Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 301. IDD-BH CONTRACTOR ADMINISTRATIVE FUNCTIONS

SUBCHAPTER G. MENTAL HEALTH COMMUNITY SERVICES STANDARDS

DIVISION 2. ORGANIZATIONAL STANDARDS

The Texas Health and Human Services Commission (HHSC) proposes an amendment to §301.327, concerning Access to Mental Health Community Services.

BACKGROUND AND PURPOSE

The purpose of the proposal is to broaden the type of staff qualified to answer and screen crisis hotline calls for local mental health authorities (LMHAs), local behavioral health authorities (LBHAs), and their subcontractors. The proposed amendment allows staff members trained in crisis screening to conduct the crisis calls in addition to staff members who are credentialed as a Qualified Mental Health Professional-Community Services (QMHP-CS). This will also assist LMHAs, LBHAs, and their contractors to broaden recruiting and applicant pools thereby potentially reducing call wait times and answering more calls within the required timeframe.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §301.327(d) substitutes "LBHAs, as defined by Texas Health and Safety Code §533.0356," for "managed care organization" because these rules are intended to govern the LBHA's and LMHA's provision of crisis hotline services and requirements relating to an MCO's responsibility are covered elsewhere. The proposed amendment also establishes requirements for staff member training in crisis screening by LMHAs, LBHAs, and their subcontractors and as provided in the LMHA and LBHA contract with HHSC. This addition clarifies who trains staff for crisis hotlines in alignment with Crisis Services Standards.

The proposed amendment references the training language added for staff members trained in crisis screening and removes the requirements for a QMHP-CS to begin the telephone screening if a call is identified as a potential crisis. This change allows any staff trained in crisis screening to respond to calls that are identified as a potential crisis, rather than only a QMHP-CS.

The proposed amendment allows any staff trained in crisis screening to take action to address emergency situations, activate the immediate screening and assessment processes, and provide, or obtain mental health community services or other interventions to stabilize the crisis.

The proposed amendment also includes minor grammatical changes, updates cross references and replaces a term for accuracy.

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 and administering the rules as proposed does not have foreseeable implications related to costs or revenues of state or local government.

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 a new rule;

(6) the proposed rule will expand the existing rule;

(7) the proposed rule will not change the number of persons 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 that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. This rule will not have an adverse economic effect on small businesses, micro-businesses, or rural communities because none of those entities operate a Mental Health Community Services Crisis Hotline.

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; does not impose a cost on regulated persons; and is amended to reduce the burden or responsibilities imposed on regulated persons by the rule.

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner for Behavioral Health Services, has determined that for each year of the first five years the rule is in effect, the public benefit is an increase in response rates and reduced call waiting for crisis hotline calls.

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 because there are no increased costs or fees for those required to comply with the rule as proposed.

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 Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@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 22R115" in the subject line.

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; Health and Safety Code §533.0345(a), which requires the Executive Commissioner of HHSC to by rule develop model program standards for mental health services for use by each state agency that provides or pays for mental health services; §533.0356(i), which allows the Executive Commissioner of HHSC to adopt rules to govern the operations of local behavioral health authorities; and §534.052(a), which requires the Executive Commissioner of HHSC to adopt rules, including standards, the Executive Commissioner considers necessary and appropriate to ensure the adequate provision of community-based mental health services through an LMHA under Chapter 534.

The amendments affect Texas Government Code §531.0055 and Health and Safety Code §533.0345(a), §533.0356(i), and §534.052(a).

§301.327.Access to Mental Health Community Services.

(a) - (c) (No change.)

(d) Timely services based on need. The LMHA or local behavioral health authority (LBHA), as defined at Texas Health and Safety Code §533.0356 [~~and MCO~~] must arrange mental health services for an individual within the following time frames.

(1) Crisis services.

(A) Hotline calls. For all calls to the toll-free crisis hotline:

(i) [~~the call must be answered by~~] a staff member must answer each call within 30 seconds, on average, at least 95 percent of the time; [~~and~~]

(ii) the LMHA, LBHA, or their subcontractors must train a staff member in crisis screening to conduct a crisis hotline screening as provided in the LMHAs' and LBHAs' contract with the Texas Health and Human Services Commission; and

(iii) [~~(ii)~~] if the staff member determines the call is [~~identified as~~] a potential crisis, a staff member trained in crisis screening, in accordance with clause (ii) of this subparagraph, [~~QMHP-CS~~] must begin a telephone screening [~~immediately but~~] no later than one minute after the determination is made [~~call is so identified~~].

(B) Emergency care services. If a staff member determines during a screening [~~it is determined~~] that an individual is experiencing a crisis that may require emergency care services, the staff member trained in crisis screening, in accordance with subparagraph (A)(ii) of this paragraph, [~~QMHP-CS~~] must:

(i) take immediate action to address the emergency situation to ensure the safety of all parties involved;

(ii) activate the immediate screening and assessment processes as described in §301.351 of this subchapter (relating to Crisis Services) [~~§412.321 of this title (relating to Crisis Services)~~]; and

(iii) provide or obtain mental health community services or other necessary interventions to stabilize the crisis.

(C) Urgent care services. If the screening indicates that an individual needs urgent care services, a QMHP-CS must within eight hours of the initial incoming hotline call or notification of a potential crisis situation:

(i) perform a face-to-face assessment; and

(ii) provide or obtain mental health community services or other necessary interventions to stabilize the crisis.

(2) Routine care services. If the screening indicates that an individual needs routine care services, a QMHP-CS must perform a uniform assessment within 14 days after the screening. If the assessment indicates an LOC for routine care services, the individual must begin receiving services immediately. When the provision of the service package is not possible because services are at capacity, the individual must be referred to an available practitioner appropriate to meet the individual's needs or be placed on a waiting list for services, subject to the following exceptions:

(A) individuals eligible for Medicaid who are determined to be in need of Mental Health Case Management, under Chapter 306, Subchapter E [~~Chapter 412, Subchapter I~~] of this title, or Mental Health Rehabilitative Services, under Chapter 306, Subchapter F [~~Chapter 419, Subchapter L~~] of this title, cannot be placed on a waiting list and must be served.

(B) individuals eligible for Medicaid who are determined to need services other than Mental Health Case Management, under Chapter 306, Subchapter E [~~Chapter 412, Subchapter I~~] of this title, and Mental Health Rehabilitative Services, under Chapter 306, Subchapter F [~~Chapter 419, Subchapter L~~] of this title, must be referred to appropriate, available practitioners of that service. Only if an appropriate Medicaid practitioner is not available may the individual be placed on a waiting list. All efforts undertaken to refer Medicaid individuals must be documented.

(e) - (i) (No change.)

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 February 28, 2023.

TRD-202300938

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

For further information, please call: (512) 672-4255

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

SUBCHAPTER X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES

26 TAC §554.2312

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §554.2312, concerning Surety Bonds or Letters of Credit.

BACKGROUND AND PURPOSE

The purpose of the proposal is to align the Texas Administrative Code to current HHSC's policies and procedures concerning surety bonds or letters of credit. The current rule provides an optional procedure for the issuance of a surety bond to expedite the release of vendor holds. Under the current rule, the surety bond may only be issued after all cost reports have been submitted and recoupments pertaining to staffing have been paid in full. HHSC's standard procedure is to release the vendor hold after the provider submits the cost report and any recoupment is paid in full. Recoupments are offset against new claims or held payments. The standard procedure is efficient, and the optional surety bond procedure has not been utilized by providers to expedite the release of vendor holds. The existing rule was last amended in 2004.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §554.2312 deletes the rule because more efficient procedures have made the rule obsolete.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the repeal will be in effect, enforcing or administering the repeal 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 the repeal will be in effect:

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

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

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

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

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

(6) the proposed repeal will repeal existing rule;

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

(8) the proposed repeal 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 rule does not apply to small or micro-businesses, or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed repeal will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this repeal because the repeal does not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Victoria Grady, Director of Provider Finance, has determined that for each year of the first five years the repeal is in effect, the public benefit will be increased transparency related to HHSC's policies and procedures regarding surety bonds or letters of credit.

Trey Wood, Chief Financial Officer, has determined that there are no anticipated economic costs to persons who are required to comply with the proposed rule because the proposed repeal removes the requirement for providers and aligns the Texas Administrative Code to HHSC's policies and procedures.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Written comments on the proposal may be submitted to HHSC Provider Finance Department, Mail Code H-400, P.O. Box 149030, Austin, Texas 78714-9030, or by email to PFD-LTSS@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 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 22R107" in the subject line.

STATUTORY AUTHORITY

The repeal 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 Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.021(b-1), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under the Texas Human Resources Code Chapter 32.

The repeal affects Texas Government Code §531.0055 and Texas Human Resources Code Chapter 32.

§554.2312.Surety Bonds or Letters of Credit.

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 February 28, 2023.

