PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts amendments to §§559.1, 559.11, 559.81, and 559.91; the repeal of §§559.2, 559.12 - 559.23, 559.61 - 559.64, 559.82 - 559.84, 559.92 - 559.95, and 559.102 - 559.105; and new §§559.3, 559.13, 559.15, 559.17, 559.19, 559.21, 559.23, 559.25, 559.27, 559.29, 559.31, 559.33, 559.35, 559.37, 559.39, 559.50 - 559.53, 559.55, 559.57, 559.59, 559.61, 559.63, 559.65, 559.67, 559.69, 559.71, 559.73, 559.75, 559.77, 559.79, 559.83, 559.85, 559.87, 559.93, 559.95, 559.97, 559.99, 559.101, 559.103, 559.105, and 559.107.
New §559.3 is adopted with changes to the proposed text as published in the March 8, 2024, issue of the Texas Register (49 TexReg 1385). This rule will be republished.
The amendments to §§559.1, 559.11, 559.81, and 559.91; the repeal of §§559.2, 559.12 - 559.23, 559.61 - 559.64, 559.82 - 559.84, 559.92 - 559.95, and 559.102 - 559.105; and new §§559.13, 559.15, 559.17, 559.19, 559.21, 559.23, 559.25, 559.27, 559.29, 559.31, 559.33, 559.35, 559.37, 559.39, 559.50 - 559.53, 559.55, 559.57, 559.59, 559.61, 559.63, 559.65, 559.67, 559.69, 559.71, 559.73, 559.75, 559.77, 559.79, 559.83, 559.85, 559.87, 559.93, 559.95, 559.97, 559.99, 559.101, 559.103, 559.105, and 559.107, are adopted without changes to the proposed text as published in the March 8, 2024, issue of the Texas Register (49 TexReg 1385). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The amendments, new sections, and repeals are necessary to comply with House Bill (H.B.) 1009 and H.B. 4696 from the 88th Legislature, Regular Session, 2023. The amendments, new sections, and repeals also reorganize rule sections so that key topics are easier to find, add clarity and specificity to rules, and update references throughout the chapter.
COMMENTS
The 31-day comment period ended April 8, 2024.
During this period, HHSC received a comment regarding the proposed rules from one commenter. The commenter expressed appreciation for the reorganization and addition of new rule sections. The commenter indicated that the proposed rules make key topics easier to find.
Minor editorial changes were made to §559.3 to ensure the definitions are listed in alphabetical order.
SUBCHAPTER A. INTRODUCTION
STATUTORY AUTHORITY
The amendment and new section are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
§559.3.Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Abuse-- Negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to an elderly or disabled person by the person's caretaker, family member, or other individual who has an ongoing relationship with the person, or sexual abuse of an elderly or disabled person, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Texas Penal Code §21.08 (relating to Indecent Exposure) or Texas Penal Code, Chapter 22 (relating to Assaultive Offenses) committed by the person's caretaker, family member, or other individual who has an ongoing relationship with the person.
(2) Actual harm--A negative outcome that compromises the physical, mental, or emotional well-being of an elderly person or a person with a disability receiving services at a facility.
(3) Adult--A person 18 years of age or older or an emancipated minor.
(4) Affiliate--With respect to a:
(A) partnership, each partner of the partnership;
(B) corporation, each officer, director, principal stockholder, and subsidiary; and each person with a disclosable interest;
(C) natural person, includes each:
(i) person's spouse;
(ii) partnership and each partner thereof, of which said person or any affiliate of said person is a partner; and
(iii) corporation in which the person is an officer, director, principal stockholder, or person with a disclosable interest.
(5) Alzheimer's disease and related disorders--Alzheimer's disease and any other irreversible dementia described by the Centers for Disease Control and Prevention (CDC) or the most current edition of the Diagnostic and Statistical Manual of Mental Disorders.
(6) Ambulatory--Mobility not relying on walker, crutch, cane, or other physical object or use of wheelchair.
(7) Applicant--A person applying for a license under Texas Human Resources Code, Chapter 103.
(8) Change of ownership--An event that results in a change to the federal taxpayer identification number of the license holder of a facility. The substitution of a personal representative for a deceased license holder is not a change of ownership.
(9) Client--An individual receiving day activity and health services.
(10) Construction, existing--See definition of existing building.
(11) Construction, new--Construction begun after April 1, 2007.
(12) Construction, permanent--A building or structure that meets a nationally recognized building code's details for foundations, floors, walls, columns, and roofs.
