Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 509. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §509.47, concerning Emergency Services.

BACKGROUND AND PURPOSE

The proposal is necessary to implement Senate Bill (S.B.) 1402, 88th Legislature, Regular Session, 2023.

S.B. 1402 amended Texas Health and Safety Code (HSC) §323.0045 and added new HSC §323.0046. Amended HSC §323.0045 requires a person who performs a forensic medical examination on a sexual assault survivor to complete at least two hours of basic forensic evidence collection training or equivalent education. Amended HSC §323.0045 also requires each health care facility with an emergency department that is not a sexual assault forensic exam-ready facility (SAFE-ready facility) to develop a written policy to require staff who perform forensic medical examinations on sexual assault survivors to complete at least two hours of basic forensic evidence collection training. New HSC §323.0046 requires each health care facility with an emergency department to provide at least one hour of basic sexual assault response training to certain facility employees and outlines the training content requirements. New HSC §323.0046 also requires each non-SAFE-ready health care facility with an emergency department to develop a written policy to ensure all appropriate facility personnel complete the basic sexual assault response training.

The proposed amendment adds the new training requirements in HSC §323.0045 and §323.0046 to the freestanding emergency medical care facility rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §509.47 adds new subsection (h)(3) and (4), which require a freestanding emergency medical care facility to comply with the forensic medical examination training requirements under HSC §323.0045 and the basic sexual assault response training requirements under HSC §323.0046.

The proposed amendment also corrects a typographical error in subsection (d)(2), updates the term "sexual assault survivor" to "survivor of sexual assault" for consistency with industry standard language, and updates a reference.

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 create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule; and

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

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the rule is codifying current practices as required by statute.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas, 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 rules that are consistent with statutory requirements for forensic evidence collection and basic sexual assault response training 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 is codifying current practices as required by statute.

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 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 24R002" 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 health and human services by the health and human services agencies; and HSC §254.101, which authorizes HHSC to adopt rules regarding freestanding emergency medical care facilities.

The amendment implements Texas Government Code §531.0055 and HSC §§254.101, 323.0045, and 323.0046.

§509.47.Emergency Services.

(a) A facility shall provide to each patient, without regard to the individual's ability to pay, an appropriate medical screening, examination, and stabilization within the facility's capability, including ancillary services routinely available to the facility, to determine whether an emergency medical condition exists, and any necessary stabilizing treatment.

(b) The organization of emergency services shall be appropriate to the scope of the services offered. The services shall be organized under the direction of a qualified physician member of the medical staff who is the medical director or clinical director.

(c) A facility shall maintain patient medical records for all emergency patients. The medical records shall contain patient identification, complaints, name of physician, name of nurse, time admitted to the emergency suite, treatment, time discharged, and disposition.

(d) A facility shall comply with the following personnel requirements.

(1) There shall be adequate medical and nursing personnel qualified in emergency care to meet the written emergency procedures and needs anticipated by the facility.

(2) As determined by the medical staff, there must always be at least one person qualified and at least one nurse with current advanced cardiac life support and pediatric advanced life support certification on duty and on-site [a] to initiate immediate appropriate lifesaving measures.

(3) Qualified personnel shall always be physically present in the emergency treatment area.

(4) One or more physicians shall always be on-site during facility hours of operation.

(5) A facility shall maintain schedules, names, and telephone numbers of all physicians and others on emergency call duty, including alternates. The facility shall retain the schedules for at least one year.

(e) Adequate age-appropriate supplies and equipment shall be available and in readiness for use. Equipment and supplies shall be available for the administration of intravenous medications as well as facilities for the control of bleeding and emergency splinting of fractures. The facility shall periodically test the emergency equipment according to its policy.

(f) Age-appropriate emergency equipment and supplies shall include:

(1) emergency call system;

(2) oxygen;

(3) mechanical ventilatory assistance equipment, including airways, manual breathing bag, and mask;

(4) cardiac defibrillator;

(5) cardiac monitoring equipment;

(6) laryngoscopes and endotracheal tubes;

(7) suction equipment;

(8) emergency drugs and supplies specified by the medical staff;

(9) stabilization devices for cervical injuries;

(10) blood pressure monitoring equipment; and

(11) pulse oximeter or similar medical device to measure blood oxygenation.

(g) A facility shall participate in the local Emergency Medical Service (EMS) system, based on the facility's capabilities and capacity, and the locale's existing EMS plan and protocols.

(h) A facility shall comply with the following emergency services requirements for survivors of sexual assault [~~survivors~~].

(1) This subsection does not affect the duty of a facility to comply with subsection (a) of this section.

(2) The facility shall develop, implement, and enforce policies and procedures to ensure that after a survivor of sexual assault [~~survivor~~] presents to the facility following a sexual assault, the facility shall provide the care specified under Texas Health and Safety Code Chapter 323, Subchapter A [~~(relating to Emergency Services for Survivors of Sexual Assault)~~].

(3) The facility shall develop, implement, and enforce policies and procedures to ensure a person who performs a forensic medical examination on a survivor of sexual assault completes the required forensic evidence collection training or equivalent education required by Texas Health and Safety Code §323.0045.

(4) The facility shall develop, implement, and enforce policies and procedures to provide basic sexual assault response training that meets the requirements under Texas Health and Safety Code §323.0046 to facility employees who provide patient admission functions, patient-related administrative support functions, or direct patient care.

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 July 8, 2024.

TRD-202402980

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

For further information, please call: (512) 834-4591

CHAPTER 510. PRIVATE PSYCHIATRIC HOSPITALS AND CRISIS STABILIZATION UNITS

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §510.44

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §510.44, concerning Miscellaneous Policies and Protocols.

BACKGROUND AND PURPOSE

The proposal is necessary to implement Senate Bill (S.B.) 186, 88th Legislature, Regular Session, 2023.