TRD-202300937

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

For further information, please call: (512) 867-7817

CHAPTER 745. LICENSING

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Texas Administrative Code (TAC), Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, new §745.43; new Subchapter I, Non-Enforcement Voluntary Actions §§745.5001, 745.5003, 745.5051, 745.5101, 745.5103, 745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, and 745.5201; and new Subchapter K, Inspections, Investigations, and Confidentiality §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8581, 745.8583, and 745.8585.

BACKGROUND AND PURPOSE

The purpose of the proposal is to continue to implement House Bill 5, 85th Legislature, Regular Session, 2017, which directed the Texas Department of Family and Protective Services (DFPS) to become a stand-alone agency that is separate from the Texas Health and Human Services Commission (HHSC) system. This bill also moved the regulation of child care from DFPS to HHSC, with only the responsibility for investigating allegations of child abuse, neglect, and exploitation in child care operations remaining at DFPS.

Since HHSC Child Care Regulation (CCR) is responsible for the administrative rules in TAC Title 40, Chapter 745, that impact child care operations, these rules must be transferred from DFPS to HHSC. CCR has already administratively transferred all the rules in Title 40, Chapter 745 to Title 26, Chapter 745 except for Subchapters K, Inspections and Investigations, and M, Administrative Reviews and Due Process Hearings. Those subchapters could not be administratively transferred because some of the rules in them also apply to responsibilities that remained with DFPS.

DFPS has now adopted new rules applicable to the DFPS responsibilities in Title 40, Chapter 707. Accordingly, and to support this transition of the regulation of child care from DFPS to HHSC, CCR proposed new rules in Title 26, Chapter 745, Subchapter B and new Subchapters I and K. The proposed repeal of Title 40, Chapter 745, Subchapter K, are published elsewhere in this issue of the Texas Register.

In addition, in the proposed rules CCR is (1) removing rules directly related to any DFPS responsibilities, including the investigation of child abuse, neglect, and exploitation, as DFPS has rules to address those responsibilities; (2) updating the rules with current practices; and (3) updating the rules for better readability and understanding.

SECTION-BY-SECTION SUMMARY

Proposed new §745.43 describes the requirements for a relative-only listed family home. The proposed rule has the content from repealed 40 TAC §745.8427. There are no substantive changes to the proposed rule.

Proposed new §745.5001 clarifies that a voluntary action under Subchapter K is not an enforcement action and describes in a chart the different types of voluntary actions that an operation may take. The chart has content from repealed 40 TAC §745.8511 and §745.8521(a) and (b). Additional content (1) clarifies that an operation may not reapply after withdrawing an application if the operation is ineligible to reapply because we have taken an enforcement action against the operation; (2) clarifies that after a temporary relocation of 90 days, an operation must request that CCR amend the operation's permit with a new address; and (3) increases the maximum period of time for a voluntary suspension for a child day care operation to two years, which makes the time period consistent for both residential and day care operations.

Proposed new §745.5003 describes how an operation taking a voluntary action affects CCR's ability to impose an enforcement action. The proposed rule has the content from repealed 40 TAC §745.8515. Additional content clarifies that CCR may impose an enforcement action if the operation applies for another permit after voluntary closure.

Proposed new §745.5051 describes whether notice and approval by CCR are required before an operation may take a voluntary action. The proposed rule has the content regarding approval from repealed 40 TAC §745.8513 and regarding notice from repealed 40 TAC §§745.8517(1), 745.8523, and 745.8533. However, the new chart adds content that (1) updates the approval requirements, which do not require CCR approval to withdraw an application or voluntarily close, and (2) requires written notice for all voluntary actions, including the withdrawal of an application.

Proposed new §745.5101 describes the requirements for an operation that temporarily relocates. The proposed rule has the content from repealed 40 TAC §745.8517. However, the proposed rule updates and more fully explains the requirements. The rule also adds content to require an operation to meet documentation and reporting requirements for the emergency relocation of a residential child care operation that are outlined in minimum standards.

Proposed new §745.5103 states that CCR will conduct an inspection before or as soon as possible after a relocation to determine whether the temporary location complies with the applicable statutes, rules, and minimum standards. The rule also clarifies that CCR will consider the following factors when deciding whether to approve a temporary location that does not comply with minimum standards: (1) the anticipated length of stay at the operation; (2) the degree of deviation from minimum standards; and (3) whether there is risk to children.

Proposed new §745.5151 lists the reasons that an operation may request a voluntary suspension of a permit. The proposed rule has the content from repealed 40 TAC §745.8519. However, three additional reasons have been added to the list: (1) enrollment is too low to operate; (2) a staffing shortage; and (3) a declared disaster.

Proposed new §745.5153 describes how an operation requests a voluntary suspension. The proposed rule has the content from repealed 40 TAC §745.8523. There are no substantive changes to the proposed rule.

Proposed new §745.5155 describes the actions CCR may take in response to a request for a voluntary suspension based on certain factors. The proposed rule has the content from repealed 40 TAC §745.8525. However, CCR is updating the structure of the question and the rule. The rule also adds factors to consider when approving or denying a voluntary suspension, including (1) confirming that the operation will not care for children during the voluntary suspension period; (2) the length of time planned for a suspension; and (3) whether the request meets one of the reasons for the suspension. In addition, CCR is deleting the right to an administrative review for the denial of a request for a voluntary suspension, but CCR is adding this right to Title 26, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings; the Subchapter M rules are anticipated to be adopted in January 2023.

Proposed new §745.5157 describes the responsibilities of the operation during the voluntary suspension period. The proposed rule has the content from repealed 40 TAC §745.8521(c) and §745.8527. However, a change to the content clarifies that as soon as possible, but no later than 24 hours after Licensing notifies the operation of the approval of the voluntary suspension, the operation must notify the parents of any children attending or enrolled in the operation of the voluntary suspension, including the dates of the voluntary suspension period.

Proposed new §745.5159 describes what must occur before an operation may reopen and begin operating at the end of the voluntary suspension period. The proposed rule has the content from repealed 40 TAC §745.8529. Additional content clarifies that CCR will conduct an inspection within 15 days to determine whether the operation is meeting all applicable statutes, rules, and minimum standards before the operation is given permission by CCR to reopen and operate.

Proposed new §745.5161 describes what happens if an operation does not begin operating at the end of a voluntary suspension period. The proposed rule has the content from repealed 40 TAC §745.8531. Additional content clarifies that the operation may request an extension if the voluntary suspension period was for less than two years.

Proposed new §745.5201 describes how to voluntarily close an operation. The proposed rule has the content from repealed 40 TAC §745.8533. Additional content requires the operation to (1) notify parents timely; (2) surrender its permit; and (3) meet documentation and reporting requirements for the emergency relocation of a residential child care operation that are outlined in minimum standards.

Proposed new §745.8401 describes who may inspect or investigate an operation. The proposed rule includes most of the content from repealed 40 TAC §745.8401. Additional content clarifies that (1) CCR may inspect or investigate a child care program to determine whether the program is subject to regulation; (2) DFPS may investigate an allegation of child abuse, neglect, or exploitation; and (3) CCR may inspect an operation during or after a DFPS child abuse, neglect, or exploitation investigation. CCR is moving the portion of repealed 40 TAC §745.8401 relating to "CCR may inspect or investigate during the hours of operation" to proposed new §745.8405(b).

Proposed new §745.8403 describes the actions CCR may take during an inspection or investigation. The proposed rule has the content from repealed 40 TAC §745.8403 and §745.8405. Additional content clarifies that these actions may also include a walkthrough of the operation.

Proposed new §745.8405 describes when CCR may inspect and investigate different types of operations. The proposed rule includes the portion of the content from repealed 40 TAC §745.8401 relating to CCR inspecting and investigating during the hours of operation and the content from repealed 40 TAC §745.8407. Additional content (1) updates the description for the types of operations; (2) updates that CCR investigates a listed family home that is not a relative-only listed family home after receiving a report of a deficiency of the new minimum standards for listed family homes; (3) clarifies that for all operation types, except relative-only listed family homes and foster homes, "we (CCR) may inspect" (in the repealed rule it was "we inspect") because CCR is not required to inspect Priority 5 complaints; (4) updates the timeframe for inspecting registered child care homes to at least once every two years, or at least once every year if the home is receiving a subsidy for a child in care through the Texas Workforce Commission (TWC); (5) adds two situations to be consistent with current policy when CCR investigates in foster homes: (A) any deficiency in a licensing statute, rule, or minimum standard when law enforcement responds to or has previously responded to a family violence call at the foster home; and (B) a deficiency involving child-placing agency staff; (6) adds situations for investigations of adoptive homes to be consistent with policy: (A) CCR will investigate reports involving child-placing agency staff; and (B) for other reports of a deficiency in a licensing statute, rule, or minimum standard, CCR may investigate or assign to the child-placing agency to investigate; and (7) states that if a child-placing agency main office or branch office is not open between 8:00 a.m. and 5:00 p.m., Monday through Friday, the child-placing agency must ensure that the office and employees are available upon CCR's request to inspect or investigate the agency.

