TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 331. LIDDA SERVICE COORDINATION

26 TAC §331.17

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §331.17, concerning Minimum Qualifications.

BACKGROUND AND PURPOSE

The purpose of the proposal is to change minimum qualifications for service coordinators in §331.17. Local intellectual and developmental disability authorities (LIDDAs) across Texas are reporting workforce challenges, particularly among service coordinators, who generally must have at least a bachelor's degree in a human services-related field of study, unless they meet specific requirements in addition to having a high school diploma. Expanding the hiring qualifications for service coordinators will give LIDDAs an increased pool of skilled applicants, who may not have advanced degrees but are qualified to monitor services for people with intellectual and developmental disabilities based on previous unpaid or paid experiences. Expanding qualification requirements could have long-term positive effects for a vulnerable population that relies on LIDDA service coordinators to assist them in securing the services they need and achieving their desired outcomes and best quality of life.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §331.17 updates rule language to reflect the change in terminology from "Mental Retardation Authority" to LIDDA.

The proposed amendment to §331.17(b) expands minimum service coordinator qualifications by removing the field of study requirement for a service coordinator with a bachelor's degree and adding an associate degree in a human services-related field. The amendment also changes the hiring qualifications for a service coordinator with a high school diploma by allowing two years paid or unpaid experience with individuals with intellectual or developmental disabilities and removing additional requirements, such as completion of Partners in Policy Making training.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rule will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will not create new rule;

(6) the proposed rule will not expand existing rule;

(7) the proposed rule will not change the number of individuals subject to the rule; and

(8) the proposed rule will not affect the state's economy.

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

Trey Wood has also determined there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The amendment does not require small businesses or micro-businesses to change current business practices to the detriment of any small business or micro-business.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner for IDD and Behavioral Health Services, has determined that for each year of the first five years the rule is in effect, the public benefit is that there will be increased job opportunities for Texans. LIDDAs will have the ability to hire from a larger pool of qualified applicants to provide continuous services to individuals with intellectual and developmental disabilities.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule. The proposed rule doesn't add any new fees or costs for those required to comply.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to HHSC IDD Services, Brandi Lambert, Mail Code 354, P.O. Box 149030, Austin, Texas 78714-9030, or by email to iddservicespolicyandrules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R096" in the subject line.

STATUTORY AUTHORITY

The amendment is authorized by 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; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Human Resources Code §32.021, which provides that HHSC will adopt necessary rules for the proper and efficient administration of the Medicaid program; and Texas Health & Safety Code §533A.0355(a), which provides that the Executive Commissioner of HHSC shall adopt rules establishing the roles and responsibilities of LIDDAs.

The amendment affects Texas Government Code §531.0055 and §531.021, Texas Human Resources Code §32.021, and Texas Health & Safety Code §533A.0355(a).

§331.17.Minimum Qualifications.

(a) Service coordination may be provided only by an employee of the LIDDA [MRA].

(b) Except as provided by subsections (d), (e), and (f) of this section, a staff person providing service coordination must have:

(1) a bachelor's or advanced degree from an accredited college or university [with a major in a social, behavioral, or human service field including, but not limited to, psychology, social work, medicine, nursing, rehabilitation, counseling, sociology, human development, gerontology, educational psychology, education, and criminal justice]; [or]

(2) an associate degree in a social, behavioral, human service, or health-related field including, psychology, social work, medicine, nursing, rehabilitation, counseling, sociology, human development, gerontology, educational psychology, education, and criminal justice; or

(3) [(2)] a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma, and two years of paid or unpaid experience with individuals with intellectual or developmental disabilities.[:]

[(A) two years of paid experience as a case manager in a state or federally funded Parent Case Management Program or have graduated from Partners in Policy Making; and]

[(B) personal experience as an immediate family member of an individual with mental retardation.]

(c) The LIDDA [MRA], at its discretion, may require additional education and experience for staff who provide service coordination.

(d) At the discretion of the LIDDA [MRA], a staff person who was authorized by a LIDDA [an MRA] to provide service coordination prior to April 1, 1999, may provide service coordination without meeting the minimum qualifications described in subsection (b) of this section.

