PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 284. COMPETITIVE AND INTEGRATED EMPLOYMENT INITIATIVE FOR CERTAIN MEDICAID RECIPIENTS

26 TAC §§284.101, 284.103, 284.105, 284.107, 284.109, 284.111

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §284.101, concerning Purpose; §284.103, concerning Applicability; §284.105, concerning Uniform Process; §284.107, concerning Strategies to Increase Number of Individuals Receiving Employment Services; §284.109, concerning Referrals to the Texas Workforce Commission; and §284.111 concerning Increasing the Number of Individuals Receiving Employment Services.

BACKGROUND AND PURPOSE

The Community Living Assistance and Support Services (CLASS), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS), Texas Home Living (TxHmL), and STAR+PLUS Home and Community-based Services (STAR+PLUS HCBS) programs each provide employment services. Employment assistance assists an individual in locating competitive employment in the community. Supported employment assists an individual in sustaining competitive employment.

The purpose of the proposed rules is to implement Texas Government Code §531.02448, regarding the employment first initiative, added by Senate Bill (S.B.) 50, 87th Legislature, Regular Session, 2021.

To implement S.B. 50, HHSC developed an HHSC Employment First Uniform Assessment Form to use in the CLASS, DBMD, HCS, TxHmL, and STAR+PLUS HCBS programs to determine an individual's employment goals and the employment opportunities and employment services available to the individual in the individual's program. The proposed rules require the entity responsible for developing an individual's person-centered plan to determine an individual's desire to work. The individual's response will need to be documented in the individual's person-centered service plan. When the individual indicates a desire to work, the responsible entity will complete the HHSC Employment First Uniform Assessment Form at the time the plan is developed, annual renewals, or revisions.

After completing the HHSC Employment First Uniform Assessment Form, if an individual's person-centered service plan does not include employment services through the program in which the individual is enrolled, the proposed rules require an individual's case manager, service coordinator, or managed care organization (MCO) to refer the individual to the Texas Workforce Commission (TWC) for employment services available through the TWC.

SECTION-BY-SECTION SUMMARY

Proposed new §284.101 describes the purpose of new Chapter 284. The proposed rule establishes that the rules in Chapter 284 must be read in conjunction with the rules and policies related to the Medicaid waiver program listed in proposed §284.103 in which an individual is enrolled.

Proposed new §284.103 lists the HHSC §1915(c) and §1115 Medicaid programs to which new Chapter 284 applies.

Proposed new §284.105 covers the steps a case manager, service coordinator, or MCO must follow if an individual's service planning team records the individual's desire to work, during completion of the Employment First Uniform Assessment Form. The proposed rule identifies reasons to use the HHSC Employment First Uniform Assessment Form and instances under which an individual's service planning team must utilize the individual's employment goals and the employment services to develop an individual's person-centered service plan during enrollment, annual renewals, and revisions.

Proposed new §284.107 describes the strategies HHSC will utilize to increase the number of individuals receiving employment services from the TWC or through the program in which an individual is enrolled.

Proposed new §284.109 describes the terms under which an individual's case manager, service coordinator, or MCO must refer the individual to the TWC for employment services available through the TWC.

Proposed new §284.111 specifies HHSC's determination that the number of individuals receiving employments on December 31, 2023, from the TWC or through the program in which the individuals are enrolled will be at least five percent greater than the number of individuals receiving employment services on December 31, 2022.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will not be a fiscal impact to state government.

Trey Wood has also determined that for each year of the first five years that the rules will be in effect, the proposed rules may result in an increase in cost to local intellectual and developmental disability authorities (LIDDAs) who are local governments. The increased cost could result from the requirement for LIDDA service coordinators, during a service planning meeting, to complete the Employment First Uniform Assessment Form. Completing the form may require additional time spent by the service coordinators during a service planning team meeting for each individual that expresses a desire to work. However, HHSC is unable to estimate any additional costs LIDDAs may incur.

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 the proposed rules could have an adverse economic effect on waiver program providers who are small businesses or micro-businesses in that there will be a cost to comply. However, HHSC does not have the data to estimate how many of the approximately 804 waiver program providers are small businesses or micro businesses. No rural communities contract with HHSC to provide services in these waiver programs, and MCOs are not considered small business or micro-businesses.

HHSC determined alternative methods to achieve the purpose of the proposed rules for small businesses and micro-businesses would not be consistent with ensuring the health and safety of individuals receiving services in the CLASS, DBMD, HCS, TxHmL, and STAR+PLUS HCBS waiver programs.

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 and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Stephanie Stephens, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public benefit will be a standardized and uniform assessment questionnaire designed to improve access to employment services within the home and community-based waiver programs as well as a projected increase in the number of individuals who elect to participate in the workforce.

Trey Wood has also determined that for the first five years the rules are in effect, the proposed rules could result in an increase in costs to LIDDAs; CLASS, DBMD, HCS, and TxHmL program providers; and MCOs for the STAR+PLUS HCBS Program due to the additional time it will take to complete the Employment First Uniform Assessment Form during a service planning team meeting after an individual expresses a desire to work. After completing the Employment First Uniform Assessment Form, additional time will be required to develop, revise, or renew an individual's person-centered service plan or to refer the individual to TWC for employment services if the individual requests to receive or is receiving employment services. However, HHSC is unable to estimate any additional costs they may incur.

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 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 22R102" in the subject line.

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; Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules as necessary to carry out the commission's duties; and Texas Human Resources Code §32.021(c) and Texas Government Code §531.021(a), which authorize HHSC to administer the federal medical assistance (Medicaid) program.

The new sections are specifically authorized by and affect Texas Government Code §531.02448.

§284.101.Purpose.

(a) The purpose of this chapter is to implement Texas Government Code §531.02448.

(b) The rules in this chapter must be read in conjunction with the rules and policies related to the Medicaid programs listed in §284.103 of this chapter (relating to Applicability) in which an individual is enrolled.

§284.103.Applicability.

This chapter applies to an individual receiving services under the following Medicaid programs authorized by Section 1915(c) or Section 1115 of the Social Security Act:

(1) the Home and Community-based Services (HCS) Program;

(2) the Texas Home Living (TxHmL) Program;

(3) the Deaf Blind with Multiple Disabilities (DBMD) Program;

(4) the Community Living Assistance and Support Services (CLASS) Program; and

(5) the STAR+PLUS Home and Community-Based Services program.

§284.105.Uniform Process.

(a) An individual's service planning team must determine during the person-centered planning process whether an individual desires to work and if so, the individual's program provider's case manager, local intellectual and developmental disability authority service coordinator, or managed care organization (MCO) must:

(1) document the individual's desire to work on the individual's person-centered service plan; and

(2) complete the HHSC Employment First Uniform Assessment Form available on the HHSC website to determine:

(A) the individual's employment goals; and

(B) the employment opportunities and employment services available to the individual through the program in which the individual is enrolled.

(b) An individual's service planning team must use the individual's employment goals, employment opportunities, and the employment services chosen by the individual to develop the individual's person-centered service plan.

(c) An individual's program provider's case manager, local intellectual and developmental disability authority service coordinator, or MCO must ensure that the requirements in subsections (a) and (b) of this section are followed when the individual's service planning team meets to:

(1) develop the individual's person-centered service plan upon:

(A) initial enrollment; and

(B) for annual renewals; and

(2) revise the individual's person-centered service plan if the individual expresses a desire to work and the individual's person-centered service plan does not include an employment service.

§284.107.Strategies to Increase Number of Individuals Receiving Employment Services.

The Texas Health and Human Services Commission (HHSC) utilizes the following strategies to increase the number of individuals receiving employment services from the Texas Workforce Commission (TWC) or through the waiver program in which an individual is enrolled:

(1) use of the HHSC Employment First Uniform Assessment Form identified in §284.105(a)(2) of this chapter (relating to Uniform Process);

(2) maintain a memorandum of understanding between HHSC and TWC to enable data sharing between those agencies in order to measure the number of individuals utilizing employment services;

(3) implement an employment-first policy jointly adopted by HHSC, the Texas Education Agency (TEA), and the TWC in accordance with Texas Government Code §531.02447(b); and

(4) implement additional strategies as outlined in the Promoting Independence Plan, which is HHSC's plan for implementing its obligation to provide people with disabilities opportunities to live, work, and be served in integrated settings.

§284.109.Referrals to the Texas Workforce Commission.

After completing the HHSC Employment First Uniform Assessment Form, as described in §284.105(a)(2) of this chapter (relating to Uniform Process), if an individual's person-centered service plan does not include employment services through the waiver program in which the individual is enrolled, the individual's program provider's case manager, local intellectual and developmental disability authority service coordinator, or managed care organization must refer the individual to the Texas Workforce Commission (TWC) for employment services available through the TWC.