Proposed new §745.8407 describes how often CCR may inspect or investigate an operation. The proposed rule has the content from repealed 40 TAC §745.8409. There are no substantive changes to the proposed rule.

Proposed new §745.8409 describes when inspections and investigations must be unannounced or announced. The proposed rule has the content from repealed 40 TAC §745.8411. Additional content updates that inspections for registered child care homes must be unannounced (1) once every year if the home is receiving a subsidy for a child in care through TWC; or (2) once every two years if the home is not receiving a subsidy for a child in care through TWC.

Proposed new §745.8411 describes an operation's responsibilities when CCR conducts an inspection or investigation. The proposed rule has the content from repealed 40 TAC §745.8413 and §745.8425. Additional content clarifies that (1) the responsibility not to interfere or delay an inspection or investigation applies to both CCR and DFPS and includes providing access to all areas of the operation and all records; and (2) if anyone at the operation refuses access or prevents or delays an inspection or investigation CCR may issue a deficiency and seek a court order to comply or impose an enforcement action.

Proposed new §745.8413 describes what CCR may inspect and investigate at the operation. The proposed rule has the content from repealed 40 TAC §§745.8415, 745.8417, and 745.8419. Additional content clarifies that records include audio and visual records.

Proposed new §745.8415 describes how CCR investigates an anonymous report. The proposed rule has the content from repealed 40 TAC §745.8421. Additional content clarifies that CCR evaluates an anonymous report by (1) checking the operation's compliance history for similar allegations and deficiencies; and (2) contacting the operation and collaterals. In addition, there are significant updates to the wording for better understanding and readability.

Proposed new §745.8417 describes what CCR will post on the Search Texas Child Care website about the findings from an anonymous report investigation. The proposed rule has the content from repealed 40 TAC §745.8423. While there are no changes to the content of this rule, there are significant updates to the wording for better understanding and readability.

Proposed new §745.8441 describes when CCR will notify an operation of the purpose of an unannounced inspection or investigation. The proposed rule has the content from repealed 40 TAC §745.8441 and §745.8443. Additional content clarifies that (1) CCR will notify the person in charge of an investigation at the time of the first contact with the operation unless an exception applies; or (2) if the exception applies, then CCR will notify the person in charge, designee, administrator, director, or primary caregiver as soon as possible after CCR determines that doing so will not compromise the investigation. In addition, there are significant updates to the wording for better understanding and readability.

Proposed new §745.8443 describes whom CCR will notify of the outcome of an inspection or investigation. The proposed rule replaces the content from repealed 40 TAC §745.8445 by clarifying that CCR will notify (1) the operation of the outcome of the inspection or investigation by providing a completed inspection form or notification letter to the designee, director, administrator, or primary caregiver, and the person in charge if one of the other persons is not available during the exit interview; and (2) the reporter of the outcome of an investigation, unless the reporter is anonymous or there is a reasonable likelihood that the notification will jeopardize the reporter's safety.

Proposed new §745.8445 describes what the notification of the outcome of the inspection or investigation to the operation and the outcome of the investigation to the reporter will include. The proposed rule has the content from repealed 40 TAC §745.8447. However, additional content clarifies that the notification to the operation will also include any statutes, rules, or minimum standards that CCR investigated and whether the operation was in compliance. In addition, CCR is deleting the portion of repealed 40 TAC §745.8447 currently requiring "corrections necessary for compliance" because CCR does not provide this information in the notice.

Proposed new §745.8447 describes what an operation must do if CCR notifies the operation of a deficiency. The proposed rule has the content from repealed 40 TAC §745.8449. Additional content clarifies that an operation must correct the deficiency (1) within the timeframe CCR specified, unless CCR approves an extension that the operation requests; or (2) if CCR approves a request for an extension, within the new timeframe CCR specified. The operation may also request a new extension.

Proposed new §745.8449 describes who will provide notices related to investigations of child abuse, neglect, and exploitation. DFPS provides notifications regarding child abuse, neglect, and exploitation according to the DFPS rules, including (1) notification to CCR of the DFPS investigation findings, any evidence regarding possible minimum standard deficiencies, and any safety plan implemented; and (2) for an investigation in a residential child care operation, notification to the residential child care operation of the investigation findings and the name of the person alleged or designated as a perpetrator of child abuse, neglect, or exploitation. CCR will provide notification to an operation of any deficiencies within 10 days of receiving the results from a DFPS child abuse, neglect, or exploitation investigation.

Proposed new §745.8481 describes what types of child care records CCR maintains, including a record for each (1) operation that applies for a permit; (2) regulated operation; (3) program or operation that is investigated as a possible unregulated operation; (4) exemption determination; and (5) individual who applies for an administrator's license. The rule also describes the types of electronic and hard copy records maintained in a child care record that are subject to retention periods that may affect the availability of a record.

Proposed new §745.8483 describes the portions of a child care record that are confidential, including (1) an open investigation, including (A) CCR interviews with operation staff, foster parents or other caregivers, children, or any other person; and (B) internal discussions by or among CCR staff; (2) reporter information; (3) information obtained from another agency that is confidential; (4) legally private information, including (A) a person's social security number; (B) a foster home screening, adoptive home screening, and post-placement adoptive report; and (C) any information pertaining to a pending court case where the state is a party; (5) information that would interfere with a law enforcement or DFPS investigation; (6) the location of a family violence or trafficking shelter or information pertaining to an individual receiving services at one of these shelters; and (7) any photograph or recording of a child.

Proposed new §745.8485 states that an operation may not record, listen to, or eavesdrop on (1) CCR interviews with operation staff, foster parents or other caregivers, children, or any other person; or (2) internal discussions by or among CCR staff. However, an individual is not prohibited from recording a CCR interview with the individual.

Proposed new §745.8487 describes exceptions to proposed new §745.8483, which would allow the confidential portions of a child care record to be released to the public or certain persons, including the release of (1) information concerning an investigation once it has been completed, unless otherwise confidential; (2) a foster home screening, adoptive home screening, and post-placement report to the subject of the screening or report or to protect the health or safety of a child; (3) the location of a family violence or trafficking shelter in a CCR public hearing; and (4) any photograph or recording of a child as noted in proposed new §745.8491.

Proposed new §745.8489 describes the situations when certain individuals may get copies of the confidential portions of a child care record under proposed new §745.8483 unless the release of the information would endanger the life or safety of an individual. These exceptions include (1) HHSC staff and volunteers to perform their assigned duties; (2) DFPS staff and volunteers to perform their assigned duties; (3) the staff and volunteers of a single source continuum contractor that contracts with DFPS to perform the SSCC's duties under Texas Family Code; (4) law enforcement personnel investigating a crime; (5) an administrative law judge for a case arising out of an inspection, investigations, or enforcement action; (6) any other person authorized by state or federal law; and (7) any other person ordered by a judge under certain circumstances. CCR is also clarifying that a person or entity that receives confidential information under this rule may not release it to an unauthorized person or entity.

Proposed new §745.8491 describes who may review or have a copy of a photograph or recording of a child that is confidential under proposed new §745.8483. The individuals noted in proposed new §745.8489 and the parent of the child may get a copy of the photograph or recording. The following persons may review the photograph or recording but not get a copy: (1) attorney ad litem, guardian ad litem, or court appointed special advocate; and (2) the operation cited for a deficiency during which the photograph was taken, or recording was made. CCR is also clarifying that a person or operation that receives a photograph, recording, or documentation of a child under this rule may not release it to an unauthorized person or entity.

Proposed new §745.8493 describes when CCR will release information related to child abuse, neglect, or exploitation investigation conducted by DFPS. DFPS child abuse, neglect, and exploitation investigations remain confidential. A person must request DFPS investigation information from DFPS. DFPS may release DFPS investigation information to (1) an operation to support a deficiency assessed against the operation, so long as confidential information is redacted; or (2) any other person or entity authorized by state or federal law to have a copy. CCR is also clarifying that an operation, person, or entity that receives DFPS investigation information under this rule may not release the information to an unauthorized person or entity.

Proposed new §745.8581 describes technical assistance. The proposed rule has the content from repealed 40 TAC §745.8581. There are no substantive changes to the proposed rule.

Proposed new §745.8583 describes when CCR provides technical assistance. The proposed rule has the content from repealed 40 TAC §745.8583. Additional content clarifies that CCR may provide technical assistance at any time, including on the inspection form or investigation letter, regardless of whether the operation is deficient or in compliance.