(e) Until December 31, 2011, a LIDDA [an MRA] may hire a person to provide service coordination who was employed as a case manager for an HCS Program provider for any period of time prior to June 1, 2010, even if the person does not meet the minimum qualifications described in subsection (b) of this section.

(f) Beginning January 1, 2012, a LIDDA [an MRA] may hire a person to provide service coordination who was hired by another LIDDA [MRA] in accordance with subsection (e) of this section.

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

Filed with the Office of the Secretary of State on July 7, 2022.

TRD-202202556

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

For further information, please call: (512) 438-5609


CHAPTER 745. LICENSING

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§745.273, 745.275, 745.277, and 745.435 in Title 26, Texas Administrative Code, Chapter 745, Licensing.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement sections of statute that were amended by Senate Bill (S.B.) 225, 87th Texas Legislature, Regular Session, 2021.

S.B. 225, Sections 5 and 9, amended Texas Human Resources Code (HRC) §42.048(e) and §42.048(e-3) to (1) delete the requirement that a license or certificate is automatically revoked when certain operations change location (although HRC §42.048 only explicitly applies to licensed operations, this provision also applies to certified operations by way of HRC §42.052(b)); (2) require the operation to inform HHSC Child Care Regulation (CCR) of the new location before moving there; and 3) allow the operation to operate at the new location after CCR approves the location as meeting all relevant requirements.

S.B. 225 took effect on September 1, 2021, and applies to the following operation types that may now change location without their license or certification being automatically revoked: (1) all school-age programs, regardless of when they operate; (2) before or after-school programs; (3) licensed child-care homes; (4) child-care centers; and (5) general residential operations (GROs). Child-placing agencies (CPAs) were able to change location without the statutory changes made by S.B. 225. However, the bill repealed the subsection that explicitly addressed CPAs, so CCR is aligning requirements for CPAs with those for other licensed or certified operation types for consistency.

Another purpose of the proposal is to implement sections of statute that were added by S.B. 781, 86th Texas Legislature, Regular Session, 2019. CCR is clarifying in rule that if an operation fails to comply with any applicable public notice and hearing requirements, CCR may deny the operation an amendment to provide treatment services to children with emotional disorders in accordance with HRC Chapter 42, Subchapter H, which was added by S.B. 781.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.273 (1) clarifies that a GRO must meet public notice and hearing requirements if it requests to amend its permit to relocate permanently to a location in a county with a population of less than 300,000, where the operation did not meet the public notice and hearing requirements with respect to its current location; (2) clarifies that a GRO must meet public notice and hearing requirements if it requests to amend its permit to relocate permanently to a location in the same county with a population of less than 300,000, if the location is in a different community or is served by a different school district; and (3) reorganizes the content of the standard for clarity.

The proposed amendment to §745.275 clarifies language to support the changes made to §745.273.

The proposed amendment to §745.277 indicates that if an operation fails to comply with the public notice and hearing requirements, CCR may deny the operation an amendment that would allow the operation to operate at the new location or to provide treatment services to children with emotional disorders.

The proposed amendment to §745.435 (1) expands the rule's applicability to all licensed or certified operations; (2) provides time frames for operations to notify CCR of any plans to permanently relocate; (3) clarifies that public notice and hearing requirements, if applicable, must be met in addition to minimum standards before CCR will amend the permit to reflect the new address; (4) moves some requirements to a new subsection for readability; and (5) adds a subsection to cross reference two minimum standards that provide information regarding a temporary relocation of a residential child-care facility during a declared disaster.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand existing rules;

(7) the proposed rules will not increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules (1) are necessary to protect the health, safety, and welfare of the residents of Texas; (2) do not impose a cost on regulated persons; (3) are amended to reduce the burden or responsibilities imposed on regulated persons by the rules; and (4) are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be (1) increased compliance with statutory requirements; (2) more flexibility for an operation that permanently changes location; and (3) increased accountability for an operation that permanently changes location because the permit number will no longer change as a result of the move.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules will not incur economic costs.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

Written comments on the proposal may be submitted to Ryan Malsbary, Rules Writer, Child Care Regulation, Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R006" in the subject line.