§284.111.Increasing the Number of Individuals Receiving Employment Services.

The Texas Health and Human Services Commission will ensure that the number of individuals receiving employment services from the Texas Workforce Commission or through the programs in which the individuals are enrolled on December 31, 2023, is at least 5% greater than the number of individuals receiving employment services on December 31, 2022.

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 May 8, 2023.

TRD-202301663

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

For further information, please call: (512) 438-4224

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, 745.8319, and 745.8321; and repeals of §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, and 745.8319 in Title 26, Texas Administrative Code (TAC), Chapter 745, Subchapter J, Waivers and Variances for Minimum Standards.

BACKGROUND AND PURPOSE

The proposal is necessary to align 26 TAC Chapter 745, Subchapter J, with 42 United States Code §671(a)(10) so that HHSC Child Care Regulation (CCR) may only approve a waiver request for a kinship foster home.

The proposal is also necessary to align 26 TAC Chapter 745, Subchapter J, with current practices and update the subchapter as needed for clarity.

SECTION-BY-SECTION SUMMARY

Proposed new §745.8301 provides terms and definitions needed to understand the subchapter. The proposed rule has the content from repealed §745.8303. Additional content includes the terms "Foster family home," "Foster parent," and "Kinship foster home" and their definitions.

Proposed new §745.8303 clarifies that a minimum standard is ineligible for a waiver or variance if the standard is required by state or federal law. The proposed rule incorporates relevant content from repealed §745.8307.

Proposed new §745.8305 covers how an operation must request a waiver or variance. The proposed rule (1) incorporates the content from repealed §745.8305 and clarifies what an operation must submit in writing to request a waiver or variance; (2) clarifies that a waiver or variance request may only be for one operation and one minimum standard number or subsection; and (3) clarifies that if a child-placing agency is requesting a waiver or variance for a minimum standard related to foster care, the request can be for only one foster home.

Proposed new §745.8307 indicates how long CCR has to process a request for a waiver or variance. The proposed rule (1) incorporates the content from repealed §745.8309; and (2) clarifies CCR's procedures for processing a waiver or variance and how long the processing takes, including when CCR will notify the requestor of the final decision.

Proposed new §745.8309 describes when a waiver or variance expires and what must happen before it expires. The proposed rule (1) incorporates the content from repealed §745.8311; (2) adds timeframes for requesting a new waiver or variance prior to the expiration date of the current one; and (3) clarifies that an operation must comply with the minimum standard at the time a waiver or variance expires, even if a new request relating to that standard is pending CCR's review.

Proposed new §745.8311 clarifies what conditions CCR may place on an approved waiver or variance. The proposed rule (1) incorporates the content from repealed §745.8313; (2) provides that CCR may place any condition on an approved waiver or variance; and (3) clarifies that the operation must comply with each condition while the waiver or variance is in place.

Proposed new §745.8313 lists the factors that CCR considers when deciding whether to grant a waiver or variance. The proposed rule (1) incorporates relevant content from repealed §745.8307; (2) adds whether the minimum standard is ineligible for a waiver or variance described in proposed new §745.8303 as a factor; (3) clarifies that the factor for compliance history includes past and present enforcement actions; (4) adds the operation's permit status as a factor; (4) adds whether the operation is on heightened monitoring as a factor; and (5) adds a reference to the additional considerations for foster homes in proposed new §745.8315 as a factor.

Proposed new §745.8315 describes factors, in addition to those in §745.8313, that CCR considers when deciding whether to grant a waiver or variance for a foster home. The proposed rule adds the compliance history of the foster home as a factor when the request is associated with a foster home. The proposed rule also adds any limitations in state or federal law as a factor, including (1) only granting a waiver for a kinship foster home; and (2) considering certain limitations to increasing the maximum number of foster children cared for by a foster home.

Proposed new §745.8317 provides the factors that CCR considers when determining the expiration date and conditions are the same as the factors in proposed new §745.8313.

Proposed new §745.8319 (1) describes when CCR can amend or revoke a waiver or variance; and (2) provides a cross-reference to proposed new §745.8321. The proposed rule incorporates content from repealed §745.8301 that explains a waiver or variance is not an entitlement and most of the content from repealed §745.8317.

Proposed new §745.8321 describes what an operation may do if it disagrees with CCR's decision related to a waiver or variance. Specifically, the rule provides procedures on how the operation may dispute the decision, and what the operation must do to be in compliance while disputing the decision. The proposed rule incorporates some of the content from repealed §745.8315 and §745.8319.

The proposed repeal of §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, and 745.8319 accommodates the new rules being proposed and removes content no longer needed because the new rules incorporate most of the repealed content.

FISCAL NOTE

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

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $24,468 in fiscal year (FY) 2024, $0 in FY 2025, $0 in FY 2026, $0 in FY 2027, and $0 in FY 2028.

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 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. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules (1) are necessary to protect the health, safety, and welfare of the residents of Texas; (2) do not impose a cost on regulated persons; and (3) are necessary to comply with federal law.

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 rule is in effect the public benefit will be (1) increased compliance with statutory requirements; and (2) more clarity for stakeholders regarding the requirements and procedures for waivers and variances.

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

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R113" in the subject line.

SUBCHAPTER J. WAIVERS AND VARIANCES FOR MINIMUM STANDARDS

26 TAC §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, 745.8319

STATUTORY AUTHORITY

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

The repealed rules affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§745.8301.What if I cannot comply with a specific minimum standard?

§745.8303.What is the difference between a waiver and a variance?

§745.8305.How do I request a waiver or variance?

§745.8307.How does Licensing make the decision to grant or deny my waiver or variance request?

§745.8309.Who makes the decision to grant or deny my waiver or variance request?

§745.8311.Does a waiver or variance expire?

§745.8313.Is a waiver or variance unconditional?

§745.8315.What if I disagree with the time limit or conditions that Licensing places on my waiver or variance?

§745.8317.Can Licensing amend or revoke a waiver or variance, including its conditions?

§745.8319.What can I do if Licensing denies or revokes my waiver or variance?

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 May 11, 2023.

TRD-202301726

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

STATUTORY AUTHORITY

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

The repealed rules affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.

§745.8301.What words must I know to understand this subchapter?

These words have the following meanings in this subchapter:

(1) Foster family home--A home that is the primary residence of the foster parent or parents and provides care to six or fewer children or young adults, under the regulation of a child-placing agency. Also referred to as "foster home."

(2) Foster parent--A person verified to provide child care services in the foster home.

(3) Kinship foster home--A foster family home with a foster parent or parents who:

(A) Is related to a foster child by consanguinity or affinity; or

(B) Has a longstanding and significant relationship with the foster child before the child is placed with the foster parent.

(4) Waiver--A decision by Licensing that waives an operation's compliance with a minimum standard if the economic impact of compliance with that standard is great enough to make compliance impractical.

(5) Variance--A decision by Licensing that there is good and just cause for an operation to meet the purpose of a minimum standard in a different way.

§745.8303.What minimum standards are ineligible for a waiver or variance?

A minimum standard is ineligible for a waiver or variance if the minimum standard is required by state or federal law.

§745.8305.How do I request a waiver or variance?

(a) You must request a waiver or variance in writing by submitting a completed:

(1) Waiver/Variance Request through your online account and separately providing any supporting documentation to your Licensing representative; or

(2) Form 2937 Child Care Regulation Waiver/Variance Request, or the information required by the form and any supporting documentation, to your Licensing representative.

(b) A waiver or variance request may only be for:

(1) One operation; and

(2) One minimum standard number or subsection.

(c) If a child-placing agency is requesting a waiver or variance for a minimum standard related to foster care, the waiver or variance request can be for only one foster home.

§745.8307.How long does Licensing have to process a request for a waiver or variance?

(a) Within 15 days after Licensing receives a request, the Licensing representative:

(1) Reviews the request and any supporting documentation; and

(2) Makes a recommendation to the supervisor or the supervisor's designee whether to grant the request for a waiver or variance.

(b) Within 15 days after receiving the Licensing representative's recommendation, the supervisor or designee makes the final decision whether to grant the waiver or variance.

(c) Within five days after the supervisor makes the final decision, Licensing staff notifies the requester of the final decision.

§745.8309.When does a waiver or variance expire, and what must I do before it expires?

(a) We grant a waiver or variance for a specific amount of time. The waiver or variance will include its expiration date.

(b) We may issue a waiver or variance for up to three years. If you need a waiver or variance for a time period that exceeds three years, you will have to submit a new request as explained in subsection (c) of this section.