S.B. 186 added new Texas Health and Safety Code (HSC) §256.003, which prohibits a hospital or other health care facility from discharging or otherwise releasing a patient to a group home, boarding home facility, or similar group-centered facility unless the person operating the group-centered facility holds a license or permit in accordance with applicable state law. New HSC §256.003 also contains provisions to allow a hospital or other health care facility to discharge a patient to a group-centered facility that does not hold an applicable license or permit under certain circumstances.

The proposed amendment adds information regarding the new discharge requirements in HSC §256.003.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §510.44 adds new subsection (e), which requires a private psychiatric hospital or a crisis stabilization unit to comply with the discharge requirements in HSC §256.003. The proposed amendment also makes other minor changes to correct outdated information; align with the other rules in 26 Texas Administrative Code Chapter 510, such as replacing "hospital" with "facility;" and updates references.

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 create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule; and

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

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 rules that are consistent with statutory requirements for discharging patients to licensed group-centered facilities.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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 health and human 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 §577.010 and §256.003.

§510.44.Miscellaneous Policies and Protocols.

(a) Determination of death. The facility [~~hospital~~] shall adopt, implement, and enforce protocols to be used in determining death which comply with Texas Health and Safety Code (HSC)[~~, Title 8, Subtitle A,~~] Chapter 671, Subchapter A [~~(relating to Determination of Death)~~].

(b) Organ and tissue donors. The facility [~~hospital~~] shall adopt, implement, and enforce a written protocol to identify potential organ and tissue donors which complies [~~is in compliance~~] with the [~~Texas Anatomical Gift Act,~~] HSC[,] Chapter 692A [~~692~~]. The facility [~~hospital~~] shall make its protocol available to the public during the facility's [~~hospital's~~] normal business hours. The facility's [~~hospital's~~] protocol shall include all requirements in HSC §692A.015[~~, §692.013 (relating to Hospital Protocol)~~].

(c) Professional nurse reporting and peer review. A facility shall adopt, implement, and enforce a policy to ensure that the facility complies with Texas Occupations Code Chapter 301, Subchapter I[, §301.401 (relating to Grounds for Reporting Registered Nurse), §301.402 (relating to Duty of Registered Nurse to Report), §301.403 (relating to Duty of Peer Review Committee to Report), §301.404 (relating to Duty of Nursing Educational Program to Report), §301.405 (relating to Duty of Person Employing Registered Nurse to Report),] and Texas Occupations Code Chapter 303 [~~(relating to Nursing Peer Review)~~], and with the rules adopted by the Texas Board of Nursing [~~Board of Nurse Examiners~~] at [22] Texas Administrative Code, Title 22 §217.16 (relating to Minor Incidents), §217.19 (relating to Incident-Based Nursing Peer Review and Whistleblower Protections) and §217.20 (relating to Safe Harbor Nursing Peer Review and Whistleblower Protections [~~for RNs~~]).

(d) Discrimination prohibited. A facility shall not discriminate based on a patient's disability and shall comply with HSC [~~Texas Health and Safety~~] Code Chapter 161, Subchapter S [~~(relating to Allocation of Kidneys and Other Organs Available for Transplant)~~].

(e) Prohibited discharge of a patient to certain group-centered facilities. A facility shall comply with HSC §256.003.

(1) Except as provided by paragraph (2) of this subsection, a facility may discharge or release a patient to a group home, boarding home facility, or similar group-centered facility only if the person operating the group-centered facility holds a license or permit issued in accordance with applicable state law.

(2) A facility may discharge or release a patient to a group home, boarding home facility, or similar group-centered facility operated by a person who does not hold a license or permit issued in accordance with applicable state law only if:

(A) there is no group-centered facility operated in the county where the patient is discharged that is operated by a person holding the applicable license or permit; or

(B) the patient voluntarily chooses to reside in the group-centered facility operated by an unlicensed or unpermitted person.

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 July 8, 2024.

TRD-202402981

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

For further information, please call: (512) 834-4591

CHAPTER 511. LIMITED SERVICES RURAL HOSPITALS

SUBCHAPTER C. OPERATIONAL REQUIREMENTS

26 TAC §511.62

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §511.62, concerning Discharge Planning.

BACKGROUND AND PURPOSE

The proposal is necessary to implement Senate Bill (S.B.) 186, 88th Legislature, Regular Session, 2023.

The proposed amendment adds information regarding the new discharge requirements in HSC §256.003.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §511.62 adds new subsection (m), which requires a limited services rural hospital (LSRH) to comply with the discharge requirements in HSC §256.003.

FISCAL NOTE

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 create a new regulation;

(6) the proposed rule will not expand, limit, or repeal an existing regulation;

(7) the proposed rule will not change the number of individuals subject to the rule; and

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

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 rules that are consistent with statutory requirements for discharging patients to licensed group-centered facilities.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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 health and human services by the health and human services agencies; and HSC §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 §241.302(b) and §256.003.

§511.62.Discharge Planning.

(a) A limited services rural hospital (LSRH) shall have an effective, ongoing, discharge planning process that facilitates the provision of follow-up care and focuses on the patient's goals and treatment preferences and includes the patient and their caregivers or support persons as active partners in the discharge planning for post-discharge care.

(b) The discharge planning process and the discharge plan shall be consistent with the patient's goals for care and their treatment preferences, ensure an effective transition of the patient from the LSRH to post-discharge care, and reduce the factors leading to preventable LSRH admissions or readmissions.

(c) An LSRH's discharge planning process shall identify, at an early stage of the provision of services, those patients who are likely to suffer adverse health consequences on discharge in the absence of adequate discharge planning and must provide a discharge planning evaluation for those patients so identified as well as for other patients upon the request of the patient, patient's legally authorized representative, or patient's physician.

(d) Any discharge planning evaluation must be made on a timely basis to ensure appropriate arrangements for post-LSRH care will be made before discharge and to avoid unnecessary delays in discharge.