Proposed new §745.8585 describes why an administrative review is not allowed for technical assistance. The proposed rule has the content from repealed 40 TAC §745.8585. There are no substantive changes to the proposed rule.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the proposed rules will be in effect, enforcing or administering the rules do 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 proposed 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 create new rules;

(6) the proposed rules will not expand, limit, or repeal existing rules;

(7) the proposed rules will not change 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.

There is no adverse economic effect on small businesses, micro-businesses, or rural communities from this proposal because there is no requirement to alter current business practices, and there are no new fees imposed.

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 the proposed rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and 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 proposed rules are in effect, the public benefit will be that the rules will be (1) easier to locate in the title of Texas Administrative Code that relates specifically to HHSC; (2) updated to no longer include DFPS responsibilities; and (3) consistent with legislative changes.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the proposed rules in Title 26 are replacing and updating repealed rules from Title 40. The updated rules do not impose any additional costs on persons that are required to comply with the rules.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Questions about the content of this proposal may be directed by email to Gerry.Williams@hhs.texas.gov.

Written comments on the proposal may be submitted to Gerry Williams, Rules Writer, Child Care Regulation, HHSC, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

SUBCHAPTER B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE

26 TAC §745.43

STATUTORY AUTHORITY

The new section 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.

The new section affects Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.43.What are the requirements for a relative-only listed family home?

The permit holder for a relative-only listed family home must:

(1) Operate within the limits of its permit;

(2) Ensure there is no immediate risk to the health or safety of a child while in care;

(3) Ensure any medication given to a child in care is administered according to Texas Human Resources Code §42.065;

(4) Request background checks as required in Subchapter F of this chapter (relating to Background Checks);

(5) Ensure that each child is free from abuse, neglect, and exploitation while in care;

(6) Pay all required fees as outlined in Subchapter E of this chapter (relating to Fees); and

(7) Comply with all other applicable laws and rules.

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 February 27, 2023.

TRD-202300920

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS

DIVISION 1. OVERVIEW OF VOLUNTARY ACTIONS

26 TAC §745.5001, §745.5003

STATUTORY AUTHORITY

The new sections 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.

The new sections affect Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.5001.What are the different types of voluntary actions that an operation may take?

(a) A voluntary action under this subchapter is not an enforcement action.

(b) The following chart lists the voluntary actions that are available for all operation types:

Figure: 26 TAC §745.5001(b) (.pdf)

§745.5003.How does my taking a voluntary action affect Licensing's ability to impose an enforcement action against my operation?

(a) We may impose an enforcement action against your operation:

(1) Even if you have taken a voluntary action; and

(2) Any time while the voluntary action is in effect.

(b) If your action is voluntary suspension or voluntary closure, we may also impose the enforcement action:

(1) When you reopen your operation after your voluntary suspension ends; or

(2) If you apply for another permit after your voluntary closure; for example, if your operation met the requirements for probation when you voluntarily closed your operation, we may include a condition on your new permit that your operation is on probation.

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 February 27, 2023.

TRD-202300921

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 2. NOTICE AND APPROVAL

26 TAC §745.5051

STATUTORY AUTHORITY

The new section affects Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.5051.What notice and approval are required for a voluntary action?

The following chart notes whether notice to and approval by Licensing are required before an operation may take the voluntary action:

Figure: 26 TAC §745.5051 (.pdf)

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 February 27, 2023.

TRD-202300922

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 3. TEMPORARY RELOCATION

26 TAC §745.5101, §745.5103

STATUTORY AUTHORITY

The new section affects Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.5101.What must I do when I temporarily relocate my operation because of a renovation or damage that makes the operation temporarily unsuitable for child care?

You must:

(1) Complete the notice requirements in §745.5051 of this subchapter (relating to What notice and approval is required for a voluntary action?):

(2) Prior to a planned temporary relocation:

(A) Obtain any inspections at the temporary location that are identified in the applicable minimum standards, which may include fire, sanitation, and gas leak inspections;

(B) Ensure the temporary location complies with applicable licensing statutes, rules, and minimum standards;

(C) Allow us to conduct an inspection under §745.5103 of this division (relating to What actions will Licensing take after receiving a notice that you are temporarily relocating?); and

(D) Obtain our approval for any aspect of the temporary location that does not comply with the applicable licensing statutes, rules, and minimum standards; and

(3) For an emergency relocation:

(A) Complete each step in paragraph (1) of this section as soon as possible after the relocation; and

(B) If you are a residential child care operation, meet any additional reporting and documentation requirements under:

(i) §748.303(e)(1) and (3) of this title (relating to When must I report and document a serious incident?); or

(ii) §749.503(e)(1) and (3) of this title (relating to When must I report and document a serious incident?).

§745.5103.What actions will Licensing take after receiving a notice that you are temporarily relocating?

(a) We will conduct an inspection before or as soon as possible after the relocation to determine whether the temporary location complies with the applicable licensing statutes, rules, and minimum standards.

(b) We will consider the following when deciding whether to approve a temporary location that does not comply with minimum standards:

(1) The anticipated length of stay at the temporary location;

(2) The degree of deviation from minimum standards; and

(3) Whether there is a risk to children considering the activities and services that the operation offers.

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 February 27, 2023.

TRD-202300923

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 4. VOLUNTARY SUSPENSION

26 TAC §§745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161

STATUTORY AUTHORITY

The new sections affect Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.5151.For what reasons may I request a voluntary suspension of my permit?

You may request a voluntary suspension of your permit because you are unable to operate for a specific time period for the following reasons:

(1) You are repairing or making changes to your operation;

(2) You do not have children in care or enrollment is too low for you to operate; or

(3) You are unable to operate due to:

(A) Illness;

(B) An extended absence;

(D) Personal reasons; or

(E) A declared disaster.

§745.5153.How do I request a voluntary suspension?

You must submit a written request for a voluntary suspension to your Licensing representative. In your request, you must include:

(1) The reason that you are requesting a voluntary suspension from §745.5151 of this division (relating to For what reasons may I request a voluntary suspension of my permit?);

(2) The proposed dates for the suspension to begin and end;

(3) Plans to resume operating; and

(4) A statement about how you will meet the applicable licensing statutes, rules, and minimum standards at the end of the suspension period.

§745.5155.What actions may Licensing take after receiving written notice that you are requesting a voluntary suspension?

After we receive your written request for a voluntary suspension, we may approve, deny, or add conditions to your request to voluntarily suspend your permit based on the following factors:

(1) Whether an enforcement action is currently pending or we are considering imposing an enforcement action against your operation;

(2) Whether we can confirm that you do not plan to care for children during the voluntary suspension period;

(3) The length of the time you plan to suspend your permit; and

(4) Whether your request meets one of the reasons of §745.5151 of this division (relating to For what reasons may I request a voluntary suspension?).

§745.5157.What are my responsibilities during the voluntary suspension period?

(a) As soon as possible, but no later than 24 hours after we notify you of our approval, you must notify the parents of any children attending or enrolled in your operation of the voluntary suspension, including the dates of the voluntary suspension period.

(b) During the voluntary suspension period, you must:

(1) Not have children in care;

(2) Notify us at least 15 days before resuming operation, as required by §745.5159 of this division (relating to What must occur before I may reopen and begin operating at the end of the voluntary suspension period?);

(3) Return the permit to us during the suspension period;

(4) Meet the permit renewal requirements in Subchapter D, Division 12 of this chapter (relating to Permit Renewal), if applicable, so your permit does not expire while under voluntary suspension; and

(5) Remit all fees due during the suspension period.

§745.5159.What must occur before I may reopen and begin operating at the end of the voluntary suspension period?

(a) You must notify us in writing at least 15 days before you plan to begin operating.

(b) We will conduct an inspection within 15 days to determine whether you are meeting all applicable licensing statutes, rules, and minimum standards.

(d) You may reopen only if we give you permission to operate after conducting the inspection.

§745.5161.What if I do not begin operating at the end of the voluntary suspension period?

If you have not met the requirements of §745.5159 of this division (relating to What must occur before I may reopen and begin operating at the end of the voluntary suspension period?) and do not begin operating at the end of the voluntary suspension period:

(1) You may request an extension if your voluntary suspension was for less than two years;

(2) You may voluntarily close your operation; or

(3) We may take an enforcement action, including revoking your permit.

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 February 27, 2023.

TRD-202300924

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 5. VOLUNTARY CLOSURE

26 TAC §745.5201

STATUTORY AUTHORITY

The new section affects Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.5201.How do I voluntarily close my operation?

(a) You must notify the parents of any children that you are voluntarily closing your operation as provided in this chart:

Figure: 26 TAC §745.5201(a) (.pdf)

(b) When you voluntarily close your operation, you must:

(1) Notify us as soon as possible, but no later than 10 days after you close your operation; and

(2) Surrender your permit. If you want to operate again after you voluntarily close your operation, you will have to apply for a new permit.