(c) If you will still need a waiver or variance after the waiver or variance expires, you must submit a new request to us according to §745.8305 of this subchapter (relating to How do I request a waiver or variance?):

(1) At least 35 days prior to the expiration; or

(2) As soon as possible, if the expiration date of the waiver or variance is less than 35 days from the date we granted it.

(d) When your waiver or variance expires, you must comply with the minimum standard, even if a new request related to that standard is pending our review.

§745.8311.What conditions may Licensing place on an approved waiver or variance?

(a) We may place any condition on a waiver or variance we determine is necessary to protect the health and safety of children in your care.

(b) You must comply with each condition while the waiver or variance is in effect.

§745.8313.What factors do we consider when deciding whether to grant a waiver or variance?

When deciding whether to grant a waiver or variance, we consider:

(1) Whether the minimum standard is ineligible for a waiver or variance as outlined in §745.8303 of this subchapter (relating to What minimum standards are ineligible for a waiver or variance?);

(2) The risk to children if your operation or foster home does not meet the standard;

(3) The compliance history of your operation, including past and current enforcement actions;

(4) Any waivers or variances currently in effect;

(5) Your permit status, including if you are an applicant or have an initial license;

(6) Whether your operation is on heightened monitoring;

(7) Any economic factors or other constraints affecting your ability to comply;

(8) If the request is for a foster home, the additional factors for a foster home as required by §745.8315 of this subchapter (relating to What additional factors does Licensing consider when deciding whether to grant a waiver or variance for a foster home?); and

(9) Any other factor relevant to your request or operation that we identify.

§745.8315.What additional factors does Licensing consider when deciding whether to grant a waiver or variance for a foster home?

(a) If the request is associated with a foster home, we will consider the compliance history of the foster home.

(b) When processing a request for a waiver or variance related to a foster home, we will consider any limitations in state or federal law, including only granting:

(1) A waiver for a kinship foster home; and

(2) A variance if the request is to increase the maximum number of foster children a foster home may care for under §749.2551 of this title (relating to What is the maximum number of children a foster family home may care for?), and:

(A) The foster home does not meet the exception criteria under §749.2551(b) of this title; or

(B) Granting the variance would not result in the home's:

(i) Foster care capacity exceeding six foster children, unless the foster home meets one of the requirements in paragraph §749.2551(b)(1) of this title; or

(ii) Total capacity exceeding eight children.

§745.8317.What factors do we consider when determining the expiration date and conditions for a waiver or variance?

If we grant you a waiver or variance, we will also use the factors listed in §745.8313 of this subchapter (relating to What factors do we consider when deciding whether to grant a waiver or variance?) when determining the expiration date and what conditions to put on the waiver or variance.

§745.8319.Can Licensing amend or revoke a waiver or variance?

(a) A waiver or variance is not an entitlement. Accordingly, we may amend or revoke your waiver or variance if we determine that:

(1) Your waiver or variance does not address a risk to children that currently exists;

(2) The circumstances that supported the decision to grant the waiver or variance have changed;

(3) You fail to meet a condition; or

(4) Your waiver or variance requires an additional or alternative condition.

(b) If you disagree with an amendment to your waiver or variance, see §745.8321 of this subchapter (relating to What can I do if I disagree with Licensing's decision related to a waiver or variance?).

§745.8321.What can I do if I disagree with Licensing's decision related to a waiver or variance?

(a) When you disagree with the original expiration date or original conditions associated with a waiver or variance that Licensing granted:

Figure: 26 TAC §745.8321(a) (.pdf)

(b) When we deny, revoke, or amend a waiver or variance:

Figure: 26 TAC §745.8321(b) (.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 May 11, 2023.

TRD-202301727

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

SUBCHAPTER N. ADMINISTRATOR'S LICENSING

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§745.8901, 745.8903, 745.8909, 745.8915, 745.8917, 745.8919, 745.8933, 745.8935, 745.9031, and 745.9037; new §§745.8906, 745.8908, 745.8923, 745.8925, 745.8927, 745.8929, 745.8930, 745.8973, 745.8975, 745.8976, 745.8977, 745.8979, 745,8981, 745.8982, 745.8983, 745.8985, 745.8986, 745.8987, and 745. 8989; and repeal of §§745.8991, 745.8994, 745.8999, 745.9007, 745.9019, 745.9021, and 745.9023 in Title 26, Texas Administrative Code, Chapter 745, Licensing, Subchapter N, Administrator's Licensing.

BACKGROUND AND PURPOSE

The rule changes implement Senate Bill (S.B.) 1896, 87th Legislature, Regular Session, 2021, as it relates to SECTION 25 of the bill.

SECTION 25 amended Texas Human Resources Code (HRC) §43.0081(a) to add (a)(2)(A) and (B) to allow HHSC Child Care Regulation (CCR) to issue a provisional child-care administrator's license when an applicant does not meet the one-year supervisory experience requirement provided in HRC §43.004(a)(4), but otherwise qualifies for a license so long as the applicant complies with any additional requirements established in rule. SECTION 25 also amended HRC §43.0081 by adding subsection (e), to allow the executive commissioner to establish in rule any additional requirements that apply when a provisional child-care administrator's license is issued under HRC §43.0081(a)(2)(A).

In addition to implementing SECTION 25 of S.B. 1896, CCR is proposing other changes to Chapter 745, Licensing, Subchapter N, Administrator's Licensing. These changes add administrator conduct expectations, update rules to reflect current business practice, update wording in rule to improve understanding and readability, add a new division, renumber subsection divisions, and reorganize divisions to improve the overall organization of Subchapter N.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.8901 (1) updates the wording for improved readability and understanding; (2) adds a citation; and (3) clarifies that a child-care administrator may hold a full child-care administrator's license or a provisional child-care administrator's license.

The proposed amendment to §745.8903 (1) updates the wording for improved readability; and (2) clarifies that a child-placing agency (CPA) administrator must hold a full child-placing agency administrator's license.

Proposed new §745.8906 outlines the types of administrator's licenses that CCR may issue and the requirements the applicant must meet for each license type. The license types include (1) a full child-care administrator's license if an applicant meets requirements in §745.8915; (2) a provisional child-care administrator's license if an applicant meets requirements in proposed new §745.8925 or §745.8913; and (3) a full child-placing agency administrator's license if the applicant meets the requirements in amended §745.8917.

Proposed new §745.8908 explains that a child-care administrator may only serve as an administrator at a general residential operation with a provisional child-care administrator's license as provided in proposed new §748.532.

The proposed amendment to §745.8909 (1) updates the rule title and content to clarify that a child-placing agency administrator's license must be a full administrator's license; and (2) removes references to operation types that no longer exist.

The proposed amendment to §745.8915 (1) updates the rule title and content to clarify that the rule applies to the qualifications needed for a full child-care administrator's license; (2) updates wording for improved readability; (3) updates the title of a rule reference; and (4) requires a transcript or letter of verification from the appropriate educational institution to be submitted as part of an application so that CCR may determine whether the applicant meets the educational requirements. CCR will evaluate the transcript or letter of verification to determine whether an applicant meets the required course of study. In addition, to determine the authenticity of the transcript or educational institution, CCR may (A) contact the educational institution and (B) conduct other research to assist with our determination.

The proposed amendment to §745.8917 (1) updates the rule title and content to clarify that the rule applies to the qualifications needed for a full child-placing agency administrator's license; (2) updates wording to improve readability; (3) updates the title of a rule reference; and (4) requires a transcript or letter of verification from the appropriate educational institution be submitted as part of an application so that CCR may determine whether the applicant meets the educational requirements. CCR will evaluate the transcript or letter of verification to determine whether an applicant meets the required course of study. In addition, to determine the authenticity of the transcript or educational institution, CCR may (A) contact the educational institution and (B) conduct other research to assist with our determination.

The proposed amendment to §745.8919 (1) updates the rule title and content to clarify that the one year of management or supervisory experience described applies to the qualifications needed for full child-care administrator's license or a full child-placing agency administrator's license; and (2) deletes subsection (d), which allows the Associate Commissioner to grant an exception to the required management or supervisory experience required in this rule, because proposed new §745.8923 will now address this issue.

Proposed new §745.8923 outlines what CCR may do if the applicant does not meet the one year of management or supervisory experience required for a full administrator's license. The rule allows CCR to issue (1) a provisional child-care administrator's license if the applicant meets the management or supervisory experience required in proposed new §745.8925; and (2) a full child-placing agency administrator's license if the Associate Commissioner of CCR determines that the applicant has provided compelling justification that the applicant's experience qualifies the applicant to serve as a licensed administrator of a CPA.