(e) A discharge planning evaluation must include:

(1) an evaluation of a patient's likely need for appropriate services following those furnished by the LSRH, including:

(A) hospice care services;

(B) post-LSRH extended care services;

(D) non-health care services; and

(E) community-based care providers;

(2) a determination of the availability of the appropriate services; and

(3) a determination of the patient's access to those services.

(f) The discharge planning evaluation must be included in the patient's medical record for use in establishing an appropriate discharge plan and the results of the evaluation must be discussed with the patient (or the patient's legally authorized representative).

(g) On the request of a patient's physician, the LSRH must arrange for the development and initial implementation of a discharge plan for the patient.

(h) Any discharge planning evaluation or discharge plan required under this section must be developed by, or under the supervision of, a registered nurse, social worker, or other appropriately qualified personnel.

(i) The LSRH's discharge planning process must require regular re-evaluation of the patient's condition to identify changes that require modification of the discharge plan. The discharge plan must be updated, as needed, to reflect these changes.

(j) The LSRH must assess its discharge planning process on a regular basis. The assessment must include ongoing periodic review of a representative sample of discharge plans.

(k) The LSRH must assist patients, their families, or the patient's legally authorized representative in selecting a post-acute care provider by using and sharing data that includes, but is not limited to, home health agency, skilled nursing facility (SNF), inpatient rehabilitation facility, or long-term care hospital data on quality measures and data on resource use measures. The LSRH must ensure that the post-acute care data on quality measures and data on resource use measures is relevant and applicable to the patient's goals of care and treatment preferences.

(l) The LSRH must discharge the patient, and also transfer or refer the patient where applicable, along with all necessary medical information pertaining to the patient's current course of illness and treatment, post-discharge goals of care, and treatment preferences, at the time of discharge, to the appropriate post-acute care service providers and suppliers, facilities, agencies, and other outpatient service providers and practitioners responsible for the patient's follow-up or ancillary care.

(m) An LSRH shall comply with Texas Health and Safety Code §256.003.

(1) Except as provided by paragraph (2) of this subsection, an LSRH may discharge or release a patient to a group home, boarding home facility, or similar group-centered facility only if the person operating the group-centered facility holds a license or permit issued in accordance with applicable state law.

(2) An LSRH may discharge or release a patient to a group home, boarding home facility, or similar group-centered facility operated by a person who does not hold a license or permit issued in accordance with applicable state law only if:

(A) there is no group-centered facility operated in the county where the patient is discharged that is operated by a person holding the applicable license or permit; or

(B) the patient voluntarily chooses to reside in the group-centered facility operated by an unlicensed or unpermitted person.

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 July 8, 2024.

TRD-202402982

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

For further information, please call: (512) 834-4591

CHAPTER 568. STANDARDS OF CARE AND TREATMENT IN PSYCHIATRIC HOSPITALS

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §568.22, concerning Voluntary Admission, andnew §568.42, concerning Responding to a Psychiatric Emergency.

BACKGROUND AND PURPOSE

This proposal is necessary to implement Senate Bill (S.B.) 26, 88th Legislature, Regular Session, 2023, which, in part, amended Texas Health and Safety Code (THSC) Chapter 572 by adding new THSC §572.0026.

This statute authorizes a private psychiatric hospital's facility administrator or their designee to approve the admission of a person who files a request for voluntary inpatient services only if the hospital has available space when the person files the request.

This proposal is also necessary to increase consistency in emergency medication monitoring requirements between state rules and federal Centers for Medicare & Medicaid Services (CMS) Conditions of Participation for psychiatric hospitals.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §568.22(f)(5) is consistent with THSC §572.0026 and authorizes a private psychiatric hospital to voluntarily admit a prospective patient only if the hospital has available space at the time the prospective patient requests voluntary admission. The proposed amendment to §568.22 also makes minor, non-substantive changes to formatting and grammar for clarity and consistency with HHSC rulemaking guidelines and corrects an internal reference in §568.22(h)(1).

Proposed new §568.42 defines certain terms and outlines requirements for responding to a psychiatric emergency, including ordering and administering a psychoactive medication; monitoring a patient after administering a psychoactive medication; adopting, implementing, and enforcing certain policies and procedures; requiring staff, physicians, registered nurses, and other licensed practitioners to receive certain trainings; requiring a patient evaluation within one hour after administering a psychoactive medication; and documenting certain information in the patient's clinical record.

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 does not have foreseeable implications relating to costs or revenues of state governments. There is an expected fiscal impact to local governments.

There is one state-licensed-only psychiatric hospital owned or operated by a local government that may incur costs if they need to make staffing changes or develop new policies and procedures to comply with the new and amended rules. Because facilities across the state use a wide variety of systems and will be developing individualized policies and procedures, HHSC lacks the data needed to estimate the costs that this entity may incur to comply with the new and amended rule requirements.

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 may be an adverse economic effect on small businesses, micro-businesses, or rural communities to comply with new §568.42. The proposed amendment to §568.22 does not impose a cost or require small businesses, micro-businesses, or rural communities to alter their current business practices because entities subject to the rule are already required to comply with S.B. 26 provisions.

There are currently 63 private psychiatric hospitals subject to the rules. Additionally, licensed general and special hospitals that provide mental health services must comply with these rules. Currently, there are 658 licensed general and special hospitals. HHSC lacks the data to determine how many of these facilities are small businesses, micro-businesses, or run by rural communities.

Most hospitals subject to the rules must comply with federal CMS requirements because they have voluntarily sought CMS certification. Therefore, this proposal codifies practices that most hospitals already do because new §568.42 is consistent with existing federal CMS regulations. However, there may be costs to comply with new §568.42 for the 13 private psychiatric hospitals and 38 general or special hospitals that are state-licensed-only and do not have to comply with CMS regulations. Most of these state-licensed-only hospitals do not meet the definition of a small business or micro-business and none meet the definition of a rural community.

