PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 506. SPECIAL CARE FACILITIES
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §506.37, concerning Balance Billing.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Senate Bill (S.B.) 490, 88th Legislature, Regular Session, 2023.
S.B. 490 added new Texas Health and Safety Code (HSC) Chapter 185, which requires a health care provider to send a written, itemized bill of the alleged cost of each health care service and supply when the provider requests payment from a patient after providing the patient with a health care service or related supply.
HSC §185.003, as added by S.B. 490, requires HHSC to take disciplinary action against a provider that violates HSC Chapter 185 on or after September 1, 2023, as if the provider violated an applicable licensing law.
The proposed amendment is necessary to add information regarding these itemized-bill requirements.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §506.37 adds new subsection (b), which requires a special care facility (SCF) to comply with the itemized billing requirements in HSC Chapter 185. The title of the section is updated to "Billing Requirements" and the section is reorganized for clarity.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing 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 expand existing regulations;
(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 proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.
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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from receiving itemized bills from licensed acute health care providers that are seeking payment from them for health care services and supplies and the public will also benefit from rules that are consistent with statutory requirements.
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 does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 490 and the proposed amendment only ensures consistency with current statutory requirements.
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 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 HCR_PRU@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 24R004" in the subject line.
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 HSC §248.006, which requires HHSC to adopt rules establishing minimum standards for special care facilities.
The amendment implements Texas Government Code §531.0055 and HSC Chapter 185.
§506.37.[Balance] Billing Requirements.
(a) A facility shall comply with the following balance billing requirements.
(1) A facility may not violate a law that prohibits the facility from billing a patient who is an insured, participant, or enrollee in a managed care plan an amount greater than an applicable copayment, coinsurance, and deductible under the insured's, participant's, or enrollee's managed care plan or that imposes a requirement related to that prohibition.
(2) [(b)] A facility shall comply
with Senate Bill 1264, 86th Legislature, Regular Session, 2019, and
with related Texas Department of Insurance rules at 28 TAC Chapter
21, Subchapter OO, §§21.4901 - 21.4904 (relating to Disclosures
by Out-of-Network Providers) to the extent this subchapter applies
to the facility.
(b) A facility shall comply with the itemized bill requirements under Texas Health and Safety Code §185.002.
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 April 10, 2024.
TRD-202401446
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 834-4591
SUBCHAPTER D. OPERATIONAL REQUIREMENTS FOR PATIENT CARE AND TREATMENT
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §507.50, concerning Balance Billing.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Senate Bill (S.B.) 490, 88th Legislature, Regular Session, 2023.
S.B. 490 added new Texas Health and Safety Code (HSC) Chapter 185, which requires a health care provider to send a written, itemized bill of the alleged cost of each health care service and supply when the provider requests payment from a patient after providing the patient with a health care service or related supply.
HSC §185.003, as added by S.B. 490, requires HHSC to take disciplinary action against a provider that violates HSC Chapter 185 on or after September 1, 2023, as if the provider violated an applicable licensing law.
The proposed amendment is necessary to add information regarding these itemized-bill requirements.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §507.50 adds new subsection (b), which requires an end stage renal disease (ESRD) facility to comply with the itemized billing requirements in HSC Chapter 185. The title of the section is updated to "Billing Requirements" and the section is reorganized for clarity.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing 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 expand existing regulations;
(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 proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.
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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from receiving itemized bills from licensed acute health care providers that are seeking payment from them for health care services and supplies and the public will also benefit from rules that are consistent with statutory requirements.
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 does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 490 and the proposed amendment only ensures consistency with current statutory requirements.
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 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 HCR_PRU@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 24R004" in the subject line.
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, HSC §251.003, which requires HHSC to adopt rules for the issuance, renewal, denial, suspension, and revocation of a license to operate an ESRD facility; and HSC §251.014, which requires these rules to include minimum standards to protect the health and safety of a patient of an ESRD facility.
The amendment implements Texas Government Code §531.0055 and HSC Chapter 185.
§507.50.[Balance] Billing Requirements.
(a) A facility shall comply with the following
balance billing requirements. [A facility may not violate
a law that prohibits the facility from billing a patient who is an
insured, participant, or enrollee in a managed care plan an amount
greater than an applicable copayment, coinsurance, and deductible
under the insured's, participant's, or enrollee's managed care plan
or that imposes a requirement related to that prohibition.]
(1) A facility may not violate a law that prohibits the facility from billing a patient who is an insured, participant, or enrollee in a managed care plan an amount greater than an applicable copayment, coinsurance, and deductible under the insured's, participant's, or enrollee's managed care plan or that imposes a requirement related to that prohibition.
(2) A facility shall comply with Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with related Texas Department of Insurance rules at 28 TAC Chapter 21, Subchapter OO, §§21.4901 - 21.4904 (relating to Disclosures by Out-of-Network Providers) to the extent this subchapter applies to the facility.
(b) A facility shall comply with the itemized bill requirements under Texas Health and Safety Code §185.002.
[(b) A facility shall comply with
Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with
related Texas Department of Insurance rules at 28 TAC Chapter 21,
Subchapter OO, §§21.4901 - 21.4904 (relating to Disclosures
by Out-of-Network Providers) to the extent this subchapter applies
to the facility.]
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 April 26, 2024.
TRD-202401448
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 834-4591
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §509.67, concerning Balance Billing.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Senate Bill (S.B.) 490, 88th Legislature, Regular Session, 2023.
S.B. 490 added new Texas Health and Safety Code (HSC) Chapter 185, which requires a health care provider to send a written, itemized bill of the alleged cost of each health care service and supply when the provider requests payment from a patient after providing the patient with a health care service or related supply.
HSC §185.003, as added by S.B. 490, requires HHSC to take disciplinary action against a provider that violates HSC Chapter 185 on or after September 1, 2023, as if the provider violated an applicable licensing law.
The proposed amendment is necessary to add information regarding these itemized-bill requirements.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §509.67 adds new subsection (b), which requires a freestanding emergency medical care (FEMC) facility to comply with the itemized billing requirements in HSC Chapter 185. The title of the section is updated to "Billing Requirements" and the section is reorganized for clarity.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing 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 expand existing regulations;
(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 proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.
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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from receiving itemized bills from licensed acute health care providers that are seeking payment from them for health care services and supplies and the public will also benefit from rules that are consistent with statutory requirements.
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 does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 490 and the proposed amendment only ensures consistency with current statutory requirements.
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 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 HCR_PRU@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 24R004" in the subject line.
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 Health and Safety Code §254.101, which authorizes HHSC to adopt rules regarding FEMC facilities.
The amendment implements Texas Government Code §531.0055 and HSC Chapter 185.
§509.67.[Balance] Billing Requirements.
(a) A facility shall comply with the following
balance billing requirements. [A facility may not violate
a law that prohibits the facility from billing a patient who is an
insured, participant, or enrollee in a managed care plan an amount
greater than an applicable copayment, coinsurance, and deductible
under the insured's, participant's, or enrollee's managed care plan
or that imposes a requirement related to that prohibition.]
(1) A facility may not violate a law that prohibits the facility from billing a patient who is an insured, participant, or enrollee in a managed care plan an amount greater than an applicable copayment, coinsurance, and deductible under the insured's, participant's, or enrollee's managed care plan or that imposes a requirement related to that prohibition.
(2) A facility shall comply with Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with related Texas Department of Insurance rules at 28 TAC Chapter 21, Subchapter OO §§21.4901 - 21.4904 (relating to Disclosures by Out-of-Network Providers) to the extent this subchapter applies to the facility.
(b) A facility shall comply with the itemized bill requirements under Texas Health and Safety Code §185.002.
[(b) A facility shall comply with
Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with
related Texas Department of Insurance rules at 28 TAC Chapter 21,
Subchapter OO §§21.4901 - 21.4904 (relating to Disclosures
by Out-of-Network Providers) to the extent this subchapter applies
to the facility.]
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 April 10, 2024.
TRD-202401449
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 834-4591
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §510.45, concerning Facility Billing.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Senate Bill (S.B.) 490, 88th Legislature, Regular Session, 2023.
S.B. 490 added new Texas Health and Safety Code (HSC) Chapter 185, which requires a health care provider to send a written, itemized bill of the alleged cost of each health care service and supply when the provider requests payment from a patient after providing the patient with a health care service or related supply.
HSC §185.003, as added by S.B. 490, requires HHSC to take disciplinary action against a provider that violates HSC Chapter 185 on or after September 1, 2023, as if the provider violated an applicable licensing law.
The proposed amendment is necessary to add information regarding these itemized-bill requirements.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §510.45 adds new paragraph (2) under subsection (a), which requires a private psychiatric hospital or crisis stabilization unit (CSU) to comply with the itemized billing requirements in HSC Chapter 185. The title of the section is revised to "Billing Requirements." Other minor stylistic edits are made to comply with current HHSC rulemaking guidelines, such as removing short titles to statutes, formatting punctuation and capitalization, and spelling out "HHSC."
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing 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 expand existing regulations;
(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 proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.
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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from receiving itemized bills from licensed acute health care providers that are seeking payment from them for health care services and supplies and the public will also benefit from rules that are consistent with statutory requirements.
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 does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 490 and the proposed amendment only ensures consistency with current statutory requirements.
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 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 HCR_PRU@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 24R004" in the subject line.
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 HSC §577.010, which requires HHSC to adopt rules and standards necessary and appropriate to ensure the proper care and treatment of patients in a private mental hospital or mental health facility.
The amendment implements Texas Government Code §531.0055 and HSC Chapter 185.
§510.45.[Facility] Billing Requirements.
(a) Itemized statements.
(1) A facility shall adopt, implement, and
enforce a policy to ensure that the facility complies with Texas [the] Health and Safety Code (HSC) [,] §311.002
[(relating to Itemized Statement of Billed Services)].
(2) A facility shall comply with the itemized bill requirements under HSC §185.002.
(b) Audits of billing. A facility shall adopt, implement,
and enforce a policy to ensure that the facility complies with HSC
[,] §311.0025(a) [(relating to Audits of Billing)].
(c) Complaint investigation procedures.
(1) A complaint submitted to the Texas Health
and Human Services Commission's [HHSC's] Complaint
and Incident Intake relating to billing must specify the patient for
whom the bill was submitted.
(2) Upon receiving a complaint warranting an investigation, Texas Health and Human Services Commission (HHSC) [HHSC]
shall send the complaint to the facility requesting the facility to
conduct an internal investigation. Within 30 days of the facility's
receipt of the complaint, the facility shall submit to HHSC:
(A) a report outlining the facility's investigative process;
(B) the resolution or conclusions reached by the facility with the patient, third party payor, or complainant; and
(C) corrections, if any, in the policies or protocols which were made as a result of its investigative findings.
(3) In addition to the facility's internal investigation, HHSC may also conduct an investigation to audit any billing and patient records of the facility.
(4) HHSC may inform [in writing] a complainant
who identifies themselves by name and address in writing of the receipt
and disposition of the complaint.
(5) HHSC shall refer investigative reports of billing by health care professionals who have provided improper, unreasonable, or medically or clinically unnecessary treatments or billed for treatments which were not provided to the appropriate licensing agency.
(d) Balance billing [Billing].
(1) A facility may not violate a law that prohibits the facility from billing a patient who is an insured, participant, or enrollee in a managed care plan an amount greater than an applicable copayment, coinsurance, and deductible under the insured's, participant's, or enrollee's managed care plan or that imposes a requirement related to that prohibition.
(2) A facility shall comply with Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with related Texas Department of Insurance rules at 28 TAC Chapter 21, Subchapter OO, §§21.4901 - 21.4904 (relating to Disclosures by Out-of-Network Providers) to the extent this subchapter applies to the facility.
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 April 10, 2024.
TRD-202401450
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 834-4591
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §511.75, concerning Limited Services Rural Hospital Billing.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Senate Bill (S.B.) 490, 88th Legislature, Regular Session, 2023.
S.B. 490 added new Texas Health and Safety Code (HSC) Chapter 185, which requires a health care provider to send a written, itemized bill of the alleged cost of each health care service and supply when the provider requests payment from a patient after providing the patient with a health care service or related supply.
HSC §185.003, as added by S.B. 490, requires HHSC to take disciplinary action against a provider that violates HSC Chapter 185 on or after September 1, 2023, as if the provider violated an applicable licensing law.
The proposed amendment is necessary to add information regarding these itemized-bill requirements.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §511.75 adds subsection (c), which requires a limited services rural hospital (LSRH) to comply with the itemized billing requirements in HSC Chapter 185. The title of the section is revised to "Billing Requirements." Other minor stylistic edits are made to comply with current HHSC rulemaking guidelines, such as removing short titles to statutes, spelling out "HHSC," and the section is renumbered for clarity.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing 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 expand existing regulations;
(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 proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.
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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from receiving itemized bills from licensed acute health care providers that are seeking payment from them for health care services and supplies and the public will also benefit from rules that are consistent with statutory requirements.
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 does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 490 and the proposed amendment only ensures consistency with current statutory requirements.
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 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 HCR_PRU@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 24R004" in the subject line.
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 Health and Safety Code §241.302(b), which provides that the Executive Commissioner of HHSC shall adopt rules to implement that section and establish minimum standards for LSRHs.
The amendment implements Texas Government Code §531.0055 and HSC Chapter 185.
§511.75.[Limited Services Rural Hospital ] Billing Requirements.
(a) A limited services rural hospital (LSRH) shall
adopt, implement, and enforce a policy to ensure that the hospital
complies with [the] Texas Health and Safety Code (HSC) §311.002
[(relating to Itemized Statement of Billed Services)].
(b) An LSRH shall adopt, implement, and enforce a policy
to ensure that the LSRH complies with HSC §311.0025 [(relating
to Audits of Billing)].
(c) An LSRH shall comply with the itemized bill requirements under HSC §185.002.
[(c) An LSRH may not violate a law
that prohibits the hospital from billing a patient who is an insured,
participant, or enrollee in a managed care plan an amount greater
than an applicable copayment, coinsurance, and deductible under the
insured's, participant's, or enrollee's managed care plan or that
imposes a requirement related to that prohibition.]
(d) An LSRH shall comply with the following balance
billing requirements. [An LSRH shall comply with Senate
Bill 1264, 86th Legislature, Regular Session, 2019, and with related
Texas Department of Insurance rules at 28 Texas Administrative Code
(TAC) Chapter 21, Subchapter OO (relating to Disclosures by Out-of-Network
Providers) to the extent that subchapter applies to the LSRH.]
(1) An LSRH may not violate a law that prohibits the hospital from billing a patient who is an insured, participant, or enrollee in a managed care plan an amount greater than an applicable copayment, coinsurance, and deductible under the insured's, participant's, or enrollee's managed care plan or that imposes a requirement related to that prohibition.
(2) An LSRH shall comply with Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with related Texas Department of Insurance rules at 28 TAC Chapter 21, Subchapter OO (relating to Disclosures by Out-of-Network Providers) to the extent that subchapter applies to the LSRH.
(e) A complaint submitted to the Texas Health and Human
Services Commission's [(HHSC's)] Complaint and Incident
Intake relating to billing must specify the patient for whom the bill
was submitted.
(1) Upon receiving a complaint warranting an investigation, the Texas Health and Human Services Commission (HHSC) [HHSC]
shall send the complaint to the LSRH and request the LSRH to conduct
an internal investigation.
[(A) a report outlining the LSRH's investigative process;]
[(B) the resolution or conclusions reached by the LSRH with the patient, third party payor, or complainant; and]
[(C) corrections, if any, in the LSRH's policies or protocols that were made as a result of its investigative findings.]
(2) Within 30 days of the LSRH's receipt of the complaint, the LSRH shall submit to HHSC:
(A) a report outlining the LSRH's investigative process;
(B) the resolution or conclusions reached by the LSRH with the patient, third party payor, or complainant; and
(C) corrections, if any, in the LSRH's policies or protocols that were made as a result of its investigative findings.
(3) [(2)] In addition to the
LSRH's internal investigation, HHSC may also conduct an investigation
to audit any billing and patient records of the LSRH.
(4) [(3)] HHSC shall inform,
in writing, a complainant who identifies him or herself by name and address:
(A) of the receipt of the complaint;
(B) if the complainant's allegations are potential violations of the Act or this chapter warranting an investigation;
(C) whether the complaint will be investigated by HHSC;
(D) if the complaint was referred to the LSRH for internal investigation;
(E) whether and to whom the complaint will be referred;
(F) of the results of the LSRH's investigation and the LSRH's resolution with the complainant; and
(G) of HHSC's findings if an on-site audit investigation was conducted.
(5) [(4)] HHSC shall refer investigative
reports of billing by health care professionals who have provided
improper, unreasonable, or medically or clinically unnecessary treatments
or billed for treatments that were not provided to the appropriate
licensing agency.
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 April 10, 2024.
TRD-202401453
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 834-4591
SUBCHAPTER C. OPERATIONAL REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §564.28, concerning Balance Billing.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Senate Bill (S.B.) 490, 88th Legislature, Regular Session, 2023.
S.B. 490 added new Texas Health and Safety Code (HSC) Chapter 185, which requires a health care provider to send a written, itemized bill of the alleged cost of each health care service and supply when the provider requests payment from a patient after providing the patient with a health care service or related supply.
HSC §185.003, as added by S.B. 490, requires HHSC to take disciplinary action against a provider that violates HSC Chapter 185 on or after September 1, 2023, as if the provider violated an applicable licensing law.
The proposed amendment is necessary to add information regarding these itemized-bill requirements.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §564.28 adds new subsection (b), which requires a licensed chemical dependency treatment facility (CDTF) to comply with the itemized billing requirements in HSC Chapter 185. The title of the section is updated to "Billing Requirements" and the section is reorganized for clarity.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing 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 expand existing regulations;
(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 proposed rule does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices.
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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from receiving itemized bills from licensed acute health care providers that are seeking payment from them for health care services and supplies and the public will also benefit from rules that are consistent with statutory requirements.
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 does not require persons subject to the rule to alter their current business practices; these entities are required to comply with the law as added by S.B. 490 and the proposed amendment only ensures consistency with current statutory requirements.
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 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 HCR_PRU@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 24R004" in the subject line.
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 HSC §464.009, which authorizes the Executive Commissioner to adopt rules governing organization and structure, policies and procedures, staffing requirements, services, client rights, records, physical plant requirements, and standards for licensed CDTFs.
The amendment implements Texas Government Code §531.0055 and HSC Chapter 185.
§564.28.[Balance] Billing Requirements.
(a) A facility shall comply with the following
balance billing requirements. [A facility may not violate
a law that prohibits the facility from billing a patient who is an
insured, participant, or enrollee in a managed care plan an amount
greater than an applicable copayment, coinsurance, and deductible
under the insured's, participant's, or enrollee's managed care plan
or that imposes a requirement related to that prohibition.]
(1) A facility may not violate a law that prohibits the facility from billing a patient who is an insured, participant, or enrollee in a managed care plan an amount greater than an applicable copayment, coinsurance, and deductible under the insured's, participant's, or enrollee's managed care plan or that imposes a requirement related to that prohibition.
(2) A facility shall comply with Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with related Texas Department of Insurance rules at 28 TAC Chapter 21, Subchapter OO, §§21.4901 - 21.4904 (relating to Disclosures by Out-of-Network Providers) to the extent this subchapter applies to the facility.
(b) A facility shall comply with the itemized bill requirements under Texas Health and Safety Code §185.002.
[(b) A facility shall comply with
Senate Bill 1264, 86th Legislature, Regular Session, 2019, and with
related Texas Department of Insurance rules at 28 TAC Chapter 21,
Subchapter OO, §§21.4901 - 21.4904 (relating to Disclosures
by Out-of-Network Providers) to the extent this subchapter applies
to the facility.]
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 April 10, 2024.
TRD-202401454
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 834-4591
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§744.123, 744.605, 744.1301, 744.1309, 744.1311, 744.1403, 744.1901, 744.1907, 744.1911, 744.1913, 744.2601, 744.3351, 744.3401, 744.3411, and 744.3415; new §§744.1318, 744.3409, and 744.3410; and repeal of §744.1613.
BACKGROUND AND PURPOSE
The proposal is necessary to implement House Bill (H.B.) 59, 88th Legislature, Regular Session, 2023. H.B. 59 amended Texas Health and Safety Code (HSC), Subchapter D, Chapter 341, by adding §341.0646 to require certain organizations, including child day care facilities, to implement specific child water safety requirements if the operation authorizes a child to engage in an organized water activity.
HHSC Child Care Regulation (CCR) is proposing new and amended rules in Chapter 744 that will (1) add definitions and requirements related to water safety, including (A) water safety training for employees, substitutes, volunteers, and contractors, and (B) the use of a personal flotation device for children who access swimming pools via their licensed child-care operation; and (2) update references to bodies of water and wading pools to be consistent with HSC §341.0646(a). CCR is also proposing to repeal one rule that established a grandfather clause related to child to caregiver ratios and group sizes because the need for the grandfather clause has expired.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §744.123 (1) adds definitions for "body of water," "personal flotation device," "swimming pool," and "wading pool"; (2) updates the definition of "water activities" to remove the terms "splashing pools" and "bodies of water"; and (3) updates the numbering of the definitions accordingly.
The proposed amendment to §744.605 (1) moves requirements related to water activity participation to the end of the list of required admission information; (2) renumbers the rule accordingly; and (3) clarifies that if a child-care operation allows a child to access a swimming pool a parent is required to indicate at admission whether the child is (A) able to swim competently as defined by the American Red Cross, or (B) requires a personal flotation device because the child is unable to swim competently or is at risk of injury or death when swimming or otherwise accessing a body of water.
The proposed amendment to §744.1301 adds to the chart of training requirements for employees, caregivers, and directors (1) the word "safety" to the transportation training requirements to be consistent with the rule content for that training; and (2) a new water safety training requirement for a child-care operation that allows a child to access a swimming pool at or away from the operation. The chart specifies that the site director and program director or operation director and each employee who accompanies a child to a swimming pool must have water safety training prior to accompanying a child to a swimming pool and annually thereafter.
The proposed amendment to §744.1309 clarifies that water safety training is exclusive of the 15 clock hours of annual required training for caregivers and site directors.
The proposed amendment to §744.1311 clarifies that water safety training is exclusive of the 20 clock hours of annual required training for an operation director or a program director.
Proposed new §744.1318 adds a requirement for water safety training if a child-care operation allows a child to access a swimming pool at or away from the operation. The rule requires the training for each employee who accompanies a child to a swimming pool before the employee accompanies the child to a swimming pool and for each site director and program director or operation director. The rule also clarifies that water safety training is exclusive of any requirements for orientation, pre-service training, and annual training.
The proposed amendment to §744.1403 adds to the chart of training requirements for substitutes, volunteers, and contractors (1) the word "safety" to the transportation training requirements to be consistent with the rule content for that training; and (2) a new water safety training requirement for a child-care operation that allows a child to access a swimming pool at or away from the operation. The chart specifies that each substitute, volunteer, and contractor who accompanies a child to a swimming pool must have water safety training prior to accompanying a child to a swimming pool and annually thereafter.
The proposed repeal of §744.1613 deletes the rule as no longer necessary because the rule established a grandfather clause that is no longer necessary.
The proposed amendment to §744.1901 removes references to "splashing" in the rule title and within the rule.
The proposed amendment to §744.1907 (1) updates the rule title to reflect that a lifeguard must be on duty when children are swimming in 18 inches, rather than two feet, of water; and (2) updates language for better readability.
The proposed amendment to §744.1911 clarifies that each caregiver counted in the child to caregiver ratio for swimming in 18 inches or more of water must be able to swim and be prepared to do so in an emergency.
The proposed amendment to §744.1913 updates language for better readability.
The proposed amendment to §744.2601 (1) updates language for better readability; and (2) updates the list of vessels containing water that must be inaccessible to all children to (A) add wading pools, and (B) remove pools, ponds, and creeks as they are included in the definition of the previously listed "bodies of water."
The proposed amendment to §744.3351 updates the title of a cross-referenced subchapter.
The title of Subchapter O is updated to remove the term "splashing."
The proposed amendment to §744.3401 (1) updates the rule title; (2) updates the title of a rule reference; and (3) removes language indicating that a swimming pool has a depth of more than two feet of water.
Proposed new §744.3409 outlines the additional safety precautions a child-care operation must take for a child in care who is unable to swim competently or is at risk of injury or death when swimming. The rule requires the child-care operation to do the following before the child enters a swimming pool: (1) provide the child with a Type I, II, or III United States Coast Guard approved 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.
