: Regarding §747.307(a)(2), one commenter issued a statement of support for the rule that requires a licensed or registered child-care home to report a deficiency in abuse, neglect, or exploitation to the parent of each child attending the child-care home.

Response: HHSC appreciates support of the rule.

Comment: Regarding §747.309(a), one commenter was concerned that the five-day timeframe for a licensed or registered child-care home to notify parents of an abuse, neglect, or exploitation deficiency is too delayed. The commenter recommended changing the notification timeframe to 24 hours.

Response: HHSC understands the reason for the comment but declines to revise the rule. HHSC and the Texas Department of Family and Protective Services have processes in place to mitigate risk to children during an investigation involving the alleged abuse, neglect, or exploitation of a child. HHSC has determined that the proposed timeframe is an appropriate amount of time to make the notification.

HHSC also received comments on parallel rules for liability insurance in Chapter 748, Minimum Standards for General Residential Operations, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9157) and Chapter 749, Minimum Standards for Child-Placing Agencies, published in the December 18, 2020, issue of the Texas Register (45 TexReg 9162). HHSC is amending the proposed text in new §747.209 to ensure the minimum standards for liability insurance remain congruent throughout Chapters 744, 746, 747, 748, and 749. For a more detailed description of comments received for Chapters 748 and 749 and HHSC's response, please see the preambles for Chapters 748 and 749, which are published elsewhere in this issue of the Texas Register.

SUBCHAPTER B. ADMINISTRATION AND COMMUNICATION

DIVISION 1. PRIMARY CAREGIVER RESPONSIBILITIES

26 TAC §§747.207, 747.209, 747.211, 747.213

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

§747.209.What are the liability insurance requirements?

Unless you have an acceptable reason not to have the insurance, you must:

(1) Maintain liability insurance coverage in the amount of $300,000 for each occurrence of negligence that covers injury to a child while the child is on your premises or in your care; and

(2) Provide proof of coverage to Licensing each year by the anniversary date of the issuance of your permit.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101215

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 2. REQUIRED NOTIFICATIONS

26 TAC §§747.303, 747.305, 747.307, 747.309

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101216

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER C. RECORD KEEPING

DIVISION 2. RECORDS OF ACCIDENTS AND INCIDENTS

26 TAC §747.701

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101217

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


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

26 TAC §747.801

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101218

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER R. HEALTH PRACTICES

DIVISION 3. ILLNESS AND INJURY

26 TAC §747.3405, §747.3407

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101219

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 1. PLANS AND POLICIES REQUIRED FOR THE APPLICATION PROCESS

26 TAC §748.101

The Texas Health and Human Services Commission (HHSC) adopts the amendment to §748.101 in Title 26, Texas Administrative Code (TAC), Chapter 748, Minimum Standards for General Residential Operations. The amendment to §748.101 is adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9157). The rule will not be republished.

BACKGROUND AND JUSTIFICATION

The amended rule implements a portion of Senate Bill 781, 86th Legislature, Regular Session, 2019, which created new §42.252 of the Texas Human Resources Code (HRC). The new section requires an application for a general residential operation that will provide treatment services to children with emotional disorders to include an operational plan.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received no comments regarding the proposed rule.

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies. In addition, HRC §42.042 requires the Executive Commissioner to adopt rules to carry out the requirements in HRC Chapter 42.

The amendment is also adopted under HRC §42.252.

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

Filed with the Office of the Secretary of State on March 23, 2021.

TRD-202101235

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 12, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

The Texas Health and Human Services Commission (HHSC) adopts amendments to §748.151 and §748.303; and new §§748.158, 748.159, 748.160, 748.317, 748.319, and 748.1767 in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

New §748.158 is adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9159). This rule will be republished.

The amendments to §748.151 and §748.303; and new §§748.159, 748.160, 748.317, 748.319, and 748.1767 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9159). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new rules are necessary to implement the portions of Senate Bill 568, 86th Legislature, Regular Session, 2019, that amended Chapter 42, Human Resources Code to require HHSC Child Care Regulation (CCR) to establish minimum standards for safe sleeping, expand liability insurance requirements, and alter reporting requirements for certain incidents and deficiencies.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received comments regarding the proposed rules from two commenters, including Texas Alliance for Child and Family Services and Disability Rights Texas. Both commenters had multiple comments. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Regarding §748.158, one commenter recommended adding clarifying language to specify that the injury coverage under the required liability insurance policy is for non-accidental injuries or those related to negligence. The commenter also noted concerns regarding whether the language surrounding off-premises liability increased the requirements beyond those in statute and currently in place.

Response: HHSC agrees with the comment and is revising the rule as recommended. HHSC is also removing language related to injuries that occur off the premises of the operation.