Proposed new §745.8925 outlines the qualifications an applicant must meet for CCR to issue a provisional child-care administrator's license if the applicant does not meet the one year of management or supervisory experience required for a full child-care administrant's license: (1) pass the administrator's examination; (2) pass the required background checks; (3) have either a master's degree in social work or closely related field, or bachelor's degree and two years' experience in a child-care setting; (4) have documented six months of management or supervisory experience required in proposed new §745.8927; and (5) have not been denied a full child-care administrator's license.

Proposed new §745.8927 outlines the type of management or supervisory experience that is needed to qualify for a provisional child-care administrator's license if the applicant does not meet the experience requirement for a full child-care administrator's license. The rule requires an applicant to submit an employer reference that substantiates the (1) applicant has six months of management or supervisory experience within the last ten years; (2) management or supervisory experience was in a setting working primarily with children; and (3) applicant supervised at least one employee, and supervision responsibilities included assigning duties, hiring, disciplining, approving leave requests, and conducting formal evaluations.

Proposed new §745.8929 sets forth conduct expectations for licensed administrators or applicants when interacting with HHSC. The rule (1) prohibits a licensed administrator or applicant from attempting to interfere with HHSC's ability to conduct agency business; (2) outlines the type of conduct that constitutes interface with agency business, which would include (A) interfering with, coercing, threatening, intimidating, retaliating against, or harassing an HHSC staff member in connection with the person's exercise of HHSC's regulatory duties, or (B) engaging in conduct or directing language at HHSC staff that a reasonable person would find to be harassing, intimidating, or threatening to HHSC staff; and (3) states that HHSC may determine an administrator or applicant has attempted to interfere with HHSC's ability to conduct agency business even if the person's conduct (A) does not occur during in the presence of HHSC staff, or (B) during any regulatory activity.

Proposed new §745.8930 sets forth the responsibilities that a licensed administrator must meet while serving as a licensed administrator at an operation. The rule (1) requires a child-care administrator to carry out responsibilities as outlined in §748.535 while serving as a licensed administrator at a GRO and (2) requires a child-placing agency administrator to carry out responsibilities as outlined in §749.635 while serving as a licensed administrator at a CPA.

The proposed amendment to §745.8933 (1) updates wording to improve understanding; (2) updates a citation and the title of a rule reference; (3) adds a requirement for an applicant to submit an employer reference documenting six months of management or supervisory experience as part of a complete application if an applicant is applying for a provisional child-care administrator's license because the applicant does not meet the one year of management or supervisory experience required for a full child-care administrator's license; and (4) updates numbering of subsections accordingly.

The proposed amendment to §745.8935 updates (1) the rule title to clarify that the rule applies to the requirements to apply for both full child-care administrator's license and a full child-placing agency administrator's license; (2) a citation; (3) wording to improve understanding and readability; and (4) the title of a rule reference.

The proposed new Division 4, Maintaining Your Administrator's License, contains proposed new rules relating to the maintenance of an administrator's license.

Proposed new §745.8973 (1) incorporates into this rule the proposed repealed §745.9021, relating to the required notifications that a licensed administrator must report to CCR and how CCR may use the information reported; and (2) updates wording for understanding and to more accurately reflect how CCR may use information reported to CCR.

Proposed new §745.8975 (1) incorporates into this rule the proposed repealed §745.8991, relating to how long a full child-care administrator's or child-placing agency administrator's license is valid; and (2) updates language to clarify that the rule applies to full administrator licenses.

Proposed new §745.8976 establishes the maximum time that a provisional child-care administrator's license can remain valid. The proposed new rule states a provisional child-care administrator's license (1) issued under proposed new §745.8925 (A) may remain valid for up to two years from the date of issuance and (B) is not eligible for renewal; and (2) issued under §745.8913(b) (A) may be valid for up to 180 days from the date the permit is issued, and (B) may be extended one time for an additional 180 days.

Proposed new §745.8977 outlines the process for requesting to change the status of a provisional child-care administrator's license to a full child-care administrator's license. This rule (1) allows an individual with a provisional child-care administrator's license to request to change the status to a full child-care administrator's license as soon as the individual meets the minimum management or supervisory experience required for a full license, as long as the request is made before the provisional child-care administrator's license expires; (2) requires to be submitted as part of the request to change the status (A) a completed Renewal of Change of Status form, (B) evidence that the individual has completed the minimum number of continuing education training hours, and (C) an employer reference documenting the one year of management or supervisory experience needed for a full child-care administrator's license; (3) clarifies that CCR will not change the status if there is reason to deny the full administrator's license; and (4) clarifies that if a request to change the status of a provisional child-care administrator's license is received after the date listed on the permit (A) the provisional child-care administrator's license will expire and (B) the individual must reapply for another administrator's license.

Proposed new §745.8979 outlines that a provisional child-care administrator's license will expire if the permit holder is not able to meet the required one year of management or supervisory experience before the expiration date listed on the provisional license.

Proposed new §745.8981 outlines the requirements associated with an expired provisional child-care administrator's license. The rule (1) requires an individual with an expired child-care administrator's license to (A) stop acting and representing him or herself as a licensed child-care administrator and (B) return the provisional child-care administrator's license certificate to CCR; (2) requires the individual to submit a new application if the individual wishes to receive another provisional child-care administrator's license; and (3) clarifies that CCR will not accept a new application if the individual has not returned the expired provisional license certificate.

Proposed new §745.8982 outlines that, when an individual with a provisional child-care administrator's license whose license expires while CCR is processing a request to change the status to a full license, the individual may continue to serve as a child-care administrator if the individual (1) requests to change the status under proposed new §745.8777; (2) submits the request before the expiration date of the provisional license; and (3) is serving as a child-care administrator for an operation at the time the request is submitted.

Proposed new §745.8983 outlines the number of hours of continuing education training needed to maintain an administrator's license. The rule (1) requires the administrator to complete 15 clock hours of continuing education each year to maintain a full administrator's license, which is consistent with the requirement in §745.8993; and (2) outlines the number of training hours a person with a provisional child-care administrator's license must complete when the person is requesting the license status be changed to a full child-care administrator's license, based on how long the provisional license has been in effect.

Proposed new §745.8985 (1) incorporates the requirements in repealed §745.8994, relating to the criteria training must meet to qualify as continuing education hours required to maintain an administrator's license; and (2) adds that the criteria apply to training required to maintain a provisional child-care administrator's license in addition to a full administrator's license.

Proposed new §745.8986 (1) incorporates the requirements in repealed §745.8999, relating to requirements associated with placing a full administrator's license on inactive status; and (2) clarifies that a provisional child-care administrator's license does not qualify for inactive status.

Proposed new §745.8987 (1) incorporates the requirements in repealed §745.9007, relating to the requirements needed to change the status of an administrator's license from inactive to active; and (2) clarifies that these requirements only apply to full administrator licenses.

Proposed new §745.8989 (1) incorporates the requirements in repealed §745.9019, relating to the process for obtaining an additional copy of an administrator's license; and (2) clarifies that an administrator may only request an additional copy if the original copy is lost or destroyed.

Current Division 4, Renewing Your Administrator License, is renumbered to Division 5 to accommodate proposed new Division 4, Maintaining Your Administrator's License.

The proposed repeal of §745.8991 deletes the rule as no longer necessary because the contents of the rule have been proposed in new §745.8975 with amendments.

The proposed repeal of §745.8994 deletes the rule as no longer necessary because the contents of the rule have been proposed in new §745.8985 with amendments.

The proposed repeal of §745.8999 deletes the rule as no longer necessary because the contents of the rule have been proposed in new §745.8986 with amendments.

The proposed repeal of §745.9007 deletes the rule as no longer necessary because the contents of the rule have been proposed in new §745.8987 with amendments.

The proposed repeal of §745.9019 deletes the rule as no longer necessary because the contents of the rule have been proposed in new §745.8989 with amendments.

The proposed repeal of §745.9021 deletes the rule as no longer necessary because the contents of the rule have been proposed in new §745.8973 with amendments.

The proposed repeal of §745.9023 deletes the rule as no longer necessary because the authority to take actions described in this rule are already covered in Texas Human Resources Code Chapter 43 and in §745.9037 (relating to Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?).

Current Division 5, Military Members, Military Spouses, and Military Veterans is renumbered to Division 6 to accommodate proposed new Division 4, Maintaining Your Administrator's License.

Current Division 6, Remedial Actions, is renumbered to Division 7 to accommodate proposed new Division 4, Maintaining Your Administrator's License.