Proposed new §744.3410 clarifies that a child-care operation is not required to provide a PFD to a child who is unable to swim competently or at risk of injury or death when swimming or ensure the child is wearing a PFD if (1) the child is actively participating in swim instruction or a competition; and (2) the child-care operation ensures the child is supervised in accordance with §744.1205 during the instruction or competition.
The proposed amendment to §744.3411 (1) removes the term "splashing" from the rule; (2) removes language indicating that a wading pool has a depth of two feet or less; and (3) updates the title of a rule reference.
The proposed amendment to §744.3415 (1) updates the rule title; (2) updates language for better readability; (3) removes references to "lakes," "ponds," and "rivers" from the list of water bodies a child cannot swim in as they are included in the definition of a "body of water"; and (4) removes a reference to "wading pool" as a wading pool is not considered a "body of water".
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 regulation;
(6) the proposed rules will expand and repeal existing regulations;
(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 an adverse economic effect on small businesses and micro-businesses, but there will not be an adverse economic effect on rural communities.
Texas Government Code Chapter 2006 defines a small business as one that is for-profit with fewer than 100 employees. A micro-business is one that is for-profit with fewer than 20 employees. Based on data obtained from the 2022 CCR Data Book, there are approximately 1,460 School-Age Programs and Before and After-School Programs required to comply with the rules. CCR conducted a survey of licensed child-care operations in 2019 to determine which operations met the definition of a small or micro-business and only received a response rate of approximately 1.5 percent of School-Age Programs and 1.1 percent of Before and After-School Programs, which is not statistically significant. However, data in July 2020 indicated that approximately 36.7 percent (536 programs) were for profit. In addition, based on a survey conducted in 2010 approximately 98 percent of those programs (525 programs) have less than 100 employees and qualify as small businesses and approximately 68 percent of those small businesses (357 programs) have less than 20 employees and qualify as micro-businesses.
There is a projected economic impact on small businesses and micro-businesses from proposed §744.3409. This economic impact, however, is limited to child-care operations that offer children access to a swimming pool, either onsite or during field trips where water activities take place. Based on data collected in November 2023 for Fiscal Year 2022, 55 child-care operations have a swimming pool on the premises and 227 child-care operations offer water activities (to include swimming pools, wading pools, and sprinkler play). However, CCR does not have data regarding how many of these child-care operations are a small business or a micro-business. With regards to water activities, CCR does not collect data regarding the type of water activities a child-care operation provides or whether those activities take place onsite or during field trips. Although HHSC can assume the 55 operations with a pool on the premises that are a small business or a micro-business will be required to comply with the proposed rule, HHSC is unable to determine the number of child-care operations whose water activities include access to a swimming pool during field trips. Therefore, HHSC does not have enough information to determine the total number of child-care operations operating as a small business or micro-business that will be required to comply with the proposed rule.
Section 744.3409 requires a child-care operation to provide each child in care who is unable to swim competently or is at risk of injury or death when swimming or otherwise entering a swimming pool a properly fitted and fastened Type I, II, or III United States Coast Guard approved personal flotation device (PFD). A 2023 assessment of the average cost to purchase a single PFD revealed that a PFD costs between $17 and $45. However, the total cost to purchase PFDs will vary per child-care operation depending on the number of enrolled children who are unable to swim competently or at risk of injury or death when swimming and the type of PFD the operation elects to purchase. In addition, some child-care operations may choose to obtain PFDs through organizations that provide them at no cost. These factors, coupled with HHSC's inability to determine the number of child-care operations that offer access to a swimming pool during field trips, renders HHSC unable to determine economic costs for persons required to comply with the rule as proposed.
HHSC determined that alternative methods to achieve the purpose of the proposed rule for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of children who access swimming pools via their licensed child-care operation.
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
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 (1) improve the safety of children enrolled in child-care operations who access swimming pools; and (2) rules that comply with state law.
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 may incur economic costs because the rules require child-care operations to provide each child in care who is unable to swim competently or is at risk of injury or death when swimming or otherwise entering a body of water a properly fitted and fastened Type I, II, or III United States Coast Guard approved personal flotation device (PFD). A 2023 assessment of the average cost to purchase a single PFD revealed that a PFD costs between $17 and $45. However, the total cost to purchase PFDs will vary per child-care operation depending on the number of enrolled children who are unable to swim or at risk of injury or death when swimming and the type of PFD the operation elects to purchase. In addition, some child-care operations may choose to obtain PFDs through organizations that provide them at no cost. As a result, HHSC does not have sufficient information to determine economic costs for persons required to comply with the rules as proposed.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Aimee Belden by email at Aimee.Belden@hhs.texas.gov.
Written comments on the proposal may be submitted to Aimee Belden, Rules Writer, Child Care Regulation, Texas Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If 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 23R074" in the subject line.
SUBCHAPTER A. PURPOSE, SCOPE, AND DEFINITIONS
DIVISION 3. DEFINITIONS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§744.123.What do certain words and terms mean when used in this chapter?
The words and terms used in this chapter have the meanings assigned to them under §745.21 of this title (relating to What do the following words and terms mean when used in this chapter?), unless another meaning is assigned in this section or another subchapter or unless the context clearly indicates otherwise. In addition, the following words and terms used in this chapter have the following meanings unless the context clearly indicates otherwise:
(1) Activity plan--A written plan that outlines the daily routine and activities in which a group of children will engage while in your care. The plan is designed to meet the children's cognitive, language, social, emotional, and physical developmental strengths and needs.
(2) Activity space--An area or room used for children's activities, including areas separate from a group's classroom.
(3) Administrative and clerical duties--Duties that involve the administration of an operation, such as bookkeeping, enrolling children, answering the telephone, and collecting fees.
(4) Admission--The process of enrolling a child in an operation. The date of admission is the first day the child is physically present at the operation.
(5) Adult--A person 18 years old and older.
(6) Age-appropriate--Activities, equipment, materials, curriculum, and environment, including the child's assigned classroom, that are developmentally consistent with the developmental or chronological age of the child being served.
(7) Attendance--When referring to a child's attendance, the physical presence of a child at the operation on any given day or at any given time, as distinct from the child's enrollment in the operation.
(8) Before or after-school program--An operation that provides care before and after or before or after the customary school day and during school holidays, for at least two hours a day, three days a week, to children who attend pre-kindergarten through grade six.
(9) Body of water--As defined by Texas Health and Safety Code, Chapter 341, Subchapter D (relating to Sanitation and Safety of Facilities Used by Public).
(10) [(9)] Caregiver--A person
who is counted in the child to caregiver ratio, whose duties include
the supervision, guidance, and protection of a child. As used in this
chapter, a caregiver must meet the minimum education, work experience,
and training qualifications required under Subchapter D of this chapter
(relating to Personnel). A caregiver is usually an employee, but may
also be a substitute, volunteer, or contractor, as outlined in paragraph (16) [(15)] of this section and Subchapter D, Division
5 of this chapter (relating to Substitutes, Volunteers, and Contractors).
(11) [(10)] Certified Child-Care
Professional Credential--A credential given by the National Early
Childhood Program Accreditation to a person working directly with
children. The credential is based on assessed competency in several
areas of child care and child development.
(12) [(11)] Certified lifeguard--A
person who has been trained in life saving and water safety by a qualified
instructor, from a recognized organization that awards a certificate
upon successful completion of the training. The certificate is not
required to use the term "lifeguard," but you must be able to document
that the certificate is current, relevant to the type of water activity
in which children will engage, and represents the type of training described.
(13) [(12)] CEUs--Continuing
education units. A standard unit of measure for adult education and
training activities. One CEU equals 10 clock hours of participation
in an organized, continuing-education experience, under responsible,
qualified direction and instruction. Although a person may obtain
a CEU in many of the same settings as clock hours, the CEU provider
must meet the criteria established by the International Association
for Continuing Education and Training to be able to offer the CEU.
(14) [(13)] Child Development
Associate Credential--A credential given by the Council for Professional
Recognition to a person working directly with children. The credential
is based on assessed competency in several areas of child care and
child development.
(15) [(14)] Clock hour--An actual
hour of documented:
(A) Attendance at instructor-led training, such as seminars, workshops, conferences, early childhood classes, and other planned learning opportunities, provided by an individual or individuals, as specified in §744.1319(a) of this chapter (relating to Must the training for my caregivers and the director meet certain criteria?); or
(B) Self-instructional training that was created by an individual or individuals, as specified in §744.1319(a) and (b) of this chapter, or self-study training.
(16) [(15)] Contract service
provider--A person or entity contracting with the operation to provide
a service, whether paid or unpaid. Also referred to as "contract staff"
and "contractor" in this chapter.
(17) [(16)] Corporal punishment--The
infliction of physical pain on a child as a means of controlling behavior.
This includes spanking, hitting with a hand or instrument, slapping,
pinching, shaking, biting, or thumping a child.
(18) [(17)] Days--Calendar days,
unless otherwise stated.
(19) [(18)] Director--An adult
you designate to have daily, on-site responsibility for your operation,
including maintaining compliance with the minimum standards, rules,
and laws. As this term is used in this chapter, a director may be
an operation director, program director, or site director, unless
the context clearly indicates otherwise.
(20) [(19)] Employee--A person
an operation employs full-time or part-time to work for wages, salary,
or other compensation. Employees are all of the operation staff, including
caregivers, kitchen staff, office staff, maintenance staff, the assistant
director, all directors, and the owner, if the owner is ever on site
at the operation or transports a child.
(21) [(20)] Enrollment--The list
of names or number of children who have been admitted to attend an
operation for any given period of time; the number of children enrolled
in an operation may vary from the number of children in attendance
on any given day.
(22) [(21)] Entrap--A component
or group of components on equipment that forms angles or openings
that may trap a child's head by being too small to allow the child's
body to pass through, or large enough for the child's body to pass
through but too small to allow the child's head to pass through.
(23) [(22)] Field trips--Activities
conducted away from the operation.
(24) [(23)] Food service--The
preparation or serving of meals or snacks.
(25) [(24)] Frequent--More than
two times in a 30-day period. Note: For the definition of "regularly
or frequently present at an operation" as it applies to background
checks, see §745.601 of this title (relating to What words must
I know to understand this subchapter?).
(26) [(25)] Garbage--Waste food
or items that when deteriorating cause offensive odors and attract
rodents, insects, and other pests.
(27) [(26)] Governing body--A
group of persons or officers of a corporation or other type of business
entity having ultimate authority and responsibility for the operation.
(28) [(27)] Grounds--Includes
any parcel of land where the operation is located and any building,
other structure, body of water, play equipment, street, sidewalk,
walkway, driveway, parking garage, or parking lot on the parcel. Also
referred to as "premises" in this chapter.
(29) [(28)] Group activities--Activities
that allow children to interact with other children in large or small
groups. Group activities include storytelling, finger plays, show
and tell, organized games, and singing.
(30) [(29)] Hazardous materials--Any
substance or chemical that is a health hazard or physical hazard as
determined by the Environmental Protection Agency. Also referred to
as "toxic materials" and "toxic chemicals" in this chapter.
(31) [(30)] Health-care professional--A
licensed physician, a licensed advanced practice registered nurse
(APRN), a licensed vocational nurse (LVN), a licensed registered nurse
(RN), or other licensed medical personnel providing health care to
the child within the scope of the license. This does not include physicians,
nurses, or other medical personnel who are not licensed in the United
States or in the country in which the person practices.
(32) [(31)] Health check--A visual
or physical assessment of a child to identify potential concerns about
a child's health, including signs or symptoms of illness and injury,
in response to changes in the child's behavior since the last date
of attendance.
(33) [(32)] High school equivalent--
(A) Documentation of a program recognized by the Texas Education Agency (TEA) or other public educational entity in another state, which offers similar training on reading, writing, and math skills taught at the high school level, such as a General Educational Development (GED) certificate; or
(B) Confirmation that the person received home-schooling that adequately addressed basic competencies such as basic reading, writing, and math skills, which would otherwise have been documented by a high school diploma.
(34) [(33)] Individual activities--Opportunities
for the child to work independently or to be away from the group but supervised.
(35) [(34)] Inflatable--An amusement
ride or device, consisting of air-filled structures designed for use
by children, as specified by the manufacturer, which may include bouncing,
climbing, sliding, or interactive play. They are made of flexible
fabric, kept inflated by continuous air flow by one or more blowers,
and rely upon air pressure to maintain their shape.
(36) [(35)] Instructor-led training--Training
characterized by the communication and interaction that takes place
between the student and the instructor. The training must include
an opportunity for the student to interact with the instructor to
obtain clarifications and information beyond the scope of the training
materials. For such an opportunity to exist, the instructor must communicate
with the student in a timely fashion, including answering questions,
providing feedback on skills practice, providing guidance or information
on additional resources, and proactively interacting with students.
Examples of this type of training include, classroom training, web-based
on-line facilitated learning, video-conferencing, or other group learning experiences.
(37) [(36)] Janitorial duties--Those
duties that involve the cleaning and maintenance of the operation's
building, rooms, furniture, etc. Cleaning and maintenance include
such duties as cleansing carpets, washing cots, and sweeping, vacuuming,
or mopping a restroom or a classroom. Sweeping up after an activity
or mopping up a spill in a classroom that is immediately necessary
for the children's safety is not considered a janitorial duty.
(38) [(37)] Local sanitation
official--A sanitation official designated by the city or county government.
(39) [(38)] Multi-site operations--Two
or more operations owned by the same person or entity, but the operations
have separate permits. These operations may have centralized business
functions, record keeping, and leadership.
(40) [(39)] Natural environment--Settings
that are natural or typical for all children of the same age without
regard to ability or disability. For example, a natural environment
for learning social skills is a play group of peers.
(41) [(40)] Nighttime care--Care
given on a regular or frequent basis to children who are starting
or continuing their night sleep, or to children who spend the night
or part of the night at the operation between the hours of 9:00 p.m.
and 6:00 a.m.
(42) [(41)] Operation--A person
or entity offering a before or after-school program or school-age
program that is subject to Licensing's regulation. An operation includes
the grounds where the program is offered, any person involved in providing
the program, and any equipment used in providing the program.
(43) [(42)] Operation director--A
director at your operation who is not supervised by a program director.
An operation that has an operation director cannot have a program
director or a site director.
(44) [(43)] Owner--The sole proprietor,
partnership, corporation, or other type of business entity who owns
the operation.
(45) [(44)] Permit holder--The
owner of the operation that is granted the permit.
(46) [(45)] Permit is no longer
valid--For purposes of this chapter, a permit remains valid through
the renewal process. A permit only becomes invalid when your:
(A) Operation voluntarily closes;
(B) Operation must close because of an enforcement action in Chapter 745, Subchapter L of this title (relating to Enforcement Actions);
(C) Permit expires according to §745.481 of this title (relating to When does my permit expire?); or
(D) Operation must close because its permit is automatically revoked according to Texas Human Resources Code §§42.048(e), 42.052(j), or 42.054(f).
(47) Personal flotation device (PFD)--A United States Coast Guard approved life jacket.
(48) [(46)] Physical activity
(moderate)--Levels of activity for a child that are at intensities
faster than a slow walk, but still allow the child to talk easily.
Moderate physical activity increases heart rate and breathing rate.
(49) [(47)] Physical activity
(vigorous)--Rhythmic, repetitive physical movement for a child that
uses large muscle groups, causing the child to breathe rapidly and
only enabling the child to speak in short phrases. Typically, the
child's heart rate is substantially increased, and the
child is likely to be sweating while engaging in the vigorous physical activity.
(50) [(48)] Pre-kindergarten
age child--A child who is three or four years of age before the beginning
of the current school year.
(51) [(49)] Premises--See the
term "grounds" and its definition in this section.
(52) [(50)] Program--The services
and activities provided by an operation.
(53) [(51)] Program director--A
director who oversees your program at multi-site operations and supervises
a site director at each operation.
(54) [(52)] Regular--On a recurring,
scheduled basis. Note: For the definition of "regularly or frequently
present at an operation" as it applies to background checks, see §745.601
of this title.
(55) [(53)] Safety belt--A lap
belt and any shoulder straps included as original equipment on or
added to a vehicle.
(56) [(54)] Sanitize--The use
of a disinfecting product that provides instructions specific for
sanitizing and is registered by the Environmental Protection Agency
(EPA) to substantially reduce germs on inanimate objects to levels
considered safe by public health requirements. Many bleach and hydrogen
peroxide products are EPA-registered. You must follow the product's
labelling instructions for sanitizing or disinfecting, depending on
the surface (paying attention to any instructions regarding contact
time and toxicity on surfaces likely to be mouthed by children). If
you use bleach instead of an approved disinfecting product, you must
follow these steps in order:
(A) Washing with water and soap;
(B) Rinsing with clear water;
(C) Soaking in or spraying on a bleach solution for at least two minutes;
(D) Rinsing with cool water only those items that children are likely to place in their mouths; and
(E) Allowing the surface or item to air-dry.
(57) [(55)] School-age child--A
child who is five years of age and older and is enrolled in or has
completed kindergarten.
(58) [(56)] School-age program--An
operation that provides supervision and recreation, skills instruction,
or skills training for at least two hours a day and three days a week
to children who attend pre-kindergarten through grade six. A school-age
program operates before or after the customary school day and may
also operate during school holidays, the summer period, or any other
time when school is not in session.
(59) [(57)] Screen time activity--An
activity during which a child views media content on a cell or mobile
phone, tablet, computer, television, video, film, or DVD. Screen time
activities do not include video chatting with a child's family or
assistive and adaptive computer technology used by a child with special
care needs on a consistent basis.
(60) [(58)] Self-instructional
training--Training designed to be used by one individual working alone
and at the individual's own pace to complete lessons or modules. Lessons
or modules commonly include questions with clear right and wrong answers.
An example of this type of training is web-based training. Self-study
training is also a type of self-instructional training.
(61) [(59)] Self-study training--Non-standardized
training where an individual reads written materials, watches a training
video, or listens to a recording to obtain certain knowledge that
is required for annual training. Self-study training is limited to
three hours of annual training per year.
(62) [(60)] Site director--A
director who has on-site responsibility at a specific operation, but
who is supervised by a program director.
(63) [(61)] Special care needs--A
child with special care needs is a child who has:
(A) A chronic physical, developmental, behavioral, or emotional condition or a disability and who also requires assistance beyond that required by a child generally to perform tasks that are within the typical chronological range of development, including the movement of large or small muscles, learning, talking, communicating, comprehension, emotional regulation, self-help, social skills, emotional well-being, seeing, hearing, and breathing; or
(B) A limitation due to an injury, illness, or allergy.
(64) [(62)] State or local fire
authority--A fire official who is authorized to conduct fire safety
inspections on behalf of the city, county, or state government, including
certified fire inspectors. Also referred to as "fire marshal" in this chapter.
(65) Swimming Pool--An artificial body of water with a water depth of more than 18 inches that is maintained or used expressly for public or private recreational purposes, swimming, diving, aquatic sports or activities, or therapeutic purposes.
(66) [(63)] Universal precautions--An
approach to infection control where all human blood and certain human
bodily fluids are treated as if known to be infectious for HIV, HBV,
and other blood-borne pathogens.
(67) Wading pool--As defined by Texas Health and Safety Code, Chapter 341, Subchapter D.
(68) [(64)] Water activities--Related
to the use of swimming pools, [splashing pools,] wading
pools, or sprinkler play[, or other bodies of water].
(69) [(65)] Weather permitting--Weather
conditions that do not pose any concerns for health and safety, such
as significant risk of frostbite or heat-related illness. This includes
adverse weather conditions in which children may still play safely
outdoors for shorter periods with appropriate adjustments to clothing
and any necessary access to water, shade, or shelter.
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 April 12, 2024.
TRD-202401505
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. RECORDS OF CHILDREN
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§744.605.What admission information must I obtain for each child?
You must obtain at least the following information before admitting a child to the operation:
(1) The child's name and birth date;
(2) The child's home address and telephone number;
(3) Date of the child's admission to the operation;
(4) Name and address of parents [parent(s)];
(5) Telephone numbers at which parents [parent(s)
] can be reached while the child is in care;
(6) Name, address, and telephone number of another responsible individual (friend or relative) who should be contacted in an emergency when the parent cannot be reached;
(7) Names and telephone numbers of persons other than a parent to whom the child may be released;
(8) Permission for transportation, if provided, including any authorized pick-up and drop-off locations;
(9) Permission for field trips, if provided;
[(10) Permission for participation
in water activities, if provided, including whether the child is able
to swim without assistance;]
(10) [(11)] Name, address, and
telephone number of the child's physician or an emergency-care facility;
(11) [(12)] Authorization to
obtain emergency medical care and to transport the child for emergency
medical treatment;
(12) [(13)] A statement of the
child's special problems or special care needs, which must include:
(A) Any limitations or restrictions on the child's activities;
(B) Special care the child requires, including:
(i) Any reasonable accommodations or modifications;
(ii) Any adaptive equipment provided for the child, including instructions for how to use the equipment; and
(iii) Symptoms or indications of potential complications related to a physical, cognitive, or mental condition that may warrant prevention or intervention while the child is in care; and
(C) Any medications prescribed for continuous, long-term use.
(13) [(14)] The name and telephone
number of the school that a school-age child attends, unless the operation
is located at the child's school;
(14) [(15)] Permission for a
school-age child to ride a bus, walk to or from school or home, or
to be released to the care of a sibling under 18 years old, if applicable;
[and]
(15) [(16)] The child's allergies
and a completed food allergy emergency plan for the child, if applicable;
and[.]
(16) Permission for participation in water activities, if provided. If you allow a child to access a swimming pool, the parent must also indicate whether the child:
(A) Is able to swim competently, as defined by the American Red Cross; or
(B) Requires a personal flotation device because the child is:
(i) Unable to swim competently, as defined by the American Red Cross; or
(ii) At risk of injury or death when swimming or otherwise accessing a body of water.
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 April 12, 2024.
TRD-202401506
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 4. PROFESSIONAL DEVELOPMENT
26 TAC §§744.1301, 744.1309, 744.1311, 744.1318
STATUTORY AUTHORITY
The amendments 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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments and new section affect Texas Government Code §531.0055 and HRC §42.042.
§744.1301.What are the training requirements for employees, caregivers, and directors?
(a) Employees, caregivers, and directors must complete the following training requirements.
Figure: 26 TAC §744.1301(a) (.pdf)
[Figure: 26 TAC §744.1301(a)]
(b) If a caregiver or employee does not yet have a current certificate in pediatric CPR, as required in (a)(4)(A) in Figure: 26 TAC §744.1301(a), at least one caregiver or employee with a current certificate must also be on the premises with the caregiver.
§744.1309.What areas of training must the annual training for caregivers and site directors cover?
(a) The 15 clock hours of annual training must:
(1) For a caregiver, be relevant to the age of the children for whom the caregiver provides care; or
(2) For a site director, be relevant to the age of the children for whom the operation provides care.
(b) At least six clock hours of the annual training hours must be in one or more of the following topics:
(1) Child growth and development;
(2) Guidance and discipline;
(3) Age-appropriate curriculum; and
(4) Teacher-child interaction.
(c) At least one clock hour of the annual training hours must focus on prevention, recognition, and reporting of child maltreatment, including:
(1) Factors indicating a child is at risk for abuse or neglect;
(2) Warning signs indicating a child may be a victim of abuse or neglect;
(3) Procedures for reporting child abuse or neglect; and
(4) Community organizations that have training programs available to employees, children, and parents.
(d) While there are no clock hour requirements for the topics in this subsection, the annual training hours must also include training on the following topics:
(1) Emergency preparedness;
(2) Preventing and controlling the spread of communicable diseases, including immunizations;
(3) Administering medication, if applicable, including compliance with §744.2653 of this chapter (relating to What authorization must I obtain before administering a medication to a child in my care?);
(4) Preventing and responding to emergencies due to food or an allergic reaction;
(5) Understanding building and physical premises safety, including identification and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic; and
(6) Handling, storing, and disposing of hazardous materials including compliance with §744.2523 of this chapter (relating to Must caregivers wear gloves when handling blood or bodily fluids containing blood?).
(e) The remaining annual training hours must be in one or more of the following topics:
(1) Care of children with special needs;
(2) Child health (for example, nutrition, and physical activity);
(3) Safety;
(4) Risk management;
(5) Identification and care of ill children;
(6) Cultural diversity for children and families;
(7) Professional development (for example, effective communication with families and time and stress management);
(8) Topics relevant to the particular age group the caregiver is assigned;
(9) Planning developmentally appropriate learning activities; and
(10) Minimum standards and how they apply to the caregiver.