SUBCHAPTER D. APPLICATION PROCESS

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

26 TAC §§745.273, 745.275, 745.277

STATUTORY AUTHORITY

The amendments are authorized by 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 amendments affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042, §42.048, and Chapter 42, Subchapter H.

§745.273.Which residential child-care operations must meet the public notice and hearing requirements?

(a) Except as specified in subsection (c) [(b)] of this section, a [the following] general residential operation [operations] located in a county with a population of less than 300,000 must meet the public notice and hearing requirements when applying for a license. [:]

[(1) Any general residential operation applying for a license;]

[(2) Any general residential operation requesting to amend its permit to increase capacity; and]

[(3) A general residential operation that does not currently provide treatment services to children with emotional disorders but is requesting to amend its permit to begin providing treatment services to children with emotional disorders.]

(b) Except as specified in subsection (c) of this section, a general residential operation requesting to amend its permit must meet the public notice and hearing requirements if it is:

(1) An operation located in a county with a population of less than 300,000 requesting to increase capacity;

(2) An operation requesting to relocate permanently to a location in:

(A) a county with a population of less than 300,000 where the operation did not meet the public notice and hearing requirements with respect to its current location; or

(B) the same county with a population of less than 300,000 if the location is in a different community or is served by a different school district; or

(3) An operation located in a county with a population of less than 300,000 that does not currently provide treatment services to children with emotional disorders but is requesting to amend its permit to begin providing treatment services to children with emotional disorders.

(c) [(b)] A general residential operation that applies to provide services under Chapter 748 of this title, Subchapter V (relating to Additional Requirements for Operations that Provide Trafficking Victim Services) is exempt from any public notice and hearing requirements in subsection (a) of this section, unless the general residential operation intends to provide or provides treatment services to children with emotional disorders.

(d) [(c)] Notwithstanding the exemption provided in subsection (c) [(b)] of this section, if the operation never provides or ceases to provide trafficking victim services, then the operation must meet the public notice and hearing requirements. To meet public notice and hearing requirements, the operation may need to surrender its permit or withdraw its application, as applicable, and reapply.

§745.275.What are the specific requirements for a public notice and hearing?

(a) The following chart lists the public notice, hearing requirements, and subsequent report you must complete:

Figure: 26 TAC §745.275(a) (.pdf)

(b) During an active declaration of a state of disaster under Texas Government Code, Chapter 418, public hearings concerning an operation located in an area subject to the declaration of disaster may be held in a manner that allows remote participation.

§745.277.What will happen if I fail to comply with the public notice and hearing requirements?

If you fail to comply with any one of the public notice and hearing requirements that are set forth under §745.273 of this division (relating to Which residential child-care operations must meet the public notice and hearing requirements?) and §745.275 of this division (relating to What are the specific requirements for a public notice and hearing?), we may do the following:

(1) Deny you a permit; [or]

(2) Deny you an amendment to your permit that would allow you to increase capacity;

(3) Deny you an amendment to your permit that would allow you to operate at the new location; or

(4) Deny you an amendment to your permit that would allow you to provide treatment services to children with emotional disorders.

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202524

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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


DIVISION 10. RELOCATION OF OPERATION

26 TAC §745.435

STATUTORY AUTHORITY

The amendment is authorized by 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 amendment affects Texas Government Code §531.0055 and Texas Human Resources Code §42.042, §42.048, and Chapter 42, Subchapter H.

§745.435.What must I do if I relocate my operation after I receive my license or certification?

(a) If [A change in location automatically revokes your license or certification unless your license or certification is for:]

[(1) A child-placing agency; or]

[(2) A school-age program that operates exclusively during the summer or any other time school is not in session.]

[(b) For all licenses and certifications, other than those exempted in subsection (a) of this section, if] you are going to relocate your operation permanently to a new location [for any reason], you must notify us as early as possible before the move and meet the notification requirements in the following table [to voluntarily relinquish your permit. You may reapply for a permit to operate at your new location. See Division 3 of this subchapter (relating to Submitting the Application Materials)].

Figure: 26 TAC §745.435(a) (.pdf)

(b) If you fail to notify us before you relocate, we may deny you an amendment to your [a] permit that would allow you to operate at [for] the new location.