(13) Controlling person--A person with the ability, acting alone or with others, to directly or indirectly influence, direct, or cause the direction of management, expenditure of money, or policies of a facility or other person. A controlling person includes:
(A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a facility;
(B) any person who is a controlling person of a management company or other business entity that operates a facility or that contracts with another person for the operation of a facility;
(C) an officer or director of a publicly traded corporation that is, or that controls, a facility, management company, or other business entity described in subparagraph (A) of this paragraph but does not include a shareholder or lender of the publicly traded corporation; and
(D) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a facility, is in a position of actual control or authority with respect to the facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility, except an employee, lender, secured creditor, landlord, or other person who does not exercise formal or actual influence or control over the operation of a facility.
(14) DADS--The term referred to the Texas Department of Aging and Disability Services; it now refers to HHSC.
(15) DAHS--Day activity and health services. Health, social, and related support services as defined in this section.
(16) DAHS facility--A facility that provides services through a day activity and health services program on a daily or regular basis, but not overnight, to four or more elderly persons or persons with disabilities who are not related to the owner of the facility by blood, marriage, or adoption.
(17) DAHS program--A structured, comprehensive program offered by a DAHS facility that is designed to meet the needs of adults with functional impairments by providing DAHS in accordance with individual plans of care in a protective setting.
(18) Days--Calendar days, unless otherwise specified.
(19) Department--HHSC.
(20) Dietitian consultant--A person licensed as a dietitian by the Texas Department of Licensing and Regulation or a person with a bachelor's degree with major studies in food and nutrition, dietetics, or food service management.
(21) Direct ownership interest--Ownership of equity in the capital, stock, or profits of, or a membership interest in, an applicant or license holder.
(22) Direct service staff--An employee or contractor of a facility who directly provides services to individuals, including the director, a licensed nurse, the activities director, and an attendant. An attendant includes a driver, food service worker, aide, janitor, housekeeper, and laundry worker. A dietitian consultant is not a member of the direct service staff.
(23) Director--The person responsible for the overall operation of a facility.
(24) Disclosable interest--Five percent or more direct or indirect ownership interest in an applicant or license holder.
(25) Elderly person--A person 65 years of age or older
(26) Executive Commissioner--The executive commissioner of HHSC.
(27) Existing building--A building or portion thereof that, at the time of initial inspection by HHSC, is used as an adult day care occupancy, as defined by Life Safety Code, NFPA 101, 2000 edition, Chapter 17, for existing adult day care occupancies; or has been converted from another occupancy or use to an adult day care occupancy, as defined by Chapter 16 for new adult day care occupancies.
(28) Exploitation--An illegal or improper act or process of a caretaker, family member, or other individual who has an ongoing relationship with the elderly person or person with a disability, using the resources of an elderly person or person with a disability for monetary or personal benefit, profit, or gain without the informed consent of the elderly person or person with a disability.
(29) Facility--A licensed DAHS facility.
(30) Fence--A barrier to prevent elopement of an individual or intrusion by an unauthorized person, consisting of posts, columns, or other support members, and vertical or horizontal members of wood, masonry, or metal.
(31) FM--FM Global (formerly known as Factory Mutual). A corporation whose approval of a product indicates a level of testing and certification that is acceptable to HHSC.
(32) Fraud--A deliberate misrepresentation or intentional concealment of information to receive or to be reimbursed for service delivery to which an individual is not entitled.
(33) Functional impairment--A condition that requires assistance with one or more personal care services.
(34) Health assessment--An assessment of an individual by a facility used to develop the individual's plan of care.
(35) Health services--Services that include personal care, nursing, and therapy services.
(A) Personal care services include:
(i) bathing;
(ii) dressing;
(iii) preparing meals;
(iv) feeding;
(v) grooming;
(vi) taking self-administered medication;
(vii) toileting;
(viii) ambulation; and
(ix) assistance with other personal needs or maintenance.
(B) Nursing services may include:
(i) administering medications;
(ii) physician-ordered treatments, such as dressing changes; and
(iii) monitoring the health condition of the individual.
(C) Therapy services may include:
(i) physical therapy;
(ii) occupational therapy; and
(iii) speech therapy.
(36) HHSC--The Texas Health and Human Services Commission.
(37) Human service program--An intentional, organized, ongoing effort designed to provide good to others. The characteristics of a human service program are:
(A) dependent on public resources and are planned and provided by the community;
(B) directed toward meeting human needs arising from day-to-day socialization, health care, and developmental experiences; and
(C) used to aid, rehabilitate, or treat people in difficulty or need.