(f) At least three of the 15 required annual training hours must be instructor-led training. The remaining 12 required annual training hours may come from self-instructional training, of which no more than three hours may come from self-study training.
(g) The 15 clock hours of annual training are exclusive of any requirements for orientation, pre-service training, pediatric first aid and pediatric CPR training, transportation safety training, water safety training, and high school child-care work-study classes.
§744.1311.What areas of training must the annual training for an operation director or a program director cover?
(a) The 20 clock hours of annual training must be relevant to the age of the children for whom the operation provides care.
(b) At least six clock hours of the annual training hours must be in one or more of the following topics:
(1) Child growth and development;
(2) Guidance and discipline;
(3) Age-appropriate curriculum;
(4) Teacher-child interaction; and
(5) Serving children with special care needs.
(c) At least one clock hour of the annual training hours must focus on prevention, recognition, and reporting of child maltreatment, including:
(1) Factors indicating a child is at risk for abuse or neglect;
(2) Warning signs indicating a child may be a victim of abuse or neglect;
(3) Procedures for reporting child abuse or neglect; and
(4) Community organizations that have training programs available to employees, children, and parents.
(d) While there are no clock hour requirements for the topics in this subsection, the annual training hours must also include training on the following topics:
(1) Emergency preparedness;
(2) Preventing and controlling the spread of communicable diseases, including immunizations;
(3) Administering medication, if applicable, including compliance with §744.2653 of this chapter (relating to What authorization must I obtain before administering a medication to a child in my care?);
(4) Preventing and responding to emergencies due to food or an allergic reaction;
(5) Understanding building and physical premises safety, including identification and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic; and
(6) Handling, storing, and disposing of hazardous materials including compliance with §744.2523 of this chapter (relating to Must caregivers wear gloves when handling blood or bodily fluids containing blood?).
(e) An operation director or program director with:
(1) Five or fewer years of experience as a designated operation director or program director must complete at least six clock hours of the annual training hours in management techniques, leadership, or staff supervision; or
(2) More than five years of experience as a designated operation director or program director must complete at least three clock hours of the annual training hours in management techniques, leadership, or staff supervision.
(f) The remainder of the 20 clock hours of annual training must be selected from the training topics specified in §744.1309(e) of this division (relating to What areas of training must the annual training for caregivers and site directors cover?).
(g) An operation director or program director may obtain clock hours or CEUs from the same sources as caregivers.
(h) A director may not earn training hours by presenting training to others.
(i) At least four of the required 20 annual training hours must come from instructor-led training. The remaining 16 required annual training hours may come from self-instructional training, of which no more than three hours may come from self-study training.
(j) The 20 clock hours of annual training are exclusive
of any requirements for orientation, pre-service training, pediatric
first aid and pediatric CPR training, [and] transportation
safety training, and water safety training.
§744.1318.What additional training must an employee and director have if the operation allows a child to access a swimming pool at or away from the operation?
(a) If the operation allows a child to access a swimming pool at or away from the operation, annual water safety training is required for:
(1) Each employee prior to accompanying a child to a swimming pool; and
(2) Each site director and program director or operation director.
(b) Water safety training is exclusive of any requirements for orientation, pre-service training, and annual training.
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 April 12, 2024.
TRD-202401508
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§744.1403.What are the training requirements for substitutes, volunteers, and contractors?
(a) Substitutes, volunteers, and contractors must complete the following training requirements.
Figure: 26 TAC §744.1403(a) (.pdf)
[Figure: 26 TAC §744.1403(a)]
(b) If a substitute, volunteer, or contractor who is counted in the child to caregiver ratio does not yet have a current certificate in pediatric CPR, as required in (a)(4)(A) in Figure: 26 TAC §744.1403(a), at least one caregiver or employee with a current certificate must also be on the premises with the substitute, volunteer, or contractor.
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 April 12, 2024.
TRD-202401512
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 2. CLASSROOM RATIOS AND GROUP SIZES
STATUTORY AUTHORITY
The repeal is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 repeal affects Texas Government Code §531.0055 and HRC §42.042.
§744.1613.Will I be given an opportunity to comply with changes in child/caregiver ratio and group sizes?
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 April 12, 2024.
TRD-202401515
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§744.1901, 744.1907, 744.1911, 744.1913
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments affect Texas Government Code §531.0055 and HRC §42.042.
§744.1901.Must I have additional caregivers
for wading [splashing/wading] activities?
You must comply with §746.2101 of this title (relating
to Must I have additional caregivers for wading [splashing/wading] activities?).
§744.1907.Must a certified lifeguard be
on duty when children are swimming in more than 18 inches [two feet] of water?
A [Yes. When children are swimming in more
than two feet of water, a] certified lifeguard must be on duty
at all times when children are swimming in more than 18 inches
of water.
§744.1911.Must persons who are counted in the child/caregiver ratio during swimming activities know how to swim?
[Yes.] Each caregiver [person]
included in the child/caregiver ratio for swimming in 18 inches [two feet] or more of water must be able to swim and must be
prepared to do so in an emergency.
§744.1913.May I include volunteers or child-care employees who do not meet minimum qualifications for caregivers in the child/caregiver ratio for water activities?
You [Yes. To meet the child/caregiver ratio
for splashing/wading and swimming activities, you] may include
adult volunteers and employees of your operation who do not meet the
minimum qualifications for caregivers specified in Subchapter D of
this chapter (relating to Personnel) to meet the child/caregiver
ratio for swimming and wading activities, provided that:
(1) You maintain at least the classroom child/caregiver ratios required in this subchapter with caregivers who do meet the minimum qualifications for caregivers;
(2) All persons included in the ratios for water activities must be able to swim and must be prepared to do so in an emergency; and
(3) You ensure compliance with all other minimum standards, including, but not limited to, standards relating to supervision, discipline, and guidance.
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 April 12, 2024.
TRD-202401517
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. SAFETY PRECAUTIONS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§744.2601.What safety precautions must I take to protect children in my operation?
All areas accessible to a child must be free from hazards including[, but not limited to,] the following:
(1) Electrical outlets accessible to a child younger than five years old must have childproof covers or safety outlets;
(2) 220-volt electrical connections within a child's reach must be covered with a screen or guard;
(3) Air conditioners, electric fans, and heaters must be mounted out of all children's reach or have safeguards that keep any child from being injured;
(4) Glass in sliding doors must be clearly marked with decals or other materials placed at children's eye level;
(5) Play materials and equipment must be safe and free from sharp or rough edges and toxic paints;
(6) Poisonous or potentially harmful plants must be inaccessible to all children;
(7) All storage chests, boxes, trunks, or similar items with hinged lids must be equipped with a lid support designed to hold the lid open in any position, be equipped with ventilation holes, and must not have a latch that might close and trap a child inside;
(8) All bodies of water, wading pools [such
as pools], hot tubs, [ponds, creeks,] birdbaths,
fountains, buckets, and rain barrels must be inaccessible to all children; and
(9) All televisions must be anchored, so they cannot
tip over. A television may be anchored to a rolling cart, if [as long as] it is anchored in a way that the cart will not tip
over.
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 April 12, 2024.
TRD-202401519
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 6. INFLATABLES
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§744.3351.May I use inflatable active play equipment?
You may use inflatable equipment both at and away from your operation if you follow these guidelines:
(1) You use enclosed inflatables (such as bounce houses or moon walks) according to the manufacturer's instructions;
(2) You use open inflatables (such as obstacle courses, slides, or games) according to the manufacturer's instructions; and
(3) Inflatables that include water activity also comply
with all applicable requirements in Subchapter O of this chapter [title] (relating to Swimming Pools, Wading [Wading/Splashing
] Pools, and Sprinkler Play).
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 April 12, 2024.
TRD-202401520
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§744.3401, 744.3409 - 744.3411, 744.3415
STATUTORY AUTHORITY
The amendments and new sections authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments and new sections affect Texas Government Code §531.0055 and HRC §42.042.
§744.3401.What safety precautions must
I follow when a child [children] in my care uses
[use] a swimming pool?
In addition to complying with the child/caregiver ratios specified
in §744.1905 of this chapter [title] (relating
to What are the child/caregiver ratios for swimming activities?) and
other safety requirements specified in §744.1907 of this chapter
[title] (relating to Must a certified lifeguard
be on duty when children are swimming in more than 18 inches [two feet] of water?) and §744.1911 of this chapter [title] (relating to Must persons who are counted in the child/caregiver
ratio during swimming know how to swim?), you must comply with the
following safety precautions when any child uses a swimming pool [(more
than two feet of water)] both at and away from your operation:
(1) A minimum of two life-saving devices must be available;
(2) One additional life-saving device must be available for each 2,000 square feet of water surface;
(3) Drain grates must be in place, in good repair, and must not be able to be removed without using tools;
(4) Pool chemicals and pumps must be inaccessible to any child;
(5) Machinery rooms must be locked when any child is present;
(6) Employees must be able to clearly see all parts of the swimming area;
(7) The bottom of the pool must be visible at all times;
(8) An adult must be present who is able to immediately turn off the pump and filtering system when any child is in a pool; and
(9) All indoor/outdoor areas must be free of furniture and equipment that any child could use to scale a fence or barrier or release a lock.
§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?
Before a child who is unable to swim competently or who is at risk of injury or death when swimming enters a swimming pool, you must:
(1) Provide the child with a Type I, II, or III United States Coast Guard approved 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.
§744.3410.Must I provide a personal flotation device (PFD) to a child in care who is unable to swim competently or who is at risk of injury or death when swimming when the child is participating in swim instruction or a competition?
You are not required to provide the child with a PFD or ensure the child is wearing the device if:
(1) The child is actively participating in swim instruction or a competition; and
(2) You ensure that the child is supervised in accordance with §744.1205 of this chapter (relating to What responsibilities does a caregiver have when supervising a child or children?) during the instruction or competition.
§744.3411.What are the safety requirements for wading pools?
(a) Wading [Wading/splashing]
pools [(two feet of water or less)] at your operation must be:
(1) Stored out of children's reach when not in use;
(2) Drained at least daily and sanitized; and
(3) Stored so they do not hold water.
(b) You must comply with the safety precautions specified
in §744.3401 of this subchapter [title]
(relating to What safety precautions must I follow when a child [children] in my care uses [use] a swimming
pool?) when using wading [wading/splashing]
pools away from your operation.
§744.3415.Can a child [children
] in my care swim in a body of water other than a swimming pool[, such as a lake, pond, or river]?
You [No, you] must not allow a child [children] to swim in a [lake, pond, river, or a]
body of water other than a swimming pool [or wading pool]
that complies with the rules specified in this subchapter.
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 April 12, 2024.
TRD-202401524
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §745.31 and §745.37; and new §§745.9051, 745.9053, 745.9055, 745.9057, 745.9059, 745.9061, 745.9063, 745.9065, 745.9067, 745.9069, 745.9071, 745.9073, 745.9075, 745.9077, 745.9085, 745.9087, 745.9089, 745.9091, 745.9093, 745.9095, and 745.9097, in Texas Administrative Code, Title 26, Chapter 745, Licensing, Subchapter B, Child Care and Other Operations That We Regulate, and new Subchapter O, Psychiatric Residential Youth Treatment Facility.
BACKGROUND AND PURPOSE
The proposal is necessary to comply with House Bill (H.B.) 3121, 87th Legislature, Regular Session, 2021, which created Texas Health and Safety Code Chapter 577A, Psychiatric Residential Youth Treatment Facilities. Chapter 577A mandates HHSC Child Care Regulation (CCR) to create a voluntary process whereby a general residential operation (GRO) may be certified as a psychiatric residential youth treatment facility (PRYTF) to provide treatments and services to individuals 21 years of age or younger with a severe emotional disturbance. Section 577A.004 requires HHSC to adopt rules to implement the chapter. Accordingly, CCR is proposing amended rules in Chapter 745, Subchapter B to (1) clarify that CCR will also regulate PRYTFs that will care for young adults 18 to 21 years of age in addition to child care; and (2) update rules to meet current practice and to improve readability and understanding. In addition, CCR is proposing new rules in Chapter 745, Subchapter O to (1) define terms; (2) create an application process, including requiring accreditation and a current GRO license; (3) create a renewal process every two years; (4) establish application and renewal fees; (5) clarify how inspections, investigations, and confidentiality will apply to PRYTFs; and (6) establish the enforcement actions that HHSC may take against a PRYTF.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §745.31 clarifies that for PRYTFs, CCR will regulate the GRO's care of young adults 18 to 21 years of age in addition to child care. CCR is also updating the rule to improve readability and understanding.
The proposed amendment to §745.37 (1) updates the charts specifying the types of operations that CCR regulates to be consistent with current practice; (2) improves the rule for readability and understanding; and (3) clarifies that a licensed GRO may apply for a PRYTF certificate to provide psychiatric health treatments and services to individuals 21 years of age and younger.
Proposed new §745.9051 defines the terms "individual," "psychiatric health treatments and services," "Psychiatric Residential Youth Treatment Facility (PRYTF)," and "severe emotional disturbance."
Proposed new §745.9053 lists the requirements that a GRO must meet before applying for a PRYTF certificate, including (1) having a current GRO license; (2) having CCR's approval to provide treatment services to children with an emotional disorder; and (3) being accredited.
Proposed new §745.9055 lists the requirements for a completed PRYTF application, including submitting (1) the application; (2) a GRO - Additional Operation Plan; (3) an updated GRO floor plan; (4) additional written policies; and (5) the PRYTF certificate application fee.
Proposed new §745.9057 requires the GRO that is applying for a PRYTF certificate to comply with the public notice and hearing requirements, which must include the capacity of the children and young adults the PRYTF will serve. CCR may deny the PRYTF certificate if the public notice and hearing requirements are not met.
Proposed new §745.9059 establishes that CCR has 21 calendar days to review a PRYTF application, after which CCR will notify the GRO (1) if there is good cause to delay the review of the application; (2) the operation is ineligible to receive the PRYTF certificate; (3) the application is complete and ready for processing; or (4) the application is incomplete and what must be done to complete the application. If the application is not complete by the first anniversary of the original submission, CCR will close the application and the GRO must reapply.
Proposed new §745.9061 establishes that CCR has two months after accepting an application to determine whether to issue the PRYTF certificate, unless there is good cause to exceed the timeframe. An applicant may also file a complaint regarding untimely determinations.
Proposed new §745.9063 lists the factors CCR will consider when evaluating a PRYTF application, including (1) the application and any information submitted with the application and the Additional Operation Plan; (2) the on-site inspection to determine compliance with statutes, rules, and minimum standards; and (3) any information gathered during the application process or the public hearing.
Proposed new §745.9065 establishes the reasons CCR may deny a PRYTF certificate when a public hearing is required, including (1) the community has insufficient resources to support the children or young adults that the GRO proposed to serve; (2) issuing the certificate would have an adverse impact on the children and young adults the PRYTF would serve: (A) by significantly increasing, in the local school district, the ratio of the students enrolled in a special education program to students enrolled in a regular education program; or (B) by significantly impacting the local school district; or (3) issuing the certificate would have a significant adverse impact on the community and limit opportunities for social interaction for the children and young adults the PRYTF would serve.
Proposed new §745.9067 (1) requires the PRYTF to renew the certificate every two years after the date it is issued; (2) requires a timely renewal even if there is a pending civil or administrative penalty or if the GRO or PRYTF is under an enforcement action; and (3) establishes the beginning and end date of the renewal period.
Proposed new §745.9069 lists the requirements for a completed PRYTF renewal application, including submitting (1) the application; (2) verification of controlling persons and the governing body; (3) a statement regarding waivers and variances; (4) a validation of the list of persons who require a background check; (5) verification of ongoing accreditation; and (6) the PRYTF certificate renewal fee.
Proposed new §745.9071 establishes that CCR (1) will evaluate whether (A) the renewal application is complete; (B) the GRO is still approved to provide treatment services to children with an emotional disorder; (C) any administrative penalties have not been paid; and (D) the PRYTF meets the statutory, rule, and minimum standard requirements; and (2) after evaluation will send the GRO written notice that CCR (A) has renewed the PRYTF certificate; (B) the PRYTF renewal application is incomplete and the reason why; or (C) CCR refuses to renew the PRYTF certificate and the bases for the refusal.
Proposed new §745.9073 establishes when a PRYTF certificate expires and what actions the GRO must take if it expires, including (1) informing the young adults and any guardians and the parents of the children of the expiration; (2) discharge and stop providing care to the young adults; and (3) either enroll a child into the GRO, as appropriate, or discharge a child to the parents.
Proposed new §745.9075 establishes the PRYTF Certificate Application Fee of $890 and the PRYTF Certificate Renewal Fee of $740.
Proposed new §745.9077 clarifies that the rules in Chapter 745, Subchapter K regarding inspections, investigations, and confidentiality apply to a PRYTF certificate in the same manner as the rules would apply to a GRO permit. Regarding confidentiality, the confidentiality rules relating to an applicant for a permit, a permit holder, or former permit holder also apply to an applicant for a PRYTF certificate, a holder of a PRYTF certificate, or a former PRYTF certificate holder.
Proposed new §745.9085 (1) lists the enforcement actions HHSC may impose against a PRYTF, including (A) a denial of a PRYTF certificate; (B) a refusal to renew a PRYTF certificate; (C) an administrative penalty; and (D) a civil penalty; and (2) clarifies that an enforcement action against a PRYTF certificate is separate from an action taken against a GRO license.
Proposed new §745.9087 establishes that HHSC may deny a PRYTF certificate for ineligibility based on (1) a provision in Texas Health and Safety Code Chapter 577A; or (2) HHSC's evaluation of an application under the criteria described in new §745.9063.
Proposed new §745.9089 establishes that HHSC may refuse to renew a PRYTF certificate for a reason listed under current §745.8605 or if; (1) the PRYTF did not submit a complete renewal application; (2) the PRYTF is not accredited; (3) the GRO does not have a current license to operate; (4) the GRO is not approved to provide treatment services to children with an emotional disorder; (5) the PRYTF has not paid an administrative penalty; (6) the PRYTF has not submitted the renewal fee; or (7) the PRYTF does not meet a statute, rule, or minimum standard.
Proposed new §745.9091 establishes (1) the meaning of an administrative review; (2) that an administrative review may be requested for the (A) denial of a PRYTF certificate; (B) refusal to renew a PRYTF certificate; or (C) citation of a deficiency; (3) that an administrative review may be requested according to Chapter 745, Subchapter M; and (4) the process for conducting an administrative review.
Proposed new §745.9093 (1) establishes that HHSC may impose and collect administrative penalties against a PRYTF for a violation of a statute, rule, or minimum standard; (2) clarifies that each day a violation continues is a separate violation for imposing a penalty; and (3) includes a chart that provides the maximum amount of the penalty based on the number of individuals under the care of the PRYTF when the violation occurred.
Proposed new §745.9095 establishes that HHSC may impose a civil penalty against a PRYTF for a violation of a statute, rule, or minimum standard.
Proposed new §745.9097 establishes that a PRYTF has the right to a due process hearing before the State Office of Administrative Hearings for the (1) denial of a PRYTF certificate; (2) refusal to renew a PRYTF certificate; or (3) imposition of an administrative penalty.
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, enforcing or administering the rules do have foreseeable implications relating to costs of state government. The costs are for IT improvements to the Child Care Licensing Automated Support Systems to allow operations to apply for a PRYTF certificate, collect associated fees, issue a certificate, complete the required inspections, evaluate compliance with the rules annually, renew the certificate, issue administrative penalties, allow providers to submit certain information associated with the certificate in their online provider account, and identify on the Search Texas Child Care website whether a GRO has this certificate. Funds for these improvements were appropriated in the 88th Legislature, Regular Session, 2023.
The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $4,712,356 in fiscal year (FY) 2024, $0 in FY 2025, $0 in FY 2026, $0 in FY 2027, and $0 in FY 2028.
Trey Wood has also determined that for each year of the first five years that the rules will be in effect, there will be an estimated increase in revenue to state government as a result of enforcing and administering the rules as proposed. A GRO that chooses to apply for a PRYTF certificate must pay a $890 initial application fee and then a $740 renewal application fee. HHSC cannot estimate the increase in revenue because HHSC is unable to anticipate how many GROs will apply for a PRYTF certificate.
There are no foreseeable implications relating to costs or revenues of local government.
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 create 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 require an increase in fees paid to HHSC;
(5) the proposed rules will create a new regulation;
(6) the proposed rules will expand existing regulations;
(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 the PRYTF program is voluntary and as such 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 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; do not impose a cost on regulated persons because it is a voluntary program; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.
PUBLIC BENEFIT AND COSTS
Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be the creation of a voluntary certificate program that will provide families with additional, quality options for youth in need of residential care in a non-psychiatric hospital setting. The new program will encourage existing providers to meet these voluntary standards while also incentivizing new facilities to open in Texas, thereby expanding capacity.
Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the rules create a voluntary PRYTF program that does not mandate the imposition of fees, require a GRO to purchase curriculum or equipment, or require a GRO to alter current staffing patterns.
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 Gerry Williams by email at Gerry.Williams@hhs.texas.gov.
Written comments on the proposal may be submitted to Gerry Williams, 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 23R072" in the subject line.
SUBCHAPTER B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The amendments affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.31.What operations does [the] Licensing [Division] regulate?
(a) We regulate child day care and residential
child care, [including child-placing agencies,] unless
we determine your operation is exempt from regulation.
(b) Residential child-care operations include:
(1) Child-placing agencies that verify foster homes and approve adoptive homes; and
(2) General residential operations, which we may also certify as a psychiatric residential youth treatment facility (PRYTF) as defined at §745.9051 of this chapter (relating to What do the following words and terms mean when used in this subchapter?).
(c) For a PRYTF, we regulate the operation's care of young adults 18 to 21 years of age in addition to child care.
§745.37.What specific types of operations does Licensing regulate?
The charts in paragraphs (1) and (2) [(1),
(2), and (3)] of this section list the types of operations for
child day care and residential child care that we regulate. [Child-placing
agencies and foster homes verified by a child-placing agency are included
in the residential child-care chart.]
[(1) Types of Child Day-Care Operations
before September 1, 2003.]
[Figure: 40 TAC §745.37(1)]
(1) [(2)] Types of Child Day-Care
Operations: [on and after September 1, 2003.]
Figure: 26 TAC §745.37(1) (.pdf)
[Figure: 40 TAC §745.37(2)]
(2) [(3)] Types of Residential
Child-Care Operations:[.]
Figure: 26 TAC §745.37(2) (.pdf)
[Figure: 40 TAC §745.37(3)]
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 April 10, 2024.
TRD-202401455
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. DEFINITIONS FOR LICENSING
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new section affects Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.9051.What do the following terms mean when used in this subchapter?
The following terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise:
(1) Individual--A person who is 21 years of age or younger.
(2) Psychiatric health treatments and services--In addition to basic child-care services, a specialized type of child-care services provided by a certified psychiatric residential youth treatment facility to treat and support individuals who have a severe emotional disturbance.
(3) Psychiatric Residential Youth Treatment Facility (PYRTF)--As defined at Texas Health and Safety Code §577A.001(3), a private facility that provides psychiatric health treatments and services in a residential, non-hospital setting exclusively to individuals and is licensed as a general residential operation.
(4) Severe emotional disturbance--As defined at Texas Health and Safety Code §577A.001(4), a mental, behavioral, or emotional disturbance of sufficient duration to result in functional impairment that substantially interferes with or limits an individual's role or ability to function in family, school, or community activities.
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 April 10, 2024.
TRD-202401456
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§745.9053, 745.9055, 745.9057, 745.9059, 745.9061, 745.9063, 745.9065
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.9053.What requirements must a general residential operation meet before applying for a psychiatric residential youth treatment facility (PRYTF) certificate?
(a) Before applying for a PRYTF certificate a general residential operation must:
(1) Have a current initial or full license as a general residential operation;
(2) Have Licensing's approval to provide treatment services to children with an emotional disorder, as provided in §748.63 of this title (relating to Can I provide each type of service that Licensing regulates?); and
(3) Be accredited by:
(A) The Joint Commission;
(B) The Commission on Accreditation of Rehabilitation Facilities;
(C) The Council on Accreditation; or
(D) Another accreditation organization whose standards relate to the care of children and young adults receiving mental health services in a residential setting and is approved by Licensing.
(b) To meet the accreditation requirement under subsection (a)(3) of this section, a general residential operation:
(1) May obtain accreditation for:
(A) The entire general residential operation, including the PRYTF; or
(B) Only the part of the general residential operation where the PRYTF will operate;
(2) May have an initial, provisional, full, or other type of accreditation that is appropriate to the accreditation organization.