The proposed amendment to §745.9031 (1) clarifies the remedial actions in subsection (a) are those that CCR may take against a full administrator's license; and (2) adds subsection (b) to outline that CCR may take remedial action against a provisional child-care administrator's license by denying the administrator a full administrator's license without separately revoking the provisional child-care administrator's license.

The proposed amendment to §745.9037 (1) adds new subsection (b) to clarify that, when CCR denies a full administrator's license for an issue identified in §745.9037(a) for an individual with a provisional child-care administrator's license, (A) the permit is no longer valid and (B) the individual is prohibited from continuing to serve or represent the individual as a licensed administrator pending the outcome of due process; (2) updates renumbering of the remaining subsections accordingly; (3) adds denial of a full child-care administrator's license after issuing a provisional license to the list of circumstances in which an individual must return an administrator's license certificate to CCR; (4) clarifies that CCR may take an action in relation to a rule adopted under Chapter 43, HRC; and (5) updates the language for readability and understanding.

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 increase the number of individuals subject to the rules; and

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

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because there is no change to business practices.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be (1) improved oversight of general residential operations, including residential treatment centers, because there will be an increase in the number of licensed child-care administrators available for hire; (2) rules that comply with state law; and (3) rules that reflect current business practice.

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 application and examination fee to apply for a provisional child-care administrator's license are the same as one would incur when applying for a full child-care administrator's license.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

Written comments on the proposal may be submitted to Jennifer Ritter, 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 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 22R114" in the subject line.

DIVISION 1. OVERVIEW OF ADMINISTRATOR'S LICENSING

26 TAC §§745.8901, 745.8903, 745.8906, 745.8908, 745.8909, 745.8915, 745.8917, 745.8919, 745.8923, 745.8925, 745.8927, 745.8929, 745.8930

STATUTORY AUTHORITY

The amendments and 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 the Texas Department of Family and Protective Services to HHSC. In addition, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendments and new sections affect Texas Government Code §531.0055 and HRC §43.0081(a)(2) and (e).

§745.8901.What is a child-care administrator?

(a) A child-care administrator is a person who:

(1) Supervises and exercises direct control over a general residential [child-care] operation, including [or] a residential treatment center as defined in §745.37(3) of this chapter (relating to What specific types of operations does Licensing regulate?); and

(2) Is responsible for the operation's program [program(s)] and personnel, regardless of whether the person has an ownership interest in the operation or shares duties with anyone.

(b) A child-care administrator may hold a full child-care administrator's license (CCAL) or a provisional CCAL.

§745.8903.What is a child-placing agency administrator?

(a) A child-placing agency administrator is a person who:

(1) Supervises and exercises direct control over a child-placing agency, as defined in §745.37(3) [§745.37(3)(D) ] of this title (relating to What specific types of operations does Licensing regulate?); and

(2) Is responsible for the agency's program [program(s)] and personnel, regardless of whether the person has an ownership interest in the agency or shares duties with anyone.

(b) A child-placing agency administrator must hold a full CPAAL as required by §745.8909 of this division (relating to When must I have a full Child Placing Agency Administrator's License (CPAAL)?).

§745.8906.What type of administrator's license may Licensing issue to an applicant?

We may issue an administrator's license to an applicant as described in the following chart:

Figure: 26 TAC §745.8906 (.pdf)

§745.8908.Where may a person serve as a child-care administrator with a provisional Child-Care Administrator's License (CCAL)?

A child-care administrator with a provisional CCAL issued under §745.8925 of this division (relating to How do I qualify for a provisional Child-Care Administrator's License (CCAL) if I do not meet the minimum management or supervisory experience required for a full CCAL?) may serve as the administrator at a general residential operation as provided in §748.532 of this title (relating to When can a child-care administrator with a provisional license serve as the administrator for a general residential operation?).

§745.8909.When must I have a full Child-Placing Agency Administrator's License (CPAAL)?

You must have a full CPAAL to serve as a child-placing agency administrator. [You do not need this license to serve as the administrator for an independent foster family or group home.]

§745.8915.How do [Do] I qualify for a full Child-Care Administrator's License (CCAL) [CCAL]?

(a) To [You] qualify for a full CCAL, [if] you must:

(1) Pass an examination, which is offered by Licensing, that demonstrates competence in the field of child-care administration;

(2) Be in compliance with Subchapter F of this chapter (relating to Background Checks), including not having a criminal history or child abuse or neglect finding that would prohibit you from working in a residential child-care operation;

(3) Have one year of full-time experience in management or supervision of personnel and programs as specified in §745.8919 of this division (relating to What qualifies as one year of experience in management or supervision of personnel and programs required to qualify for a full Child-Care Administrator's (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL)?); and

(4) Have one of the following qualifications:

(A) A master's or doctor of philosophy degree in social work or other area of study; or

(B) A bachelor's degree and two years' full-time experience in residential child care or a closely related field.

(b) In order to determine whether you meet the educational requirements in subsection (a) of this rule, your application must include a transcript or letter of verification from the appropriate educational institution. Our determination will include whether you completed the required course of study. In order to determine the authenticity of the transcript or the educational institution listed on the transcript or letter of verification, we may:

(1) Contact the educational institution; and

(2) Conduct other research to assist our determination.

§745.8917.How do [Do] I qualify for a full Child-Placing Agency Administrator's License (CPAAL)[CPAAL]?

(a) To [You] qualify for a full CPAAL, [if] you must:

(1) Pass an examination, which is offered by Licensing, that demonstrates competence in the field of child-placing administration;

(2) Be in compliance with Subchapter F of this chapter (relating to Background Checks), including not having a criminal history or child abuse or neglect finding that would prohibit you from working in a residential child-care operation;

(3) Have one year of full-time experience in management or supervision of personnel and programs as specified in §745.8919 of this division (relating to What qualifies as one year of experience in management or supervision of personnel and programs required to qualify for a full Child-Care Administrator's (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL)?); and

(4) Have one of the following qualifications:

(A) A master's or doctor of philosophy degree in social work or other area of study; or

(B) A bachelor's degree and two years' full-time experience in residential child care or a closely related field.

(b) In order to determine whether you meet the educational requirements in subsection (a) of this section, your application must include a transcript or letter of verification from the appropriate educational institution. Our determination will include whether you completed the required course of study. In order to determine the authenticity of the transcript or the educational institution listed on the transcript or letter of verification, we may:

(1) Contact the educational institution; and

(2) Conduct other research to assist our determination.

§745.8919.What qualifies as one year of experience in management or supervision of personnel and programs required to qualify for a full Child-Care Administrator's License (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL)?

(a) To qualify for a full CCAL, you must substantiate through an employer reference that:

(1) You have completed the one year of full-time experience in management or supervision of residential child-care personnel and programs within the past 10 years;

(2) Your experience was at a general residential operation, residential treatment center, or in a comparable residential operation in which you worked primarily with children;

(3) If you were not solely responsible for implementing the operation's child-care program, that you shared in that responsibility; and

(4) You supervised at least one member of the child-care personnel and your supervision responsibilities included assigning duties, hiring, disciplining, rewarding, approving leave requests, and conducting formal employee evaluations.

(b) To qualify for a full CPAAL, you must substantiate through an employer reference that:

(1) You have completed the one year of full-time experience in management or supervision of child-placing personnel and programs within the past 10 years;

(2) Your experience was at a child-placing agency;

(3) If you were not solely responsible for implementing the agency's child-placing program, that you shared in that responsibility; and

(4) You supervised at least one member of the child-placing agency personnel and your supervision responsibilities included assigning duties, hiring, disciplining, rewarding, approving leave requests, and conducting formal employee evaluations.

(c) Experience as a foster parent, adoptive parent, or any other type of caregiver or staff person in an agency home does not meet the requirements of subsection [subsections] (a) or (b) of this section.

[(d) The Assistant Commissioner for Child-Care Licensing, or his designee, may grant exceptions to this rule on a case-by-case basis, if an applicant is able to provide compelling justification that his experience qualifies him to act as a licensed administrator.]

§745.8923.What if I do not meet the one year of management or supervisory experience required to qualify for a full Child-Care Administrator's License (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL)?

If you do not meet the minimum management or supervisory experience required to qualify for a full CCAL or a full CPAAL in §745.8919 of this division (relating to What qualifies as one year of experience in management or supervision of personnel and programs required for a full Child-Care Administrator's License (CCAL) or full Child-Placing Agency Administrator's License (CPAAL)?), we may take the actions described in the following chart:

Figure: 26 TAC §745.8923 (.pdf)

§745.8925.How do I qualify for a provisional Child-Care Administrator's License (CCAL) if I do not meet the minimum management or supervisory experience required for a full CCAL?