Comment: Regarding §748.303 and §748.317, one commenter recommended that HHSC expand the rules to require an operation to notify a child's parents of any use of emergency behavioral interventions or deficiencies related to emergency behavioral interventions.

Response: HHSC declines to revise the rules. This recommendation is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 748. This will ensure the public can comment on any proposed changes.

Comment: Regarding §748.303(a)(3)(B), one commenter issued a statement of support for the rule that requires an operation to notify a parent immediately if there is an allegation that the child has been abused, neglected, or exploited.

Response: HHSC appreciates support of the rule.

Comment: Regarding §748.303(b), one commenter recommended HHSC expand the rule to require an operation to report a medically pertinent incident to parents within 24 hours of the incident.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 748. This will ensure the public can comment on any proposed changes.

Comment: Regarding §748.303(d), one commenter recommended HHSC expand the rule to require an operation to report incidents involving adult residents to CCR.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 748. This will ensure the public can comment on any proposed changes.

Comment: Regarding §748.317(a)(2), one commenter issued a statement of support for the rule that requires an operation to report a deficiency in abuse, neglect, or exploitation to the parent of each child residing at the operation.

Response: HHSC appreciates support of the rule.

Comment: Regarding §748.317(a)(2), one commenter requested CCR allow administrative sharing of information between HHSC and the Texas Department of Family and Protective Services to constitute notice of an abuse, neglect, or exploitation deficiency to a child's caseworker.

Response: HHSC disagrees with the comment and declines to revise the rule. Statute requires the operation, not HHSC, to notify a child's parent or guardian of the deficiency.

Comment: Regarding §748.319(a), one commenter was concerned that the five-day timeframe for an operation to notify parents of an abuse, neglect, or exploitation deficiency is too delayed. The commenter recommended changing the notification timeframe to 24 hours. A second commenter requested the notification requirement be extended to allow for notification once due process is complete.

Response: HHSC understands the reason for the comment but declines to revise the rule. HHSC and the Texas Department of Family and Protective Services have processes in place to mitigate risk to children during an investigation involving the alleged abuse, neglect, or exploitation of a child. HHSC has determined that the proposed timeframe is an appropriate amount of time to make the notification. To account for concerns regarding due process, CCR has added language to the required reporting form that allows an operation to indicate to parents whether it has requested due process for the deficiency.

Comment: Regarding §748.319(a), one commenter requested HHSC clarify the definition of "parent" by incorporating or referencing the definition in the rule.

Response: HHSC declines to revise the rule. The term "parent" is included in the definitions at the beginning of Chapter 748 and is used throughout the chapter. To further clarify the term for this rule, however, HHSC has added information and a reference to the definition of parent in a Helpful Information box following the rule in the Minimum Standards publications on the HHSC provider webpage.

Comment: Regarding §748.319(a), one commenter recommended the language in the rule be changed from "parent" to "parent or guardian" when the context indicates notice to a natural or biological parent is required.

Response: HHSC disagrees with the comment and declines to revise the rule. The rule requires notification to the child's parents, a term which is defined as a person who has legal responsibility for a child. The term is included in the definitions at the beginning of Chapter 748 and is used throughout the chapter. Adding "or guardian" to this rule would be inconsistent with the other rules referring to a parent in Chapter 748.

Comment: Regarding §748.319(b) and (c), one commenter requested HHSC share the deficiency notification forms with the provider community so that the community may offer input on the forms. The commenter also recommended adding a field to the forms to indicate the date the incident occurred.

Response: This comment does not require a change to the rule. The forms are currently available on HHSC's Child Care Regulation Provider website and HHSC may consider future revisions where warranted.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

26 TAC §§748.151, 748.158 - 748.160

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

§748.158.What are the liability insurance requirements?

Unless you have an acceptable reason not to have the insurance, you must:

(1) Maintain liability insurance coverage in the amount of $300,000 for each occurrence of negligence that covers injury to a child while the child is on your premises or in your care; and

(2) Provide proof of coverage to Licensing each year by the anniversary date of the issuance of your permit.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101220

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


DIVISION 3. GENERAL FISCAL REQUIREMENTS

26 TAC §§748.303, 748.317, 748.319

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101221

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER J. CHILD CARE

DIVISION 8. ADDITIONAL REQUIREMENTS FOR INFANT CARE

26 TAC §748.1767

STATUTORY AUTHORITY

The new rule is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101222

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

The Texas Health and Human Services Commission (HHSC) adopts amendments to §749.151 and §749.503; and new §§749.155, 749.157, 749.159, 749.517, 749.519, 749.1817, and 749.1821 in Title 26, Texas Administrative Code, Chapter 749, Minimum Standards for Child-Placing Agencies.

New §§749.155, 749.517, and 749.519 are adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9162). These rules will be republished.