§745.9055.What does a completed application for a psychiatric residential youth treatment facility (PRYTF) certificate include?
(a) A general residential operation must submit:
(1) A PRYTF certificate application (Form 2973, Psychiatric Residential Youth Treatment Facility Application);
(2) A General Residential Operations - Additional Operation Plan (Form 2960, Application for a License to Operate a Residential Child Care Facility, Attachment C) that describes and includes the capacity of the children to be served by the general residential operation, including any children and young adults that the PRYTF will serve;
(3) An updated floor plan of the building and surrounding space the entire operation will use, including dimensions of the indoor space and the specific areas to be used by the PRYTF;
(4) Additional written policies required in §748.4821 of this title (relating to What additional policies must I submit as part of the application process for a psychiatric residential youth treatment facility (PRYTF) certificate?); and
(5) The PRYTF certificate application fee.
(b) The operation may submit an updated General Residential Operations - Additional Operation Plan (Form 2960, Attachment C) if the operation is already licensed to provide treatment services to children with emotional disorders.
§745.9057.How do the public notice and hearing requirements apply to an application for a psychiatric residential youth treatment facility (PRYTF) certificate?
(a) A general residential operation that is applying for a PRYTF certificate must comply with the rules in Subchapter D, Division 4 of this chapter (relating to Public Notice and Hearing Requirements for Residential Child-Care Operations).
(b) The initial public notice and hearing, or a subsequent public notice and hearing, of the general residential operation must describe and include the capacity of the children and young adults the PRYTF will serve.
(c) If the general residential operation does not comply with the public notice and hearing requirements, we may deny the operation a PRYTF certificate.
§745.9059.How long does Licensing have to review an application for a psychiatric residential youth treatment facility (PRYTF) certificate?
(a) We have 21 calendar days after receiving your application for a PRYTF certificate to review the paperwork, unless there is good cause to exceed this timeframe.
(b) After we review your application, we will notify you in writing that:
(1) There is good cause to delay the timeframe for making a determination on your application, consistent with §745.327 of this chapter (relating to When does Licensing have good cause for exceeding its timeframes for processing my application?);
(2) Your operation is ineligible to receive a PRYTF certificate because it does not meet one or more of the requirements under §745.9053(a) of this division (relating to What requirements must a general residential operation meet before applying for a psychiatric residential youth treatment facility (PRYTF) certificate?);
(3) Your application is complete and accepted for processing; or
(4) Your application is incomplete. The notification letter will:
(A) Identify any application materials submitted that do not show compliance with relevant statutes, rules, or minimum standards; and
(B) Explain what the operation must do to complete the application.
(c) If your application is not complete by the first anniversary of the date you submitted your application for a PRYTF certificate, we will close your application and you must submit a new application, materials, and a PRYTF certificate application fee.
§745.9061.How long does Licensing have to determine whether to issue a psychiatric residential youth treatment facility (PRYTF) certificate after accepting my application?
(a) We determine whether to issue a PRYTF certificate no later than two months after we accept the application, unless there is good cause to exceed this timeframe consistent with §745.327 of this chapter (relating to When does Licensing have good cause for exceeding its timeframes for processing my application?).
(b) You may file a complaint regarding timeframes according to §745.325 of this chapter (relating to How do I file a complaint regarding timeframes for processing my application?).
§745.9063.What factors will Licensing consider when evaluating an application for a psychiatric residential youth treatment facility (PRYTF) certificate?
When we determine whether to issue a PRYTF certificate, we will consider:
(1) The application and any information submitted with the application, including:
(A) All parts of the Additional Operation Plan required in §745.9055(a)(2) of this division (relating to What does a completed application for a psychiatric residential youth treatment facility (PRYTF) certificate include?);
(B) Evidence of community support for, or opposition to, the general residential operation being certified as a PRYTF; and
(C) The impact statement from the school district likely to be affected by the population of children and young adults to be served by the PRYTF, including information relating to any financial impact on the district that may result from an increase in enrollment.
(2) The on-site inspection to determine compliance with relevant statutes, rules, and minimum standards;
(3) Any information that we gather through the application process, including any written comments and written information submitted to us during the process that we consider to be relevant to the decision to issue the PRYTF certificate; and
(4) If a public hearing is required in §745.273 of this chapter (relating to Which residential child-care operations must meet the public notice and hearing requirements?):
(A) Any written comments and written information that interested parties provide at a public hearing; and
(B) The Verbatim Record and summary Report of Public Comment from the Community, as required in §745.275 of this chapter (relating to What are the specific requirements for a public notice and hearing?).
§745.9065.For what reason may Licensing deny a psychiatric residential youth treatment facility (PRYTF) certificate based on the results of a required public hearing?
If a public hearing is required in §745.273 of this chapter (relating to Which residential child-care operations must meet the public notice and hearing requirements?), we may deny you a PRYTF certificate if we determine that:
(1) The community has insufficient resources to support the children or young adults that you propose to serve;
(2) Issuing the PRYTF certificate would adversely affect the children or young adults you propose to serve:
(A) By significantly increasing, in the local school district, the ratio of students enrolled in a special education program to students enrolled in a regular education program; or
(B) By significantly impacting the local school district; or
(3) Issuing the PRYTF certificate would have a significant adverse impact on the community and limit opportunities for social interaction for the children or young adults that you propose to serve.
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 April 10, 2024.
TRD-202401458
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§745.9067, 745.9069, 745.9071, 745.9073
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.9067.When do I need to apply to renew my psychiatric residential youth treatment facility (PRYTF) certificate?
(a) You must apply to renew your PRYTF certificate every two years after the date we issue the certificate.
(b) You must still timely apply to renew your PRYTF certificate, even if:
(1) There is a pending civil or administrative penalty against the PRYTF; or
(2) The general residential operation or PRYTF is under an enforcement action.
(c) During the year that you must renew your PRYTF certificate, your renewal period:
(1) Begins 60 calendar days before the anniversary of when we issued your PRYTF certificate; and
(2) Ends on the date of the anniversary.
(d) If you are late in applying for renewal of your PRYTF certificate, you have 30 additional calendar days after the renewal period to apply for renewal.
§745.9069.What does a completed renewal application for a psychiatric residential youth treatment facility (PRYTF) certificate include?
You must submit a completed PRYTF renewal application, which includes:
(1) Timely submitting a renewal application as required by §745.9067 of this division (relating to When do I need to apply to renew my psychiatric residential youth treatment facility (PRYTF) certificate?);
(2) Verification that the following information is current and accurate:
(A) The list of controlling persons at your operation; and
(B) The list of governing body's members, such as officers and owners, if applicable;
(3) A statement as to whether your operation continues to need any existing waivers and variances that you also want to apply to your care of children and young adults receiving psychiatric health treatments and services;
(4) Validation on your provider website the list of persons who require a background check because of their association with your operation;
(5) Verification of the ongoing accreditation of the PRYTF; and
(6) A PRYTF certificate renewal fee.
§745.9071.What happens after Licensing receives my renewal application?
(a) After receiving your renewal application, we evaluate whether:
(1) You completed the renewal application as required by §745.9069 of this division (relating to What does a completed renewal application for a psychiatric residential youth treatment facility (PRYTF) certificate include?);
(2) Your general residential operation license is current and approved to provide treatment services to children with emotional disorders;
(3) You have paid each administrative penalty that you owe after waiving or exhausting any due process provided under Texas Health and Safety Code §571.025; and
(4) The PRYTF meets the statutory, rule, and minimum standard requirements after we inspect your PRYTF.
(b) Within 30 calendar days of receiving your renewal application, we will send you written notice that:
(1) We have renewed your PRYTF certificate;
(2) Your PRYTF renewal application is incomplete because it did not meet one or more of the renewal application requirements in subsection (a) of this section; or
(3) We refuse to renew your PRYTF certificate because:
(A) You did not submit a completed PRYTF renewal application;
(B) Your PRYTF is no longer accredited as required by §748.4823(a) of this title (relating to When must I notify Licensing about accreditation changes regarding the psychiatric residential youth treatment facility (PRYTF)?);
(C) You do not have a general residential operation license;
(D) Your general residential operation is not approved to provide treatment services to children with emotional disorders;
(E) You did not pay the PRYTF certificate renewal fee;
(F) You did not pay an administrative penalty that you owe after waiving or exhausting any due process provided under Texas Health and Safety Code §571.025; or
(G) After inspecting the PRYTF, we determine that it does not meet the statute, rule, and minimum standard requirements.
(c) If your PRYTF renewal application is incomplete, the written notice will include:
(1) Our determination that you did not meet one or more of the renewal application requirements in subsection (a) of this section; and
(2) A list of the requirements that you must complete before we can renew the PRYTF certificate.
(d) If you submitted an incomplete PRYTF renewal application during the renewal period, you may attempt to submit the missing information until your PRYTF certificate expires.
(e) If you submitted an incomplete PRYTF renewal application during the late renewal period, you have 15 calendar days to submit a completed application from the date we determine that your renewal application was incomplete.
§745.9073.When does my psychiatric residential youth treatment facility (PRYTF) certificate expire?
(a) Your PRYTF certificate expires if:
(1) You do not submit your PRYTF renewal application during the renewal period or late renewal period;
(2) You submit your PRYTF renewal application during the renewal period, you were notified that your application was incomplete, and you do not submit a completed renewal application before the end of the late renewal period; or
(3) You submit your PRYTF renewal application during the late renewal period, you were notified that your application was incomplete, and you do not submit a completed renewal application within 15 calendar days after notification.
(b) If your PRYTF certificate expires:
(1) Within 24 hours, you must inform the following persons that your PRYTF certificate has expired;
(A) All parents of children receiving psychiatric health treatments and services; and
(B) Young adults and any guardians of the young adults receiving psychiatric health treatments and services;
(2) You must immediately:
(A) Discharge and stop providing care to the young adults 18 to 21 years of age receiving psychiatric health treatments and services unless the young adult meets the requirements of §748.1931 of this title (relating to After a child in my care turns 18 years old, may the person remain in my care?);
(B) For children receiving psychiatric health treatments and services:
(i) Enroll the child into your general residential operation, if appropriate; or
(ii) Discharge the child to the child's parents.
(3) Before you can operate again as a PRYTF, you must submit a new PRYTF application, materials, and PRYTF certificate application fee.
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 April 10, 2024.
TRD-202401459
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new section affects Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.9075.What fees must I pay to apply for and maintain a psychiatric residential youth treatment facility (PRYTF) certificate?
In addition to the fees required by §745.509 of this chapter (relating to What fees must I pay to apply for and maintain a license for an operation?), the following chart contains non-refundable fees applicable to a PRYTF, when the fees are due, and the consequences for failure to pay on time:
Figure: 26 TAC §745.9075 (.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 April 10, 2024.
TRD-202401461
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new section affects Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.9077.How do the provisions in Subchapter K of this chapter apply to a psychiatric residential youth treatment facility (PRYTF)?
The rules in Subchapter K of this chapter (relating to Inspections, Investigations, and Confidentiality) apply to a PRYTF certificate in the same manner as the rules would apply for a general residential operation permit, including:
(1) For an inspection or investigation in a PRYTF;
(2) Relating to confidentiality, which apply to an applicant for a PRYTF certificate, holder of a PRYTF certificate, or former holder of a PRYTF certificate as if a PRYTF certificate is a permit; and
(3) Technical assistance provided to a PRYTF.
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 April 10, 2024.
TRD-202401462
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§745.9085, 745.9087, 745.9089, 745.9091, 745.9093, 745.9095, 745.9097
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§745.9085.Overview of Enforcement Actions.
(a) The Texas Health and Human Services Commission may impose the following enforcement actions against a psychiatric residential youth treatment facility (PRYTF):
(1) A denial of a PRYTF certificate;
(2) A refusal to renew a PRYTF certificate;
(3) An administrative penalty under Texas Health and Safety Code §571.025; and
(4) A civil penalty under Texas Health and Safety Code §571.023.
(b) An enforcement action taken against a PRYTF certificate is separate from an action taken against a general residential operation license.
§745.9087.Denial of certificate.
The Texas Health and Human Services Commission (HHSC) may deny a psychiatric residential youth treatment facility (PRYTF) certificate if HHSC determines ineligibility based on:
(1) A provision in Texas Health and Safety Code Chapter 577A; or
(2) HHSC's evaluation of your application under the criteria described in §745.9063 of this subchapter (relating to What factors will Licensing consider when evaluating an application for a psychiatric residential youth treatment facility (PRYTF) certificate?).
§745.9089.Refusal To Renew.
The Texas Health and Human Services Commission (HHSC) may refuse to renew a psychiatric residential youth treatment facility (PRYTF) certificate for a reason listed in §745.8605 of this chapter (relating to When can Licensing recommend or impose an enforcement action against my operation) or if:
(1) The PRYTF did not submit a complete renewal application, timely or otherwise, according to §745.9069 of this subchapter (relating to What does a completed renewal application for a psychiatric residential youth treatment facility (PRYTF) certificate include?):
(2) The PRYTF was not accredited at the time of the renewal;
(3) The general residential operation does not have a current license to operate at the time of the renewal, including if:
(A) HHSC revokes your license;
(B) HHSC refuses to renew your license;
(C) You voluntarily close your operation;
(D) HHSC suspends your license; or
(E) You voluntarily suspend your license;
(4) The general residential operation is not approved to provide treatment services to children with an emotional disorder at the time of renewal;
(5) The PRYTF has not paid an administrative penalty after waiving or exhausting any due process provided under Texas Health and Safety Code §571.025;
(6) The PRYTF has not timely submitted the renewal fee to HHSC; or
(7) The PRYTF does not meet:
(A) A provision in Texas Health and Safety Code Chapter 577A;
(B) A rule in this subchapter; or
(C) A minimum standard in Chapter 748, Subchapter W of this title (relating to Additional Requirements for Operations that Provide Psychiatric Health Treatments and Services).
§745.9091.Administrative Review.
(a) An administrative review is an informal review to determine whether a decision or action was appropriate under applicable laws and rules. An administrative review is not a formal hearing.
(b) An administrative review may be requested to dispute the following in relation to a psychiatric residential youth treatment facility (PRYTF) certificate:
(1) The denial of a PRYTF certificate;
(2) The refusal to renew a PRYTF certificate; or
(3) The citation of a deficiency of a statute, rule, or minimum standard.
(c) An administrative review must be requested in accordance with Subchapter M of this chapter (relating to Administrative Reviews and Due Process Hearings).
(d) The administrative review process and all administrative review requirements will be conducted in accordance with Subchapter M of this chapter.
§745.9093.Administrative Penalties.
(a) The Texas Health and Human Services Commission (HHSC) may impose and collect an administrative penalty against a psychiatric residential youth treatment facility (PRYTF) for a violation of:
(1) A provision in Texas Health and Safety Code Chapter 577A;
(2) A rule in this subchapter; or
(3) A minimum standard in Chapter 748, Subchapter W of this title (relating to Additional Requirements for Operations that Provide Psychiatric Health Treatments and Services).
(b) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
(c) HHSC imposes an administrative penalty based on the number of individuals under the care of the PRYTF when the violation occurred:
Figure: 26 TAC §745.9093(c) (.pdf)
§745.9095.Civil Penalties.
The Texas Health and Human Services Commission (HHSC) may impose a civil penalty against a psychiatric residential youth treatment facility (PRYTF) according to Texas Health and Safety Code §571.023 for a violation of:
(1) A provision in Texas Health and Safety Code Chapter 577A; or
(2) A rule adopted under Texas Health and Safety Code Chapter 577A, including:
(A) A rule in this subchapter; or
(B) A minimum standard in Chapter 748, Subchapter W of this title (relating to Additional Requirements for Operations that Provide Psychiatric Health Treatments and Services).
§745.9097.State Office of Administrative Hearings (SOAH).
A psychiatric residential youth treatment facility (PRYTF) has the right to a due process hearing before the SOAH in accordance with Subchapter M of this chapter (relating to Administrative Reviews and Due Process Hearings) for:
(1) The denial of a PRYTF certificate;
(2) The refusal to renew a PRYTF certificate; or
(3) The imposition of an administrative penalty.
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 April 10, 2024.
TRD-202401463
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§746.123, 746.605, 746.1301, 746.1309, 746.1403, 746.1801, 746.2101, 746.2105, 746.2109, 746.2113, 746.2115, 746.3701, 746.4971, 746.5001, 746.5013, and 746.5017; new §§746.1325, 746.5009, and 746.5011; and repeal of §746.2103.
BACKGROUND AND PURPOSE
The proposal is necessary to implement House Bill (H.B.) 59, 88th Legislature, Regular Session, 2023. H.B. 59 amended Texas Health and Safety Code (HSC), Subchapter D, Chapter 341, by adding §341.0646 to require certain organizations, including child day care facilities, to implement specific child water safety requirements if the operation authorizes a child to engage in an organized water activity.
HHSC Child Care Regulation (CCR) is proposing new and amended rules in Chapter 746 that will (1) add definitions and requirements related to water safety, including (A) water safety training for employees, substitutes, volunteers, and contractors, and (B) the use of a personal flotation device for children who access swimming pools via their licensed child-care center; and (2) update references to bodies of water and wading pools to be consistent with HSC §341.0646(a). CCR is also proposing to repeal one rule that established a grandfather clause related to child to caregiver ratios for splashing and wading activities because the need for the grandfather clause has expired.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §746.123 (1) adds definitions for "body of water," "personal flotation device," "swimming pool," and "wading pool"; (2) adds the rule title to a reference in the definition of "caregiver"; (3) updates the definition of "water activities" to remove the terms "splashing pools" and "bodies of water"; and (4) updates the numbering of the definitions accordingly.
The proposed amendment to §746.605 (1) moves requirements related to water activity participation to the end of the list of required admission information; (2) renumbers the rule accordingly; and (3) clarifies that if a child-care center allows a child to access a swimming pool a parent is required to indicate at admission whether the child is (A) able to swim competently as defined by the American Red Cross, or (B) requires a personal flotation device because the child is unable to swim competently or is at risk of injury or death when swimming or otherwise accessing a body of water.
The proposed amendment to §746.1301 adds to the chart of training requirements for employees, caregivers, and directors (1) the word "safety" to the transportation training requirements to be consistent with the rule content for that training; and (2) a new water safety training requirement for a center that allows a child to access a swimming pool at or away from the center. The chart specifies that the director and each employee who accompanies a child to a swimming pool must have water safety training prior to accompanying a child to a swimming pool and annually thereafter.
The proposed amendment to §746.1309 clarifies that water safety training is exclusive of the 24 clock hours of annual required training for caregivers.
Proposed new §746.1325 adds a requirement for water safety training if a child-care center allows a child to access a swimming pool at or away from the center. The rule requires the training for each employee who accompanies a child to a swimming pool before the employee accompanies the child to a swimming pool and for each child-care center director. The rule also clarifies that water safety training is exclusive of any requirements for orientation, pre-service training, and annual training.
The proposed amendment to §746.1403 adds to the chart of training requirements for substitutes, volunteers, and contractors (1) the word "safety" to the transportation training requirements to be consistent with the rule content for that training; and (2) a new water safety training requirement for a center that allows a child to access a swimming pool at or away from the center. The chart specifies that each substitute, volunteer, and contractor who accompanies a child to a swimming pool must have water safety training prior to accompanying a child to a swimming pool and annually thereafter.
The proposed amendment to §746.1801 (1) updates language and reorganizes the rule for better readability; (2) updates a reference; and (3) replaces the title of rule references that include the language "splashing/wading" to "wading."
The proposed amendment to §746.2101 (1) removes references to "splashing" in the rule title and within the rule; (2) removes language indicating that a wading pool has a depth of two feet or less; (3) updates a reference; and (4) updates language for better readability.
The proposed repeal of §746.2103 deletes the rule as no longer necessary because the rule established a grandfather clause that is no longer necessary.
The proposed amendment to §746.2105 (1) removes language indicating that a swimming pool has a depth of more than two feet of water; and (2) updates a reference.
The proposed amendment to §746.2109 (1) updates the rule title to reflect that a lifeguard must be on duty when children are swimming in 18 inches, rather than two feet, of water; and (2) updates language for better readability.
The proposed amendment to §746.2113 clarifies that each caregiver counted in the child to caregiver ratio for swimming in 18 inches or more of water must be able to swim and be prepared to do so in an emergency.
The proposed amendment to §746.2115 updates language for better readability.
The proposed amendment to §746.3701 (1) updates language for better readability; and (2) updates the list of vessels containing water that must be inaccessible to all children to (A) add wading pools, and (B) remove pools, ponds, and creeks as they are included in the definition of the previously listed "bodies of water".
The proposed amendment to §746.4971 updates the title of a cross-referenced subchapter.
The title of Subchapter V is updated to remove the term "splashing."
The proposed amendment to §746.5001 (1) updates the rule title; (2) reorganizes rule references for better readability; and (3) removes language indicating that a swimming pool has a depth of more than two feet of water.
Proposed new §746.5009 outlines the additional safety precautions a child-care center must take for a child in care who is unable to swim competently or at risk of injury or death when swimming. The rule requires the child-care center to do the following before the child enters a swimming pool: (1) provide the child with a Type I, II, or III United States Coast Guard approved 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.
Proposed new §746.5011 clarifies that a child-care center is not required to provide a PFD to a child who is unable to swim competently or is at risk of injury or death when swimming or ensure the child is wearing a PFD if (1) the child is actively participating in swim instruction or a competition; and (2) the child-care center ensures the child is supervised in accordance with §746.1205 during the instruction or competition.
The proposed amendment to §746.5013 (1) removes the term "splashing" from the rule; (2) removes language indicating that a wading pool has a depth of two feet or less; and (3) updates the title of a rule reference.
The proposed amendment to §746.5017 (1) updates the rule title; (2) updates language for better readability; (3) removes references to "lakes," "ponds," and "rivers" from the list of water bodies a child cannot swim in as they are included in the definition of a "body of water"; and (4) removes a reference to "wading pool" as a wading pool is not considered a "body of water".
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 regulation;
(6) the proposed rules will expand and repeal existing regulations;
(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 an adverse economic effect on small businesses and micro-businesses, but there will not be an adverse economic effect on rural communities.
Texas Government Code Chapter 2006 defines a small business as one that is for-profit with fewer than 100 employees. A micro-business is one that is for-profit with fewer than 20 employees. Based on data obtained from the 2022 CCR Data Book, there are approximately 8,087 Licensed Child-Care Centers required to comply with the rules. CCR conducted a survey of licensed child-care operations in 2019 to determine which operations met the definition of a small or micro-business and received responses from approximately nine percent of Licensed Child-Care Centers. Based on the results from that survey, CCR estimates that 59 percent of the centers (or 4,771 centers) are for profit. Of those centers, approximately 99 percent of the centers (or 4,724 centers) have less than 100 employees and qualify as small businesses and approximately 77 percent of those small businesses (or 3,637 centers) have less than 20 employees and qualify as micro-businesses.
There is a projected economic impact on small businesses and micro-businesses from proposed §746.5009. This economic impact, however, is limited to child-care centers that offer children access to a swimming pool, either onsite or during field trips where water activities take place. Based on data collected in November 2023 for Fiscal Year 2022, 197 child-care centers have a swimming pool on the premises and 3,270 child-care centers offer water activities (to include swimming pools, wading pools, and sprinkler play). However, CCR does not have data regarding how many of these child-care centers are a small business or a micro-business. With regards to water activities, CCR does not collect data regarding the type of water activities a child-care center provides or whether those activities take place onsite or during field trips. Although HHSC can assume the 197 child-care centers with a pool on the premises that are a small business or a micro-business will be required to comply with the proposed rule, HHSC is unable to determine the number of child-care centers whose water activities include access to a swimming pool during field trips. Therefore, HHSC does not have enough information to determine the total number of child-care centers operating as a small business or micro-business that will be required to comply with the proposed rule.
Section 746.5009 requires a licensed child-care center to provide each child in care who is unable to swim competently or is at risk of injury or death when swimming or otherwise entering a swimming pool a properly fitted and fastened Type I, II, or III United States Coast Guard approved personal flotation device (PFD). A 2023 assessment of the average cost to purchase a single PFD revealed that a PFD costs between $17 and $45. However, the total cost to purchase PFDs will vary per child-care center depending on the number of enrolled children who are unable to swim competently or at risk of injury or death when swimming and the type of PFD the operation elects to purchase. In addition, some child-care centers may choose to obtain PFDs through organizations that provide them at no cost. These factors, coupled with HHSC's inability to determine the number of child-care centers that offer access to a swimming pool during field trips, renders HHSC unable to determine economic costs for persons required to comply with the rule as proposed.