(38) Human services--Include:
(A) personal social services, including:
(i) DAHS;
(ii) counseling;
(iii) in-home care; and
(iv) protective services;
(B) health services, including:
(i) home health;
(ii) family planning;
(iii) preventive health programs;
(iv) nursing facility; and
(v) hospice;
(C) education services, meaning:
(i) all levels of school;
(ii) Head Start; and
(iii) vocational programs;
(D) housing and urban environment services, including public housing;
(E) income transfer services, including:
(i) Temporary Assistance for Needy Families; and
(ii) Supplemental Nutrition Assistance Program; and
(F) justice and public safety services, including:
(i) parole and probation; and
(ii) rehabilitation.
(39) Immediate threat to the health or safety of an elderly person or a person with a disability--A situation that causes, or is likely to cause, serious injury, harm, or impairment to, or the death of, an elderly person or a person with a disability receiving services at a facility.
(40) Indirect ownership interest--Any ownership or membership interest in a person who has a direct ownership interest in an applicant or license holder.
(41) Individual--A person who applies for or is receiving services at a facility.
(42) Isolated--When a very limited number of elderly persons, or persons with disabilities, receiving services at a facility are affected and a very limited number of staff are involved, or the situation has occurred only occasionally.
(43) License holder--A person who holds a license to operate a facility.
(44) Life Safety Code, NFPA 101--The Code for Safety to Life from Fire in Buildings and Structures, NFPA 101, a publication of the National Fire Protection Association, Inc. that:
(A) addresses the construction, protection, and occupancy features necessary to minimize danger to life from fire, including smoke, fumes, or panic; and
(B) establishes minimum criteria for the design of egress features to permit prompt escape of occupants from buildings or, where desirable, into safe areas within the building.
(45) Long-term care facility--A facility that provides care and treatment or personal care services to four or more unrelated persons, including:
(A) a nursing facility licensed under Texas Health and Safety Code, Chapter 242;
(B) an assisted living facility licensed under Texas Health and Safety Code, Chapter 247; and
(C) an intermediate care facility serving individuals with an intellectual disability or related conditions licensed under Texas Health and Safety Code, Chapter 252.
(46) LVN--Licensed vocational nurse. A person licensed by the Texas Board of Nursing who works under the supervision of an RN or a physician.
(47) Management services--Services provided under contract between the owner of a facility and a person to provide for operation of a facility, including administration, staffing, maintenance, and delivery of services. Management services do not include contracts solely for maintenance, laundry, or food services.
(48) Manager--A person who has a contractual relationship to provide management services to a facility.
(49) Medically related program--A program providing the services listed in paragraph (37)(B) of this section.
(50) Neglect--Failure to provide for oneself goods or services, including medical services, that are necessary to avoid physical harm, mental anguish, or mental illness; or failure of a caregiver to provide these goods or services.
(51) NFPA--The National Fire Protection Association. The NFPA is an organization that develops codes, standards, recommended practices, and guides through a consensus standards development process approved by the American National Standards Institute.
(52) NFPA 10--Standard for Portable Fire Extinguishers. A standard developed by the NFPA for selection, installation, inspection, maintenance, and testing of portable fire extinguishing equipment.
(53) NFPA 13--Standard for the Installation of Sprinkler Systems. A standard developed by the NFPA for the minimum requirements for design and installation of automatic fire sprinkler systems, including the character and adequacy of water supplies and selection of sprinklers, fittings, pipes, valves, and all maintenance and accessories.
(54) NFPA 70--National Electrical Code. A code developed by the NFPA for installation of electric conductors and equipment.
(55) NFPA 72--National Fire Alarm Code. A code developed by the NFPA for application, installation, performance, and maintenance of fire alarm systems and their components.
(56) NFPA 90A--Standard for the Installation of Air Conditioning and Ventilating Systems. A standard developed by the NFPA for systems for the movement of environmental air in structures that serve spaces over 25,000 cubic feet or buildings of certain heights and construction types, or both.
(57) NFPA 90B--Standard for the Installation of Warm Air Heating and Air-Conditioning Systems. A standard developed by the NFPA for systems for movement of environmental air in one- or two-family dwellings and structures that serve spaces not exceeding 25,000 cubic feet.
(58) NFPA 96--Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations. A standard developed by the NFPA that provides the minimum fire safety requirements related to design, installation, operation, inspection, and maintenance of all public and private cooking operations, except for single-family residential usage.
(59) Nurse--An RN or LVN licensed in the state of Texas.
(60) Nursing services--Services provided by a nurse, including:
(A) observation;
(B) promoting and maintaining health;
(C) preventing illness and disability;
(D) managing health care during acute and chronic phases of illness;
(E) guiding and counseling individuals and families; and
(F) referral to physicians, other health care providers, and community resources when appropriate.