The amendments to §749.151 and §749.503; and new §§749.157, 749.159, 749.1817, and 749.1821 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9162). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new rules are necessary to implement the portions of Senate Bill 568, 86th Legislature, Regular Session, 2019, that amended Chapter 42, Human Resources Code to require HHSC Child Care Regulation (CCR) to establish minimum standards for safe sleeping, expand liability insurance requirements, and alter reporting requirements for certain incidents and deficiencies.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received comments regarding the proposed rules from two commenters, including Texas Alliance for Child and Family Services and Disability Rights Texas. Both commenters had multiple comments. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Regarding §749.155, one commenter recommended adding clarifying language to specify that the injury coverage under the required liability insurance policy is for non-accidental injuries or those related to negligence. The commenter also noted concerns regarding whether the language surrounding off-premises liability increased the requirements beyond those in statute and currently in place.

Response: HHSC agrees with the comment and is revising the rule as recommended. HHSC is also removing language related to injuries that occur off the premises of the operation.

Comment: Regarding §749.503 and §749.517, one commenter recommended that HHSC expand the rules to require an operation to notify a child's parents of any use of emergency behavioral interventions or deficiencies related to emergency behavioral interventions.

Response: HHSC declines to revise the rules. This recommendation is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 749. This will ensure the public can comment on any proposed changes.

Comment: Regarding §749.503(a)(3)(B), one commenter issued a statement of support for the rule that requires an operation to notify a parent immediately if there is an allegation that the child has been abused, neglected, or exploited.

Response: HHSC appreciates support of the rule.

Comment: Regarding §749.503(b), one commenter recommended HHSC expand the rule to require an operation to report a medically pertinent incident to HHSC and parents within 24 hours of the incident.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 749. This will ensure the public can comment on any proposed changes.

Comment: Regarding §749.503(c), one commenter recommended HHSC expand the rule to require an operation to report any unauthorized absence to HHSC and the child's parents.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 749. This will ensure the public can comment on any proposed changes.

Comment: Regarding §749.503(d), one commenter recommended HHSC expand the rule to require an operation to report incidents involving adult residents, including those related to allegations of abuse, neglect, or exploitation, or the use of emergency behavioral interventions, to CCR.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 749. This will ensure the public can comment on any proposed changes.

Comment: Regarding §749.517(a), one commenter recommended HHSC revise the rule to allow a Child-Placing Agency to make notifications at the branch level when applicable, rather than through the main operation.

Response: HHSC agrees with the comment and is revising the rule to require the notifications to parents to come from the main or branch office that supervises the home where the children are in care. HHSC is extending this revision to §749.519 (relating to How must I notify parents of a safe sleep deficiency or an abuse, neglect, or exploitation deficiency?).

Comment: Regarding §749.517(a)(2), one commenter issued a statement of support for the rule that requires an operation to report a deficiency in abuse, neglect, or exploitation to the parent of each child residing at the operation.

Response: HHSC appreciates support of the rule.

Comment: Regarding §749.517(a)(2), one commenter requested CCR allow administrative sharing of information between HHSC and the Texas Department of Family and Protective Services to constitute notice of an abuse, neglect, or exploitation deficiency to a child's caseworker.

Response: HHSC disagrees with the comment and declines to revise the rule. Statute requires the operation, not HHSC, to notify a child's parent or guardian of the deficiency.

Comment: Regarding §749.519(a), one commenter was concerned that the five-day timeframe for an operation to notify parents of an abuse, neglect, or exploitation deficiency is too delayed. The commenter recommended changing the notification timeframe to 24 hours. A second commenter requested the notification requirement be extended to allow for notification once due process is complete.

Response: HHSC understands the reason for the comment but declines to revise the rule. HHSC and the Texas Department of Family and Protective Services have processes in place to mitigate risk to children during an investigation involving the alleged abuse, neglect, or exploitation of a child. HHSC has determined that the proposed timeframe is an appropriate amount of time to make the notification. To account for concerns regarding due process, CCR has added language to the required reporting form that allows an operation to indicate to parents whether it has requested due process for the deficiency.

Comment: Regarding §749.519(a), one commenter requested HHSC clarify the definition of "parent" by incorporating or referencing the definition in the rule.

Response: HHSC declines to revise the rule. The term "parent" is included in the definitions at the beginning of Chapter 749 and is used throughout the chapter. To further clarify the term for this rule, however, HHSC has added information and a reference to the definition of parent in a Helpful Information box following the rule in the Minimum Standards publications on the HHSC provider webpage.

Comment: Regarding §749.519(a), one commenter recommended the language in the rule be changed from "parent" to "parent or guardian" when the context indicates notice to a natural or biological parent is required.