HHSC determined that alternative methods to achieve the purpose of the proposed rule for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of children who access swimming pools via their licensed child-care center.
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
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 (1) improve the safety of children enrolled in licensed child-care centers who access swimming pools; and (2) rules that comply with state law.
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 may incur economic costs because the rules require child-care centers to provide each child in care who is unable to swim competently or is at risk of injury or death when swimming or otherwise entering a body of water a properly fitted and fastened Type I, II, or III United States Coast Guard approved personal flotation device (PFD). A 2023 assessment of the average cost to purchase a single PFD revealed that a PFD costs between $17 and $45. However, the total cost to purchase PFDs will vary per child-care operation depending on the number of enrolled children who are unable to swim or at risk of injury or death when swimming and the type of PFD the operation elects to purchase. In addition, some child-care operations may choose to obtain PFDs through organizations that provide them at no cost. As a result, HHSC does not have sufficient information to determine economic costs for persons required to comply with the rules as proposed.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Aimee Belden by email at Aimee.Belden@hhs.texas.gov.
Written comments on the proposal may be submitted to Aimee Belden, Rules Writer, Child Care Regulation, Texas Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If 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 23R074" in the subject line.
SUBCHAPTER A. PURPOSE, SCOPE, AND DEFINITIONS
DIVISION 3. DEFINITIONS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§746.123.What do certain words and terms mean when used in this chapter?
The words and terms used in this chapter have the meanings assigned to them under §745.21 of this title (relating to What do the following words and terms mean when used in this chapter?), unless another meaning is assigned in this section or another subchapter or unless the context clearly indicates otherwise. In addition, the following words and terms used in this chapter have the following meanings unless the context clearly indicates otherwise:
(1) Activity plan--A written plan that outlines the daily routine and activities in which a group of children will engage while in your care. The plan is designed to meet the children's cognitive, language, social, emotional, and physical developmental strengths and needs.
(2) Activity space--An area or room used for children's activities, including areas separate from a group's classroom.
(3) Administrative and clerical duties--Duties that involve the operation of a child-care center, such as bookkeeping, enrolling children, answering the telephone, and collecting fees.
(4) Admission--The process of enrolling a child in a child-care center. The date of admission is the first day the child is physically present in the center.
(5) Adult--A person 18 years old and older.
(6) Age-appropriate--Activities, equipment, materials, curriculum, and environment, including the child's assigned classroom, that are developmentally consistent with the developmental or chronological age of the child being served.
(7) Alternate care program--A program in which no child is in care for more than five consecutive days, and no child is in care for more than 15 days in one calendar month, regardless of the duration of each stay.
(8) Attendance--When referring to a child's attendance, the physical presence of a child at the child-care center's program on any given day or at any given time, as distinct from the child's enrollment in the child-care center.
(9) Body of water--As defined by Texas Health and Safety Code, Chapter 341, Subchapter D (relating to Sanitation and Safety of Facilities Used by Public).
(10) [(9)] Bouncer seat--A stationary
seat designed to provide gentle rocking or bouncing motion by an infant's
movement, or by battery-operated movement. This type of equipment
is designed for an infant's use from birth until the child can sit
up unassisted.
(11) [(10)] Caregiver--A person
who is counted in the child to caregiver ratio, whose duties include
the supervision, guidance, and protection of a child. As used in this
chapter, a caregiver must meet the minimum education, work experience,
and training qualifications required under Subchapter D of this chapter
(relating to Personnel). A caregiver is usually an employee, but may
also be a substitute, volunteer, or contractor, as outlined in paragraph (20) [(19)] of this section and Subchapter D, Division
5 of this chapter (relating to Substitutes, Volunteers, and Contractors).
(12) [(11)] Certified Child-Care
Professional Credential--A credential given by the National Early
Childhood Program Accreditation to a person working directly with
children. The credential is based on assessed competency in several
areas of child care and child development.
(13) [(12)] Certified lifeguard--A
person who has been trained in life saving and water safety by a qualified
instructor, from a recognized organization that awards a certificate
upon successful completion of the training. The certificate is not
required to use the term "lifeguard," but the permit holder must be
able to document that the certificate is current, relevant to the
type of water activity in which children will engage, and represents
the type of training described.
(14) [(13)] CEUs--Continuing
education units. A standard unit of measure for adult education and
training activities. One CEU equals 10 clock hours of participation
in an organized, continuing-education experience, under responsible,
qualified direction and instruction. Although a person may obtain
a CEU in many of the same settings as clock hours, the CEU provider
must meet the criteria established by the International Association
for Continuing Education and Training to be able to offer the CEU.
(15) [(14)] Child--An infant,
a toddler, a pre-kindergarten age child, or a school-age child.
(16) [(15)] Child-care center--A
child-care facility that is licensed to care for seven or more children
for less than 24 hours per day, at a location other than the permit
holder's home. If you were licensed before September 1, 2003, the
location of the center could be in the permit holder's home.
(17) [(16)] Child-care program--The
services and activities provided by a child-care center.
(18) [(17)] Child Development
Associate Credential--A credential given by the Council for Professional
Recognition to a person working directly with children. The credential
is based on assessed competency in several areas of child care and
child development.
(19) [(18)] Clock hour--An actual
hour of documented:
(A) Attendance at instructor-led training, such as seminars, workshops, conferences, early childhood classes, and other planned learning opportunities, provided by an individual or individuals as specified in §746.1317(a) of this chapter (relating to Must the training for my caregivers and the director meet certain criteria?); or
(B) Self-instructional training that was created by an individual or individuals, as specified in §746.1317(a) and (b) of this chapter, or self-study training.
(20) [(19)] Contract service
provider--A person or entity contracting with the operation to provide
a service, whether paid or unpaid. Also referred to as "contract staff"
and "contractor" in this chapter.
(21) [(20)] Corporal punishment--The
infliction of physical pain on a child as a means of controlling behavior.
This includes spanking, hitting with a hand or instrument, slapping,
pinching, shaking, biting, or thumping a child.
(22) [(21)] Days--Calendar days,
unless otherwise stated.
(23) [(22)] Employee--A person
a child-care center employs full-time or part-time to work for wages,
salary, or other compensation. Employees are all of the child-care
center staff, including caregivers, kitchen staff, office staff, maintenance
staff, the assistant director, the director, and the owner, if the
owner is ever on site at the center or transports a child.
(24) [(23)] Enrollment--The list
of names or number of children who have been admitted to attend a
child-care center for any given period of time; the number of children
enrolled in a child-care center may vary from the number of children
in attendance on any given day.
(25) [(24)] Entrap--A component
or group of components on equipment that forms angles or openings
that may trap a child's head by being too small to allow the child's
body to pass through, or large enough for the child's body to pass
through but too small to allow the child's head to pass through.
(26) [(25)] Field trips--Activities
conducted away from the child-care center.
(27) [(26)] Food service--The
preparation or serving of meals or snacks.
(28) [(27)] Frequent--More than
two times in a 30-day period. Note: For the definition of "regularly
or frequently present at an operation" as it applies to background
checks, see §745.601 of this title (relating to What words must
I know to understand this subchapter?).
(29) [(28)] Garbage--Waste food
or items that when deteriorating cause offensive odors and attract
rodents, insects, and other pests.
(30) [(29)] Grounds--Includes
any parcel of land where the child-care center is located and any
building, other structure, body of water, play equipment, street,
sidewalk, walkway, driveway, parking garage, or parking lot on the
parcel. Also referred to as "premises" in this chapter.
(31) [(30)] Group activities--Activities
that allow children to interact with other children in large or small
groups. Group activities include storytelling, finger plays, show
and tell, organized games, and singing.
(32) [(31)] Hazardous materials--Any
substance or chemical that is a health hazard or physical hazard,
as determined by the Environmental Protection Agency. Also referred
to as "toxic materials" and "toxic chemicals" in this chapter.
(33) [(32)] Health-care professional--A
licensed physician, a licensed advanced practice registered nurse
(APRN), a licensed vocational nurse (LVN), a licensed registered nurse
(RN), or other licensed medical personnel providing health care to
the child within the scope of the license. This does not include physicians,
nurses, or other medical personnel who are not licensed in the United
States or in the country in which the person practices.
(34) [(33)] Health check--A visual
or physical assessment of a child to identify potential concerns about
a child's health, including signs or symptoms of illness and injury,
in response to changes in the child's behavior since the last date
of attendance.
(35) [(34)] High school equivalent--
(A) Documentation of a program recognized by the Texas Education Agency (TEA) or other public educational entity in another state, which offers similar training on reading, writing, and math skills taught at the high school level, such as a General Educational Development (GED) certificate; or
(B) Confirmation that the person received home-schooling that adequately addressed basic competencies such as basic reading, writing, and math skills, which would otherwise have been documented by a high school diploma.
(36) [(35)] Individual activities--Opportunities
for the child to work independently or to be away from the group but supervised.
(37) [(36)] Infant--A child from
birth through 17 months.
(38) [(37)] Inflatable--An amusement
ride or device, consisting of air-filled structures designed for use
by children, as specified by the manufacturer, which may include bouncing,
climbing, sliding, or interactive play. They are made of flexible
fabric, kept inflated by continuous air flow by one or more blowers,
and rely upon air pressure to maintain their shape.
(39) [(38)] Instructor-led training--Training
characterized by the communication and interaction that takes place
between the student and the instructor. The training must include
an opportunity for the student to interact with the instructor to
obtain clarifications and information beyond the scope of the training
materials. For such an opportunity to exist, the instructor must communicate
with the student in a timely fashion, including answering questions,
providing feedback on skills practice, providing guidance or information
on additional resources, and proactively interacting with students.
Examples of this type of training include classroom training, web-based
on-line facilitated learning, video-conferencing, or other group learning experiences.
(40) [(39)] Janitorial duties--Those
duties that involve the cleaning and maintenance of the child-care
center building, rooms, furniture, etc. Cleaning and maintenance include
such duties as cleansing carpets, washing cots, and sweeping, vacuuming,
or mopping a restroom or a classroom. Sweeping up after an activity
or mopping up a spill in a classroom that is immediately necessary
for the children's safety is not considered a janitorial duty.
(41) [(40)] Local sanitation
official--A sanitation official designated by the city or county government.
(42) [(41)] Natural environment--Settings
that are natural or typical for all children of the same age without
regard to ability or disability. For example, a natural environment
for learning social skills is a play group of peers.
(43) [(42)] Permit is no longer
valid--For purposes of this chapter, a permit remains valid through
the renewal process. A permit only becomes invalid when your center
voluntarily closes or must close because of an enforcement action
in Chapter 745, Subchapter L of this title (relating to Enforcement Actions).
(44) Personal flotation device (PFD)--A United States Coast Guard approved life jacket.
(45) [(43)] Physical activity
(moderate)--Levels of activity for a child that are at intensities
faster than a slow walk, but still allow the child to talk easily.
Moderate physical activity increases the child's heart rate and breathing rate.
(46) [(44)] Physical activity
(vigorous)--Rhythmic, repetitive physical movement for a child that
uses large muscle groups, causing the child to breathe rapidly and
only enabling the child to speak in short phrases. Typically, the
child's heart rate is substantially increased, and the child is likely
to be sweating while engaging in vigorous physical activity.
(47) [(45)] Pre-kindergarten
age child--A child who is three or four years of age before the beginning
of the current school year.
(48) [(46)] Premises--See the
term "grounds" and its definition in this section.
(49) [(47)] Regular--On a recurring,
scheduled basis. Note: For the definition of "regularly or frequently
present at an operation" as it applies to background checks, see §745.601
of this title.
(50) [(48)] Restrictive device--Equipment
that places the body of a child in a position that may restrict airflow
or cause strangulation; usually, the child is placed in a semi-seated
position. Examples of restrictive devices are car seats, swings, bouncy
seats, and high chairs.
(51) [(49)] Safety belt--A lap
belt and any shoulder straps included as original equipment on or
added to a vehicle.
(52) [(50)] Sanitize--The use
of a disinfecting product that provides instructions specific for
sanitizing and is registered by the Environmental Protection Agency
(EPA) to substantially reduce germs on inanimate objects to levels
considered safe by public health requirements. Many bleach and hydrogen
peroxide products are EPA-registered. You must follow the product's
labeling instructions for sanitizing or disinfecting, depending on
the surface (paying particular attention to any instructions regarding
contact time and toxicity on surfaces likely to be mouthed by children,
such as toys and crib rails). If you use bleach instead of an approved
disinfecting product, you must follow these steps in order:
(A) Washing with water and soap;
(B) Rinsing with clear water;
(C) Soaking in or spraying on a bleach solution for at least two minutes;
(D) Rinsing with cool water only those items that children are likely to place in their mouths; and
(E) Allowing the surface or item to air-dry.
(53) [(51)] School-age child--A
child who is five years of age and older and is enrolled in or has
completed kindergarten.
(54) [(52)] Screen time activity--An
activity during which a child views media content on a cell or mobile
phone, tablet, computer, television, video, film, or DVD. Screen time
activities do not include video chatting with a child's family or
assistive and adaptive computer technology used by a child with special
care needs on a consistent basis.
(55) [(53)] Self-instructional
training--Training designed to be used by one individual working alone
and at the individual's own pace to complete lessons or modules. Lessons
or modules commonly include questions with clear right and wrong answers.
An example of this type of training is web-based training. Self-study
training is also a type of self-instructional training.
(56) [(54)] Self-study training--Non-standardized
training where an individual reads written materials, watches a training
video, or listens to a recording to obtain certain knowledge that
is required for annual training. Self-study training is limited to
three hours of annual training per year.
(57) [(55)] Special care needs--A
child with special care needs is a child who has:
(A) A chronic physical, developmental, behavioral, or emotional condition or a disability and who also requires assistance beyond that required by a child generally to perform tasks that are within the typical chronological range of development, including the movement of large or small muscles, learning, talking, communicating, comprehension, emotional regulation, self-help, social skills, emotional well-being, seeing, hearing, and breathing; or
(B) A limitation due to an injury, illness, or allergy.
(58) [(56)] State or local fire
authority--A fire official who is authorized to conduct fire safety
inspections on behalf of the city, county, or state government, including
certified fire inspectors. Also referred to as "fire marshal" in this chapter.
(59) Swimming Pool--An artificial body of water with a water depth of more than 18 inches that is maintained or used expressly for public or private recreational purposes, swimming, diving, aquatic sports or activities, or therapeutic purposes.
(60) [(57)] Toddler--A child
from 18 months through 35 months.
(61) [(58)] Universal precautions--An
approach to infection control where all human blood and certain human
bodily fluids are treated as if known to be infectious for HIV, HBV,
and other blood-borne pathogens.
(62) Wading pool--As defined by Texas Health and Safety Code, Chapter 341, Subchapter D.
(63) [(59)] Water activities--Related
to the use of swimming pools, [splashing pools,] wading
pools, or sprinkler play[, or other bodies of water].
(64) [(60)] Weather permitting--Weather
conditions that do not pose any concerns for health and safety, such
as a significant risk of frostbite or heat-related illness. This includes
adverse weather conditions in which children may still play safely
outdoors for shorter periods with appropriate adjustments to clothing
and any necessary access to water, shade, or shelter.
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 April 12, 2024.
TRD-202401552
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. RECORDS OF CHILDREN
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§746.605.What admission information must I obtain for each child?
You must obtain at least the following information before admitting a child to care:
(1) The child's name and birth date;
(2) The child's home address and telephone number;
(3) Date of the child's admission to the child-care center;
(4) Name and address of parents [parent(s)];
(5) Telephone numbers at which parents [parent(s)
] can be reached while the child is in care;
(6) Name, address, and telephone number of another responsible individual (friend or relative) who should be contacted in an emergency when the parent cannot be reached;
(7) Names and telephone numbers of persons other than a parent to whom the child may be released;
(8) Permission for transportation, if provided;
(9) Permission for field trips, if provided;
[(10) Permission for participation
in water activities, if provided, if provided, including whether the
child is able to swim without assistance;]
(10) [(11)] Name, address, and
telephone number of the child's physician or an emergency-care facility;
(11) [(12)] Authorization to
obtain emergency medical care and to transport the child for emergency
medical treatment;
(12) [(13)] A statement of the
child's special care needs, which must include:
(A) Any limitations or restrictions on the child's activities;
(B) Special care the child requires, including:
(i) Any reasonable accommodations or modifications;
(ii) Any adaptive equipment provided for the child, including instructions for how to use the equipment; and
(iii) Symptoms or indications of potential complications related to a physical, cognitive, or mental condition that may warrant prevention or intervention while the child is in care; and
(C) Any medications prescribed for continuous, long-term use;
(13) [(14)] The name and telephone
number of the school that a school-age child attends, unless the operation
is located at the child's school;
(14) [(15)] Permission for a
school-age child to ride a bus, walk to or from school or home, or
to be released to the care of a sibling under 18 years old, if applicable;
[and]
(15) [(16)] The child's allergies
and a completed food allergy emergency plan for the child, if applicable; and
[.]
(16) Permission for participation in water activities, if provided. If you allow a child to access a swimming pool, the parent must also indicate whether the child:
(A) Is able to swim competently, as defined by the American Red Cross; or
(B) Requires a personal flotation device because the child is:
(i) Unable to swim competently, as defined by the American Red Cross; or
(ii) At risk of injury or death when swimming or otherwise accessing a body of water.
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 April 12, 2024.
TRD-202401528
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 4. PROFESSIONAL DEVELOPMENT
26 TAC §§746.1301, 746.1309, 746.1325
STATUTORY AUTHORITY
The amendments 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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments and new section affect Texas Government Code §531.0055 and HRC §42.042.
§746.1301.What are the training requirements for employees, caregivers, and directors?
(a) Employees, caregivers, and directors must complete the following training requirements.
Figure: 26 TAC §746.1301(a) (.pdf)
[Figure: 26 TAC §746.1301(a)]
(b) If a caregiver or employee does not yet have a current certificate in pediatric CPR as required in (a)(4)(A) in Figure: 26 TAC §746.1301(a), at least one caregiver or employee with a current certificate must also be on the premises with the caregiver.
§746.1309.What areas of training must the annual training for caregivers cover?
(a) The 24 clock hours of annual training must be relevant to the age of the children for whom the caregiver provides care.
(b) At least six clock hours of the annual training hours must be in one or more of the following topics:
(1) Child growth and development;
(2) Guidance and discipline;
(3) Age-appropriate curriculum; and
(4) Teacher-child interaction.
(c) At least one clock hour of the annual training hours must focus on prevention, recognition, and reporting of child maltreatment, including:
(1) Factors indicating a child is at risk for abuse or neglect;
(2) Warning signs indicating a child may be a victim of abuse or neglect;
(3) Procedures for reporting child abuse or neglect; and
(4) Community organizations that have training programs available to employees, children, and parents.
(d) If a caregiver provides care for children younger than 24 months of age, one clock hour of the annual training hours must cover the following topics:
(1) Recognizing and preventing shaken baby syndrome and abusive head trauma;
(2) Understanding and using safe sleep practices and preventing sudden infant death syndrome (SIDS); and
(3) Understanding early childhood brain development.
(e) While there are no clock hour requirements for the topics in this subsection, the annual training hours must also include training on the following topics:
(1) Emergency preparedness;
(2) Preventing and controlling the spread of communicable diseases, including immunizations;
(3) Administering medication, if applicable, including compliance with §746.3803 of this chapter (relating to What authorization must I obtain before administering a medication to a child in my care?);
(4) Preventing and responding to emergencies due to food or an allergic reaction;
(5) Understanding building and physical premises safety, including identification and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic; and
(6) Handling, storing, and disposing of hazardous materials including compliance with §746.3425 of this chapter (relating to Must caregivers wear gloves when handling blood or bodily fluids containing blood?).
(f) The remaining annual training hours must be in one or more of the following topics:
(1) Care of children with special needs;
(2) Child health (for example, nutrition and physical activity);
(3) Safety;
(4) Risk management;
(5) Identification and care of ill children;
(6) Cultural diversity for children and families;
(7) Professional development (for example, effective communication with families and time and stress management);
(8) Topics relevant to the particular age group the caregiver is assigned (for example, caregivers assigned to an infant or toddler group should receive training on biting and toilet training);
(9) Planning developmentally appropriate learning activities;
(10) Observation and assessment;
(11) Attachment and responsive care giving; and
(12) Minimum standards and how they apply to the caregiver.
(g) At least five of the 24 required annual training hours must come from instructor-led training. The remaining 19 required annual training hours may come from self-instructional training, of which no more than three hours may come from self-study training.
(h) The 24 clock hours of annual training are exclusive
of any requirements for orientation, pre-service training, pediatric first-aid [first aid] and pediatric CPR training,
transportation safety training, water safety training, and
high school child-care work-study classes.
§746.1325.What additional
training must an employee and director have if the child-care center
allows a child to access a swimming pool at or away from the center?
(a) If the child-care center allows a child to access a swimming pool at or away from the center, annual water safety training is required for:
(1) Each employee prior to accompanying a child to a swimming pool; and
(2) Each child-care center director.
(b) Water safety training is exclusive of any requirements for orientation, pre-service training, and annual training.
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 April 12, 2024.
TRD-202401529
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§746.1403.What are the training requirements for substitutes, volunteers, and contractors?
(a) Substitutes, volunteers, and contractors must complete the following training requirements.
Figure 26 TAC §746.1403(a) (.pdf)
[Figure 26 TAC §746.1403(a)]
(b) If the person does not complete the pre-service training within the 90-day period as specified in (a)(2)(C)(ii) in Figure: 26 TAC §746.1403(a), the person must cease performing any caregiver duties at the center until the person completes the pre-service training.
(c) If a substitute, volunteer, or contractor who is counted in the child to caregiver ratio does not yet have a current certificate in pediatric CPR, as required in (a)(4)(A) in Figure: 26 TAC §746.1403(a), at least one caregiver or employee with a current certificate must also be on the premises with the substitute, volunteer, or contractor.
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 April 12, 2024.
TRD-202401531
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 4. RATIOS FOR FIELD TRIPS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§746.1801.Do I need additional caregivers when I take children away from the child-care center for field trips or walks?
(a) When children are on a field trip and are mixing
with children and adults who are not from your child-care center, such
as during [including but not limited to,] trips to
the skating rink, shopping center, public or amusement park, you must
meet the following child/caregiver ratio:
Figure: 26 TAC §746.1801(a) (.pdf)
[Figure: 40 TAC §746.1801(a)]
(b) The child/caregiver ratio for a field trip to a location where children mix with non-center children and
adults [trips] may include adult volunteers or child-care
center employees who do not meet the minimum qualifications for
caregivers specified in Subchapter D of this chapter (relating to
Personnel) if [are not qualified as caregivers only for
trips when children are mixing with non-center children and adults,
as long as] you maintain at least the classroom child/caregiver
ratio required in the following, as applicable:
(1) Division 2 of this subchapter (relating to Classroom Ratios and Group Sizes for Centers Licensed to Care for 13 or More Children); or
(2) Division 3 of this subchapter (relating
to Classroom Ratios and Group Sizes for Centers When 12 or Fewer Children
are in Care) [with qualified caregivers].
(c) When children are on a walk or field trip in an
enclosed, controlled area, such as [including but
not limited to,] specially arranged trips for children
in your child-care center only to a [the]
fire station, library, or museum [class for children
in your child-care center only], you must maintain at least
the classroom child/caregiver ratio. Refer to §746.2101 of this subchapter [title] (relating to Must I have additional
caregivers for wading [splashing/wading] activities?)
and §746.2105 of this subchapter [title]
(relating to What are the child/caregiver ratios for swimming activities?)
for child/caregiver ratios for wading [splashing/wading]
and swimming activities when children are not mixing with other children
and adults.
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 April 12, 2024.
TRD-202401534
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§746.2101, 746.2105, 746.2109, 746.2113, 746.2115
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments affect Texas Government Code §531.0055 and HRC §42.042.
§746.2101.Must I have additional caregivers
for wading [splashing/wading] activities?
(a) The maximum number of children one caregiver can
supervise while children use a [splashing or] wading pool
[(two feet of water or less)] is based on the age of the
youngest child in the group and is specified in the following chart:
Figure: 26 TAC §746.2101(a) (.pdf)
[Figure: 40 TAC §746.2101(a)]
(b) When children are using a wading pool while mixing
with children and adults who are not from your child-care center [during
splashing or wading activities], you must follow the
child/caregiver ratios for field trips as specified in §746.1801
of this subchapter [title] (relating to Do I
need additional caregivers when I take children away from the child-care
center for field trips or walks?) [must be followed].