HHSC determined that alternative methods to achieve the purpose of proposed new §568.42 for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of individuals receiving mental health services. This rule also implements the required state statute and HHSC has no regulatory flexibility in the implementation.

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

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from increased consistency between the psychiatric hospital standards of care rules, new statutory requirements for voluntary admission to psychiatric hospitals, and existing federal regulations regarding monitoring requirements for psychoactive medications administered to patients.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with new §568.42 may incur economic costs. Facilities may incur costs if they need to make staffing changes or develop new policies and procedures to comply with the new rule. Because facilities across the state use a wide variety of systems and will be developing individualized policies and procedures, HHSC lacks the data needed to estimate the costs that entities may incur to comply with the new §568.42 requirements.

There are no anticipated economic costs to persons who are required to comply with amended §568.22 because the rule does not require persons subject to the rule to alter their current business practices as these entities are required to comply with the law as added by S.B. 26, and the amended rule only ensures consistency with current statutory requirements.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER B. ADMISSION

26 TAC §568.22

STATUTORY AUTHORITY

The amendment and new rule are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; THSC §572.0025, which requires that the Executive Commissioner of HHSC adopt rules governing the voluntary admission of a patient to an inpatient mental health facility; and THSC §577.010, which requires that the Executive Commissioner of HHSC adopt rules and standards the Executive Commissioner considers necessary and appropriate to ensure the proper care and treatment of patients in a private mental hospital or mental health facility required to obtain a license under THSC Chapter 577.

The amendment and new rule implement Texas Government Code §531.0055 and THSC §572.0026.

§568.22.Voluntary Admission.

(a) A request for voluntary admission:

(1) may be made only by a person authorized to do so under Texas Health and Safety Code §572.001;

(2) must be in writing and signed by the individual making the request; and

(3) must include a statement that the individual making the request:

(A) certifies [~~that~~] the individual is legally authorized to act on the prospective patient's behalf;

(B) has provided the facility with documentation demonstrating [~~that~~] the individual is legally authorized to act on the prospective patient's behalf;

(D) consents to diagnosis, observation, care, and treatment of the prospective patient until the earlier of:

(i) the discharge of the prospective patient; or

(ii) the prospective patient is entitled to leave the hospital, in accordance with Texas Health and Safety Code §572.004, after a request for discharge is made.

(b) The consent given under subsection (a)(3)(D) of this section does not waive any rights a patient has under any statute or rule.

(c) [~~Capacity to consent.~~] If a prospective patient does not have the capacity to consent to diagnosis, observation, care, and treatment, as determined by a physician, then the hospital may not admit the prospective patient on a voluntary basis. When appropriate, the hospital may initiate an emergency detention proceeding in accordance with Texas Health and Safety Code Chapter 573 or file an application for court-ordered inpatient mental health services in accordance with Texas Health and Safety Code Chapter 574.

(d) An individual who voluntarily presents to the hospital may leave the hospital at any time during the pre-admission screening and assessment process prior to their admission.

(e) A hospital shall comply with the following pre-admission [~~Pre-admission~~] screening requirements.

(1) Before voluntary admission of a prospective patient, pre-admission screening personnel (PASP) shall conduct a pre-admission screening of the prospective patient.

(2) If the PASP determines that the prospective patient does not need an admission examination, the hospital may not admit the prospective patient and shall refer the prospective patient to alternative services. If the PASP determines the prospective patient needs an admission examination, a physician shall conduct an admission examination of the prospective patient.

(3) If the pre-admission screening is conducted by a physician, the physician may conduct the pre-admission screening as part of the admission examination referenced in subsection (f)(2)(A) of this section.

(f) [~~Requirements for voluntary admission.~~] A hospital may voluntarily admit a prospective patient only if:

(1) a request for admission is made in accordance with subsection (a) of this section;

(2) a physician has, in accordance with Texas Health and Safety Code §572.0025:

(A) conducted, or consulted with a physician who has conducted, either in person or through audiovisual telecommunications [~~telemedicine medical services~~], an admission examination in accordance with subsection (h) of this section within 72 hours before or 24 hours after admission; and

(B) issued an order admitting the prospective patient;

(3) the prospective patient meets the hospital's admission criteria;

(4) the prospective patient is a person:

(A) with mental illness or who demonstrates symptoms of a serious emotional disorder; and

(B) who presents a risk of serious harm to self or others if not immediately restrained or hospitalized; [~~and~~]

(5) the hospital has available space at the time the prospective patient files the request for voluntary admission, in accordance with Texas Health and Safety Code §572.0026; and

(6) [~~(5)~~] [~~in accordance with Texas Health and Safety Code §572.0025(f)(2),~~] the administrator or administrator's designee has signed a written statement agreeing to admit the prospective patient, in accordance with Texas Health and Safety Code §572.0025(f)(2).

(g) [~~Intake.~~] In accordance with Texas Health and Safety Code §572.0025(b), a hospital shall, before voluntary admission of a prospective patient, conduct an intake process, that includes:

(1) obtaining relevant information about the prospective patient, including information about finances, insurance benefits and advance directives; and

(2) explaining[,] orally and in writing to the patient and, as applicable, the patient's legally authorized representative , the prospective patient's rights described in 25 TAC Chapter 404, Subchapter E (relating to [~~concerning~~] Rights of Persons Receiving Mental Health Services), including:

(A) the hospital's services and treatment as they relate to the prospective patient; and

(B) explaining, orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system of the state of Texas, pursuant to Texas Health and Safety Code §576.008.

(h) An admission [~~Admission~~] examination shall comply with the following requirements.

(1) The admission examination referenced in subsection (f)(2)(A) [~~(d)(2)(A)~~] of this section shall be conducted by a physician in accordance with Texas Health and Safety Code Chapter 572 and include a physical and psychiatric examination conducted in the physical presence of the patient or by using audiovisual telecommunications.