If you do not meet the minimum management or supervisory experience in §745.8919(a) of this division (relating to What qualifies as one year of experience in management or supervision of personnel and programs required for a full Child-Care Administrator's License (CCAL) or full Child-Placing Agency Administrator's License (CPAAL)?), you will qualify for a provisional CCAL if:

(1) You meet the requirements in §745.8915(1), (2), and (4) of this division (relating to How do I qualify for a full Child-Care Administrator's License (CCAL)?);

(2) You have six months of full-time experience in management or supervision of personnel as specified in §745.8927 of this division (relating to What qualifies as six months of experience in management or supervision of personnel required for a provisional Child-Care Administrator's License (CCAL)?); and

(3) We have not denied you a full CCAL for an issue identified in §745.9037(a) of this subchapter (relating to Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?) while you had a provisional CCAL.

§745.8927.What qualifies as six months of experience in management or supervision of personnel required for a provisional Child-Care Administrator's License (CCAL)?

To qualify for a provisional CCAL under §745.8925 of this division (relating to How do I qualify for a provisional Child-Care Administrator's License (CCAL) if I do not meet the minimum management or supervisory experience required for a full CCAL?), you must substantiate through an employer reference that:

(1) You have completed six months of full-time experience in management or supervision of personnel within the last 10 years;

(2) Your experience was in a setting where you worked primarily with children; and

(3) You supervised at least one employee and your supervision responsibilities included assigning duties, hiring, disciplining, rewarding, approving leave requests, and conducting formal employee evaluations.

§745.8929.What conduct requirements must a licensed administrator or a person applying to become a licensed administrator follow in relation to the Texas Health and Human Services Commission (HHSC)?

(a) A licensed administrator or applicant for an administrator's license may not attempt to interfere with HHSC's ability to conduct agency business.

(b) Conduct that constitutes an attempt to interfere with HHSC's ability to conduct agency business includes:

(1) Interfering with, coercing, threatening, intimidating, retaliating against, or harassing an HHSC staff member in connection with the person's exercise of HHSC's regulatory duties; or

(2) Engaging in conduct or directing language at HHSC staff that a reasonable person would find to be harassing, intimidating, or threatening to HHSC staff.

§745.8930.What responsibilities does a licensed administrator have when employed as the administrator for an operation?

(a) While serving as the child-care administrator for a general residential operation, a licensed administrator must carry out the responsibilities outlined in §748.535 of this title (relating to What responsibilities must the child-care administrator have?); or

(b) While serving as the child-placing agency administrator for a child-placing agency, a licensed administrator must carry out the responsibilities outlined in §749.635 of this title (relating to What responsibilities must the child-placing agency administrator 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 May 10, 2023.

TRD-202301711

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

26 TAC §745.8933, §745.8935

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendments affect Texas Government Code §531.0055 and HRC §43.0081(a)(2) and (e).

§745.8933.What must a complete application to become a licensed administrator include?

(a) A complete application to become a licensed administrator must include:

(1) A completed application form;

(2) A transcript or letter of verification from the appropriate educational institutions [institution(s)] to substantiate your educational qualifications;

(3) Two professional references that verify your professional skills, character, and if applicable, two years of full-time work experience;

(4) An employer reference that documents your one year of management or [of] supervisory experience as described in §745.8919 of this subchapter (relating to What qualifies as one year of experience in management or supervision of personnel and programs required to qualify for a full Child-Care Administrator's License (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL)?);

(5) An application fee of $100;

(6) A notarized affidavit documenting background information on a form provided by Licensing [DFPS]; and

(7) A completed background check request form and background check fee.

(b) If you are applying for a full CCAL and do not meet the one year of management or supervisory experience required in §745.8915(3) of this subchapter (relating to How do I qualify for a full Child-Care Administrator's License (CCAL)?), you may qualify for a provisional CCAL. To apply for a provisional CCAL, your application must include an employer reference that describes your six months of management or supervisory experience as required in §745.8927 of this subchapter (relating to What qualifies as six months of experience in management or supervision of personnel required for a provisional Child Care Administrator's License (CCAL)?).

(c) [(b)] A complete application submitted by any applicant who applies for an administrator's license under §745.8913(a) of this subchapter (relating to Can my licensure in another state qualify me for an administrator's license?) must also include, as applicable:

(1) Documentation related to each administrator's license currently held outside of Texas; and

(2) A copy of the regulations pertaining to the current out-of-state administrator's license.

(d) [(c)] A military spouse with a license in another state seeking to act as an administrator must complete the application as required by §745.9030 of this subchapter (relating to When may a military spouse with a license in another state act as an administrator without a license under this subchapter?).

(e) [(d)] Your application is incomplete if you fail to complete any requirement of this section, as applicable, including inadequate documentation of your qualifications.

§745.8935.How do I apply for both a full Child-Care Administrator's License (CCAL) and a full Child-Placing Agency Administrator's License (CPAAL)?

(a) To apply for both licenses simultaneously, you must submit:

(1) An application fee for each license; and

(2) All application materials required by §745.8933 of this division [title] (relating to What does a complete application to become a licensed administrator include?), except that you must have two employee references, one verifying your supervisory experience in a general residential operation or a residential treatment center, and the other verifying your supervisory experience in a child-placing agency.

(b) To apply for one of the license types after you already have the other type of license, you must submit an:

(1) Application fee;

(2) Updated complete application form; and

(3) Employee reference verifying your required supervisory experience related to the license for which you are applying, as required by [(see] §745.8919 of this subchapter [title] (relating to What qualifies as one year of experience in management or supervision of personnel and programs required for a full Child-Care Administrator's License (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL)?).

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 May 10, 2023.

TRD-202301712

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

26 TAC §§745.8973, 745.8975 - 745.8977, 745.8979, 745.8981 - 745.8983, 745.8985 - 745.8987, 745.8989

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 the Texas Department of Family and Protective Services to HHSC. In addition, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The new sections affect Texas Government Code §531.0055 and HRC §43.0081(a)(2) and (e).

§745.8973.What information must I report to Licensing?

(a) You must notify us in writing within 30 days after:

(1) A change of your mailing address, place of employment, or business or home phone number;

(2) A change in your legal name;

(3) The filing of a criminal case against you;

(4) A criminal conviction against you, other than a Class C misdemeanor traffic offense;

(5) The filing of a civil lawsuit against you that relates to your role as a licensed administrator;

(6) The settlement of or judgment rendered in a civil lawsuit filed against you that relates to your role as a licensed administrator; or

(7) A complaint against, an investigation involving, or an enforcement or legal action against you that you are aware of related to abuse or neglect or another licensing or certification body regarding health, mental health, or child-care services.

(b) We may use information received under this section when determining whether you performed your duties as an administrator in a negligent manner.

§745.8975.How long is a full Child-Care Administrator's License (CCAL) or a full Child-Placing Agency Administrator's License (CPAAL) valid?

A full CCAL or full CPAAL is valid for two years. For your full license to continue to be valid, you must renew it every two years before the expiration date.

§745.8976.How long is a provisional Child-Care Administrator's License (CCAL) valid?

A provisional CCAL is valid for the timeframe listed in the following chart:

Figure: 26 TAC §745.8976 (.pdf)

§745.8977.If I have a provisional Child-Care Administrator's License (CCAL), when and how do I request to change the status of my administrator's license from a provisional CCAL to a full CCAL?

(a) If you have a provisional CCAL issued under §745.8925 of this subchapter (relating to How do I qualify for a provisional Child-Care Administrator's License (CCAL) if I do not meet the minimum management or supervisory experience required for a full CCAL?), you may request to change the status of your administrator's license from a provisional CCAL to a full CCAL when you meet the one year of management or supervisory experience required in §745.8915(3) of this subchapter (relating to How do I qualify for a full Child-Care Administrator's License (CCAL)?) before your provisional CCAL expires.

(b) To change the status of your child-care administrator's license from provisional CCAL to full CCAL, you must submit to us before the date your provisional CCAL expires:

(1) A completed Form 3014, Administrator License - Renewal or Status Change request;

(2) Evidence that you have completed any required continuing education hours as required in §745.8983(b) of this division (relating to How many hours of continuing education must I complete to maintain my administrator's license?); and

(3) An employer reference that substantiates you meet the one year of management or supervisory experience required for a full CCAL in §745.8919(a) of this subchapter (relating to What qualifies as one year of experience in management or supervision or personnel required for a full Child-Care Administrator's License (CCAL) or Child-Placing Agency Administrator's License (CPAAL)?).