(c) [If you are going to relocate your child-placing agency or your school-age program that operates exclusively during the summer or any other time school is not in session, you must notify us of the move no later than 15 days prior to the move.] You must notify us of the address of your new location by completing [complete] a form that we provide you. After we [provided by us showing your new address. We will] inspect your new location, we will amend your permit to reflect the new address if:[.]

(1) The [If the] new location complies with the minimum standards; and

(2) You meet the requirements in Division 4 of this subchapter (relating to Public Notice and Hearing Requirements for Residential Child-Care Operations), if applicable [, we will amend the permit to reflect the new address].

(d) If we amend your permit to reflect a new address as described in subsection (c) of this section:

(1) The issuance date that is on your original permit will remain in effect; and [.]

(2) There is no additional fee for your change in location.

(e) For temporary re-location of a residential child-care facility during a declared disaster, see §748.303(e)(3) of this title (relating to When must I report and document a serious incident?) and §749.503(e)(3) of this title (relating to When must I report and document a serious incident?).

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202525

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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


CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §748.153 and §748.303 in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement sections of statute that were amended by Senate Bill (S.B.) 225 and S.B. 863, 87th Texas Legislature, Regular Session, 2021.

S.B. 225, SECTIONS 5 and 9, amended Texas Human Resources Code (HRC) §42.048(e) and §42.048(e-3) to (1) delete the requirement that a license or certificate is automatically revoked when certain operations change location (although HRC §42.048 only explicitly applies to licensed operations, this provision also applies to certified operations by way of HRC §42.052(b)); (2) require the operation to inform HHSC Child Care Regulation (CCR) of the new location before moving there; and (3) allow the operation to operate at the new location after CCR approves the location as meeting all relevant requirements.

S.B. 225 took effect on September 1, 2021, and applies to the following operation types that may now change location without their license or certification being automatically revoked: (1) all school-age programs, regardless of when they operate; (2) before or after-school programs; (3) licensed child-care homes; (4) child-care centers; and 5) general residential operations (GROs).

S.B. 863 took effect on May 15, 2021, and amended HRC §42.048 to allow CCR to comply with a local or state order during a declared disaster (as described in Texas Government Code Chapter 418) by authorizing a licensed or certified residential child-care facility to temporarily (1) move to a new location not on the facility's license application; or (2) provide care for one or more children at an additional location that is not stated in the facility's license application.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.153 adds a cross reference to §745.435 of the same title (relating to What must I do if I relocate my operation after I receive my license or certification?).

The proposed amendment to §748.303 adds new subsection (e)(3) to require a GRO to notify CCR and parents as soon as possible, but no later than 24 hours after temporarily moving to or providing care at any location not noted on the operation's permit, renumbers the rule accordingly, and adds a clarification in subsection (e)(11).

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand existing rules;

(7) the proposed rules will not increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules (1) are necessary to protect the health, safety, and welfare of the residents of Texas; (2) do not impose a cost on regulated persons; (3) are amended to reduce the burden or responsibilities imposed on regulated persons by the rules; and (4) are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be (1) increased compliance with statutory requirements; (2) more flexibility for an operation that changes location; (3) increased accountability for an operation that permanently changes location because the permit number will no longer change as a result of the move; and (4) more options for an operation needing to temporarily relocate during a disaster.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules will not incur economic costs.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

Written comments on the proposal may be submitted to Ryan Malsbary, Rules Writer, Child Care Regulation, Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R006" in the subject line.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

26 TAC §748.153

STATUTORY AUTHORITY

The amendment is authorized by 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 amendment affects Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§748.153.What changes must I notify Licensing about regarding my operation?