Response: HHSC disagrees with the comment and declines to revise the rule. The rule requires notification to the child's parents, a term which is defined as a person who has legal responsibility for a child. The term is included in the definitions at the beginning of Chapter 749 and is used throughout the chapter. Adding "or guardian" to this rule would be inconsistent with the other rules referring to a parent in Chapter 749.

Comment: Regarding §749.519(b) and (c), one commenter requested HHSC share the deficiency notification forms with the provider community so that the community may offer input on the forms. The commenter also recommended adding a field to the forms to indicate the date the incident occurred.

Response: This comment does not require a change to the rule. The forms are currently available on HHSC's Child Care Regulation Provider website and HHSC may consider future revisions where warranted.

Comment: Regarding §749.1817, one commenter stated the use of "restrictive device" is confusing because the only other references to the term in Chapter 749 pertain to car seats and seatbelts used during transportation. The commenter requested clarification that the rule does not apply during travel.

Response: HHSC agrees with the comment but declines to revise the rule. HHSC will, however, clarify the definition of restrictive device and provide examples in a Helpful Information box following the rule in the Minimum Standards publications on the HHSC provider webpage. HHSC will incorporate the definition of restrictive device as a new rule during the comprehensive review project for Chapter 749.

Comment: Regarding §749.1821, one commenter recommended clarifying the appropriate type and use of sleep sacks that may be used in lieu of swaddling.

Response: HHSC declines to revise the rule but agrees to provide additional information on swaddling alternatives. HHSC will provide the additional information in a Helpful Information box following the rule in the Minimum Standards publications on the HHSC provider webpage.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

26 TAC §§749.151, 749.155, 749.157, 749.159

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

§749.155.What are the liability insurance requirements?

Unless you have an acceptable reason not to have the insurance, you must:

(1) Maintain liability insurance coverage in the amount of $300,000 for each occurrence of negligence that covers injury to a child while the child is on your premises or in your care; and

(2) Provide proof of coverage to Licensing each year by the anniversary date of the issuance of your permit.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101223

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §§749.503, 749.517, 749.519

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

§749.517.What are the notification requirements when Licensing finds my operation deficient in a standard related to safe sleeping or the abuse, neglect, or exploitation of a child?

(a) You must notify the parent of each child in the care of each foster home verified by your Child-Placing Agency of a deficiency in:

(1) A safe sleeping standard noted in subsection (b) of this section; or

(2) The abuse, neglect, or exploitation standard in §749.1003(b)(1)(B) of this chapter (relating to What rights does a child in care have?).

(b) The following are safe sleeping standards requiring notification:

(1) §749.1807(a)(1) of this chapter (relating to What specific safety requirements must my cribs meet?);

(2) §749.1809(2)(A) of this chapter (relating to Are mesh cribs or port-a-cribs allowed?);

(3) §749.1813(a)(5) and (b) of this chapter (relating to What types of equipment may a foster home not use with infants?);

(4) §749.1815 of this chapter (relating to What are the specific sleeping requirements for infants?);

(5) §749.1817 of this chapter (relating to May I allow an infant to sleep in a restrictive device?); and

(6) §749.1821 of this chapter (relating to May I swaddle an infant to help the infant sleep?).

(c) When meeting the notice requirements in subsection (a) of this section, your main office or a branch office must notify the parents of children in the care of each foster home that the office supervises.

§749.519.How must I notify parents of a safe sleeping deficiency or an abuse, neglect, or exploitation deficiency?

(a) Within five days after you receive notification of a deficiency described in §749.517 of this division (relating to What are the notification requirements when Licensing finds my operation deficient in a standard related to safe sleeping or the abuse, neglect, or exploitation of a child in care?), you must notify the parents of each child in the care of each foster home verified by your Child-Placing Agency at the time of notification, including a child who may not have been in care on the day of the actual incident.

(b) When meeting the notice requirements in subsection (a) of this section, your main office or a branch office must notify the parents of children in the care of each foster home that the office supervises.

(c) If the deficiency is for a safe sleeping standard, you must notify the parents using Form 2970, Notification of Safe Sleeping Deficiency, located on the Licensing provider website.

(d) If the deficiency is for the standard related to the abuse, neglect, or exploitation of a child in care, you must notify the parents using Form 7266, Notification of Abuse/Neglect/Exploitation Deficiency, located on the Licensing provider website.

(e) You must maintain and make available for our review, upon request, proof that you have notified parents in writing of deficiencies in safe sleeping and abuse, neglect, or exploitation, as required by subsection (a) of this section.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101224

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269


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

DIVISION 1. ADDITIONAL REQUIREMENTS FOR INFANT CARE

26 TAC §749.1817, §749.1821

STATUTORY AUTHORITY

The new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.

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

Filed with the Office of the Secretary of State on March 22, 2021.

TRD-202101225

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 11, 2021

Proposal publication date: December 18, 2020

For further information, please call: (512) 438-3269