(2) The physical examination may consist of an assessment for medical stability.

(3) The physician may not delegate conducting the admission examination to a non-physician.

(i) [~~Documentation of admission order.~~] In accordance with Texas Health and Safety Code §572.0025(f)(1), the order described in subsection (f)(2)(B) of this section shall:

(1) be issued in writing and signed by the issuing physician; or

(2) be issued orally or electronically if, within 24 hours after its issuance, the hospital has a written order signed by the issuing physician.

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 July 8, 2024.

TRD-202402983

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

For further information, please call: (512) 834-4591

SUBCHAPTER C. EMERGENCY TREATMENTS

26 TAC §568.42

STATUTORY AUTHORITY

The amendment and new rule implement Texas Government Code §531.0055 and THSC §572.0026.

§568.42.Responding to a Psychiatric Emergency.

(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.

(1) Emergency psychoactive medication--A psychoactive medication administered to a patient in a psychiatric emergency.

(2) Psychiatric emergency--A situation in which it is immediately necessary to administer medication to a patient to prevent:

(A) imminent probable death or substantial bodily harm to the patient because the patient:

(i) overtly or continually is threatening or attempting to commit suicide or serious bodily harm; or

(ii) is behaving in a manner that indicates that the patient is unable to satisfy the patient's need for nourishment, essential medical care, or self-protection; or

(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the patient overtly or continually makes or commits.

(3) Psychoactive medication--A medication prescribed for the treatment of symptoms of psychosis or other severe mental or emotional disorders and that is used to exercise an effect on the central nervous system to influence and modify behavior, cognition, or affective state when treating the symptoms of mental illness. "Psychoactive medication" includes the following categories when used as described in this section:

(A) antipsychotics or neuroleptics;

(B) antidepressants;

(D) antianxiety agents;

(E) sedatives, hypnotics, or other sleep-promoting drugs; and

(F) psychomotor stimulants.

(b) In accordance with 25 TAC §414.41 (relating to Psychiatric Emergencies), only a treating physician may issue an order to administer emergency psychoactive medication without a patient's consent.

(c) A treating physician may only issue an order to administer emergency psychoactive medication without a patient's consent when less restrictive interventions are determined ineffective to protect the patient or others from harm.

(d) A hospital shall adopt, implement, and enforce written policies and procedures to ensure safe administration of an emergency psychoactive medication. These policies and procedures shall:

(1) identify the staff members authorized to administer an emergency psychoactive medication;

(2) identify the psychoactive medications permitted and approved by the hospital for administration in a psychiatric emergency;

(3) prescribe how and with what frequency a staff member shall monitor a patient who has received an emergency psychoactive medication, in addition to the in-person evaluation conducted as required by subsection (f) of this section; and

(4) ensure staff members follow all monitoring and evaluation requirements under this section and all hospital policies and procedures regarding administration of an emergency psychoactive medication each time a patient receives a separate dose of an emergency psychoactive medication.

(e) Staff members authorized by the hospital's policies and procedures to administer an emergency psychoactive medication shall receive training on and demonstrate competency in the following:

(1) knowledge of the psychoactive medications permitted and approved by the hospital for administration in a psychiatric emergency;

(2) safe and appropriate administration of an emergency psychoactive medication; and

(3) management of emergency medical conditions in accordance with the hospital's policies and procedures and other applicable requirements for:

(A) obtaining emergency medical assistance; and

(B) obtaining training in and using techniques for cardiopulmonary respiration and airway obstruction removal.

(f) When a staff member administers a psychoactive medication to a patient experiencing a psychiatric emergency, a physician, other licensed practitioner, or registered nurse trained in accordance with the requirements specified in subsection (g) of this section shall examine the patient in person within one hour after the administration of the psychoactive medication to evaluate and document in the patient's clinical record:

(1) the patient's immediate situation;

(2) the patient's reaction to the medication;

(3) the patient's medical and behavioral condition; and

(4) the need to continue or safely discontinue administration of the emergency psychoactive medication.

(g) A physician, other licensed practitioner, or registered nurse who conducts the in-person evaluation specified in subsection (f) of this section shall have completed training in the following:

(1) techniques identifying staff member and patient behaviors, events, and environmental factors that may trigger a psychiatric emergency;

(2) use of nonphysical intervention skills;

(3) choosing the least restrictive intervention based on an individualized assessment of the patient's medical or behavioral status or condition;

(4) safe administration of emergency psychoactive medications and how to recognize and respond to signs of physical and psychologicaldistress;

(5) clinical identification of specific behavioral changes indicating the psychiatric emergency's conclusion;

(6) monitoring the physical and psychological well-being of the patient who has received an emergency psychoactive medication, including the patient's respiratory and circulatory status, vital signs, and any special requirements specified by hospital policy associated with conducting the in-person evaluation; and

(7) the use of first aid techniques and certification in the use of cardiopulmonary resuscitation, including required periodic recertification.

(h) If a trained registered nurse conducts the in-person evaluation specified in subsection (f) of this section, the trained registered nurse shall consult the attending physician or other licensed practitioner responsible for the patient's care as soon as possible after completing the evaluation.

(i) The physician or other licensed practitioner responsible for the patient's care shall document in the patient's clinical record in specific medical or behavioral terms:

(1) the information required by 25 TAC §414.410(b) (relating to Psychiatric Emergencies) as applicable;

(2) the evaluation findings specified in subsection (f)(1) - (4) of this section;

(3) a description of the patient's behavior and the emergency psychoactive medication used;

(4) alternatives or other less restrictive interventions attempted, as applicable;

(5) the patient's condition or symptoms warranting the emergency psychoactive medication; and

(6) the patient's response to the emergency psychoactive medication, including the rationale for continued use of the medication.

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 July 8, 2024.