You must provide written notification to your Licensing Representative:

(1) As soon as possible, but at least 30 days before you:

(A) Change the legal structure of your operation or your governing body, if applicable;

(B) Move your operation to another location as required in §745.435 of this title (relating to What must I do if I relocate my operation after I receive my license or certification?); or

(C) Change your operating hours;

(2) As soon as possible, but at least 15 days before:

(A) You make changes to the policies and procedures required in §748.103(b) of this title (relating to What policies and procedures must I submit for Licensing's approval as part of the application process?);

(B) Changes are made to the operation's floor plan showing the dimensions and the purpose of all rooms and specifying where children and caregivers, if applicable, will sleep; and

(C) Construction begins on adding a swimming pool or other permanent body of water;

(3) As soon as possible, but no later than two days after:

(A) You change your child-care administrator;

(B) A new individual becomes a controlling person at your operation;

(C) An individual ceases to be a controlling person at your operation; or

(D) There is a significant change in the information we maintain about a controlling person, such as a name change or mailing address change; and

(4) Within 24 hours of the child's placement, if you provide emergency care services and exceed capacity according to §748.155(b) of this title (relating to May I exceed my operation's capacity?).

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202526

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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


SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §748.303

STATUTORY AUTHORITY

The amendment is authorized by 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 amendment affects Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§748.303.When must I report and document a serious incident?

(a) You must report and document the following types of serious incidents involving a child in your care. The reports must be made to the following entities, and the reporting and documenting must be within the specified time frames:

Figure: 26 TAC §748.303(a) (.pdf)

Figure: 26 TAC §748.303(a)

(b) If there is a medically pertinent incident that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as for a serious incident, as described in §748.311 of this division (relating to How must I document a serious incident?).

(c) If the child returns before the required reporting timeframe outlined in subsection (a)(8) - (10) of this section, you are not required to report the absence as a serious incident. Instead, you must document within 24 hours after you become aware of the unauthorized absence in the same manner as for a serious incident, as described in §748.311 of this division.

(d) If there is a serious incident involving an adult resident, you do not have to report the incident to Licensing, but you must document the incident in the same manner as a serious incident. You do have to report the incident to:

(1) Law enforcement, if there is a fatality;

(2) The parent, if the adult resident is not capable of making decisions about the resident's own care; and

(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.

(e) You must report and document the following types of serious incidents involving your operation, an employee, a professional level service provider, contract staff, or a volunteer to the following entities within the specified time frames:

Figure: 26 TAC §748.303(e) (.pdf)

[Figure: 26 TAC §748.303(e)]

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202527

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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


CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§749.153, 749.503, and 749.2551 in Title 26, Texas Administrative Code, Chapter 749, Minimum Standards for Child-Placing Agencies.

BACKGROUND AND PURPOSE

The main purpose of the proposal is to implement sections of statute that were amended by Senate Bill (S.B.) 225 and S.B. 863, 87th Texas Legislature, Regular Session, 2021.

S.B. 225, SECTIONS 5 and 9, amended Texas Human Resources Code (HRC) §42.048(e) and §42.048(e-3) to (1) delete the requirement that a license or certificate is automatically revoked when certain operations change location (although HRC §42.048 only explicitly applies to licensed operations, this provision also applies to certified operations by way of HRC §42.052(b)); (2) require the operation to inform HHSC Child Care Regulation (CCR) of the new location before moving there; and (3) allow the operation to operate at the new location after CCR approves the location as meeting all relevant requirements.

S.B. 225 took effect on September 1, 2021, and applies to the following operation types that may now change location without their license or certification being automatically revoked: (1) all school-age programs, regardless of when they operate; (2) before or after-school programs; (3) licensed child-care homes; (4) child-care centers; and (5) general residential operations (GROs). Child-placing agencies (CPAs) were able to change location without to the statutory changes made by S.B. 225. However, the bill repealed the subsection that explicitly addressed CPAs, so CCR is aligning requirements for CPAs with those for other licensed or certified operation types for consistency.

S.B. 863 amended HRC §42.048 to allow CCR to comply with a local or state order during a declared disaster (as described in Texas Government Code Chapter 418) by authorizing a licensed or certified residential child-care facility to temporarily (1) move to a new location not on the facility's license application; or (2) provide care for one or more children at an additional location that is not stated in the facility's license application.

S.B. 863 took effect on May 15, 2021, and applies to GROs and CPAs. However, temporary relocation of children in foster homes will also be addressed to be consistent with the bill's requirements for CPAs, which are tasked with overseeing foster homes.