(c) We will not change your status to a full CCAL if we have a reason to deny you a full CCAL for an issue identified in §745.9037(a) of this subchapter (relating to Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?).

(d) If you do not submit a request to change the status of your provisional CCAL to a full CCAL before the expiration date listed on your permit:

(1) Your provisional CCAL will expire; and

(2) You must reapply for another administrator's license.

§745.8979.What if I am unable to meet the minimum management or supervisory requirements before my provisional Child-Care Administrator's License (CCAL) expires?

Your provisional CCAL will expire if you are not able to meet the one year of management or supervisory experience required in §745.8915(3) of this subchapter (relating to How do I qualify for a full Child-Care Administrator's License (CCAL)?) to qualify for a full CCAL before the expiration date on your provisional CCAL.

§745.8981.What happens if my provisional Child-Care Administrator's License (CCAL) expires?

(a) If your provisional CCAL expires, you must:

(1) Cease acting as and representing yourself as a licensed child-care administrator; and

(2) Return your provisional CCAL certificate to us.

(b) To be eligible to receive another provisional CCAL, you must submit a new application for a full CCAL and meet the requirements for a complete application in §745.8933 of this subchapter (relating to What must a complete application to become a licensed administrator include?).

(c) We will not accept a new application for a full CCAL from you if you have not returned the expired provisional CCAL certificate to us.

§745.8982.May I continue to serve as a child-care administrator if my provisional Child-Care Administrator's License (CCAL) expires while Licensing processes my request to change the status to a full CCAL?

You may continue to serve as a child-care administrator if your provisional CCAL expires while we process your request to change the status to a full CCAL if you:

(1) Request the change of status under §745.8977 of this division (relating to If I have a provisional Child-Care Administrator's License (CCAL), when and how do I request to change the status of my administrator's license from a provisional CCAL to a full CCAL?);

(2) Submit your request at least 15 days before the expiration date listed on your permit; and

(3) Are serving as a child-care administrator for an operation when you submit your request.

§745.8983.How many hours of continuing education must I complete to maintain my administrator's license?

(a) To maintain your full administrator's license, you must complete 15 clock hours of continuing education each year.

(b) If you have a provisional Child-Care Administrator's License (CCAL) issued under §745.8925 of this subchapter (relating to how do I qualify for a provisional Child-Care Administrator's License (CCAL) if I do not meet the management or supervisory experience required for a full CCAL?), you must complete mandatory continuing education hours by the time you request to change the status of your provisional CCAL to a full CCAL. The number of clock hours of mandatory continuing education varies depending on how long the provisional CCAL has been in effect at the time you request to change the status of your provisional CCAL. The number of clock hours of continuing education required is described in the following chart:

Figure: 26 TAC §745.8983(b) (.pdf)

§745.8985.What training qualifies as continuing education I need to maintain my administrator's license?

(a) To meet the continuing education requirements for your provisional Child-Care Administrator's License or to renew your full administrator's license, you may only count training that:

(1) Is directly relevant to the type of administrator's license that you have; and

(2) You completed as an attendee. You may not count training where you were the presenter.

(b) If you have taken a training more than once during the two-year period since your license was issued or last renewed, you may only count the training one time.

§745.8986.When may I request Licensing to place my full administrator's license on inactive status?

(a) You may request us to put your full administrator's license on inactive status if you are not working as an administrator.

(b) While your full administrator's license is on inactive status:

(1) You may not serve as a licensed administrator;

(2) You are not required to obtain continuing education;

(3) You must renew your administrator's license when the renewal is due; and

(4) We may still take remedial action against your administrator's license as described in §745.9037 of this subchapter (relating to Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?).

(c) We may not make a provisional Child-Care Administrator's License inactive.

§745.8987.How do I change my full administrator's license status from inactive to active?

(a) To change the status of your inactive full administrator's license to active when renewing your license, you must submit to us:

(1) A completed Form 3014, Administrator License - Renewal or Status Change request;

(2) A $50 renewal fee;

(3) If your administrator's license was active at any point during the renewal period, documentation of continuing education training completed; and

(4) A completed background check form and fee.

(b) To change the status of your inactive full administrator's license to active in the middle of a renewal period, you must submit to us a:

(1) Completed Form 3014, Administrator License - Renewal or Status Change request;

(2) $25 change of status fee; and

(3) Completed background check form and fee.

§745.8989.How do I get a replacement copy of my current administrator's license if the original is lost or destroyed?

(a) You must send us your request in writing along with a $5 fee for the replacement copy of your current administrator's license. Your request must include:

(1) A statement detailing the loss or destruction of your original license; or

(2) Be accompanied by your damaged license.

(b) Fraud or deceit related to a request for an additional copy of your license may result in remedial action as described in §745.9037 of this subchapter (relating to Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?).

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 May 10, 2023.

TRD-202301713

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

26 TAC §§745.8991, 745.8994, 745.8999, 745.9007, 745.9019, 745.9021, 745.9023

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 the Texas Department of Family and Protective Services to HHSC. In addition, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The repeals affect Texas Government Code §531.0055 and HRC §43.0081(a)(2) and (e).

§745.8991.Can my administrator's license remain valid for an indefinite period of time?

§745.8994.What training qualifies as continuing education for renewal of my administrator's license?

§745.8999.If I want to maintain my administrator's license even though I am not working as an administrator, must I satisfy the continuing education requirements?

§745.9007.How do I change my administrator's license status from inactive to active?

§745.9019.How do I get an additional copy of my current administrator's license?

§745.9021.What information must I report to DFPS?

§745.9023.What will happen if I do not make a report as required by §745.9021 of this title (relating to What information must I report to DFPS?)?

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 May 10, 2023.

TRD-202301714

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

26 TAC §745.9031, §745.9037

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendments affect Texas Government Code §531.0055 and HRC §43.0081(a)(2) and (e).

§745.9031.What remedial actions can Licensing take against my administrator's license?

(a) We may take the following actions against your full administrator's license:

Figure: 26 TAC §745.9031(a) (.pdf)

[Figure: 40 TAC §745.9031]

(b) If you have a provisional Child-Care Administrator's License (CCAL) we may deny you a full CCAL. We do not have to separately revoke your provisional CCAL.

§745.9037.Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application?

(a) We may take remedial action against your administrator's license or administrator's license application if you:

(1) Violate Chapter 43 of the Human Resources Code (HRC) or a [Licensing] rule adopted under that chapter [or minimum standard];

(2) Circumvent or attempt to circumvent the requirements of Chapter 43 of the HRC or a [Licensing] rule adopted under that chapter;

(3) Engage in fraud or deceit related to the requirements of Chapter 43 of the HRC or a [Licensing] rule adopted under that chapter;

(4) Provide false or misleading information to us during the application or renewal process for your own or someone else's application or license;

(5) Make a statement about a material fact during the license application or renewal process that you know or should know is false;

(6) Do not comply with Subchapter F of this chapter (relating to Background Checks);

(7) Use or abuse drugs or alcohol in a manner that jeopardizes your ability to function as an administrator;

(8) Perform your duties as an administrator in a negligent manner; or

(9) Engage in conduct that makes you ineligible to:

(A) Receive a permit under HRC §42.072; or

(B) Be employed as a controlling person or serve in that capacity in a facility or family home under HRC §42.062.

(b) If we deny you a full Child-Care Administrator's License (CCAL) for an issue identified in subsection (a) of this section while you have a provisional CCAL, your provisional CCAL is no longer valid. You may not continue serving or representing yourself as a licensed child-care administrator pending the outcome of due process.

(c) [(b)] If we revoke your administrator's license, you are not eligible to apply for another administrator's license for five years after the date the license was revoked.

(d) [(c)] If you have both a Child Care Administrator's License and a Child-Placing Agency Administrator's License, remedial action may be taken against both licenses. If we take remedial action against both of your licenses, you will be notified that the action applies to both licenses. In such a case, any administrative review or due process hearing for both licenses may be combined at our discretion.

(e) [(d)] If we revoke your full administrator's license, deny you a full CCAL after issuing you a provisional CCAL, refuse to renew [or do not renew] your full administrator's license, or you do not meet the renewal requirements, you must return your license certificate to us.

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 May 10, 2023.

TRD-202301715

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §748.153 and §748.533; and new §748.154 and §748.532, in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND PURPOSE

The proposed rule changes implement Senate Bill (S.B.) 1896, 87th Legislature, Regular Session, 2021, as it relates to SECTIONS 22 and 25 of the bill.

SECTION 22 added Texas Human Resources Code (HRC) §42.080 to prohibit HHSC Child Care Regulation (CCR) from issuing a citation or taking any other disciplinary action against a general residential operation for failing to employ a licensed administrator as long the operation or agency has been without a licensed administrator for fewer than 60 days and makes substantial efforts to hire a qualified administrator.