TRD-202402984

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

For further information, please call: (512) 834-4591

CHAPTER 745. LICENSING

SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY

DIVISION 1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS

26 TAC §745.8401, §745.8411

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §745.8401, concerning Who may inspect or investigate an operation under this division, and §745.8411, concerning What are my responsibilities when Licensing or the Texas Department of Family and Protective Services inspects or investigates my operation.

BACKGROUND AND PURPOSE

The proposal is necessary to implement House Bill (H.B.) 4696, 88th Legislature, Regular Session, 2023. H.B. 4696 amended Texas Health and Safety Code §253.001(4), and Texas Human Resources Code §48.251(a)(3) and §48.252(b) and (c) to specify that HHSC is responsible for investigating an allegation of abuse, neglect, and exploitation of an elderly person or an adult with a disability who resides in a residential child-care facility. Accordingly, HHSC Child Care Regulation (CCR) is proposing to amend rules that clarify what authorized entities may inspect or investigate according to Title 26, Chapter 745, Subchapter K, Division 1, and responsibilities an operation has when an authorized entity conducts an inspection or investigation. This rule project contains most of the rules needed to implement H.B. 4696, and a separate rule project is amending one rule relating to confidentiality to complete the rule development needed to implement the bill.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.8401 (1) adds that HHSC is responsible for investigating an allegation of abuse, neglect, or exploitation of an elderly adult or an adult with a disability in a residential child-care operation; and (2) makes non-substantive changes for better readability and understanding.

The proposed amendment to §745.8411 (1) amends the title of the rule so that it is not specific to CCR and the Texas Department of Family and Protective Services, since a department of HHSC other than CCR is responsible for conducting some investigations; (2) extends an operation's responsibilities during an inspection or investigation to a representative of an HHSC department other than CCR; and (3) makes non-substantive changes for better readability and understanding.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be no cost to state government as a result of enforcing or administering the rules as proposed. Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of 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 not create a new regulation;

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

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

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

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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

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

STATUTORY AUTHORITY

The proposed 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 the duties of HHSC under Texas Government Code Chapter 531.

The amendments affect Texas Government Code §531.0055, Texas Health and Safety Code §253.001(4), and Texas Human Resources Code §48.251(a)(3) and §48.252(b) and (c).

§745.8401.Who is responsible for inspecting [~~may inspect~~] or investigating [~~investigate~~] an operation under this division?

(a) Child Care Regulation (CCR) is responsible for inspecting [~~An authorized representative of Licensing may inspect~~] or investigating [~~investigate~~]:

(1) An operation that is subject to regulation under Texas Human Resources Code (HRC) Chapter 42 to:

(A) Monitor the operation's compliance with [~~licensing~~ ] statutes, rules, and minimum standards; and

(B) Investigate an allegation of non-compliance with [~~licensing~~] statutes, rules, and minimum standards; and

(2) An unlicensed program providing care to children to determine whether the program is subject to regulation by CCR [~~Licensing~~].

(b) The following entities are responsible for investigating an allegation [~~An authorized representative~~] of abuse, neglect, or exploitation:

(1) The [~~the~~] Texas Department of Family and Protective Services is responsible for investigating [~~(DFPS) may investigate an operation that is subject to regulation under HRC Chapter 42 to investigate~~] an allegation of child abuse, neglect, or exploitation at an operation that is subject to regulation under HRC Chapter 42, as described in Title 40, Part 19, Chapter 707, Subchapter C, Child Care Investigations; and [.]

(2) The Texas Health and Human Services Commission (HHSC) is responsible for investigating an allegation of abuse, neglect, or exploitation of an elderly adult or an adult with a disability in a residential child-care operation, as described in Texas Human Resources Code, Chapter 48, Subchapter F.

(c) An authorized representative of CCR [~~Licensing~~ ] may inspect under subsection (a) of this section during or after an [~~a DFPS~~] investigation under subsection (b) of this section.

§745.8411.What are my responsibilities when an authorized representative [~~Licensing or the Texas Department of Family and Protective Services~~] inspects or investigates my operation?

(a) You must ensure that no one at your operation interferes with an inspection or investigation by Child Care Regulation (CCR), another department of the Texas Health and Human Services Commission (HHSC), or [~~Licensing or an investigation by~~] the Department of Family and Protective Services (DFPS).

(b) For an inspection or investigation described in Subsection (a), you [~~You~~] must ensure your operation:

(1) Admits authorized [~~the Licensing or DFPS~~] representatives involved in conducting the inspection or investigation [~~to the operation~~];

(2) Provides access to all areas of the operation;

(3) Provides access to all records; and

(4) Does not delay or prevent authorized [~~the Licensing or DFPS~~] representatives from conducting an inspection or investigation.

(c) If anyone at your operation refuses to admit, refuses access, or prevents or delays an authorized [~~a Licensing or DFPS~~] representative of CCR, another department of HHSC, or DFPS from visiting, inspecting, or investigating the operation, [~~Licensing may take~~] any or all of the following may occur [~~actions~~]:

(1) CCR may issue [~~Issue~~] the operation a deficiency;

(2) CCR may recommend [~~Impose~~] an enforcement action as specified in Subchapter L of this chapter (relating to Enforcement Actions); or

(3) CCR, DFPS, or HHSC may seek [~~Seek~~] a court order granting [~~Licensing~~] access to the operation and records maintained by the operation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 8, 2024.