(c) Residential child care operations that are closing in response to a disaster or an emergency must meet the reporting and documentation requirements of §748.303(e)(2) of this title (relating to When must I report and document a serious incident?), and §749.503(e)(2) of this title (relating to When must I report and document a serious incident?), including making a report to us and the parents as soon as possible, but no later than 24 hours after the 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 February 27, 2023.

TRD-202300925

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY

DIVISION 1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS

26 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417

STATUTORY AUTHORITY

The new sections 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.

The new sections affect Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.8401.Who may inspect or investigate an operation under this division?

(a) An authorized representative of Licensing may inspect or investigate:

(1) An operation that is subject to regulation under Texas Human Resources Code (HRC) Chapter 42 to:

(A) Monitor the operation's compliance with licensing statutes, rules, and minimum standards; and

(B) Investigate an allegation of non-compliance with licensing statutes, rules, and minimum standards; and

(2) An unlicensed program providing care to children to determine whether the program is subject to regulation by Licensing.

(b) An authorized representative of the Texas Department of Family and Protective Services (DFPS) may investigate an operation that is subject to regulation under HRC Chapter 42 to investigate an allegation of child abuse, neglect, or exploitation as described in Title 40, Part 19, Chapter 707, Subchapter C, Child Care Investigations.

(c) An authorized representative of Licensing may inspect under subsection (a) of this section during or after a DFPS investigation under subsection (b) of this section.

§745.8403.What actions may Licensing take during an inspection or investigation?

During an inspection or investigation, we may take actions that reduce the risk to children and protect the health, safety, and well-being of children in care, including:

(1) Evaluating whether the operation is subject to regulation;

(2) Conducting a walkthrough of the operation;

(3) Verifying compliance with licensing statutes, rules, and minimum standards;

(4) Assessing the risk to children in the operation;

(5) Assisting the operation with identifying problems contributing to deficiencies in licensing statutes, rules, and minimum standards;

(6) Offering technical assistance;

(7) Gathering information; and

(8) Making a fair, accurate, and impartial decision regarding your compliance with licensing statutes, rules, and minimum standards.

§745.8405.When does Licensing inspect or investigate an operation or program?

(a) The following chart describes when we inspect or investigate an operation:

Figure: 26 TAC §745.8405(a) (.pdf)

(b) We may inspect or investigate your operation or program during its hours of operation.

(c) If you operate a child-placing agency main office or branch office that is not open between 8:00 a.m. and 5:00 p.m., Monday through Friday, you must ensure that the office and employees are available upon our request for the purpose of inspecting or investigating your agency.

§745.8407.How often may Licensing inspect or investigate my operation?

We may inspect or investigate your operation as often as is necessary to verify compliance with licensing statutes, rules, and minimum standards or to complete an investigation.

§745.8409.Are inspections and investigations announced or unannounced?

(a) One inspection every year must be unannounced for a:

(1) Licensed operation;

(2) Certified operation; and

(3) Registered child-care home that is receiving a subsidy for a child in care through the Texas Workforce Commission (TWC).

(b) One inspection every two years must be unannounced for a registered child-care home that is not receiving a subsidy for a child in care through TWC.

§745.8411.What are my responsibilities when Licensing or the Texas Department of Family and Protective Services inspects or investigates my operation?

(a) You must ensure that no one at your operation interferes with an inspection or investigation by Licensing or an investigation by the Department of Family and Protective Services (DFPS).

(b) You must ensure your operation:

(1) Admits the Licensing or DFPS representatives to the operation;

(2) Provides access to all areas of the operation;

(3) Provides access to all records; and

(4) Does not delay or prevent the Licensing or DFPS representatives from conducting an inspection or investigation.

(c) If anyone at your operation refuses to admit, refuses access, or prevents or delays a Licensing or DFPS representative from visiting, inspecting, or investigating the operation, Licensing may take any or all of the following actions:

(1) Issue the operation a deficiency;

(2) Impose an enforcement action as specified in Subchapter L of this chapter (relating to Enforcement Actions); or

(3) Seek a court order granting Licensing access to the operation and records maintained by the operation.

§745.8413.What can Licensing inspect or investigate?

(a) We may inspect and investigate any part of your operation that could affect the health, safety, or well-being of children. This includes access to:

(1) All records of the operation, including child records, personnel records, and any audio or visual records;

(2) Any area of the building, home, or grounds where your operation is located; and

(3) Any equipment the operation uses when providing care.

(b) We may interview anyone who may have information relevant to an inspection or investigation when we are at an operation during the inspection or investigation, including:

(1) A child;

(2) An employee; or

(3) Any other person.

(1) Determine what records that we need to review; and

(2) May make or take copies of any records from the operation.

§745.8415.How does Licensing investigate an anonymous report?

(a) If an anonymous report contains an allegation that the health or safety of children is at risk, we will investigate the report and any alleged deficiencies.

(b) If an anonymous report does not contain an allegation that the health or safety of children is at risk, we will evaluate the anonymous report to determine whether any alleged deficiency has a factual basis.

(1) Check the operation's compliance history for similar allegations or deficiencies; and

(2) Contact the operation and collaterals.

(d) If we find a factual basis for at least one alleged deficiency, we will investigate the anonymous report.

(e) If we do not find a factual basis for any of the alleged deficiencies, we will administratively close the anonymous report.

§745.8417.What will Licensing post on its Search Texas Child Care website about findings from the investigation of an anonymous report?

After investigating an anonymous report:

(1) We will not post a record of the report on the Search Texas Child Care website if we do not find a factual basis for any of the alleged deficiencies in the report;

(2) We will post a record of the report and the findings on the Search Texas Child Care website if:

(A) We determine the operation had any deficiencies; and

(B) The operation waives its right to an administrative review for any deficiency, or any deficiency is upheld in the administrative review process.

(3) We will post any additional deficiency on the Search Texas Child Care website that:

(A) We observed during an inspection related to the investigation; and

(B) The operation waives its right to an administrative review for the deficiency, or the deficiency is upheld after the administrative review process.

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 February 27, 2023.

TRD-202300926

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 2. NOTIFICATION

26 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 749.8449

STATUTORY AUTHORITY

The new sections affect Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.8441.When will we notify the operation of the purpose of an unannounced inspection or investigation?

(a) For an announced or unannounced inspection, we will notify the person in charge of the operation of the purpose of the inspection at the time of the inspection.

(b) For an investigation regarding a statute, rule, or minimum standard deficiency, we will notify the person in charge of the operation of the nature of the allegation made in the report when we first contact the operation, except as provided in subsection (c) of this section.

(c) When we first contact an operation, we do not have to notify the person in charge of the operation of the nature of the allegation made in the report if:

(1) The allegation is against the person in charge, designee, administrator, director, or primary caregiver; or

(2) We have a reason to believe that disclosing the nature of the allegation may compromise the investigation.

(d) If we did not notify the person in charge of the nature of the allegation as explained in subsection (c) of this section, then we will notify the person in charge, designee, administrator, director, or primary caregiver for the operation as soon as possible after we determine that doing so will not compromise the investigation.

§745.8443.Whom will Licensing notify of the outcome of an inspection or investigation?

(a) Once an inspection or investigation is complete, we will notify the operation of the outcome of the inspection or investigation by providing a completed inspection form or notification letter to the:

(1) Designee, director, administrator, or primary caregiver; and

(2) Person in charge, if the designee, director, administrator, or primary caregiver is not available during the exit interview.

(b) We will also notify the reporter of the outcome of an investigation, unless:

(1) There is a reasonable likelihood that notifying the reporter will jeopardize the reporter's safety; or

(2) The reporter is anonymous.

§745.8445.What will the notification of the outcome of the inspection or investigation include?

(a) The notification of the outcome of the inspection or investigation sent to the operation will include:

(1) Any licensing statutes, rules, or minimum standards that we investigated and whether the operation was in compliance;

(2) The specifics of any deficiency that we found during an investigation or inspection;

(3) The date by which you must comply with a particular licensing statute, rule, or minimum standard; and

(4) Your right to an administrative review to dispute any deficiency that we found.

(b) The notification of the outcome of the investigation we send to the reporter will include:

(1) Whether we found any deficiencies during the investigation; and

(2) A reference to the Search Texas Child Care website.

§745.8447.What must I do if Licensing notifies me of a deficiency?

(a) You must:

(1) Correct the deficiency within the timeframe that we specified, unless we approve an extension as provided in subsections (c) and (d) of this section; and

(2) Meet all licensing statutes, rules, and minimum standards.

(b) You may dispute the deficiency by requesting an administrative review; see Title 26, Chapter 745, Subchapter M, Division 1 (relating to Administrative Reviews).

(1) Includes a reason for an extension, and we determine that:

(A) There is cause for the extension; and

(B) Extending the time frame would not pose an immediate danger to children in care; or

(2) States you have requested an administrative review of the deficiency, and we determine that extending the timeframe would not pose an immediate danger to children in care.