Another purpose of the proposal is to align foster home capacity requirements related to 42 U.S.C. §671(a), which includes requirements that a state must meet in order to have a federally approved IV-E plan.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §749.153 adds a cross reference to §745.435 of the same title (relating to What must I do if I relocate my operation after I receive my license or certification?) and corrects citations for references within the same chapter.

The proposed amendments to §749.503 make edits to improve consistency and readability, update numbering and a citation, and add new subsection (e)(3) to require a CPA to notify CCR and parents as soon as possible, but no later than 24 hours after the following situations have occurred due to a declared state of disaster: (1) the CPA temporarily moves to a new location that is not noted on the CPA's permit; (2) a foster home temporarily moves to a new location that is not noted on the verification; or (3) a foster home temporarily provides care to one or more children at any location not noted on the verification.

The proposed amendments to §749.2551 delete subsections (b)(1)(C) and (d) in order to assist Texas in meeting requirements for a federally approved IV-E plan. These requirements are codified in 42 U.S.C. §672. Presently, §749.2551(b)(1)(C) allows a CPA to expand a foster home's capacity to more than six children due to a natural disaster; federal requirements do not allow an expansion of a foster home's capacity for this reason. Moreover, §749.2551(d) presently allows a CPA to request an exception for a foster family home to care for seven or eight children by using the process for requesting a waiver or variance; federal requirements only allow a waiver of a non-safety standard in a relative foster family home. The deletion of both subsections will help ensure that Texas meets IV-E requirements.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rules as proposed. Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local government.

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $62,764 in fiscal year (FY) 2023, $0 in FY 2024, $0 in FY 2025, $0 in FY 2026, and $0 in FY 2027. The one-time cost to the state relates to the information technology (IT) changes that are needed to CCR's internal database to allow temporary relocations to be documented for CPA branch offices. This allowance already exists for CPA main offices and foster homes in CCR's internal database, so the IT changes would allow CPA branch offices to have this functionality as well.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand existing rules;

(7) the proposed rules will not increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules (1) are necessary to protect the health, safety, and welfare of the residents of Texas; (2) do not impose a cost on regulated persons; (3) are amended to reduce the burden or responsibilities imposed on regulated persons by the rules; and (4) are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be (1) increased compliance with statutory requirements; (2) more flexibility for an operation that changes location; (3) increased accountability for an operation that permanently changes location because the permit number will no longer change as a result of the move; and (4) more options for an operation needing to temporarily relocate during a disaster.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules will not incur economic costs.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

Written comments on the proposal may be submitted to Ryan Malsbary, Rules Writer, Child Care Regulation, Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R006" in the subject line.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

26 TAC §749.153

STATUTORY AUTHORITY

The amendment is authorized by 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 amendment affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§749.153.What changes must I notify Licensing about regarding my child-placing agency?

(a) You must provide written notification to your Licensing Representative:

(1) As soon as possible, but at least 30 days before you:

(A) Change the legal structure of your agency or your governing body, if applicable;

(B) Move your agency to another location as required in §745.435 of this title (relating to What must I do if I relocate my operation after I receive my license or certification?);

(C) Open a branch office; or

(D) Change your agency's or a branch office's hours of operation;

(2) As soon as possible, but at least 15 days before you:

(A) Make changes to the plans required in §749.101(3) and (4) of this chapter [title] (relating to What plans must I submit for Licensing's approval as part of the application process?); or

(B) Make changes to the policies and procedures required in §749.103(b) of this chapter [title] (relating to What policies and procedures must I submit for Licensing's approval as part of the application process?);

(3) As soon as possible, but no later than two days after:

(A) You change your child-placing agency administrator;

(B) A new individual becomes a controlling person at your child-placing agency;

(C) An individual ceases to be a controlling person at your child-placing agency; or

(D) There is a significant change in the information we maintain about a controlling person, such as a name change or mailing address change; and

(4) About a foster home's verification status as described in §749.2489 of this chapter [title] (relating to [(]What information must I submit to Licensing about a foster home's verification status?).

(b) You must report to the Texas Abuse and Neglect Hotline as soon as you become aware of any foster or adoptive placements that appear to have been made by someone other than the child's parents or a child-placing agency.