TRD-202402985

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

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

SUBCHAPTER N. ADMINISTRATOR'S LICENSING

DIVISION 7. REMEDIAL ACTIONS

26 TAC §745.9037

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §745.9037, concerning Under what circumstances may Licensing take remedial action against my administrator's license or administrator's license application.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement House Bill (H.B.) 4170, 88th Legislature, Regular Session, 2023. H.B. 4170 amended Texas Human Resources Code (HRC) §43.010, which makes a person ineligible to apply for another administrator's license for five years after the date HHSC refused to renew the person's administrator's license. Prior to this amendment, this subsection only applied the five-year ban to when HHSC revoked an administrator's license. The proposed amendment to §745.9037 is necessary to be consistent with HRC §43.010(b).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.9037 updates the rule to include that a person is not eligible to apply for an administrator's license under HRC Chapter 43 for five years after HHSC refuses to renew the administrator's license.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rule will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will expand existing regulation;

(7) the proposed rule will increase 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. The rule does not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; 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 benefit will be that the rule will be consistent with statutory requirements.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

Written comments on the proposal may be submitted to E'Portia Williams, Program Specialist VII, by e-mail to enforcementcoordinationteam@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 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 emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R035" 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 HRC §43.005, which states the Executive Commissioner for HHSC may adopt rules to administer Chapter 43, HRC.

The amendment affects Texas Government Code §531.0055 and HRC §43.005.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) If we revoke or refuse to renew your administrator's license, you are not eligible to apply for another administrator's license for five years after the date the revocation or refusal to renew was imposed [~~license was revoked~~].

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

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

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 8, 2024.

TRD-202402972

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

For further information, please call: (512) 751-8438

CHAPTER 746. MINIMUM STANDARDS FOR CHILD-CARE CENTERS

SUBCHAPTER D. PERSONNEL

DIVISION 1. CHILD-CARE CENTER DIRECTOR

26 TAC §§746.1053, 746.1065, 746.1067, 746.1069

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §746.1053, concerning Will the director's certificate expire; and new §746.1065, concerning What is an interim director; §746.1067, concerning When may I designate someone as the interim director of my child-care center; and §746.1069, concerning May someone serving as interim director of my child-care center continue to serve as director after my child-care center receives a full license.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement Senate Bill (S.B.) 1327, 88th Legislature, Regular Session, 2023. S.B. 1327 amended Texas Human Resources Code (HRC), Chapter 42, by adding §42.04201 and amending §42.0761(a). HRC §42.04201 allows a child-care center operating under an initial license to designate an individual who meets all the director qualifications, except the education requirement, to serve as an interim director. Since an initial license is valid for six months from the date that HHSC Child Care Regulation (CCR) issues it and may be renewed for an additional six months, the statute allows a person to serve as an interim director for up to 12 months. Before the prospective 12-month period expires, the interim director may obtain the education requirements and be designated as a qualified director. If the interim director does not meet the education requirements at the end of the 12-month period, the child-care center must obtain an approved waiver for the requirements or employ a new director. HRC §42.04761(a) adds the term "interim director" to the statute that requires a child-care center to designate a qualified director who is routinely present at the operation. Accordingly, CCR is proposing to add rules to provide a definition of "interim director" and describe the requirements related to qualifying for that designation. CCR is also proposing to amend one rule related to expiring director certificates.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §746.1053 (1) updates language to improve readability; (2) reorganizes the rule to separate the types of expiring director certificates into paragraphs; and (3) adds an interim director certificate to the list of types of director's certificates that expire.

New §746.1065 provides a definition of "interim director." The definition specifies that the interim director (1) is an individual the child-care center designates to serve in that role if the individual meets the requirements in proposed new §746.1067; and (2) has the same responsibilities as a child-care center director.

New §746.1067 outlines when a child-care center may designate someone as the interim director of the child-care center. The rule specifies that the child-care center may designate an individual to serve as the interim director if (1) the child-care center is operating with an initial license; and (2) the individual meets all director requirements except for the educational requirements.

New §746.1069 clarifies the circumstances under which someone serving as an interim director may continue to serve as a director after a child-care center receives a full license. The rule specifies that (1) an individual serving as an interim director may serve as the child-care center director for an operation with a full license if (A) the individual has completed the required education and fully qualifies as a director, or (B) the child-care center obtains a waiver or variance from CCR that allows the child-care center to employ a director who does not meet the educational requirement; and (2) the child-care center must employ a new director if the individual does not qualify under subsection (a) of the rule.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create a new regulation;

(6) the proposed rules will not expand, limit, or 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 no adverse economic effect on small businesses, micro-businesses, or rural communities because the rules do 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

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) increase the number of child-care center director candidates for new operations, potentially expanding licensed child-care capacity in areas challenged with finding qualified directors; and (2) comply with state law.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because choosing to designate an interim director during a child-care center's initial license period is optional and the associated rules do not impose fees, require a child-care center to purchase curriculum or equipment, or require a child-care center 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 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.

STATUTORY AUTHORITY

The amended 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, and Texas Government Code §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out the duties of HHSC under Chapter 531 of Texas Government Code. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.

The amended and new sections affect Texas Government Code §531.0055 and HRC §42.042.

§746.1053.Will the director's certificate expire?

The director's certificate will not expire unless [~~have an expiration date, if~~] the director was qualified: [~~under~~]

(1) Under (5) or (6) in Figure: 26 TAC §746.1015 [~~subsection (a), options (5) or (6) in §746.1015~~] of this division [~~title~~] (relating to What qualifications must the director of my child-care center licensed for 13 or more children meet?);

(2) Under (4) or (6) in Figure: 26 TAC §746.1017 [~~or subsection (a), options (4) or (6) in §746.1017~~] of this division [~~title~~] (relating to What qualifications must the director of my child-care center licensed for 12 or fewer children meet?); or

(3) As an interim director as outlined in §746.1067 of this division (relating to When may I designate someone as the interim director of my child-care center?). [~~Otherwise the Licensing Child-Care Center Director's Certificate will not expire.~~]

§746.1065.What is an interim director?

(a) An interim director is an individual designated to serve as the director of a child-care center under §746.1067 of this division (relating to When may I designate someone as the interim director of my child-care center?).

(b) The interim director has the same responsibilities as a child-care center director as outlined in this chapter.

§746.1067.When may I designate someone as the interim director of my child-care center?