(d) If you request an extension, we will notify you:

(1) Whether we approve or deny your request for an extension to the compliance date; and

(2) If we approve your request, what the new compliance date is.

(e) If we approve your request for an extension, you must correct the deficiency within the new timeframe we specified or request a new extension.

§745.8449.Who provides notices related to investigations of child abuse, neglect, and exploitation?

(a) The Texas Department of Family and Protective Services (DFPS) provides notifications regarding child abuse, neglect, and exploitation investigations, as provided in Title 40, Part 19, Chapter 707, Subchapter C, Division 3 (relating to Notification), including:

(1) Notification to Licensing of the investigation findings, any evidence gathered regarding possible minimum standard deficiencies, and any safety plan implemented; and

(2) For an investigation in a residential child care operation, notification to the residential child care operation of the investigation findings and the name of the person alleged or designated as a perpetrator of child abuse, neglect, or exploitation.

(b) Licensing will notify you of any statute, rule, or minimum standard deficiencies within 10 days after receiving the results from a DFPS child abuse, neglect, or exploitation investigation.

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 February 27, 2023.

TRD-202300927

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 3. CONFIDENTIAL RECORDS

26 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493

STATUTORY AUTHORITY

The new sections affect Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.8481.What types of child care records does Licensing maintain?

(a) We maintain a record for each:

(1) Operation that applies for a permit;

(2) Regulated operation (a regulated operation's record was previously known as the operation's monitoring file);

(3) Program or operation that we investigate as a possible unregulated operation;

(4) Exemption determination that we make under §745.131 of this chapter (relating to How does a person or entity request that Licensing determine whether a program is exempt?) and any information that we gather to make such a determination; and

(5) Individual who applies for an administrator's license.

(b) Each record consists of one of the following or a combination of both:

(1) Electronic records maintained in the Child Care Licensing Automated Support System (CLASS), including information related to inspections and investigations that we conduct; and

(2) A hard copy or any digital files of information that is not included in CLASS, such as:

(A) Pictures;

(B) Applications;

(D) Correspondence from an applicant, permit holder, or others involved in the regulatory process; and

(E) Other supporting documentation.

(c) Records that we maintain are subject to retention periods that may affect the availability of a record that a person may request.

§745.8483.What portions of a child care record are confidential?

We can provide most portions of a child care record to the public. However, the following lists the portions of a child care record that are confidential and will not be released to the public in any manner, unless noted as an exception in §745.8487 of this division (relating to Are there any exceptions that allow the portions of a child care record that are confidential to be released to the public or certain persons?):

(1) Information concerning an open investigation, including:

(A) Interviews with operation staff, foster parents or other caregivers, children, or any other person; and

(B) Internal discussions by or among Licensing staff;

(2) The name of the reporter and any information that identifies the reporter;

(3) Information received or obtained from another agency, entity, or person, if that information is confidential under law, including information related to background checks as explained further in Subchapter F of this title (relating to Background Checks);

(4) Any private information that is confidential under state or federal law, including:

(A) A person's social security number;

(B) A foster home screening, adoptive home screening, and post-placement adoptive report; and

(5) Any information that would interfere with an ongoing law enforcement investigation or prosecution or with a Texas Department of Family and Protective Services child abuse, neglect, or exploitation investigation;

(6) The location of a family violence shelter or a victims of trafficking shelter center as defined by Texas Government Code §552.138;

(7) Information pertaining to an individual who received services at a family violence shelter or a victims of trafficking shelter center;

(8) Any photograph, audio or visual recording, or documentation of a child; and

(9) Any other information that is confidential under state or federal law.

§745.8485.Can an operation record the inspection or investigation process?

(a) In order to preserve the integrity and confidentiality of the Licensing inspection and investigation process, an operation or any person acting on the operation's behalf may not make a visual or audio recording, listen to, or eavesdrop on any:

(1) Licensing interview with operation staff, foster parents or other caregivers, children, or any other person; or

(2) Internal discussion by or among Licensing staff.

(b) This section does not prohibit an individual from recording a Licensing interview with the individual.

§745.8487.Are there any exceptions that allow the portions of a child care record that are confidential to be released to the public or certain persons?

Notwithstanding §745.8483 of this division (relating to What portions of a child care record are confidential?), the below exceptions allow certain portions of a child care record that are confidential to be released in the following manner:

(1) Information obtained during an open investigation is confidential under §745.8483(1) of this division, but the information is no longer confidential under that section once the investigation is completed.

(2) A foster home screening, adoptive home screening, and post-placement adoptive report is confidential under §745.8483(4)(B) of this division, but the screening or report may be released to:

(A) The individual who is the subject of the screening or report; or

(B) Any other person, if the Associate Commissioner for Child Care Regulation or designee determines the release of the screening or report is necessary to protect the health or safety of a child.

(3) The location of a family violence shelter or a victims of trafficking shelter center is confidential under §745.8483(6) of this division, except for when the location of the shelter or center must be provided in a public hearing under Texas Human Resources Code §42.0461 because the shelter or center is a general residential operation that will provide services to children with emotional disorders. The operation does not have to identify that the operation intends to provide services to victims of human trafficking.

(4) Any photograph, audio or visual recording, or documentation of a child is confidential under §745.8483(8) of this division, unless it is releasable under §745.8491 of this division (relating to Who can review or have a copy of a photograph, audio or visual recording, or documentation of a child that is in our records?).

§745.8489.Who may get a copy of the portions of a child care record that are confidential?

(a) Notwithstanding §745.8483 of this division (relating to What portions of a child care record are confidential?), we may provide a copy of the portions of a child care record that are confidential to the following persons and entities in the relevant situations:

(1) Texas Health and Human Services Commission (HHSC) staff, including volunteers, as necessary to perform their assigned duties;

(2) Texas Department of Family and Protective Services (DFPS) staff, including volunteers, as necessary to perform their assigned duties;

(3) A single source continuum contractor (SSCC) that contracts with DFPS to provide community-based care in Texas Family Code, Subchapter B-1, Chapter 264, as necessary for the SSCC's staff, including volunteers, to perform the SSCC's duties under that subchapter;

(4) Law enforcement personnel for the purpose of investigating a crime that is related to the record;

(5) An administrative law judge or judge of a competent jurisdiction in a civil or criminal case arising out of a related inspection, investigation, or enforcement action; and

(6) Any other person authorized by state or federal law to have a copy.

(b) Notwithstanding subsection (a) of this section, Licensing, in consultation with the HHSC Legal Services Division, may withhold any information in its records if the release of that information would endanger the life or safety of any individual.

(c) Notwithstanding §745.8483 of this division, a judge of a competent jurisdiction may order us to disclose otherwise confidential information if:

(1) A party in a matter before the judge files a motion requesting the judge to compel us to disclose the information and provides notice to HHSC and any other interested parties;

(2) After conducting a hearing and reviewing the information, including an audio or visual recording, the judge determines that disclosure is essential to the administration of justice and will not endanger the life or safety of any individual; and

(3) The judge includes in the disclosure order any safeguards that the court finds appropriate.

(d) Any person or entity that receives a copy of the portions of a child care record that are confidential under this section:

(1) May only use the confidential information for the purpose or duty that authorized the release of the confidential information; and

(2) May not release the confidential information to any person or entity that is not authorized to have the confidential information under this section.

§745.8491.Who can review or have a copy of a photograph, audio or visual recording, or documentation of a child that is in our records?

(a) In addition to the persons and entities identified in §745.8489 of this division (relating to Who may get a copy of the portions of a child care record that are confidential?):

(1) The parent of the child may get a copy of a photograph, audio or visual recording, or documentation of the child that is in our records; and

(2) The following persons may review a photograph, audio or visual recording, or documentation of a child in our records, but may not have a copy:

(A) Attorney ad litem, guardian ad litem, or court appointed special advocate of a child; and

(B) The operation cited for a deficiency from the inspection or investigation during which the photograph was taken or the audio or visual recording, or documentation was made.

(b) Any person or operation that receives a copy of a photograph, recording, or documentation of a child under subsection (a)(2) of this section:

(1) May only use it for the purpose or duty that authorized the release of the photograph, recording, or documentation of a child; and

(2) May not release it to any person or entity that is not authorized to have the photograph, recording, or documentation of a child under this section.

§745.8493.Will Licensing release any information related to a child abuse, neglect, or exploitation investigation conducted by the Texas Department of Family and Protective Services (DFPS)?

(a) DFPS investigations of child abuse, neglect, or exploitation remain confidential after DFPS provides the information to Licensing as described in Texas Human Resources Code §40.042(f).

(b) A person must request information related to an investigation conducted by DFPS from DFPS.

(1) An operation to support a licensing statute, rule, or minimum standard deficiency that we assessed against the operation, so long as we redact any confidential information; or

(2) Any other person or entity authorized by state or federal law to have a copy.