§746.2105.What are the child/caregiver ratios for swimming activities?
(a) When your child-care center uses a swimming pool
[(more than two feet of water)], there must be at least
two caregivers supervising the children if four or more children are swimming.
(b) The maximum number of children one caregiver can supervise while children are swimming is based on the age of the youngest child in the group and is specified in the following chart:
Figure: 26 TAC §746.2105(b) (.pdf)
[Figure: 40 TAC §746.2105(b)]
§746.2109.Must a certified lifeguard be
on duty when children are swimming in more than 18 inches [two feet] of water?
A [Yes. When children are swimming in more
than two feet of water, a] certified lifeguard must be on duty
at all times when children are swimming in more than 18 inches
of water.
§746.2113.Must persons who are counted in the child/caregiver ratio during swimming know how to swim?
[Yes.] Each caregiver [person]
included in the child/caregiver ratio for swimming in 18 inches [two feet] or more of water must be able to swim and must be
prepared to do so in an emergency.
§746.2115.May I include volunteers or child-care employees who do not meet minimum qualifications for caregivers in the child/caregiver ratio for water activities?
You [Yes. To meet the child/caregiver ratio
for splashing/wading and swimming activities, you] may include
adult volunteers and adult child-care center employees who do not
meet the minimum qualifications for caregivers specified in Subchapter
D of this chapter (relating to Personnel) to meet the child/caregiver
ratio for swimming and wading activities, provided that:
(1) You maintain at least the classroom child/caregiver ratios required in this subchapter with caregivers who do meet the minimum qualifications for caregivers;
(2) All persons included in the ratios for water activities must be able to swim and must be prepared to do so in an emergency; and
(3) You ensure compliance with all other minimum standards, including, but not limited to, standards relating to supervision, discipline and guidance.
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 April 12, 2024.
TRD-202401539
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The repeal is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 repeal affects Texas Government Code §531.0055 and HRC §42.042.
§746.2103.Will I be given an opportunity to comply with the minimum standards for splashing/wading activities, if my child-care center was licensed before September 1, 2003?
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 April 12, 2024.
TRD-202401540
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. SAFETY PRECAUTIONS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§746.3701.What safety precautions must I take to protect children in my child-care center?
All areas accessible to a child must be free from hazards including[, but not limited to,] the following:
(1) Electrical outlets accessible to a child younger than five years must have childproof covers or safety outlets;
(2) 220-volt electrical connections within a child's reach must be covered with a screen or guard;
(3) Air conditioners, electric fans, and heaters must be mounted out of all children's reach or have safeguards that keep any child from being injured;
(4) Glass in sliding doors must be clearly marked with decals or other materials placed at children's eye level;
(5) Play materials and equipment must be safe and free from sharp or rough edges and toxic paints;
(6) Poisonous or potentially harmful plants must be inaccessible to all children;
(7) Bottle warmers must be inaccessible to all children and used only according to manufacturer instructions;
(8) All storage chests, boxes, trunks, or similar items with hinged lids must be equipped with a lid support designed to hold the lid open in any position, be equipped with ventilation holes, and must not have a latch that might close and trap a child inside;
(9) All bodies of water, wading pools [such
as pools], hot tubs, [ponds, creeks,] birdbaths,
fountains, buckets, and rain barrels must be inaccessible to all children; and
(10) All televisions must be anchored, so they cannot
tip over. A television may be anchored to a rolling cart, if [as long as] it is anchored in a way that the cart will not tip
over.
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 April 12, 2024.
TRD-202401541
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 7. INFLATABLES
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§746.4971.May I use inflatable active play equipment?
You may use inflatable equipment both at and away from your child-care center if you follow these guidelines:
(1) You use enclosed inflatables (such as bounce houses or moon bounces) according to the manufacturer's instructions;
(2) You use open inflatables (such as obstacle courses, slides, or games) according to the manufacturer's label and instructions for the user; and
(3) Inflatables that include water activity also comply
with all applicable requirements in Subchapter V of this chapter (relating
to Swimming Pools, Wading [Wading/Splashing]
Pools, and Sprinkler Play).
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 April 12, 2024.
TRD-202401542
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§746.5001, 746.5009, 746.5011, 746.5013, 746.5017
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments and new sections affect Texas Government Code §531.0055 and HRC §42.042.
§746.5001.What safety precautions must
I follow when a child [children] in my care uses
[use] a swimming pool?
In addition to complying with the child/caregiver ratios specified
in §746.2105 of this chapter [title] (relating
to What are the child/caregiver ratios for swimming activities?) and
other safety requirements specified in §746.2109 of this
chapter (relating to Must a certified lifeguard be on duty when children
are swimming in more than 18 inches of water) and §746.2113
of this chapter [title] (relating to [Must
a certified lifeguard be on duty when children are swimming in more
than two feet of water? and] Must persons who are counted in
the child/caregiver ratio during swimming know how to swim?), you
must comply with the following safety precautions when any child uses
a swimming pool [(more than two feet of water)] both at
and away from your child-care center:
(1) A minimum of two life-saving devices must be available;
(2) One additional life-saving device must be available for each 2,000 square feet of water surface;
(3) Drain grates must be in place, in good repair, and must not be able to be removed without using tools;
(4) Pool chemicals and pumps must be inaccessible to any child;
(5) Machinery rooms must be locked when any child is present;
(6) Employees must be able to clearly see all parts of the swimming area;
(7) The bottom of the pool must be visible at all times;
(8) An adult must be present who is able to immediately turn off the pump and filtering system when any child is in a pool; and
(9) All indoor/outdoor areas must be free of furniture and equipment that any child could use to scale a fence or barrier or release a lock.
§746.5009.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?
Before a child who is unable to swim competently or who is at risk of injury or death when swimming enters a swimming pool, you must:
(1) Provide the child with a Type I, II, or III United States Coast Guard approved 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.
§746.5011.Must I provide a personal flotation device (PFD) to a child in care who is unable to swim competently or who is at risk of injury or death when swimming when the child is participating in swim instruction or a competition?
You are not required to provide the child with a PFD or ensure the child is wearing the device if:
(1) The child is actively participating in swim instruction or a competition; and
(2) You ensure that the child is supervised in accordance with §746.1205 of this chapter (relating to What responsibilities does a caregiver have when supervising a child or children?) during the instruction or competition.
§746.5013.What are the safety requirements for wading pools?
(a) Wading [Wading/splashing]
pools [(two feet of water or less)] at your child-care
center must be:
(1) Stored out of children's reach when not in use;
(2) Drained at least daily and sanitized; and
(3) Stored so they do not hold water.
(b) You must comply with the safety precautions specified
in §746.5001 of this subchapter [title]
(relating to What safety precautions must I follow when a child [children] in my care uses [use] a swimming
pool?) when using wading [wading/splashing]
pools away from your child-care center.
§746.5017.Can a child [children
] in my care swim in a body of water other than a swimming pool[, such as a lake, pond, or river]?
You [No, you] must not allow a child [children] to swim in a [lake, pond, river, or a]
body of water other than a swimming pool [or wading pool]
that complies with the rules specified in this subchapter.
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 April 12, 2024.
TRD-202401543
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§747.123, 747.605, 747.1303, 747.1305, 747.1309, 747.2001, 747.2005, 747.2009, 747.2013, 747.2015, 747.3501, 747.4751, 747.4801, 747.4813, and 747.4817; and new §§747.1323, 747.4811 and 747.4812.
BACKGROUND AND PURPOSE
The proposal is necessary to implement House Bill (H.B.) 59, 88th Legislature, Regular Session, 2023. H.B. 59 amended Texas Health and Safety Code (HSC), Subchapter D, Chapter 341, by adding §341.0646 to require certain organizations, including child day care facilities, to implement specific child water safety requirements if the operation authorizes a child to engage in an organized water activity.
HHSC Child Care Regulation (CCR) is proposing new and amended rules in Chapter 747 that will (1) add definitions and requirements related to water safety, including (A) water safety training for caregivers, and (B) the use of a personal flotation device for children who access swimming pools via their licensed or registered child-care home; and (2) update references to bodies of water and wading pools to be consistent with HSC §341.0646(a).
SECTION-BY-SECTION SUMMARY
The proposed amendment to §747.123 (1) adds definitions for "body of water," "personal flotation device," "swimming pool," and "wading pool"; (2) updates the definition of "water activities" to remove the terms "splashing pools" and "bodies of water"; and (3) updates the numbering of the definitions accordingly.
The proposed amendment to §747.605 (1) moves requirements related to water activity participation to the end of the list of required admission information; (2) renumbers the rule accordingly; and (3) clarifies that if a child-care home allows a child to access a swimming pool a parent is required to indicate at admission whether the child is (A) able to swim competently as defined by the American Red Cross, or (B) requires a personal flotation device because the child is unable to swim competently or is at risk of injury or death when swimming or otherwise accessing a body of water.
The proposed amendment to §747.1303 (1) removes duplicative language; (2) updates punctuation; (3) updates a rule reference to add the title of the rule; and (4) adds to the chart of training requirements for caregivers (A) the word "safety" to the transportation training requirements to be consistent with the rule content for that training, and (B) a new water safety training requirement for a child-care home that allows a child to access a swimming pool at or away from the home. The chart specifies that each primary caregiver and substitute or assistant caregiver who accompanies a child to a swimming pool must have water safety training prior to accompanying a child to a swimming pool and annually thereafter.
The proposed amendment to §747.1305 clarifies that water safety training is exclusive of the annual required training for substitute and assistant caregivers.
The proposed amendment to §747.1309 clarifies that water safety training is exclusive of the 30 clock hours of annual required training for the primary caregiver.
Proposed new §747.1323 adds a requirement for water safety training if a child-care home allows a child to access a swimming pool at or away from the home. The rule requires the training for each substitute or assistant caregiver who accompanies a child to a swimming pool before the caregiver accompanies the child to a swimming pool and for the primary caregiver. The rule also clarifies that water safety training is exclusive of any requirements for orientation, pre-service training, and annual training.
The proposed amendment to §747.2001 (1) removes references to "splashing" in the rule title and within the rule; (2) removes language indicating that a wading pool has a depth of two feet or less; and (3) updates a reference.
The proposed amendment to §747.2005 (1) removes language indicating that a swimming pool has a depth of more than two feet of water; and (2) updates a reference.
The proposed amendment to §747.2009 (1) updates the rule title to reflect that a lifeguard must be on duty when children are swimming in 18 inches, rather than two feet, of water; and (2) updates language for better readability.
The proposed amendment to §747.2013 clarifies that each caregiver counted in the child to caregiver ratio for swimming in 18 inches or more of water must be able to swim and be prepared to do so in an emergency.
The proposed amendment to §747.2015 updates language for better readability.
The proposed amendment to §747.3501 (1) updates language for better readability; and (2) updates the list of vessels containing water that must be inaccessible to all children to (A) add wading pools, and (B) remove pools, ponds, and creeks as they are included in the definition of the previously listed "bodies of water."
The proposed amendment to §747.4751 updates the title of a cross-referenced subchapter.
The title of Subchapter V is updated to remove the term "splashing."
The proposed amendment to §747.4801 (1) updates the rule title; (2) reorganizes rule references for better readability; and (3) removes language indicating that a swimming pool has a depth of more than two feet of water.
Proposed new §747.4811 outlines the additional safety precautions a child-care home must take for a child in care who is unable to swim competently or at risk of injury or death when swimming. The rule requires the child-care home to do the following before the child enters a swimming pool: (1) provide the child with a Type I, II, or III United States Coast Guard approved 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.
Proposed new §747.4812 clarifies that a child-care home is not required to provide a PFD to a child who is unable to swim competently or is at risk of injury or death when swimming or ensure the child is wearing a PFD if (1) the child is actively participating in swim instruction or a competition; and (2) the child-care home ensures the child is supervised in accordance with §747.1503 during the instruction or competition.
The proposed amendment to §747.4813 (1) removes the term "splashing" from the rule; (2) removes language indicating that a wading pool has a depth of two feet or less; and (3) updates the title of a rule reference.
The proposed amendment to §747.4817 (1) updates the rule title; (2) updates language for better readability; (3) removes references to "lakes," "ponds," and "rivers" from the list of water bodies a child cannot swim in as they are included in the definition of a "body of water"; and (4) removes a reference to "wading pool" as a wading pool is not considered a "body of water".
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 regulation;
(6) the proposed rules will expand existing regulations;
(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 an adverse economic effect on small businesses and micro-businesses, but there will not be an adverse economic effect on rural communities.
Texas Government Code Chapter 2006 defines a small business as one that is for-profit with fewer than 100 employees. A micro-business is one that is for-profit with fewer than 20 employees. Based on data obtained from the 2022 CCR Data Book, there are approximately 4,177 Licensed and Registered Child-Care Homes required to comply with the rules. These homes are limited to caring for a maximum of 12 children. CCR assumes that all Licensed and Registered Child-Care Homes (4,177 homes) are for-profit homes with less than 20 employees and qualify as small businesses and micro-businesses.
There is a projected economic impact on small businesses and micro-businesses from proposed §747.4811. This economic impact, however, is limited to child-care homes that offer children access to a swimming pool, either onsite or during field trips where water activities take place. Based on data collected in November 2023 for Fiscal Year 2022, 170 child-care homes have a swimming pool on the premises and 1,084 child-care homes offer water activities (to include swimming pools, wading pools, and sprinkler play). With regards to water activities, CCR does not collect data regarding the type of water activities a child-care home provides or whether those activities take place onsite or during field trips. Although HHSC can assume the 170 child-care homes with a pool on the premises will be required to comply with the proposed rule, HHSC is unable to determine the number of child-care homes whose water activities include access to a swimming pool during field trips. Therefore, HHSC does not have enough information to determine the total number of child-care homes operating as a small business or micro-business that will be required to comply with the proposed rule.
Section 747.4811 requires a child-care home to provide each child in care who is unable to swim competently or is at risk of injury or death when swimming or otherwise entering a swimming pool a properly fitted and fastened Type I, II, or III United States Coast Guard approved personal flotation device (PFD). A 2023 assessment of the average cost to purchase a single PFD revealed that a PFD costs between $17 and $45. However, the total cost to purchase PFDs will vary per child-care home depending on the number of enrolled children who are unable to swim competently or at risk of injury or death when swimming and the type of PFD the operation elects to purchase. In addition, some child-care homes may choose to obtain PFDs through organizations that provide them at no cost. These factors, coupled with HHSC's inability to determine the number of child-care homes that offer access to a swimming pool during field trips, renders HHSC unable to determine economic costs for persons required to comply with the rule as proposed.
HHSC determined that alternative methods to achieve the purpose of the proposed rule for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of children who access swimming pools via their licensed or registered child-care home.
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
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 (1) improve the safety of children enrolled in licensed and registered child-care homes who access swimming pools; and (2) rules that comply with state law.
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 may incur economic costs because the rules require child-care homes to provide each child in care who is unable to swim competently or is at risk of injury or death when swimming or otherwise entering a body of water a properly fitted and fastened Type I, II, or III United States Coast Guard approved personal flotation device (PFD). A 2023 assessment of the average cost to purchase a single PFD revealed that a PFD costs between $17 and $45. However, the total cost to purchase PFDs will vary per child-care operation depending on the number of enrolled children who are unable to swim or at risk of injury or death when swimming and the type of PFD the operation elects to purchase. In addition, some child-care operations may choose to obtain PFDs through organizations that provide them at no cost. As a result, HHSC does not have sufficient information to determine economic costs for persons required to comply with the rules as proposed.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Aimee Belden by email at Aimee.Belden@hhs.texas.gov.
Written comments on the proposal may be submitted to Aimee Belden, Rules Writer, Child Care Regulation, Texas Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If 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 23R074" in the subject line.
SUBCHAPTER A. PURPOSE, SCOPE, AND DEFINITIONS
DIVISION 3. DEFINITIONS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§747.123.What do certain words and terms mean when used in this chapter?
The words and terms used in this chapter have the meanings assigned to them under §745.21 of this title (relating to What do the following words and terms mean when used in this chapter?), unless another meaning is assigned in this section or another subchapter or unless the context clearly indicates otherwise. In addition, the following words and terms used in this chapter have the following meanings unless the context clearly indicates otherwise:
(1) Activity plan--A written plan that outlines the
daily routine and activities in which a group of children will engage
while in your care. The plan is designed to meet the children's [']cognitive,
social, language, emotional, and physical developmental strengths
and needs.
(2) Activity space--An area or room used for children's activities.
(3) Administrative and clerical duties--Duties that involve the operation of a child-care home, such as bookkeeping, enrolling children, answering the telephone, and collecting fees.
(4) Admission--The process of enrolling a child in a child-care home. The date of admission is the first day the child is physically present in the home.
(5) Adult--A person 18 years old and older.
(6) After-school hours--Hours before and after school, and days when school is not in session, such as school holidays, summer vacations, and teacher in-service days.
(7) Age-appropriate--Activities, equipment, materials, curriculum, and environment that are developmentally consistent with the developmental or chronological age of the child being served.
(8) Attendance--When referring to a child's attendance, the physical presence of a child at the child-care home on any given day or at any given time, as distinct from the child's enrollment in the child-care home.
(9) Body of water--As defined by Texas Health and Safety Code, Chapter 341, Subchapter D (relating to Sanitation and Safety of Facilities Used by Public).
(10) [(9)] Bouncer seat--A stationary seat designed to provide gentle rocking or bouncing motion by an infant's movement[,] or by battery-operated movement. This type of equipment is designed for an infant's use from birth until the child can sit up unassisted.
(11) [(10)] Caregiver--A person who is counted in the child to caregiver ratio, whose duties include the supervision, guidance, and protection of a child. As used in this chapter, a caregiver must meet the minimum education, work experience,
and training qualifications required under Subchapter D of this chapter
(relating to Personnel).
(12) [(11)] Certified Child-Care
Professional Credential--A credential given by the National Early
Childhood Program Accreditation to a person working directly with
children. The credential is based on assessed competency in several
areas of child care and child development.
(13) [(12)] Certified lifeguard--A
person who has been trained in life saving and water safety by a qualified
instructor, from a recognized organization that awards a certificate
upon successful completion of the training. The certificate is not
required to use the term "lifeguard," but you must be able to document
that the certificate is current, relevant to the type of water activity
in which children will engage, and representative of the type of training described.
(14) [(13)] CEUs--Continuing
education units. A standard unit of measure for adult education and
training activities. One CEU equals 10 clock hours of participation
in an organized, continuing-education experience, under responsible,
qualified direction and instruction. Although a person may obtain
a CEU in many of the same settings as clock hours, the CEU provider
must meet the criteria established by the International Association
for Continuing Education and Training to be able to offer the CEU.
(15) [(14)] Child--An infant,
a toddler, a pre-kindergarten age child, or a school-age child.
(16) [(15)] Child-care home--A
registered or licensed child-care home, as specified in §747.113
of this chapter (relating to What is a registered child-care home?)
or §747.115 of this chapter (relating to What is a licensed child-care
home?). This term includes the program, home, grounds, furnishings,
and equipment.
(17) [(16)] Child-care program--The
services and activities provided by a child-care home.
(18) [(17)] Child Development
Associate Credential--A credential given by the Council for Professional
Recognition to a person working directly with children. The credential
is based on assessed competency in several areas of child care and
child development.
(19) [(18)] Clock hour--An actual
hour of documented:
(A) Attendance at instructor-led training, such as seminars, workshops, conferences, early childhood classes, and other planned learning opportunities, provided by an individual or individuals as specified in §747.1315(a) of this chapter (relating to Must child-care training meet certain criteria?); or
(B) Self-instructional training that was created by an individual or individuals, as specified in §747.1315(a) and (b) of this chapter, or self-study training.
(20) [(19)] Corporal punishment--The
infliction of physical pain on a child as a means of controlling behavior.
This includes spanking, hitting with a hand or instrument, slapping,
pinching, shaking, biting, or thumping a child.
(21) [(20)] Days--Calendar days,
unless otherwise stated.
(22) [(21)] Employee--An assistant
caregiver, substitute caregiver, or any other person a child-care
home employs full-time or part-time to work for wages, salary, or
other compensation, including kitchen staff, office staff, maintenance
staff, or anyone hired to transport a child.
(23) [(22)] Enrollment--The list
of names or number of children who have been admitted to attend a
child-care home for any given period of time; the number of children
enrolled in a child-care home may vary from the number of children
in attendance on any given day.
(24) [(23)] Entrap--A component
or group of components on equipment that forms angles or openings
that may trap a child's head by being too small to allow the child's
body to pass through, or large enough for the child's body to pass
through but too small to allow the child's head to pass through.
(25) [(24)] Field trips--Activities
conducted away from the child-care home.
(26) [(25)] Food service--The
preparation or serving of meals or snacks.
(27) [(26)] Frequent--More than
two times in a 30-day period. Note: For the definition of "regularly
or frequently present at an operation" (child-care home) as it applies
to background checks, see §745.601 of this title (relating to
What words must I know to understand this subchapter?).
(28) [(27)] Garbage--Waste food
or items that when deteriorating cause offensive odors and attract
rodents, insects, and other pests.
(29) [(28)] Grounds-- Includes
any parcel of land where the home of the primary caregiver is located
and any building, other structure, body of water, play equipment,
street, sidewalk, walkway, driveway, parking garage, or parking lot
on the parcel. Also referred to as "premises" in this chapter.
(30) [(29)] Group activities--Activities
that allow children to interact with other children in large or small
groups. Group activities include storytelling, finger plays, show
and tell, organized games, and singing.
(31) [(30)] Hazardous materials--Any
substance or chemical that is a health hazard or physical hazard,
as determined by the Environmental Protection Agency. Also referred
to as "toxic materials" and "toxic chemicals" in this chapter.
(32) Health check--A visual or physical assessment of a child to identify potential concerns about a child's health, including signs or symptoms of illness and injury, in response to changes in the child's behavior since the last date of attendance.
(33) [(31)] Health-care professional--A
licensed physician, a licensed advanced practice registered nurse
(APRN), a licensed vocational nurse (LVN), a licensed registered nurse
(RN), or other licensed medical personnel providing health care to
the child within the scope of the license. This does not include physicians,
nurses, or other medical personnel who are not licensed in the United
States or in the country in which the person practices.
(34) [(33)] High school equivalent--
(A) Documentation of a program recognized by the Texas Education Agency (TEA) or other public educational entity in another state, which offers similar training on reading, writing, and math skills taught at the high school level, such as a General Educational Development (GED) certificate; or
(B) Confirmation that the person received home-schooling that adequately addressed basic competencies such as basic reading, writing, and math skills, which would otherwise have been documented by a high school diploma.
(35) [(34)] Individual activities--Opportunities
for the child to work independently or to be away from the group but supervised.
(36) [(35)] Infant--A child from
birth through 17 months.
(37) [(36)] Inflatable--An amusement
ride or device, consisting of air-filled structures designed for use
by children, as specified by the manufacturer, which may include bouncing,
climbing, sliding, or interactive play. They are made of flexible
fabric, kept inflated by continuous air flow by one or more blowers,
and rely upon air pressure to maintain their shape.
(38) [(37)] Instructor-led training--Training
characterized by the communication and interaction that takes place
between the student and the instructor. The training must include
an opportunity for the student to interact with the instructor to
obtain clarifications and information beyond the scope of the training
materials. For such an opportunity to exist, the instructor must communicate
with the student in a timely fashion, including answering questions,
providing feedback on skills practice, providing guidance or information
on additional resources, and proactively interacting with students.
Examples of this type of training include[,] classroom
training, web-based online facilitated learning, video-conferencing,
or other group learning experiences.
(39) [(38)] Janitorial duties--Those
duties that involve the cleaning and maintenance of the child-care
home, building, rooms, furniture, etc. Cleaning and maintenance include
such duties as cleansing carpets, washing cots, and sweeping, vacuuming,
or mopping a restroom or a classroom. Sweeping up after an activity
or mopping up a spill in a classroom that is immediately necessary
for the children's safety is not considered a janitorial duty.
(40) [(39)] Natural environment--Settings
that are natural or typical for all children of the same age without
regard to ability or disability. For example, a natural environment
for learning social skills is a play group of peers.
(41) [(40)] Permit is no longer
valid--For purposes of this chapter, a permit remains valid through
the renewal process. A permit only becomes invalid when your:
(A) Home voluntarily closes;
(B) Home must close because of an enforcement action in Chapter 745, Subchapter L of this title (relating to Enforcement Actions);
(C) Permit expires according to §745.481 of this title (relating to When does my permit expire?); or
(D) Home must close because its permit is automatically revoked according to the Human Resources Code §§42.048(e), 42.052(i), or 42.054(f).