You may designate someone to serve as the interim director of your center if:

(1) Your center is operating with an initial license; and

(2) The individual you designate as interim director meets all the requirements to serve as director except the educational requirement in:

(A) §746.1015 of this division (relating to relating to What qualifications must the director of my child-care center licensed for 13 or more children meet?); or

(B) §746.1017 of this division (relating to What qualifications must the director of my child-care center licensed for 12 or fewer children meet?).

§746.1069.May someone serving as interim director of my center continue to serve as director after my center receives a full license?

(a) Someone serving as interim director of your center may serve as your center's director after your center receives a full license if:

(1) The individual has completed the educational requirement and fully qualifies to serve as a child-care center director; or

(2) You obtain a waiver or variance from Child Care Regulation that allows you to have a director who does not meet the educational requirement.

(b) You must employ a new director if the individual who served as interim director does not qualify under subsection (a) of this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 2, 2024.

TRD-202402925

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

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

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS

SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §748.303

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §748.303, concerning When must I report and document a serious incident.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.303 (1) clarifies that a general residential operation must report a serious incident involving the possible abuse, neglect, or exploitation of an adult resident to HHSC through the Texas Abuse and Neglect Hotline; and (2) makes non-substantive changes to the rule for better readability and understanding.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, there will be no cost to state government as a result of enforcing or administering the rule as proposed. Enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rule will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will not expand existing regulations;

(7) the proposed rule will not change the number of individuals subject to the rules; and

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

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

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

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rule is in effect the public benefit will be increased compliance 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 any training or resources to meet compliance.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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

STATUTORY AUTHORITY

The proposed 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 the duties of HHSC under Texas Government Code Chapter 531.

The amendment affects Texas Government Code §531.0055, Texas Health and Safety Code §253.001(4), and Texas Human Resources Code §48.251(a)(3) and §48.252(b) and (c).

§748.303.When must I report and document a serious incident?

(a) You must report and document the following types of serious incidents involving a child in your care. The reports must be made to the following entities, and the reporting and documenting must be within the specified time frames:

Figure: 26 TAC §748.303(a) (No change.)

(b) If there is a medically pertinent incident that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as for a serious incident, as described in §748.311 of this division (relating to How must I document a serious incident?).

(c) If a [~~the~~] child returns before the required reporting timeframe outlined in (a)(8) - (10) in Figure: 26 TAC §748.303(a) [~~subsection (a)(8) - (10) of this section~~], you are not required to report the absence as a serious incident. Instead, you must document within 24 hours after you become aware of the unauthorized absence in the same manner as for a serious incident, as described in §748.311 of this division.

(d) If there is a serious incident involving an allegation of abuse, neglect, or exploitation of an elderly adult or an adult with a disability in a residential child-care operation, [~~resident, you do not have to report the incident to Licensing, but~~] you must document the incident in the same manner as a serious incident. You must also [~~do have to~~] report the incident to:

(1) The Department of Family and Protective and Services intake through:

(A) The Texas Abuse and Neglect Hotline (1-800-252-5400); or

(B) Online at https://www.txabusehotline.org;

(2) [~~(1)~~] Law enforcement, if there is a fatality; and

(3) [~~(2)~~] The parent, if the adult resident is not capable of making decisions about the resident's own care.[~~; and~~]

~~[(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.]~~

(e) You must report and document the following types of serious incidents involving your operation, an employee, a professional level service provider, contract staff, or a volunteer to the following entities within the specified time frames:

Figure: 26 TAC §748.303(e) (No change.)

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 July 8, 2024.

TRD-202402986

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

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

CHAPTER 749. MINIMUM STANDARDS FOR CHILD-PLACING AGENCIES

SUBCHAPTER D. REPORTS AND RECORD KEEPING

DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES

26 TAC §749.503

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §749.503, concerning When must I report and document a serious incident.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §749.503 (1) clarifies that a child placing agency must report a serious incident involving the possible abuse, neglect, or exploitation of an adult resident to HHSC through the Texas Abuse and Neglect Hotline; and (2) makes non-substantive changes to the rule for better readability and understanding.

FISCAL NOTE

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rule will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will not create a new regulation;

(6) the proposed rule will not expand existing regulations;

(7) the proposed rule will not change the number of individuals subject to the rules; and

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

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

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

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 any training or resources to meet compliance.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055, Texas Health and Safety Code §253.001(4), and Texas Human Resources Code §48.251(a)(3) and §48.252(b) and (c).

§749.503.When must I report and document a serious incident?

Figure: 26 TAC §749.503(a) (No change.)

(b) If there is a medically pertinent incident that does not rise to the level of a serious incident, you do not have to report the incident but you must document the incident in the same manner as for a serious incident, as described in §749.511 of this division (relating to How must I document a serious incident?).

(c) If a child returns before the required reporting timeframe outlined in (a)(8) - (10) in Figure: 26 TAC §749.503(a) [~~subsection (a)(8) - (10) of this section~~], you are not required to report the absence as a serious incident. Instead, you must document within 24 hours after you become aware of the unauthorized absence in the same manner as for a serious incident, as described in §749.511 of this division.

(1) The Department of Family and Protective Services intake through:

(A) The Texas Abuse and Neglect Hotline (1-800-252-5400); or

(B) Online at https://www.txabusehotline.org;

(2) [~~(1)~~] Law enforcement, if there is a fatality; and

(3) [~~(2)~~] The parent, if the adult resident is not capable of making decisions about the resident's own care.[~~; and~~]

~~[(3) Adult Protective Services through the Texas Abuse and Neglect Hotline if there is reason to believe the adult resident has been abused, neglected or exploited.]~~

(e) You must report and document the following types of serious incidents involving your agency, one of your foster homes, an employee, professional level service provider, contract staff, or a volunteer to the following entities within the specified timeframe:

Figure: 26 TAC §749.503(e) (No change.)

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 July 8, 2024.

TRD-202402987

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: August 18, 2024

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