(d) Any operation, person, or entity that receives information related to a DFPS child abuse, neglect, or exploitation investigation under this section:

(1) May only use the DFPS investigation information for the purpose or duty that authorized the release of the information; and

(2) May not release the DFPS investigation information to any other person or entity that is not authorized to have the information under 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 February 27, 2023.

TRD-202300928

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 4. TECHNICAL ASSISTANCE

26 TAC §§745.8581, 745.8583, 745.8585

STATUTORY AUTHORITY

The new sections affect Texas Government Code §531.0055 and HRC §§42.042, 42.044, 42.0449, 42.0523 and 42.065.

§745.8581.What is technical assistance?

(a) Technical assistance is additional information or clarification we provide to help you understand and comply with licensing statutes, rules, and minimum standards.

(b) Technical assistance is not a deficiency or an enforcement action. Our provision of technical assistance does not affect our ability to issue a deficiency or take an enforcement action.

§745.8583.When does Licensing provide technical assistance?

We may provide technical assistance orally or in writing:

(1) At any time during or at the conclusion of an inspection or investigation, including on the inspection form or investigation letter, regardless of whether the operation is deficient or in compliance with a particular licensing statute, rule, or minimum standard;

(2) As part of the ongoing regulatory process; or

(3) At your request.

§745.8585.May I request an administrative review for technical assistance that Licensing provided?

No. We provide technical assistance to help you understand and comply with licensing statutes, rules, and minimum standards. Technical assistance does not include a decision or action you may challenge through an administrative review. If we provide you with technical assistance in addition to citing you for a deficiency, you will have the right to request an administrative review related to the deficiency but not the technical assistance.

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 February 27, 2023.

TRD-202300929

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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 §748.105, concerning What are the requirements for my personnel policies and procedures, §748.363, concerning What information must the personnel record of an employee include, and §748.505, concerning What minimum qualifications must all employees meet; and new §748.751, concerning What are the requirements for obtaining and verifying an applicant's employment history, and §748.753, concerning What are the requirements for completing an applicant's reference checks, in Texas Administrative Code, Title 26, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND PURPOSE

The purpose of the proposal is to adopt rules in Chapter 748 to support the June 9, 2022, court filing regarding the June 6, 2022, status hearing in the MD v. Abbott litigation. The filing, signed by the court, refers to an agreement by HHSC to initiate rulemaking to require operations to contact all an applicant's job references prior to commencement of employment. In addition to this court filing, CCR has determined that the rules will improve the safety of children in care in general residential operations by requiring a more thorough vetting of prospective employees. Accordingly, HHSC Child Care Regulation (CCR) is proposing new and amended rules to establish (1) employment history verification standards that require a General Residential Operation (GRO) to obtain and verify the most recent five years of an applicant's employment history; and (2) applicant reference check requirements that require a GRO to complete reference checks for each applicant by obtaining at least two references and contacting each of those references as part of an operation's pre-employment screening process.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.105 (1) adds a requirement that a GRO's personnel policies and procedures include written procedures for screening applicants to determine suitability for any position for which the GRO is considering them; the procedures must include (A) employment history verification as required in proposed new §748.751; and (B) reference checks as required in proposed new §748.753; (2) updates punctuation in the rule; and (3) updates the numbering of the paragraphs accordingly.

The proposed amendment to §748.363 (1) adds a requirement that a GRO include in an employee's personnel record documentation that the GRO has (A) verified employment history as required in proposed new §748.751; and (B) conducted reference checks as required in proposed new §748.753; (2) updates punctuation in the rule; and (3) updates the numbering of the paragraphs accordingly.

The proposed amendment to §748.505 (1) adds a requirement that employees must have cleared a pre-employment screening in which the GRO determined the employee is suitable for the employee's position; the pre-employment screening must include (A) employment history verification as required in proposed new §748.751; and (B) reference checks as required in proposed new §748.753; (2) updates a reference; and (3) updates punctuation in the rule.

Proposed new Division 8, Pre-Employment Screening, in Subchapter E, Personnel, adds new rules related to employment history verification and employee reference checks.

Proposed new §748.751 outlines the requirements for obtaining and verifying an applicant's employment history prior to employment. The proposed rule requires a GRO to (1) obtain the previous five years of the applicant's employment history in writing; (2) verify the applicant's employment history by contacting (A) each employer included in the five year employment history; or (B) the applicant's three most recent employers, at a minimum, if the five year employment history includes more than three employers; and (3) for any applicant hired, maintain in the applicant's personnel file documentation of (A) the applicant's employment history that the GRO is required to obtain; (B) the results of any contact with previous employers related to employment verification; and (C) if unable to contact or obtain information from an employer, any refusal by the employer to provide required information or diligent efforts to contact the employer, unless the employer is permanently unreachable, in which case, the GRO must document the reason for that determination. The proposed new rule also provides examples of reasons an employer might be permanently unreachable and specifies that the rule applies to applicants who seek employment with the GRO on or after the date the rule is effective.

Proposed new §748.753 outlines the requirements for completing an applicant's reference checks prior to employment. The proposed rule requires a GRO to (1) obtain from each applicant two references from unrelated individuals who can speak to whether the applicant is suitable to work with or around children; (2) contact each reference, through an interview or in writing, to verify the applicant's suitability to work with or around children; (3) for any reference check the GRO is unsuccessful in completing, document (A) diligent efforts to contact each reference, which must include more than one attempt; and (B) the GRO's assessment of the applicant's is suitability to work with or around children; and (4) document and maintain in the personnel file specific information for each applicant hired. The proposed new rule also requires at least one reference check to be with a current or prior employer who is familiar with the applicant's history and performance if the applicant is currently or was previously employed in a role providing care or services to children within the past five years. In addition, the proposed rule specifies that the rule applies to applicants who seek employment with the GRO on or after the date the rule is effective.

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 create new rules;

(6) the proposed rules will expand existing rules;

(7) the proposed rules will not change 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 could be an adverse economic effect on small businesses and micro-businesses, but no adverse effect on rural communities.

Texas Government Code Chapter 2006 defines a small business as one that is for-profit with fewer than 100 employees. A micro-business is one that is for-profit with not more than 20 employees Based on data obtained from the 2021 CCR Data Book, there were approximately 319 GROs required to comply with the rules on August 31, 2021. Based on two surveys conducted in 2010 and 2021, CCR estimates that approximately 65 percent of the GROs do not meet the definition of a small business or micro-business because they are either not for-profit or have 100 or more employees. Of the approximately 112 GROs (319 x 35 percent) that meet the definition of a small business or micro-business, CCR estimates that approximately 50 percent (56) of them are small businesses and 50 percent (56) of them are micro-businesses. No rural communities have a license as a GRO.

There is a projected economic impact for small businesses and micro-businesses from proposed §§748.105, 748.751, and 748.753.

Amended §748.105 requires an operation to add to its personnel policies written procedures for screening applicants to determine suitability for employment. The procedures must include verification of employment history and applicant reference checks. Historically, operations have indicated a labor cost to update policies and procedures to bring them into compliance with proposed rule changes. HHSC does not have enough information to determine these costs as developing the procedures will vary greatly with current business practice and individual business structure.

New §748.751 and §748.753 require a GRO to implement specific employment history verification and applicant reference check requirements. It is likely that some GROs currently have personnel and processes in place to conduct these tasks, or at least portions of the required tasks. Although some GROs may do this as current business practice, those that do not may incur a labor cost to allocate personnel resources to conduct the employment history verifications and reference checks. Due to the variability in existing processes across GROs, HHSC does not have enough information to determine the economic costs for persons required to comply with the rules as proposed.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of children residing in GROs in Texas.

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 are necessary to protect the health, safety, and welfare of the residents of Texas.

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 will benefit through an effort to improve the safety of children in care by requiring a more thorough vetting of prospective employees in general residential operations.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules, other than the costs noted under the small businesses, micro-businesses, and rural community impact analysis.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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

Written comments on the proposal may be submitted to Aimee Belden, Rules Writer, Child Care Regulation, Texas 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 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 22R118" in the subject line.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 1. REQUIRED PLANS AND POLICIES, INCLUDING DURING THE APPLICATION PROCESS

26 TAC §748.105

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 §531.02011, which transferred the regulatory functions of the 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 Chapter 42 of Texas Human Resources Code.

The amendments affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042.

§748.105.What are the requirements for my personnel policies and procedures?

