PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 265. GENERAL SANITATION
SUBCHAPTER L. PUBLIC SWIMMING POOLS AND SPAS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of State Health Services (DSHS), adopts an amendment to §265.190, concerning Safety Features for Pools and Spas.
Section 265.190 is adopted without changes to the proposed text as published in the January 19, 2024, issue of the Texas Register (49 TexReg 236). This rule will not be republished.
BACKGROUND AND JUSTIFICATION
The amendment is necessary to comply with Texas Health and Safety Code §341.0645, which requires DSHS adopt pool safety standards necessary to prevent drowning. The amendment revises the requirement for pool and spa signs to clarify that prohibiting persons under the age of 14 years from being in a pool or spa without adult supervision applies only to pools and spas where a lifeguard is not required or provided.
This long-standing provision was inadvertently removed during amendments to Texas Administrative Code (TAC), Title 25, Chapter 265, Subchapter L in 2021. The amendment restores the language that had been in place since at least 1999. The amendment also clarifies lighting requirements and makes editorial changes for clearer language.
COMMENTS
The 31-day comment period ended February 19, 2024.
During this period, DSHS received comments regarding the proposed rule from seven commenters, including Live Like Cati, Naomi's Grace, Fort Worth Park and Recreation, Houston Swim Club, Robert's Pool Service, Inc., National Drowning Prevention Alliance, and Fort Worth Drowning Prevention Coalition. A summary of comments relating to the rule and DSHS's responses follows.
Comment: All commenters suggested that the pool and spa sign revisions be reversed because the revision will allow parents of children under the age of 14 to drop their children off at pools and rely on lifeguards for supervision. Two commenters remarked that the lifeguards would be used as babysitters. Commenters were also concerned that this change would result in an increase of accidents and drowning. One commenter mentioned that drowning is the leading cause of death for children between the ages of 1 - 4 years.
Response: DSHS respectfully disagrees and declines to revise the rule in response to these comments. As noted above, the language is being restored after it was inadvertently removed during a previous rule amendment.
The purpose of the Public Swimming Pools and Spas Rule under 25 TAC Chapter 265, Subchapter L is to establish minimum standards for swimming pools and spas concerning pool operation and management, water quality, safety standards unrelated to design and construction, signage, enclosures, and safety features. This is intended to reduce the possibility of drowning or injury to a practical minimum and provide guidance for safe pool operation consistent with best practices common to most states and the Model Aquatic Health Code.
In addition, the amended rule does not prohibit a local regulatory authority's ability to adopt more stringent requirements for pools and spas within their jurisdiction, as described in 25 TAC Subchapter L §265.181(g).
Comment: One commenter suggested adding a definition for "adult supervision."
Response: DSHS disagrees and declines to revise the rule in response to this comment. Texas recognizes 18 years as the age when residents are legally considered adults as provided in Texas Civil Practice and Remedies Code §129.001 and the use of "supervision" in the rule does not go beyond the common dictionary definition of the term.
STATUTORY AUTHORITY
The amendment is adopted under Texas Health and Safety Code §341.002, which authorizes the Executive Commissioner of HHSC to adopt rules and establish standards and procedures for the management and control of sanitation and for health protection measures; and Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code Chapter 1001.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 12, 2024.
TRD-202401551
Cynthia Hernandez
General Counsel
Department of State Health Services
Effective date: May 2, 2024
Proposal publication date: January 19, 2024
For further information, please call: (512) 834-6787