(42) Personal flotation device (PFD)--A United States Coast Guard approved life jacket.
(43) [(41)] Physical activity
(moderate)--Levels of activity for a child that are at intensities
faster than a slow walk, but still allow the child to talk easily.
Moderate physical activity increases the child's heart rate and breathing rate.
(44) [(42)] Physical activity
(vigorous)--Rhythmic, repetitive physical movement for a child that
uses large muscle groups, causing the child to breathe rapidly and
only enabling the child to speak in short phrases. Typically, the
child's heart rate is substantially increased, and the child is likely
to be sweating while engaging in vigorous physical activity.
(45) [(43)] Pre-kindergarten
age child--A child who is three or four years of age before the beginning
of the current school year.
(46) [(44)] Premises--See the
term "grounds" and its definition in this section.
(47) [(45)] Regular--On a recurring,
scheduled basis. Note: For the definition of "regularly or frequently
present at an operation" (child-care home) as it applies to background
checks, see §745.601 of this title.
(48) [(46)] Restrictive device--Equipment
that places the body of a child in a position that may restrict airflow
or cause strangulation; usually, the child is placed in a semi-seated
position. Examples of restrictive devices are car seats, swings, bouncy
seats, and high chairs.
(49) [(47)] Safety belt--A lap
belt and any shoulder straps included as original equipment on or
added to a vehicle.
(50) [(48)] Sanitize--The use
of a disinfecting product that provides instructions specific for
sanitizing and is registered by the Environmental Protection Agency
(EPA) to substantially reduce germs on inanimate objects to levels
considered safe by public health requirements. Many bleach and hydrogen
peroxide products are EPA-registered. You must follow the product's
labelling instructions for sanitizing or disinfecting, depending on
the surface (paying particular attention to any instructions regarding
contact time and toxicity on surfaces likely to be mouthed by children,
such as toys and crib rails). If you use bleach instead of an approved
disinfecting product, you must follow these steps in order:
(A) Washing with water and soap;
(B) Rinsing with clear water;
(C) Soaking in or spraying on a bleach solution for at least two minutes;
(D) Rinsing with cool water only those items that children are likely to place in their mouths; and
(E) Allowing the surface or item to air-dry.
(51) [(49)] School-age child--A
child who is five years of age and older and is enrolled in or has
completed kindergarten.
(52) [(50)] Screen time activity--An
activity during which a child views media content on a cell or mobile
phone, tablet, computer, television, video, film, or DVD. Screen time
activities do not include video chatting with a child's family or
assistive and adaptive computer technology used by a child with special
care needs on a consistent basis.
(53) [(51)] Self-instructional
training--Training designed to be used by one individual working alone
and at the individual's own pace to complete lessons or modules. Lessons
or modules commonly include questions with clear right and wrong answers.
An example of this type of training is web-based training. Self-study
training is also a type of self-instructional training.
(54) [(52)] Self-study training--Non-standardized
training where an individual reads written materials, watches a training
video, or listens to a recording to obtain certain knowledge that
is required for annual training. Self-study training is limited to
three hours of annual training per year.
(55) [(53)] Special care needs--A
child with special care needs is a child who has:
(A) A chronic physical, developmental, behavioral, or emotional condition or a disability and who also requires assistance beyond that required by a child generally to perform tasks that are within the typical chronological range of development, including the movement of large or small muscles, learning, talking, communicating, comprehension, emotional regulation, self-help, social skills, emotional well-being, seeing, hearing, and breathing; or
(B) A limitation due to an injury, illness, or allergy.
(56) [(54)] State or local fire
authority--A fire official who is authorized to conduct fire safety
inspections on behalf of the city, county, or state government, including
certified fire inspectors. Also referred to as "fire marshal" in this chapter.
(57) Swimming Pool--An artificial body of water with a water depth of more than 18 inches that is maintained or used expressly for public or private recreational purposes, swimming, diving, aquatic sports or activities, or therapeutic purposes.
(58) [(55)] Toddler--A child
from 18 months through 35 months.
(59) [(56)] Universal precautions--An
approach to infection control where all human blood and certain human
bodily fluids are treated as if known to be infectious for HIV, HBV,
and other blood-borne pathogens.
(60) Wading pool--As defined by Texas Health and Safety Code, Chapter 341, Subchapter D.
(61) [(57)] Water activities--Related
to the use of swimming pools, [splashing pools,] wading
pools, or sprinkler play[, or other bodies of water].
(62) [(58)] Weather permitting--Weather
conditions that do not pose any concerns for health and safety such
as significant risk of frostbite or heat-related illness. This includes
adverse weather conditions in which children may still play safely
outdoors for shorter periods with appropriate adjustments to clothing
and any necessary access to water, shade, or shelter.
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 April 12, 2024.
TRD-202401544
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. RECORDS OF CHILDREN
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§747.605.What admission information must I obtain for each child?
You must obtain at least the following information before admitting a child to the child-care home:
(1) The child's name and birth date;
(2) The child's home address and telephone number;
(3) Date of the child's admission to the child-care home;
(4) Name and address of parents [parent(s)];
(5) Telephone numbers at which parents [parent(s)
] can be reached while the child is in care;
(6) Name, address, and telephone number of another responsible individual (friend or relative) who should be contacted in an emergency when the parent cannot be reached;
(7) Names and telephone numbers of persons other than a parent to whom the child may be released;
(8) Permission for transportation, if provided, including any authorized pick-up and drop-off locations;
(9) Permission for field trips, if provided;
[(10) Permission for participation
in water activities, if provided, including whether the child is able
to swim without assistance;]
(10) [(11)] Name, address, and
telephone number of the child's physician or an emergency-care facility;
(11) [(12)] Authorization to
obtain emergency medical care and to transport the child for emergency
medical treatment;
(12) [(13)] A statement of the
child's special care needs, which must include:
(A) Any limitations or restrictions on the child's activities;
(B) Special care the child requires, including:
(i) Any reasonable accommodations or modifications;
(ii) Any adaptive equipment provided for the child, including instructions for how to use the equipment; and
(iii) Symptoms or indications of potential complications related to a physical, cognitive, or mental condition that may warrant prevention or intervention while the child is in care; and
(C) Any medications prescribed for continuous, long-term use;
(13) [(14)] The name and telephone
number of the school a school-age child attends;
(14) [(15)] Permission for a
school-age child to ride a bus, walk to or from school or home, or
to be released to the care of a sibling under 18 years old, if applicable;
[and]
(15) [(16)] The child's allergies
and a completed food allergy emergency plan for the child, if applicable; and
[.]
(16) Permission for participation in water activities, if provided. If you allow a child to access a swimming pool, the parent must also indicate whether the child:
(A) Is able to swim competently, as defined by the American Red Cross; or
(B) Requires a personal flotation device because the child is:
(i) Unable to swim competently, as defined by the American Red Cross; or
(ii) At risk of injury or death when swimming or otherwise accessing a body of water.
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 April 12, 2024.
TRD-202401545
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 4. PROFESSIONAL DEVELOPMENT
26 TAC §§747.1303, 747.1305, 747.1309, 747.1323
STATUTORY AUTHORITY
The amendments 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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments and new section affect Texas Government Code §531.0055 and HRC §42.042.
§747.1303.What training must I ensure that my caregivers have within certain timeframes?
You must make sure that each caregiver has the training within the timeframe required in the following chart:
Figure: 26 TAC §747.1303 (.pdf)
[Figure: 26 TAC §747.1303]
§747.1305.What areas of training must the annual training for substitute and assistant caregivers cover?
(a) Each caregiver counted in the child/caregiver ratio on more than ten separate occasions in one training year, as specified in §747.1311 of this division (relating to When must the annual training be obtained?) must obtain annual training relevant to the age of the children for whom the caregiver provides care.
(b) At least six clock hours of the annual training hours must be in one or more of the following topics:
(1) Child growth and development;
(2) Guidance and discipline;
(3) Age-appropriate curriculum; and
(4) Teacher-child interaction.
(c) If your home provides care for a child younger than 24 months, one hour of the annual training hours must cover all the following topics:
(1) Recognizing and preventing shaken baby syndrome and abusive head trauma;
(2) Understanding and using safe sleep practices and preventing sudden infant death syndrome (SIDS); and
(3) Understanding early childhood brain development.
(d) While there are no clock hour requirements for the topics in this subsection, the annual training hours must also include training on the following topics:
(1) Emergency preparedness;
(2) Preventing and controlling the spread of communicable diseases, including immunizations;
(3) Administering medication, if applicable, including compliance with §747.3603 of this chapter (relating to What authorization must I obtain before administering a medication to a child in my care?);
(4) Preventing and responding to emergencies due to food or an allergic reaction;
(5) Understanding building and physical premises safety, including identification and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic; and
(6) Handling, storing, and disposing of hazardous materials including compliance with §747.3221 of this chapter (relating to Must caregivers wear gloves when handling blood or bodily fluids containing blood?).
(e) The remaining annual training hours must be in one or more of the following topics:
(1) Care of children with special needs;
(2) Child health (for example, nutrition and physical activity);
(3) Safety;
(4) Risk management;
(5) Identification and care of ill children;
(6) Cultural diversity for children and families;
(7) Professional development (for example, effective communication with families and time and stress management);
(8) Topics relevant to the particular ages of children in care (for example, caregivers working with infants or toddlers should receive training on biting and toilet training);
(9) Planning developmentally appropriate learning activities;
(10) Observation and assessment;
(11) Attachment and responsive care giving; and
(12) Minimum standards and how they apply to the caregiver.
(f) For an assistant caregiver or substitute caregiver described in §747.1303(3)(B) of this division (relating to What training must I ensure that my caregivers have within certain timeframes?), at least three of the required 15 annual training hours must come from instructor-led training. The remaining 12 required annual training hours may come from self-instructional training, of which no more than three hours may come from self-study training.
(g) For an assistant caregiver or substitute caregiver described in §747.1303(4)(B) of this division, at least five of the required 24 annual training hours must come from instructor-led training. The remaining 19 required annual training hours may come from self-instructional training, of which no more than three hours may come from self-study training.
(h) Annual training is exclusive of any requirements for orientation, pediatric first aid and pediatric CPR training, transportation safety training, water safety training, and any training received through a high school child-care work-study program.
§747.1309.What areas of training must the annual training for the primary caregiver cover?
(a) You must obtain at least 30 clock hours of training each year relevant to the age of the children for whom you provide care.
(b) At least six clock hours of the annual training hours must be in one or more of the following topics:
(1) Child growth and development;
(2) Guidance and discipline;
(3) Age-appropriate curriculum; and
(4) Teacher-child interaction.
(c) If your home provides care for children younger than 24 months, one hour of the annual training hours must cover all the following topics:
(1) Recognizing and preventing shaken baby syndrome;
(2) Understanding and using safe sleep practices and preventing sudden infant death syndrome (SIDS); and
(3) Understanding early childhood brain development.
(d) While there are no clock hour requirements for the topics in this subsection, the annual training hours must also include training on the following topics:
(1) Emergency preparedness;
(2) Preventing and controlling the spread of communicable diseases, including immunizations;
(3) Administering medication, if applicable, including compliance with §747.3603 of this chapter (relating to What authorization must I obtain before administering a medication to a child in my care?);
(4) Preventing and responding to emergencies due to food or an allergic reaction;
(5) Understanding building and physical premises safety, including identification and protection from hazards that can cause bodily injury such as electrical hazards, bodies of water, and vehicular traffic; and
(6) Handling, storing, and disposing of hazardous materials including compliance with §747.3221 of this chapter (relating to Must caregivers wear gloves when handling blood or bodily fluids containing blood?).
(e) If you have:
(1) Five or fewer years of experience as a primary caregiver in a licensed or registered child-care home, you must complete at least six of the annual training hours in management techniques, leadership, or staff supervision; or
(2) More than five years of experience as a primary caregiver in a licensed or registered child-care home, you must complete at least three of the annual training hours in management techniques, leadership, or staff supervision.
(f) The remainder of annual training hours must be selected from the training topics specified in §747.1305(e) of this chapter (relating to What areas of training must the annual training for substitute and assistant caregivers cover?).
(g) You may obtain clock hours or CEUs from the same sources as other caregivers.
(h) You may not earn training hours by presenting training to other caregivers.
(i) At least six of the required 30 annual training hours must come from instructor-led training. The remaining 24 required annual training hours may come from self-instructional training, of which no more than three hours may come from self-study training.
(j) The 30 clock hours of annual training are exclusive
of any requirements for the Licensing pre-application course, pediatric
first aid and pediatric CPR training, [and] transportation
safety training, and water safety training.
§747.1323.What additional training must an employee and caregiver have if the child-care home allows a child to access a swimming pool at or away from the home?
(a) If the child-care home allows a child to access a swimming pool at or away from the home, annual water safety training is required for:
(1) Each substitute or assistant caregiver prior to accompanying a child to a swimming pool; and
(2) The primary caregiver.
(b) Water safety training is exclusive of any requirements for orientation, pre-service training, and annual training.
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 April 12, 2024.
TRD-202401546
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 5. RATIOS FOR WATER ACTIVITIES
26 TAC §§747.2001, 747.2005, 747.2009, 747.2013, 747.2015
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 amendments affect Texas Government Code §531.0055 and HRC §42.042.
§747.2001.Must I have additional caregivers
for wading [wading/splashing] activities?
(a) Whenever children use a wading [or splashing]
pool [(two feet of water or less)], you must use the child/caregiver
ratio for wading [wading/splashing] activities
for all children in care.
(b) If there is more than one child under 24 months in care, a second adult must be present.
(c) The maximum number of children one caregiver can
supervise while children use a [splashing or] wading pool
[(two feet of water or less)] is based on the age of the
youngest child in the group and is specified in the following chart:
Figure: 26 TAC §747.2001(c) (.pdf)
[Figure: 40 TAC §747.2001(c)]
§747.2005.What are the child/caregiver ratios for swimming activities?
(a) When your child-care home uses a swimming pool
[(more than two feet of water)] and four or more children
are swimming, there must be at least two caregivers present supervising
the children who are swimming.
(b) The maximum number of children one caregiver can supervise while children are swimming is based on the age of the youngest child in the group. You must use the following child/caregiver ratio for swimming activities:
Figure: 26 TAC §747.2005(b) (.pdf)
[Figure: 40 TAC §747.2005(b)]
§747.2009.Must I have a certified lifeguard
on duty when children are swimming in more than 18 inches [two feet] of water?
A [Yes. When children are swimming in more
than two feet of water, a] certified lifeguard must be on duty
at all times when children are swimming in more than 18 inches
of water.
§747.2013.Must persons who are counted in the child/caregiver ratio during swimming know how to swim?
[Yes.] Each caregiver [person]
included in the child/caregiver ratio for swimming in 18 inches
or more [two feet] of water [or more]
must be able to swim and must be prepared to do so in an emergency.
§747.2015.May I include volunteers or household members who do not meet minimum qualifications for caregivers in the child/caregiver ratio for water activities?
You [Yes. To meet the child/caregiver ratio
for splashing/wading and swimming activities, you] may include
adult volunteers and adult household members who do not meet the minimum
qualifications for caregivers specified in Subchapter D of this chapter
(relating to Personnel) to meet the child/caregiver ratio for
swimming and wading activities, provided that:
(1) You maintain at least the child/caregiver ratios required in Division 2 of this subchapter (relating to Regular Ratios and Group Sizes in the Registered Child-Care Home), or Division 3 of this subchapter (relating to Regular Ratios and Group Sizes in the Licensed Child-Care Home), as applicable, with caregivers who do meet the minimum qualifications for caregivers;
(2) All persons included in the ratios for water activities must be able to swim and must be prepared to do so in an emergency; and
(3) You ensure compliance with all other minimum standards, including, but not limited to, standards relating to supervision, discipline, and guidance.
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 April 12, 2024.
TRD-202401547
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. SAFETY PRECAUTIONS
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§747.3501.What safety precautions must I take to protect children in my child-care home?
All areas accessible to a child must be free from hazards including[, but not limited to,] the following:
(1) Electrical outlets accessible to a child younger than five years must have child-proof covers or safety outlets;
(2) 220-volt electrical connections within any child's reach must be covered with a screen or guard;
(3) Air conditioners, electric fans, and heaters must be mounted out of all children's reach or have safeguards that keep any child from being injured;
(4) Glass in sliding doors must be clearly marked with decals or other materials placed at children's eye level;
(5) Play materials and equipment must be safe and free from sharp or rough edges and toxic paints;
(6) Poisonous or potentially harmful plants must be inaccessible to children;
(7) Bottle warmers must be inaccessible to all children and used only according to manufacturer instructions;
(8) All storage chests, boxes, trunks, or similar items with hinged lids must be equipped with a lid support designed to hold the lid open in any position, be equipped with ventilation holes, and must not have a latch that might close and trap a child inside; and
(9) All bodies of water, wading pools [such
as, pools], hot tubs, [ponds, creeks,] birdbaths,
fountains, buckets, and rain barrels[,] must be inaccessible
to children.
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 April 12, 2024.
TRD-202401548
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 5. INFLATABLES
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 §531.0055 and HRC §42.042.
§747.4751.May I use inflatable active play equipment?
You may use inflatable equipment both at and away from your child-care home if you follow these guidelines:
(1) You use enclosed inflatables (such as bounce houses or moon bounces/walks) according to the manufacturer's instructions;
(2) You use open inflatables (such as obstacle courses, slides, or games) according to the manufacturer's label and instructions for the user; and
(3) Inflatables that include water activity also comply
with all applicable requirements in Subchapter V of this chapter (relating
to Swimming Pools, Wading [Wading/Splashing]
Pools, and Sprinkler Play).
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 April 12, 2024.
TRD-202401549
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§747.4801, 747.4811 - 747.4813, 747.4817
STATUTORY AUTHORITY
The amendment 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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. 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 and new sections affect Texas Government Code §531.0055 and HRC §42.042.
§747.4801.What safety precautions must
I follow when a child [children] in my care uses
[use] a swimming pool?
In addition to complying with the child/caregiver ratios specified
in §747.2005 of this chapter [title] (relating
to What are the child/caregiver ratios for swimming activities?) and
other safety requirements specified in §747.2009 of this
chapter (relating to Must I have a certified lifeguard on duty when
children are swimming in more than 18 inches of water?) and §747.2013
of this chapter [title] (relating to [Must
I have a certified lifeguard on duty when children are swimming in
more than two feet of water? and] Must persons who are counted
in the child/caregiver ratio during swimming know how to swim?), you
must comply with the following safety precautions when any child uses
a swimming pool [(more than two feet of water)] both at
and away from your child-care home:
(1) A minimum of two life-saving devices must be available;
(2) One additional life-saving device must be available for each 2,000 square feet of water surface;
(3) Drain grates must be in place, in good repair, and must not be able to be removed without using tools;
(4) Pool chemicals and pumps must be inaccessible to any child;
(5) Machinery rooms must be locked when a child is present;
(6) Caregivers must be able to clearly see all parts of the swimming area;
(7) The bottom of the pool must be visible at all times; and
(8) An adult must be present who is able to immediately turn off the pump and filtering system when a child is in a pool.
§747.4811.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?
Before a child who is unable to swim competently or who is at risk of injury or death when swimming enters a swimming pool, you must:
(1) Provide the child with a Type I, II, or III United States Coast Guard approved 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.
§747.4812.Must I provide a personal flotation device (PFD) to a child in care who is unable to swim competently or who is at risk of injury or death when swimming when the child is participating in swim instruction or a competition?
You are not required to provide the child with a PFD or ensure the child is wearing the device if:
(1) The child is actively participating in swim instruction or a competition; and
(2) You ensure that the child is supervised in accordance with §747.1503 of this chapter (relating to What responsibilities does a caregiver have when supervising a child or children?) during the instruction or competition.
§747.4813.What are the safety requirements for wading pools?
(a) Wading [Wading/splashing]
pools [(two feet of water or less)] used at your child-care
home must be:
(1) Stored out of children's reach when not in use;
(2) Drained and sanitized at least daily; and
(3) Stored so they cannot hold water.
(b) You must comply with the safety precautions specified
in §747.4801 of this subchapter [title]
(relating to What safety precautions must I follow when a child [children] in my care uses [use] a swimming
pool?) when using wading [wading/splashing]
pools away from your child-care home.
§747.4817.Can a child [children
] in my care swim in a body of water other than a swimming pool[, such as a lake, pond, or river]?
You [No, you] must not allow a child [children] to swim in a [lake, pond, river, or a]
body of water other than a swimming pool [or wading pool]
that complies with the rules specified in this subchapter.
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 April 12, 2024.
TRD-202401550
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §748.61; and new §§748.4801, 748.4803, 748.4805, 748.4807, 748.4809, 748.4821, 748.4823, 748.4825, 748.4831, 748.4833, 748.4841, 748.4843, 748.4845, 748.4847, 748.4851, 748.4861, 748.4863, 748.4865, 748.4867, 748.4869, and 748.4881, in Texas Administrative Code, Title 26, Chapter 748, Minimum Standards for General Residential Operations, Subchapter B, Definitions and Services, and new Subchapter W, Additional Requirements for Operations that Provide Psychiatric Health Treatments and Services.
BACKGROUND AND PURPOSE
The proposal is necessary to comply with House Bill (H.B.) 3121, 87th Legislature, Regular Session, 2021, which created Texas Health and Safety Code Chapter 577A, Psychiatric Residential Youth Treatment Facilities. Chapter 577A mandates HHSC Child Care Regulation (CCR) to create a voluntary process whereby a general residential operation may be certified as a psychiatric residential youth treatment facility (PRYTF) to provide treatments and services to individuals 21 years of age or younger with a severe emotional disturbance. Section 577A.004 requires HHSC to adopt rules, including the establishment of application and renewal fees, to implement the chapter; and Section 577A.101 requires HHSC to adopt minimum standards for a certified PRYTF. Accordingly, CCR is proposing amended rules in Chapter 748, Subchapter B to update the types of services CCR regulates to include treatment services for individuals who are 21 of age or younger with a severe emotional disturbance that are admitted to a certified PRYTF. In addition, CCR is proposing new rules in Chapter 748, Subchapter W to (1) define terms and explain the scope of the rules; (2) add requirements for policies, notifications and postings, including requiring ongoing accreditation; (3) require a treatment director; (4) update the training requirements for a caregiver and certain employees; (5) update the child to caregiver ratio during night-sleeping hours; and (6) add admission criteria and specific requirements for plans of care.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §748.61 adds individuals who are 21 years of age or younger with a severe emotional disturbance who are admitted to a certified PRYTF as a type of treatment service for children with emotional disorders.
Proposed new §748.4801 defines the terms "individual," "psychiatric health treatments and services," "psychiatric residential youth treatment facility (PRYTF)," and "severe emotional disturbance."
Proposed new §748.4803 clarifies that if an operation provides psychiatric health treatments and services as a certified PRYTF, the PRYTF must meet the additional rules in this subchapter.
Proposed new §748.4805 clarifies that an operation required to comply with the rules in this subchapter must also meet the other rules in this chapter that apply to all operations unless the rule has been replaced by a rule in §748.4809.
Proposed new §748.4807 clarifies that the rules in this chapter that apply to a PRYTF as noted in new §748.4805 also apply to the care of a young adult 18 to 21 years of age whom the general residential operation has admitted for psychiatric health treatments and services.
Proposed new §748.4809 provides an itemized list of rules in this subchapter that replace other rules in this chapter.
Proposed new §748.4821 describes the additional policies that a general residential operation must submit as a part of the application process for a PRYTF certificate, including (1) how the PRYTF will provide 24-hour medical and emergency services, including nursing services; and (2) how caregivers will supervise young adults sharing restrooms and indoor and outdoor activity areas with children in the general residential operation, including the PRYTF.
Proposed new §748.4823 requires a PRYTF to always meet accreditation requirements and notify CCR within two days of being informed that the accreditation requirements will no longer be met.
Proposed new §748.4825 requires a PRYTF to post the PRYTF certificate in a prominent and publicly accessible place.
Proposed new §748.4831 establishes that a PRYTF must have a treatment director that is a full-time employee of the general residential operation.
Proposed new §748.4833 describes the qualifications for a treatment director that provides or oversees psychiatric health treatments and services under this subchapter.
Proposed new §748.4841 establishes the pre-service experience requirements for a caregiver providing psychiatric health treatments and services, which requires 40 hours of certain relevant supervised caregiver experience before being the only caregiver responsible for the individual.