Your personnel policies and procedure must:

(1) Include an organizational chart showing the administrative, professional, and staffing structures and lines of authority;

(2) Include written job descriptions, including minimum qualifications and job responsibilities for each position;

(3) Include written procedures for screening applicants to determine suitability for any position for which you are considering an applicant. These procedures must include:

(A) Verifying an applicant's employment history as required by §748.751 of this chapter (relating to What are the requirements for obtaining and verifying an applicant's employment history?); and

(B) Conducting reference checks as required by §748.753 of this chapter (relating to What are the requirements for completing an applicant's reference checks?);

(4) [~~(3)~~] Include a written professional staffing plan that:

(A) Demonstrates that the number, qualifications, and responsibilities of professional positions, including the child-care administrator, are appropriate for the size and scope of your services and that workloads are reasonable enough to meet the needs of the children in care;

(B) Describes in detail the qualifications, duties, responsibilities, and authority of professional positions; for each position, the plan must show whether employment is on a full-time, part-time, or continuing consultative basis; and for part-time and consulting positions, the plan must specify the number of hours and frequency of services;

(C) Documents your staffing patterns, including your child/caregiver ratios, hours of coverage, and plans for providing backup caregivers in emergencies; and

(D) Identifies, if you provide treatment services, your ability to have enough caregivers, including caregivers who are awake throughout the night to supervise children 24 hours a day, including frequent one-to-one monitoring whenever necessary to meet the needs of a particular child; [.]

(5) [~~(4)~~] Include written training requirements for employees and caregivers; [.]

(6) [~~(5)~~] Include policies on whether your operation allows individual caregivers to take children away from the operation for day or overnight visits. The policy must require obtaining the parent's written approval prior to allowing overnight visits with staff. The policy must also address the issue outlined in §748.685(e) of this chapter (relating to What responsibilities does a caregiver have when supervising a child or children?); [.]

(7) [~~(6)~~] Comply with background check requirements outlined in Subchapter F of Chapter 745 of this title (relating to Background Checks); [.]

(8) [~~(7)~~] Require your employees to report serious incidents and suspected abuse, neglect, or exploitation. An employee who suspects abuse, neglect, or exploitation must report the employee's suspicion directly to the Texas Abuse and Neglect Hotline, as directed by Texas Family Code §261.101(b). An employee may not delegate the responsibility to make a report, and you may not require an employee to seek approval to file a report or to notify you that a report was made; [.]

(9) [~~(8)~~] Require that all employees and consulting, contracting, and volunteer professionals who work with a child and others with access to information about a child be informed in writing of their responsibility to maintain child confidentiality; and [.]

(10) [~~(9)~~] Include either the model drug testing policy or a written drug testing policy that meets or exceeds the criteria in the model policy provided in §745.4151 of this title (relating to What drug testing policy must my residential child-care operation have?).

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 February 27, 2023.

TRD-202300916

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 3. PERSONNEL RECORDS

26 TAC §748.363

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 §531.02011, which transferred the regulatory functions of the 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 Chapter 42 of Texas Human Resources Code.

The amendments affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042.

§748.363.What information must the personnel record of an employee include?

For each employee, the personnel record must include:

(1) Documentation showing the date of employment;

(2) Documentation showing how the person meets the minimum age and qualifications for the position;

(3) Documentation that your operation has:

(A) Verified employment history as required by §748.751 of this chapter (relating to What are the requirements for obtaining and verifying an applicant's employment history?); and

(B) Conducted reference checks as required by §748.753 of this chapter (relating to What are the requirements for completing an applicant's reference checks?);

(4) [~~(3)~~] A current job description;

(5) [~~(4)~~] Evidence of any valid professional licensures, certifications, or registrations the person must have to meet qualifications for the position, such as a current renewal card or a letter from the credentialing entity verifying that the person has met the required renewal criteria;

(6) [~~(5)~~] A copy of the record of tuberculosis screening conducted prior to the person having contact with children in care showing that the employee is free of contagious tuberculosis as provided in §748.1583 of this title (relating to Who must have a tuberculosis (TB) examination?);

(7) [~~(6)~~] A notarized Licensing Affidavit for Applicants for Employment form as specified in Human Resources Code[,] §42.059;

(8) [~~(7)~~] A statement signed and dated by the employee documenting that the employee has read a copy of the operational policies required by §748.103 of this title (relating to What policies and procedures must I submit for Licensing's approval as part of the application process?);

(9) [~~(8)~~] A statement signed and dated by the employee indicating the employee must immediately report any suspected incident of child abuse, neglect, or exploitation to the Texas Abuse and Neglect Hotline and to the operation's administrator or administrator's designee;

(10) [~~(9)~~] Proof of request for background checks required by Chapter 745, Subchapter F of this title (relating to Background Checks);

(11) [~~(10)~~] For each person who transports a child, a copy of:

(A) The person's valid driver's license; or

(B) A driver's license check conducted through the Texas Department of Public Safety within the last 12 months;

(12) [~~(11)~~] A record of training, including the date of the training, the number of training hours, and the curriculum covered;

(13) [~~(12)~~] Any documentation of the person's performance with the operation; and

(14) [~~(13)~~] The date and reason for the person's separation, if applicable.

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 February 27, 2023.

TRD-202300917

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

SUBCHAPTER E. PERSONNEL

DIVISION 1. GENERAL REQUIREMENTS

26 TAC §748.505

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 §531.02011, which transferred the regulatory functions of the 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 Chapter 42 of Texas Human Resources Code.

The amendments affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042.

§748.505.What minimum qualifications must all employees meet?

(a) An employee's behavior or health status must not present a danger to children in care.

(b) Each employee must:

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

(2) Have a record of a tuberculosis screening showing the employee is free of contagious TB as provided in §748.1583 of this chapter [~~title~~] (relating to Who must have a tuberculosis (TB) examination);

(3) Be physically, mentally, and emotionally capable of performing assigned tasks and have the skills necessary to perform assigned tasks; [~~and~~]

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

(5) Have cleared a pre-employment screening assessment in which you determined the employee's suitability for the employee's position. The screening must have included:

(A) Verification of employment history as required by §748.751 of this subchapter (relating to What are the requirements for obtaining and verifying an applicant's employment history?); and

(B) Reference checks, as required by §748.753 of this subchapter (relating to What are the requirements for completing an applicant's reference checks?).

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 February 27, 2023.

TRD-202300918

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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

DIVISION 8. PRE-EMPLOYMENT SCREENING

26 TAC §748.751, §748.753

STATUTORY AUTHORITY

The new sections 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 §531.02011, which transferred the regulatory functions of the 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 Chapter 42 of Texas Human Resources Code.

The new sections affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042.

§748.751.What are the requirements for obtaining and verifying an applicant's employment history?

(a) Before hiring an applicant for a position, you must:

(1) Obtain in writing the applicant's employment history for the last five years; and

(2) Verify whether the applicant was employed as described in the applicant's employment history by contacting:

(A) Each employer included in the five-year employment history; or

(B) The applicant's three most recent employers, at a minimum, if the five-year employment history includes more than three employers; and

(b) If you hire the applicant, you must maintain documentation of the following in the applicant's personnel file:

(1) The applicant's employment history required by subsection (a)(1) of this section; and

(2) The results of any contact with an applicant's previous employers related to employment verification.

(3) If you are unable to contact an employer or obtain the information described in subsection (a)(2) of this section from an employer:

(A) Any refusal by the employer to provide the information; or

(B) Your diligent efforts to contact the employer, which must include more than one attempt to contact the employer, unless the employer is permanently unreachable. If the employer is permanently unreachable, your documentation must include the reason why you made that determination. Examples of an employer being unreachable include:

(i) The employer is out of business and there is no alternative contact information to obtain information from the employer; or

(ii) The employer was an individual who is deceased.

§748.753.What are the requirements for completing an applicant's reference checks?

(a) Before hiring an applicant for a position, you must complete the applicant's reference checks by:

(1) Obtaining from the applicant the name and contact information of at least two individuals unrelated to the applicant who can serve as references by answering questions related to the applicant's suitability to work with or around children; and

(2) Contacting each of the two required references to verify that the applicant is suitable to work with or around children. You may contact the reference through an interview or in writing.

(b) For an applicant who is currently or was previously employed in a position responsible for providing care or services to children within the past five years, at least one of the reference checks required in subsection (a) of this section must be a current or prior employer who has supervised or is otherwise familiar with the history and performance of the applicant in that capacity.

(c) For any reference check you are unsuccessful in completing as required by subsection (a) or (b) of this section, you must document:

(1) Your diligent efforts to contact the reference, which must include more than one attempt to contact the reference; and

(2) Your assessment of the applicant's suitability to work with or around children.

(d) For each person you hire, you must maintain in the employee's personnel file:

(1) Documentation of each reference check that includes:

(A) The reference's name;

(B) The relation of the reference to the applicant;

(D) The date you completed the check;

(E) Information you obtained from the check, documented as:

(i) A summary of the interview; or

(ii) A copy of the written information provided by the reference; and

(F) If you conducted the check through an interview, the name of the person who interviewed the reference; and

(2) If you were unsuccessful in completing a reference check, documentation required by subsection (c) of this section.

(e) This rule applies only to applicants who seek employment with your operation on or after August 9, 2023.

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 February 27, 2023.

TRD-202300919

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 16, 2023

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