TITLE 26. HEALTH AND HUMAN SERVICES
PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 744. MINIMUM STANDARDS FOR SCHOOL-AGE AND BEFORE OR AFTER-SCHOOL PROGRAMS
SUBCHAPTER
O.
The executive commissioner of the Texas Health and Human Services Commission (HHSC) adopts an amendment to §744.3409, concerning Personal Flotation Device (PFD) Requirements.
Amended §744.3409 is adopted without changes to the proposed text as published in the September 19, 2025, issue of the Texas Register (50 TexReg 6199). This rule will not be republished.
BACKGROUND AND JUSTIFICATION
The amendment is in response to a petition for rulemaking and is necessary to update current rule language related to United States Coast Guard approved personal flotation devices (PFDs) to reflect changes to buoyancy labeling. Accordingly, HHSC Child Care Regulation (CCR) is adopting an amendment to add an option to a rule that requires an operation to provide a child who accesses a swimming pool with a United States Coast Guard approved PFD that has a rating of Type I, II, or III, or a buoyancy level of 70 or above.
COMMENTS
The 21-day comment period ended October 10, 2025.
During this period, HHSC received comments regarding the proposed rule from one commenter representing an after-school program, Gingerbread After-School Programs. A summary of comments relating to the rule and HHSC's responses follows.
Comment: One commenter stated that the rule does not distinguish between operations that offer swimming programs and those that do not offer swimming programs. The commenter stated that this lack of clarification could lead someone to interpret that the rule applies to all operations, regardless of whether they provide swimming activities. The commenter recommended the rule be updated to state that it only applies to operations that have a pool on site, offer swimming programs, or take field trips to swimming programs arranged by the operation.
Response: HHSC disagrees with the commenter and declines to revise the rule. HHSC only regulates activities that take place on the premises of an operation or that an operation offers as part of the programming. Therefore, there is no need to update the rule because HHSC would not regulate water or swimming activities that occur outside of the child care program.
Comment: One commenter stated the language in the rule that says an operation must provide a PFD to a child could lead a parent to interpret that the operation, not the parent, is responsible for purchasing PFDs for a child in care. The commenter stated that if the operation is responsible for providing PFDs this would cause undue financial hardship for the provider.
Response: HHSC disagrees with the commenter and declines to revise the rule. The requirement that the operation provide a PFD is consistent with Texas Health and Safety Code §341.0646. In addition, the current rule already requires that an operation provide a child with a PFD. Therefore, the amended rule does not impose an additional requirement or cost on the operation. The Technical Assistance (TA) box that follows the rule in the minimum standards publication includes links to resources that provide PFDs at no cost. Additionally, the TA box includes clarification that the rule does not preclude a child's parent from giving the operation a PFD for the child to use if it meets the requirements in the rule.
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §524.0151, which provides that the executive commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, and Texas Government Code §524.0005, which provides the executive commissioner of HHSC with broad rulemaking authority. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC 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 December 1, 2025.
TRD-202504355
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: December 21, 2025
Proposal publication date: September 19, 2025
For further information, please call: (512) 438-3269