Proposed new §748.4843 requires an additional four hours of suicide prevention training for (1) caregivers, before the caregiver may be counted in the child to caregiver ratio if any individual in the group is receiving psychiatric health treatments and services; and (2) certain employees, within 90 days of beginning certain job duties related to individuals receiving psychiatric health treatments and services.
Proposed new §748.4845 requires each caregiver providing psychiatric health treatments and services to individuals to have first aid with rescue breathing and choking and pediatric and adult cardiopulmonary resuscitation (CPR) within 90 days of employment. At least one person counted in the child to caregiver ratio must be certified in first-aid and CPR at all times.
Proposed new §748.4847 requires (1) a caregiver providing psychiatric health treatments and services to complete 50 annual training hours; and (2) a caregiver providing psychiatric health treatments and services and an employee with job duties related to individuals receiving psychiatric youth treatments and services to have (A) five total hours of annual suicide prevention training; and (B) two hours of annual training on administering psychotropic medication.
Proposed new §748.4851 lowers the child to caregiver ratio during sleeping hours for operations that offer psychiatric health treatments and services from 15:1 (if the caregiver is awake) or 10:1 (if the caregiver is asleep) to 6:1 (and the caregiver must always remain awake). This ratio also applies to young adults 18 to 21 years of age that are receiving psychiatric health treatments and services.
Proposed new §748.4861 establishes the admission criteria for psychiatric health treatments and services, including requiring the individual to (1) be 21 years of age or younger; (2) be diagnosed with a severe emotional disturbance; (3) need residential psychiatric treatment under the direction of a physician; and (4) be referred to the PRYTF by a licensed mental health professional.
Proposed new §748.4863 establishes the requirements for when individuals receiving different types of services may live in the same living quarters. Compared to §748.1201, which this rule replaces as noted in new §748.4809, this rule requires that young adults 18 to 21 years of age receiving psychiatric health treatments and services that are not in the care of the Texas Department of Family and Protective Services and did not come immediately from another residential child-care operation must (1) receive therapeutic services separately from children admitted to the general residential operation, including the PRYTF; (2) have separate living quarters; and (3) not use other areas of the operation, except restrooms and outdoor and indoor activity areas may be shared under a policy required by new §748.4821.
Proposed new §748.4865 adds requirements to the preliminary service plan for individuals receiving psychiatric health treatments and services, including (1) therapeutic needs; (2) family engagement activities; (3) plans to consult with qualified professionals; and (4) nursing care.
Proposed new §748.4867 adds requirements to the initial service plan for individuals receiving psychiatric health treatments and services, including (1) one-to-one therapy; (2) family engagement activities; (3) consultation services with qualified professionals; (4) 24-hour nursing services; and (5) direct care and supervision services, supportive services for daily living and safety, and positive behavior management services.
Proposed new §748.4869 establishes who should be involved in the development of an initial service plan. Compared to §748.1339, which this rule replaces as noted in new §748.4809, this rule requires the service planning team for individuals receiving psychiatric health treatment service to include a licensed psychiatrist or physician.
Proposed new §748.4881 establishes that after a child in the care of a PRYTF turns 18, the young adult may remain in care until the young adult's 22nd birthday.
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, enforcing or administering the rules do have foreseeable implications relating to costs of state government. The costs are for IT improvements to the Child Care Licensing Automated Support Systems to allow operations to apply for a PRYTF certificate, collect associated fees, issue a certificate, complete the required inspections, evaluate compliance with the rules annually, renew the certificate, issue administrative penalties, allow providers to submit certain information associated with the certificate in their online provider account, and identify on the Search Texas Child Care website whether a general residential operation has this certificate. Funds for these improvements were appropriated in the 88th Legislature, Regular Session, 2023.
The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $4,712,356 in fiscal year (FY) 2024, $0 in FY 2025, $0 in FY 2026, $0 in FY 2027, and $0 in FY 2028.
Trey Wood has also determined that for each year of the first five years that the rules will be in effect, there will be an estimated increase in revenue to state government as a result of enforcing and administering the rules as proposed. A general residential operation that chooses to apply for a PRYTF certificate must pay a $890 initial application fee and then a $740 renewal application fee. HHSC cannot estimate the increase in revenue because HHSC is unable to anticipate how many general residential operations will apply for a PRYTF certificate.
There are no foreseeable implications relating to costs or revenues of local government.
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 create 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 require an increase in fees paid to HHSC;
(5) the proposed rules will create a new regulation;
(6) the proposed rules will expand existing regulations;
(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 the PRYTF program is voluntary and as such 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 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; do not impose a cost on regulated persons because it is a voluntary program; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.
PUBLIC BENEFIT AND COSTS
Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect, the public benefit will be rules that will create of a voluntary certification program that will provide families with additional, quality options for youth in need of residential care in a non-psychiatric hospital setting. The new program will encourage existing providers to meet these voluntary standards while also incentivizing new facilities to open in Texas, thereby expanding capacity.
Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the rules create a voluntary PRYTF program that does not mandate the imposition of fees, require a general residential operation to purchase curriculum or equipment, or require a general residential operation to alter current staffing patterns.
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 Gerry Williams by email at Gerry.Williams@hhs.texas.gov.
Written comments on the proposal may be submitted to Gerry Williams, 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 Rules 23R072" in the subject line.
SUBCHAPTER B. DEFINITIONS AND SERVICES
DIVISION 2. SERVICES
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The amendment affects Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.61.What types of services does Licensing regulate?
We regulate the following types of services:
(1) Child-Care Services--Services that meet a child's basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service planning;
(2) Treatment Services--In addition to child-care services,
a specialized type of child-care services designed to treat and [and/or] support children:
(A) With an Emotional Disorder [Disorders] who have a:
(i) Current Diagnostic and Statistical
Manual of Mental Disorders, 5th Edition (DSM-5) [current
DSM-5] diagnosis, such as mood disorders, psychotic disorders,
or dissociative disorders, and demonstrate two or more of the following:
(I) [(i)] Major self-injurious
actions, including a suicide attempt within the last 12 months;
(II) [(ii)] Difficulties that
present a significant risk of harm to others, including frequent or
unpredictable physical aggression; or
(III) [(iii)] An additional DSM-5
diagnosis of substance-related or [and/or] addictive
disorder with severe impairment; or
(ii) Severe emotional disturbance as defined by §748.4801 of this chapter (relating to What do the following terms mean when used in this subchapter?) who are admitted to a certified psychiatric residential youth treatment facility also defined at §748.4801 of this chapter, in addition to young adults 18 to 21 years of age who also qualify for these services;
(B) With a DSM-5 diagnosis of Intellectual Disability that is characterized by prominent, severe deficits and pervasive impairment in one or more of the following areas:
(i) Conceptual, social, and practical adaptive skills to include daily living and self-care;
(ii) Communication, cognition, or expressions of affect;
(iii) Self-care activities or participation in social activities;
(iv) Responding appropriately to an emergency; or
(v) Multiple physical disabilities, including sensory impairments;
(C) With a DSM-5 diagnosis of Autism Spectrum Disorder that is characterized by prominent, severe deficits and pervasive impairment in one or more of the following areas of development:
(i) Conceptual, social, and practical adaptive skills to include daily living and self-care;
(ii) Communication, cognition, or expressions of affect;
(iii) Self-care activities or participation in socialactivities;
(iv) Responding appropriately to an emergency; or
(v) Multiple physical disabilities, including sensory impairments;
(D) With Primary Medical Needs, who cannot live without mechanical supports or the services of others because of life-threatening conditions, including:
(i) The inability to maintain an open airway without
assistance, which [. This] does not include
the use of inhalers for asthma;
(ii) The inability to be fed except through a feeding tube, gastric tube, or a parenteral route;
(iii) The use of sterile techniques or specialized procedures to promote healing, prevent infection, prevent cross-infection or contamination, or prevent tissue breakdown; or
(iv) Multiple physical disabilities including sensory impairments; and
(E) Determined to be a trafficking victim, including a child:
(i) Determined to be a trafficking victim as the result of a criminal prosecution or who is currently alleged to be a trafficking victim in a pending criminal investigation or prosecution;
(ii) Identified by the parent or agency that placed the child in the operation as a trafficking victim; or
(iii) Determined by the operation to be a trafficking victim based on reasonably reliable criteria, including one or more of the following:
(I) The child's own disclosure as a trafficking victim;
(II) The assessment of a counselor or other professional; or
(III) Evidence that the child was recruited, harbored, transported, provided to another person, or obtained for the purpose of forced labor or commercial sexual activity; and
(3) Additional Programmatic Services, which include:
(A) Emergency Care Services--A specialized type of child-care services designed and offered to provide short-term child care to children who, upon admission, are in an emergency constituting an immediate danger to the physical health or safety of the child or the child's offspring;
(B) Transitional Living Program--A residential services
program designed to serve children 14 years old or older for whom
the service or treatment goal is basic life skills development toward
independent living, which [. A transitional living
program] includes basic life skills training and the opportunity
for children to practice those skills and [. A transitional
living program] is not an independent living program;
(C) Assessment Services Program--Services to provide
an initial evaluation of the appropriate placement for a child to
ensure that appropriate information is obtained [in order]
to facilitate service planning;
(D) Therapeutic Camp Services--A camping program to
augment an operation's treatment services with an experiential curriculum
exclusively for a child with an emotional disorder who has difficulty
functioning in his home, school, or community and is [.
Therapeutic camp services are] only available to children 13
years old and older; and
(E) Respite Child-Care Services--See §748.73 of this title (relating to What are respite child-care services?).
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 April 10, 2024.
TRD-202401464
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
DIVISION 1. DEFINITIONS AND SCOPE
26 TAC §§748.4801, 748.4803, 748.4805, 748.4807, 748.4809
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4801.What do the following terms mean when used in this subchapter?
In this subchapter, the following terms have the following meanings unless the context clearly indicates otherwise:
(1) Individual--A person who is 21 years of age or younger.
(2) Psychiatric health treatments and services--In addition to basic child-care services, a specialized type of child-care services provided by a certified psychiatric residential youth treatment facility to treat and support individuals who have a severe emotional disturbance.
(3) Psychiatric Residential Youth Treatment Facility (PYRTF)--As defined at Texas Health and Safety Code §577A.001(3), a private facility that provides psychiatric health treatments and services in a residential, non-hospital setting exclusively to individuals and is licensed as a general residential operation.
(4) Severe emotional disturbance--As defined at Texas Health and Safety Code §577A.001(4), a mental, behavioral, or emotional disturbance of sufficient duration to result in functional impairment that substantially interferes with or limits an individual's role or ability to function in family, school, or community activities.
§748.4803.When am I required to meet the additional rules of this subchapter?
If you provide psychiatric health treatments and services to individuals as a certified psychiatric residential youth treatment facility, you must meet the additional rules in this subchapter.
§748.4805.In addition to the rules in this subchapter, what other rules in this chapter apply to a psychiatric residential treatment facility (PRYTF)?
In addition to complying with the rules in this subchapter, a PRYTF must comply with all other rules in this chapter that apply to all operations, unless any such rule is replaced by a rule in this subchapter, as noted in §748.4809 of this division (relating to What rules in this subchapter replace other rules in this chapter?).
§748.4807.How do the rules in this subchapter apply to the care of a young adult 18 to 21 years of age at a psychiatric residential treatment facility (PRYTF)?
The rules in this chapter that apply to a PRYTF as noted in §748.4805 of this division (relating to In addition to the rules in this subchapter, what other rules in this chapter apply to a psychiatric residential youth treatment facility (PRYTF)?) also apply to the care of a young adult 18 to 21 years of age whom you have admitted for psychiatric health treatments and services.
§748.4809.What rules in this subchapter replace other rules in this chapter?
A psychiatric residential youth treatment facility (PRYTF) is not required to comply with other rules in this chapter if the rule has been replaced in this subchapter, as specified in this chart:
Figure: 26 TAC §748.4809 (.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 April 10, 2024.
TRD-202401465
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§748.4821, 748.4823, 748.4825
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4821.What additional policies must I submit as part of the application process for a psychiatric residential youth treatment facility (PRYTF) certificate?
You must develop written policies that address:
(1) How your PRYTF will provide 24-hour medical and emergency services, including 24-hour nursing services.
(2) How caregivers will supervise young adults 18 to 21 years of age receiving psychiatric health treatments and services when sharing restrooms or indoor and outdoor activity areas with children in the general residential operation, including the PRYTF.
§748.4823.When must I notify Licensing about accreditation changes regarding the psychiatric residential youth treatment facility (PRYTF)?
(a) You must always meet the accreditation requirement of §745.9053 of this title (relating to What requirements must a general residential operation meet before applying for a psychiatric residential youth treatment facility (PRYTF) certificate?).
(b) You must notify us within two days if your accreditation organization informs you that it has taken or will take an action that will result in your PRYTF no longer meeting the accreditation requirement of §745.9053 of this title for any period. Such an action includes revoking, suspending, or refusing to renew your accreditation.
§748.4825.Where must I post the psychiatric residential youth treatment facility (PRYTF) certificate?
You must post your PRYTF certificate in a prominent and publicly accessible place where employees, children, young adults, parents, and others will be able to view it easily.
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 April 10, 2024.
TRD-202401466
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4831.Must a psychiatric residential youth treatment facility (PRYTF) have a treatment director?
A PRYTF must have a treatment director that is a full-time employee of the general residential operation.
§748.4833.What qualifications must a treatment director for a psychiatric residential youth treatment facility have?
A treatment director who provides or oversees psychiatric health treatments and services under this subchapter must:
(1) Be a licensed psychiatrist, psychologist, or physician;
(2) Have a master's degree in a human services field from an accredited college or university and three years of experience providing treatment services for children or young adults with an emotional disorder, including one year in a residential setting; or
(3) Be a licensed master social worker, licensed clinical social worker, licensed professional counselor, or licensed marriage and family therapist, and have three years of experience providing treatment services for children or young adults with an emotional disorder, including one year in a residential setting.
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 April 10, 2024.
TRD-202401468
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§748.4841, 748.4843, 748.4845, 748.4847
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4841.What are the pre-service experience requirements for a caregiver providing psychiatric health treatments and services?
(a) A caregiver responsible for an individual receiving psychiatric health treatments and services must have a minimum of 40 hours of supervised caregiver experience in:
(1) Your operation providing treatment services to children with an emotional disorder;
(2) Another general residential operation providing treatment services to children with an emotional disorder;
(3) A psychiatric residential youth treatment facility providing psychiatric health treatments and services to children or young adults; or
(4) A residential or hospital setting providing direct care, supervision, guidance, and protection of children or young adults with a severe emotional disturbance.
(b) Until a caregiver has the minimum amount of supervised child-care experience as specified in subsection (a) of this section, the caregiver:
(1) May not be assigned as the only caregiver responsible for a group of individuals if any individual in the group is receiving psychiatric health treatments and services;
(2) Must be always supervised by another caregiver who has already satisfied the 40-hour experience requirement; and
(3) Must have their supervised child-care experience documented in the appropriate personnel record.
§748.4843.What additional pre-service training requirements apply to a caregiver or an employee at a psychiatric residential youth treatment facility (PRYTF)?
(a) In addition to the types of pre-service training and hours at §748.863(a) of this chapter (relating to What are the pre-service training requirements for a caregiver?), a caregiver must complete four hours of suicide prevention training before the caregiver may be counted in the child to caregiver ratio if any individual in the group is receiving psychiatric health treatments and services.
(b) In addition to the types of pre-service training and hours at §748.864(a) of this chapter (relating to What are the pre-service training requirements for an employee?), a child-care administrator, professional level service provider, treatment director, and case manager must complete four hours of suicide prevention training within 90 days of beginning job duties that include:
(1) Providing services to or planning services for individuals receiving psychiatric youth treatments and services; or
(2) Managing or overseeing employees that provide services to or plans services for individuals receiving psychiatric youth treatments and services.
(c) A caregiver or employee (child-care administrator, professional level service provider, treatment director, and case manager) does not have to complete the four hours of suicide prevention training if the caregiver or employee has documentation that it was completed during the last 12 months.
(d) You must document the exemption factor in the appropriate personnel record.
§748.4845.Who must have first-aid and CPR training in a psychiatric residential youth treatment facility (PRYTF)?
(a) Caregivers providing psychiatric health treatments and services to individuals must have a current certificate of training with an expiration or renewal date in:
(1) First-aid with rescue breathing and choking, which may be through instructor-led training or self-instructional training; and
(2) Pediatric and adult cardiopulmonary resuscitation (CPR).
(b) Each caregiver must be certified in first aid and CPR within 90 days of employment.
(c) At least one person counted in the child to caregiver ratio must be certified in first aid and CPR at all times.
§748.4847.What additional annual training requirements apply to a caregiver or an employee at a psychiatric residential youth treatment facility (PRYTF)?
(a) A caregiver providing psychiatric health treatments and services to an individual in a PRYTF must complete 50 annual training hours.
(b) In addition to the one hour of annual suicide prevention training required in §748.125(c) of this chapter (relating to What is the model suicide prevention, intervention, and postvention policy?):
(1) A caregiver must complete four additional hours of annual suicide prevention training for a total of five hours of annual suicide prevention training if the caregiver provides care to an individual receiving psychiatric health treatments and services; and
(2) A child-care administrator, professional level service provider, treatment director, and case manager must complete four additional hours of annual suicide prevention training for a total of five hours of annual suicide prevention training if the employee is or will be:
(A) Providing services to or planning services for individuals receiving psychiatric youth treatments and services; or
(B) Managing or overseeing other employees that provide services to or plans services for individuals receiving psychiatric youth treatments and services.
(c) In addition to the specific types of annual training and hours required in §748.930(b) of this chapter (relating to What are the annual training requirements for a caregiver?), a caregiver providing psychiatric health treatments and services to an individual must complete two hours of annual training on administering psychotropic medication.
(d) In addition to the specific types of annual training and hours required in §748.931(b) and (c) of this chapter (relating to What are the annual training requirements for an employee), a child-care administrator, professional level service provider, treatment director, and case manager must complete two hours of annual training on administering psychotropic medication if the employee is or will be:
(1) Providing services to or planning services for individuals receiving psychiatric youth treatments and services; or
(2) Managing or overseeing other employees that provide services to or plans services for individuals receiving psychiatric youth treatments and services.
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 April 10, 2024.
TRD-202401469
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new section affects Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4851.For purposes of the child to caregiver ratio, how many children can a single caregiver care for when a child receiving psychiatric health treatments and services is asleep at night?
(a) If any child in the group is receiving psychiatric health treatments and services, a single caregiver may care for a maximum of six children during the night-time sleeping hours.
(b) Caregivers must remain awake during night-time sleeping hours.
(c) This ratio also applies to any young adults 18 to 21 years of age who are receiving psychiatric health treatments and services under this subchapter.
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 April 10, 2024.
TRD-202401470
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
26 TAC §§748.4861, 748.4863, 748.4865, 748.4867, 748.4869
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 system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new sections affect Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4861.Whom may I admit for psychiatric health treatments and services?
You may only admit an individual for psychiatric health treatments and services who:
(1) Is 21 years of age or younger;
(2) Has been diagnosed with a severe emotional disturbance by a licensed mental health professional;
(3) Requires residential psychiatric treatment under the direction of a licensed physician to improve the individual's condition; and
(4) Was referred for treatment or services in a psychiatric residential youth treatment facility by a licensed mental health professional.
§748.4863.May individuals receiving different types of service live in the same living quarters?
(a) Except as provided by subsections (c) and (d) of this section, children receiving different types of service may reside in the same living quarters as long as:
(1) A professional level service provider completes an evaluation of the living quarters for each child that you place in the living quarters; and
(2) In each evaluation, the professional level service provider ensures that:
(A) There is no conflict of care with the best interests of any of the children placed in the living quarters;
(B) Placing the child with different service or treatment needs in the living quarters will not adversely impact the other children in the living quarters;
(C) The number of children in the living quarters is appropriate at all times based on the needs of all children in the living quarters;
(D) Caregivers can appropriately supervise all children in the living quarters at all times; and
(E) You can meet the needs of all children in the living quarters.
(b) If the treatment or service needs of any child in the living quarters changes, the professional level service provider must evaluate the needs of each child in the living quarters to ensure there is no conflict of care.
(c) Children admitted for emergency care services must receive any therapeutic services (such as group therapy or art therapy) separately from children admitted for non-emergency care and must have separate living quarters, such as a separate wing of an operation, or a separate cottage. You many combine children admitted for emergency care services with children in non-emergency care for meals, recreation, and transportation.
(d) Young adults 18 to 21 years of age receiving psychiatric health treatments and services that are not in the care of the Texas Department of Family and Protective Services and did not come immediately from another residential child-care operation:
(1) Must receive therapeutic services (such as group therapy or art therapy) separately from children admitted to the operation, including the psychiatric residential youth treatment facility (PRYTF);
(2) Must have separate living quarters, such as a separate wing of an operation, or a separate cottage; and
(3) Must not use an area of the general residential operation's building or grounds at the same time with children admitted to the operation, including the PRYTF, except restrooms and indoor and outdoor activity areas may be shared under a policy required by §748.4821 of this subchapter (relating to What additional policies must I submit as part of the application process for a psychiatric residential youth treatment facility (PRYTF) certificate?).
§748.4865.Are there additional requirements for a preliminary service plan when I admit an individual for psychiatric health treatments and services?
When you admit an individual for psychiatric health treatments and services, in addition to the requirements listed in §748.1331 of this chapter (relating to What are the requirements for a preliminary service plan?), the preliminary service plan for an individual receiving psychiatric health treatments and services must include:
(1) Therapeutic needs, including plans for psychiatric evaluation, the use of psychotropic medications, and one-to-one therapy;
(2) Family engagement activities;
(3) Plans to consult with qualified professionals, including case managers, primary care professionals, community-based mental health providers, school staff, and other support planners; and
(4) Nursing care.
§748.4867.Are there additional requirements for an initial service plan when I admit an individual for psychiatric health treatments and services?
(a) In addition to the requirements listed in (b)(2) in Figure: 26 TAC §748.1337(b) of this chapter (relating to What must a child's initial service plan include?), the initial service plan for an individual receiving psychiatric health treatments and services must include:
(1) One-to-one therapy;
(2) Family engagement activities;
(3) Consultation services with qualified professionals, including case managers, primary care professionals, community-based mental health providers, school staff, and other support planners;
(4) 24-hour nursing services, though services do not need to be onsite; and
(5) Direct care and supervision services, supportive services for daily living and safety, and positive behavior management services.
(b) You must document all professional consultations, examinations, recommendations, and treatment in the individual's record.
§748.4869.Who must be involved in developing an initial service plan?
(a) A service planning team must develop the service plan. The team must consist of:
(1) At least one of the individual's current caregivers;
(2) For a child, a person designated to make decisions regarding a child's participation in childhood activities; and
(3) At least one professional level service provider who provides direct services to the individual.
(b) Except as provided by subsection (c) of this section, if you are providing treatment services to a child, the team must also include two of the following professions:
(1) A licensed professional counselor;
(2) A psychologist;
(3) A psychiatrist or physician;
(4) A licensed registered nurse;
(5) A licensed masters level social worker;
(6) A licensed or registered occupational therapist; or
(7) Any other person in a related discipline or profession that is licensed or regulated in accordance with state law.
(c) If you are providing psychiatric health treatments and services to an individual, the team must include a licensed psychiatrist or physician and one of the following professionals:
(1) A licensed professional counselor;
(2) A psychologist;
(3) A licensed registered nurse;
(4) A licensed masters level social worker;
(5) A licensed or registered occupational therapist; or
(6) Any other person in a related discipline or profession that is licensed or regulated in accordance with state law.
(d) The individual and parents or guardian must be invited to a service planning meeting, so that they may participate and provide input into the development of the service plan.
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 April 10, 2024.
TRD-202401471
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, as well as Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out HHSC's duties under Chapter 531 of the Texas Government Code. In addition, the Texas Health and Safety Code §577A.004 requires HHSC to adopt rules to implement this chapter and §577A.101 requires HHSC to adopt minimum standards for a PRYTF. Finally, amendments to current rules adopted under Texas Human Resources Code §42.042 are authorized under that section.
The new section affects Texas Government Code §531.0055, Texas Health and Safety Code Chapter 577A, and Texas Human Resources Code Chapter 42.
§748.4881.After a child in the care of a psychiatric residential youth treatment facility (PRYTF) turns 18 years old, may the young adult remain in care?
A child who turns 18 years old in the care of a PRYTF may remain in your care until the young adult's 22nd birthday.
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 April 10, 2024.
TRD-202401472
Karen Ray
Chief Counsel
Health and Human Services Commission
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 438-3269