SECTION 25 amended HRC §43.0081(a) to add (a)(2)(A) and (B) to allow CCR to issue a provisional child-care administrator's license when an applicant does not meet the one-year supervisory experience requirement provided in HRC §43.004(a)(4), but otherwise qualifies for a license so long as the applicant complies with any additional requirements established in rule. SECTION 25 also amended HRC §43.0081 by adding subsection (e), to allow the executive commissioner to establish in rule any additional requirements that apply when a provisional child-care administrator's license is issued under HRC §43.0081(a)(2)(A).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.153 adds a requirement for a general residential operation to notify CCR as soon as possible, but no later than two days, after a licensed child-care administrator position becomes vacant.

Proposed new §748.154 allows a general residential operation 60 days from the date that a licensed child-care administrator position becomes vacant to obtain a new child-care administrator before CCR will cite for not having an administrator.

Proposed new §748.532 allows a general residential operation to hire an administrator with a provisional child-care administrator's license, as long as the operation is not (1) on a voluntary plan of action; (2) on heightened monitoring; (3) on corrective action; (4) subject to an adverse action; or (5) pending due process for a corrective or an adverse action.

The proposed amendment to §748.533 (1) clarifies that a child-care administrator may serve as an administrator at two residential child-care operations when the second operation is a child-placing agency as long as the administrator holds a full child-placing agency administrator's license; (2) adds subsection (c) to prohibit a child-care administrator with a provisional child-care administrator's license from serving as a licensed administrator at more than one residential child-care operation; and (3) updates the rule to remove the reference to residential treatment centers (RTCs) since RTCs are a type of general residential operation and are referenced in the rule.

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 will be no adverse economic effect on small businesses, micro-businesses, or rural communities because there is no change to business practices.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be rules that comply with state law.

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 because there is no cost to comply.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

Written comments on the proposal may be submitted to Jennifer Ritter, 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 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 faxing or emailing comments, please indicate "Comments on Proposed Rule 22R114" in the subject line.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

26 TAC §748.153, §748.154

STATUTORY AUTHORITY

The amendment and new section are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC 42, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendment and new section affect Texas Government Code §531.0055 and HRC §42.080 and §43.0081(e).

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

You must provide written notification to your Licensing Representative:

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

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

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

(C) Change your operating hours;

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

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

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

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

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

(A) You change your child-care administrator, or your child-care administrator position becomes vacant;

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

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

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

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

§748.154.What is my timeframe for filling my child-care administrator position if it becomes vacant while I do not have a back-up administrator to carry out the administrator duties?

If you do not have a back-up child-care administrator when your administrator position becomes vacant, as required in §748.535 of this chapter (relating to What responsibilities must the child-care administrator have?), you have 60 days from the date the position becomes vacant to obtain a licensed child-care administrator before we can cite you for not having an administrator.

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 May 10, 2023.

TRD-202301716

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

DIVISION 2. CHILD-CARE ADMINISTRATOR

26 TAC §748.532, §748.533

STATUTORY AUTHORITY

The amendment and new section are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC 42, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendment and new section affect Texas Government Code §531.0055 and HRC §42.080 and §43.0081(e).

§748.532.When can a child-care administrator with a provisional license serve as the administrator for a general residential operation?

A child-care administrator with a provisional license may serve as the child-care administrator at a general residential operation if, at the time the administrator is hired, the operation is not:

(1) On a voluntary plan of action;

(2) On heightened monitoring;

(3) On corrective action;

(4) Subject to an adverse action; or

(5) Pending due process for a corrective or an adverse action.

§748.533.Can a child-care administrator be an administrator for two residential child-care operations?

(a) Except as provided in subsections (b) and (c) [subsection (b)] of this section, a child-care administrator can be an administrator for two residential child-care operations, including a child-placing agency, if:

(1) Both operations are in good standing with Licensing;

(2) The size and scope of the operations are manageable by one person, which is clarified in the written professional staffing plans;

(3) The child-placing agency, if applicable, is not managing more than 25 foster homes;

(4) The person also holds a valid full Child-Placing Agency Administrator License, if the second operation is a child-placing agency [applicable]; and

(5) The general residential operations [and/or RTCs] are contiguous. A child-placing agency does not have to be contiguous.

(b) An operation that provides emergency care services must designate an employee in the staffing plan that is solely responsible for administering those services. This employee must have the experience and background to be able to perform the child-care administrator responsibilities. See §748.535 of this title (relating to What responsibilities must the child-care administrator have?). A designated employee, other than the child-care administrator for the operation, is not required if the emergency care services program has a capacity of not more than 30 children.

(c) A child-care administrator with a provisional child-care administrator's license may only serve as a licensed administrator at one residential child-care 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 May 10, 2023.

TRD-202301717

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §749.153 and §749.633; and new §749.154, in Title 26, Texas Administrative Code, Chapter 749, Minimum Standards for Child-Placing Agencies.

BACKGROUND AND PURPOSE

The proposed rule changes implement Senate Bill (S.B.) 1896, 87th Legislature, Regular Session, 2021, as it relates to SECTIONS 22 and 25 of the bill.

SECTION 22 added Texas Human Resources Code (HRC) §42.080 to prohibit HHSC Child Care Regulation (CCR) from issuing a citation or taking any other disciplinary action against a child-placing agency for failing to employ a licensed administrator as long the operation or agency has been without a licensed administrator for fewer than 60 days and makes substantial efforts to hire a qualified administrator.

SECTION 25 amended HRC §43.0081(a) to add (a)(2)(A) and (B) to allow CCR to issue a provisional child-care administrator's license when an applicant does not meet the one-year supervisory experience requirement provided in HRC §43.004(a)(4), but otherwise qualifies for a license so long as the applicant complies with any additional requirements established in rule. SECTION 25 also amended HRC §43.0081 by adding subsection (e), to allow the executive commissioner to establish in rule any additional requirements that apply when a provisional child-care administrator's license is issued under HRC §43.0081(a)(2)(A).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §749.153 requires a child-placing agency to notify CCR as soon as possible, but no later than two days, after a child-placing administrator position becomes vacant.

Proposed new §749.154 allows a child-placing agency 60 days from the date that a licensed administrator position becomes vacant to obtain a new child-placing agency administrator before CCR will cite for not having an administrator.

The proposed amendment to §749.633 clarifies that a child-placing agency administrator may serve as an administrator at two residential child-care operations when the second operation is a general residential operation as long as the administrator also holds a full child-care administrator's license.

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 a new rule;

(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 will be no adverse economic effect on small businesses, micro-businesses, or rural communities because there is no change to business practices.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect the public benefit will be rules that comply with state law.

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 there is no cost to comply.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

Written comments on the proposal may be submitted to Jennifer Ritter, 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 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 faxing or emailing comments, please indicate "Comments on Proposed Rule 22R114" in the subject line.

SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION

DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS

26 TAC §749.153, §749.154

STATUTORY AUTHORITY

The amendment and new section are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendment and new section affect Texas Government Code §531.0055 and HRC §42.080 and §43.0081(e).

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

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

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

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

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

(C) Open a branch office; or

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

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

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

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

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

(A) You change your child-placing agency administrator, or your child-placing agency administrator position becomes vacant;

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

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

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

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

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

§749.154.What is my timeframe for filling my child-placing agency administrator position if it becomes vacant while I do not have a back-up administrator to carry out the administrator duties?

If you do not have a back-up child-placing agency administrator when your administrator position becomes vacant, to carry out the duties in §749.635 of this chapter (relating to What responsibilities must the child-placing agency administrator have?), you have 60 days from the date the position becomes vacant to obtain a licensed child-care administrator before we can cite you for not having an administrator.

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 May 10, 2023.

TRD-202301718

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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

DIVISION 2. CHILD-PLACING AGENCY ADMINISTRATOR

26 TAC §749.633

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.

The amendment affects Texas Government Code §531.0055 and HRC §42.080 and §43.0081(e).

§749.633.Can a child-placing agency administrator be an administrator for two residential child-care operations?

A child-placing agency administrator can be an administrator for two residential child-care operations, including a general residential operation or residential treatment center, if:

(1) Both operations are in good standing with Licensing;

(2) The size and scope of the operations are manageable by one person, which is clarified in the written professional staffing plans;

(3) The person also holds a valid full Child-Care Administrator License, if the second operation is a general residential operation [applicable]; and

(4) At least one child-placing agency is managing 25 or fewer foster homes.

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 May 10, 2023.

TRD-202301719

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: June 25, 2023

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