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202528

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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

STATUTORY AUTHORITY

The amendment is authorized by 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 amendment affects Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§749.503.When must I report and document a serious incident?

(a) You must report and document the following types of serious incidents involving a child in your care. The reports must be made to the following entities, and the reporting and documenting must be within the specified timeframes:

Figure: 26 TAC §749.503(a) (.pdf)

[Figure: 26 TAC §749.503(a)]

(b) If there is a medically pertinent incident that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as for a serious incident, as described in §749.511 of this division (relating to How must I document a serious incident?).

(c) If a child returns before the required reporting timeframe outlined in subsection (a)(8) - (10) of this section, you are not required to report the absence as a serious incident. Instead, you must document within 24 hours after you become aware of the unauthorized absence in[]the same manner as for a serious incident, as described in §749.511 of this division.

(d) If there is a serious incident involving an adult resident, you do not have to report the incident to Licensing, but you must document the incident in the same manner as a serious incident. You do have to report the incident to:

(1) Law enforcement, if there is a fatality;

(2) The parent, if the adult resident is not capable of making decisions about the resident's own care; and

(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.

(e) You must report and document the following types of serious incidents involving your agency, one of your foster homes, an employee, professional level service provider, contract staff, or a volunteer to the following entities within the specified timeframe:

Figure: 26 TAC §749.503(e) (.pdf)

[Figure: 26 TAC §749.503(e)]

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202529

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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


SUBCHAPTER M. FOSTER HOMES: SCREENINGS AND VERIFICATIONS

DIVISION 5. CAPACITY AND CHILD/CAREGIVER RATIO

26 TAC §749.2551

STATUTORY AUTHORITY

The amendment is authorized by 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 amendment affects Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§749.2551.What is the maximum number of children a foster family home may care for?

(a) A one-parent foster family home with one additional full-time, live-in caregiver or a two-parent foster family home may care for up to six children, except as noted in the chart below:

Figure: 26 TAC §749.2551(a) (No change.)

(b) A one-parent foster family home with one additional full-time, live-in caregiver or a two-parent foster family home may care for seven or eight children if all of the following criteria are met:

(1) Each foster or adoptive child that you place in the home that expands the home's capacity to more than six children:

(A) Is part of a sibling group; or

(B) Has a prior relationship with the foster family, including a kinship (relative or close family friend) placement; [or]

[(C) Is being relocated due to a natural disaster;]

(2) The foster family home cares for a maximum of two infants and two more children less than six years old, unless the placement is necessary to maintain a sibling group of children;

(3) The foster family home cares for a maximum of three children with primary medical needs requiring total care, unless the placement is necessary to maintain a sibling group of children;

(4) You complete a Foster Family Home Capacity Exception Form with the appropriate signatures and place the form in the foster family home record; and

(5) After you complete the exception form, you lower the home's capacity each time a child listed on the form leaves the home until the home's capacity does not exceed six. This applies to both a foster child that leaves and a child who was placed in the home to be adopted leaves without the adoption being consummated.

(c) A one-parent foster family home or two-parent foster family home with one foster parent absent for extended periods of time (such as military service or out-of-town job assignments) may care for up to six children, except as noted in the chart below:

Figure: 26 TAC §749.2551(c) (No change.)

[(d) Notwithstanding subsections (a), (b), and (c) of this section, a child-placing agency may request an exception for a foster family home to care for seven or eight children by using the process for requesting a variance that is in 40 TAC Chapter 745, Subchapter J (relating to Waivers and Variances for Minimum Standards) and meeting the requirements of that subchapter. Licensing will make the decision to deny or grant an exception in accordance with factors listed in 40 TAC §745.8307 (relating to How does Licensing make the decision to grant or deny my waiver or variance request?).]

(d) [(e)] The maximum number of children that a foster family home may care for includes any biological and adopted children of the caregivers who live in the foster home, any children receiving foster or respite child-care, and any children for whom the family provides day care. All adults in care must also be counted in the capacity of the home as required by §749.2651(b) of this chapter [title] (relating to May a foster home accept adults into the home for care?).

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

Filed with the Office of the Secretary of State on July 6, 2022.

TRD-202202530

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 21, 2022

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