TITLE 26. HEALTH AND HUMAN SERVICES
PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 744. MINIMUM STANDARDS FOR SCHOOL-AGE AND BEFORE OR AFTER-SCHOOL PROGRAMS
SUBCHAPTER
O.
The executive commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §744.3409, concerning What additional safety precautions must I take for a child in care who is unable to swim competently or who is at risk of injury or death when swimming?
BACKGROUND AND PURPOSE
The purpose of the proposal is to update current rule language related to United States Coast Guard approved personal flotation devices (PFDs) to reflect changes to buoyancy labeling.
HHSC Child Care Regulation (CCR) is proposing an amendment to add an option to a rule that requires an operation to provide a child who accesses a swimming pool with a United States Coast Guard approved PFD that has a rating of Type I, II, or III, or a buoyancy level of 70 or above.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §744.3409 (1) updates the rule title; (2) replaces a pronoun with a noun; and (3) adds an option to provide a PFD with a buoyancy level of 70 or above to the requirement that an operation provide certain children with a Type I, II, or III, United States Coast Guard approved PFD.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rule will be in effect:
(1) the proposed rule will not create or eliminate a government program;
(2) implementation of the proposed rule will not affect the number of HHSC employee positions;
(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;
(4) the proposed rule will not affect fees paid to HHSC;
(5) the proposed rule will not create a new regulation;
(6) the proposed rule will not expand an existing regulation;
(7) the proposed rule will not change the number of individuals subject to the rule; and
(8) the proposed rule will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the rule does not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
LOCAL EMPLOYMENT IMPACT
The proposed rule will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas and does not impose a cost on regulated persons.
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) improved safety of children enrolled in school-age and before or after-school programs who access swimming pools and (2) rules that align with US Coast Guard requirements for PFDs.
Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because the rule already requires operations to provide certain children with a United States Coast Guard approved Type I, II, or III PFD. The proposed rule adds the option that the PFD be rated as having a buoyancy level of 70 or above, to reflect the new United States Coast Guard PFD classification system.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's 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, including information related to the cost, benefit, or effect of the proposed rule, as well as any applicable data, research, or analysis, may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4601 West Guadalupe Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.
To be considered, comments must be submitted no later than 21 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 25R042" in the subject line.
STATUTORY AUTHORITY
The amendment is authorized by Texas Government Code §524.0151, which provides that the executive commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, and Texas Government Code §524.0005, which provides the executive commissioner of HHSC with broad rulemaking authority. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42.
The amendment affects Texas Government Code §524.0151 and HRC §42.042.
§744.3409.
What additional safety precautions must I take for a child in care who is unable to swim competently or who is at risk of injury or death when swimming?]
(a)
Before a child who is unable to swim competently or who is at risk of injury or death when swimming enters a swimming pool,
the operation [you] must:
(1)
Provide the child with a [Type I, II, or III] United States Coast Guard approved
PFD that has a rating of Type I, II, or III, or a buoyancy level of 70 or above [personal flotation device (PFD)];
(2) Ensure the child is wearing the PFD; and
(3) Ensure the PFD is properly fitted and fastened for the child.
(b) A PFD must be in good repair to meet the requirements in subsection (a) of this section.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on September 5, 2025.
TRD-202503167
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: October 19, 2025
For further information, please call: (512) 438-3269