PART 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
CHAPTER 745. LICENSING
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC), Title 40, Chapter 745, the repeal of Subchapter K, Inspections and Investigations, which consists of §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8419, 745.8421, 745.8423, 745.8425, 745.8427, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8451, 745.8453, 745.8455, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8495, 745.8511, 745.8513, 745.8515, 745.8517, 745.8519, 745.8521, 745.8523, 745.8525, 745.8527, 745.8529, 745.8531, 745.8533, 745.8551, 745.8553, 745.8555, 745.8557, 745.8559, 745.8561, 745.8581, 745.8583, and 745.8585.
BACKGROUND AND PURPOSE
The purpose of the proposal is to continue to implement House Bill (H.B.) 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. H.B. 5 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, Licensing, that impact child care operations, these rules must be transferred from DFPS to HHSC. CCR already administratively transferred all the rules in Title 40, Chapter 745 to Title 26, Chapter 745, except for Subchapters K and M. Those subchapters could not be administratively transferred because some of the rules also apply to responsibilities that remained with DFPS.
DFPS adopted rules applicable to DFPS responsibilities in Title 40, Chapter 707. In addition, the proposal of Title 26, Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, new Subchapter I, Non-Enforcement Voluntary Actions, and new Subchapter K, Inspections, Investigations, and Confidentiality, containing new rules applicable to CCR responsibilities, are published elsewhere in this issue of the Texas Register. Accordingly, CCR is proposing the repeal of Title 40, Chapter 745, Subchapter K, including the repeal of the corresponding rules.
SECTION-BY-SECTION SUMMARY
The proposed repeal deletes rules that are no longer necessary because the rules relating to DFPS have already been addressed by DFPS in Title 40, Chapter 707, and the rules relating to CCR are being proposed by HHSC in Title 26, Chapter 745, Subchapters B, I, and K.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the proposed repeal will be in effect, enforcing or administering the repeal 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 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 new rules;
(6) the proposed repeal will repeal existing rules;
(7) the proposed repeal will not change the number of individuals subject to the rules; 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.
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 repeals will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to the proposed repeal because the repeal does 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 repeal is in effect, the public benefit will be that the rules will be easier to locate in the title of the Texas Administrative Code that relates specifically to HHSC or DFPS and consistent with legislative changes.
Trey Wood has also determined that for the first five years the proposed repeal is 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
HHSC has determined that the proposed repeal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed 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.
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 22R083" in the subject line.
SUBCHAPTER K. INSPECTIONS AND INVESTIGATIONS
DIVISION 1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS
STATUTORY AUTHORITY
The repeals 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 HRC Chapter 42.
The proposed repeals affect Texas Government Code §531.0055 and HRC §42.042.
§745.8401.Who has the right to conduct an inspection or investigation?
§745.8403.What is the purpose of an inspection?
§745.8405.What is the purpose of an investigation?
§745.8407.When will Licensing inspect and/or investigate an operation?
§745.8409.How often may Licensing inspect or investigate my operation?
§745.8411.Are inspections and investigations announced or unannounced?
§745.8413.Must I allow Licensing to inspect and/or investigate my operation?
§745.8415.What can Licensing inspect and/or investigate?
§745.8417.Can Licensing read all of the records during an inspection or investigation?
§745.8419.Can Licensing staff take copies of records from my operation?
§745.8421.Will Licensing investigate anonymous reports?
§745.8423.Will the findings of an anonymous report be posted on the Department's Internet website, Search Texas Child Care?
§745.8425.What will happen if I do not allow Licensing to inspect and/or investigate all areas of my operation?
§745.8427.What are the expectations for a listed family home?
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-202300930
Karen Ray
Chief Counsel
Department of Family and Protective Services
Earliest possible date of adoption: April 16, 2023
For further information, please call: (512) 438-3269
40 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8451, 745.8453, 745.8455
STATUTORY AUTHORITY
The repeals 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 HRC Chapter 42.
The proposed repeals affect Texas Government Code §531.0055 and HRC §42.042.
§745.8441.How will Licensing notify me of the purpose of an unannounced inspection or investigation?
§745.8443.If Licensing does not notify my operation of the nature of the allegation during an investigation, to whom will Licensing convey this information?
§745.8445.Whom will Licensing inform of the inspection and/or investigation results?
§745.8447.What will the notification include?
§745.8449.What must I do if Licensing notifies me of a deficiency?
§745.8451.Who notifies parents an investigator interviewed their child during an abuse/neglect investigation?
§745.8453.If Licensing instructs me to notify a parent that his child was a victim of abuse or neglect or all parents that child abuse or neglect occurred in my operation, what information must I give to the parents and when?
§745.8455.Can PRS hold me responsible for abuse without identifying me as the perpetrator?
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-202300931
Karen Ray
Chief Counsel
Department of Family and Protective Services
Earliest possible date of adoption: April 16, 2023
For further information, please call: (512) 438-3269
40 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8495
STATUTORY AUTHORITY
The repeals 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 HRC Chapter 42.
The proposed repeals affect Texas Government Code §531.0055 and HRC §42.042.
§745.8481.Is information in my operation's monitoring file confidential?
§745.8483.Will you tell me who made the report that resulted in the investigation of my operation?
§745.8485.Are investigations confidential?
§745.8487.What information can Licensing release to the public after the completion of the abuse or neglect investigation?
§745.8489.hat portions of the child abuse or neglect investigation must Licensing keep in the operation's monitoring file?
§745.8491.Who can obtain information from the confidential portions of an abuse or neglect investigation file?
§745.8493.Are there any portions of Licensing records that Licensing may not release to anyone?
§745.8495.Who can review or have a copy of a photograph or an audio or visual recording, depiction, or documentation of a child that is in Licensing records?
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-202300932
Karen Ray
Chief Counsel
Department of Family and Protective Services
Earliest possible date of adoption: April 16, 2023
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The repeals 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 HRC Chapter 42.
The proposed repeals affect Texas Government Code §531.0055 and HRC §42.042.
§745.8511.What are the different types of voluntary actions that an operation may take?
§745.8513.Must Licensing approve all voluntary actions?
§745.8515.Can I prevent Licensing from taking a corrective or adverse action by taking a voluntary action?
§745.8517.What must I do when I temporarily relocate my operation because of damage or renovation?
§745.8519.Can I voluntarily suspend my permit?
§745.8521.How long can I voluntarily suspend my permit?
§745.8523.How do I request voluntary suspension?
§745.8525.Will Licensing automatically grant me a properly requested voluntary suspension?
§745.8527.What are my responsibilities during the voluntary suspension period?
§745.8529.How do I resume operation at the end of the voluntary suspension period?
§745.8531.What if I do not resume operation at the end of the voluntary suspension period?
§745.8533.What if I intend to voluntarily close my operation?
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 27, 2023.
TRD-202300933
Karen Ray
Chief Counsel
Department of Family and Protective Services
Earliest possible date of adoption: April 16, 2023
For further information, please call: (512) 438-3269
40 TAC §§745.8551, 745.8553, 745.8555, 745.8557, 745.8559, 745.8561
STATUTORY AUTHORITY
The repeals 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 HRC Chapter 42.
The proposed repeals affect Texas Government Code §531.0055 and HRC §42.042.
§745.8551.What is the purpose of this division?
§745.8553.Who works "under the auspices of an operation"?
§745.8555.What do the following words mean when Licensing investigates abuse, neglect, or exploitation?
§745.8557.What is abuse?
§745.8559.What is neglect?
§745.8561.When will Licensing use the "reasonable and prudent parent standard" in conducting an investigation of a child-placing agency or general residential operation?
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 27, 2023.
TRD-202300934
Karen Ray
Chief Counsel
Department of Family and Protective Services
Earliest possible date of adoption: April 16, 2023
For further information, please call: (512) 438-3269
40 TAC §§745.8581, 745.8583, 745.8585
STATUTORY AUTHORITY
The repeals 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 HRC Chapter 42.
The proposed repeals affect Texas Government Code §531.0055 and HRC §42.042.
§745.8581.What is technical assistance?
§745.8583.When does Licensing provide technical assistance?
§745.8585.May I request an administrative review for technical assistance offered?
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-202300935
Karen Ray
Chief Counsel
Department of Family and Protective Services
Earliest possible date of adoption: April 16, 2023
For further information, please call: (512) 438-3269