(61) Online portal--A secure portal provided on the HHSC website for licensure activities, including for a DAHS facility applicant to submit licensure applications and information.
(62) Pattern of violation--Repeated, but not widespread in scope, failures of a facility to comply with Texas Human Resources Code, Chapter 103, or a rule, standard, or order adopted under Texas Human Resources Code, Chapter 103 that:
(A) result in a violation; and
(B) are found throughout the services provided by the facility or that affect or involve the same elderly persons or persons with disabilities receiving services at the facility or the same facility employees.
(63) Person--An individual, corporation, or association.
(64) Person with a disability--A person whose functioning is sufficiently impaired to require frequent medical attention, counseling, physical therapy, therapeutic or corrective equipment, or another person's attendance and supervision.
(65) Plan of care--A written plan, based on a health assessment and developed jointly by a facility and an individual or the individual's responsible party, that documents the functional impairment of the individual and the DAHS needed by the individual.
(66) Potential for minimal harm--A violation that has the potential for causing no more than a minor negative impact to an individual.
(67) Protective setting--A setting in which an individual's safety is ensured by the physical environment by staff.
(68) Related support services--Services to an individual, family member, or caregiver that may improve the person's ability to assist with an individual's independence and functioning. Services include:
(A) information and referral;
(B) transportation;
(C) teaching caregiver skills;
(D) respite;
(E) counseling;
(F) instruction and training; and
(G) support groups.
(69) Responsible party--A person designated by an individual as the individual's representative.
(70) RN--Registered nurse. A person licensed by the Texas Board of Nursing to practice professional nursing.
(71) Safety--Protection from injury or loss of life due to conditions such as fire, electrical hazard, unsafe building or site conditions, and presence of hazardous materials.
(72) Sanitation--Protection from illness, transmission of disease, or loss of life due to unclean surroundings, the presence of disease transmitting insects or rodents, unhealthful conditions or practices in preparation of food and beverage, or care of personal belongings.
(73) Semi-ambulatory--Mobility relying on a walker, crutch, cane, or other physical object, or independent use of wheelchair.
(74) Serious injury--An injury requiring emergency medical intervention or treatment by medical personnel, either at a facility or at an emergency room or medical office.
(75) Social activities--Therapeutic, educational, cultural enrichment, recreational, and other activities in a facility or in the community provided as part of a planned program to meet the social needs and interests of an individual.
(76) TAC--Texas Administrative Code.
(77) UL--Underwriters Laboratories, Inc. A corporation whose approval of a product indicates a level of testing and certification that is acceptable to HHSC.
(78) Widespread in scope--A violation of Texas Human Resources Code, Chapter 103, or a rule, standard, or order adopted under Texas Human Resources Code, Chapter 103, that:
(A) is pervasive throughout the services provided by the facility; or
(B) represents a systematic failure by the facility that affects or has the potential to affect a large portion or all the elderly persons or persons with disabilities receiving services at the facility.
(79) Willfully interfere--To act or not act to intentionally prevent, interfere with, or impede.
(80) Working with people--Acts involving delivery of services to individuals either directly or indirectly. Experience as a manager would meet this definition; however, experience in an administrative support position such as a bookkeeper does not. Experience does not have to be in a paid capacity.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402715
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
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 agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402716
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
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 agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402717
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402718
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402719
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402720
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
26 TAC §§559.81, 559.83, 559.85, 559.87
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 agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402721
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402722
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
26 TAC §§559.91, 559.93, 559.95, 559.97, 559.99
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 agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402723
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402724
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
26 TAC §§559.101, 559.103, 559.105, 559.107
STATUTORY AUTHORITY
The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402726
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §103.004 and §103.005, which respectively provide that the Executive Commissioner of HHSC shall adopt rules for implementing Texas Human Resources Code, Chapter 103, and adopt rules for licensing and setting standards for facilities licensed under Texas Human Resources Code, Chapter 103.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402725
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: July 10, 2024
Proposal publication date: March 8, 2024
For further information, please call: (512) 438-3161
The Texas Health and Human Services Commission (HHSC) adopts amendments to §744.901, concerning What information must I maintain in my personnel records, and §744.1103, concerning What minimum qualifications must each of my employees meet.
The amendments to §744.901 and §744.1103 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1691). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The amendments are necessary to comply with Texas Human Resources Code (HRC) §42.0563, added by Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023. HRC §42.0563 requires an applicant for a position at a child-care facility to complete and submit an affidavit on a form developed by HHSC through which the applicant discloses (1) whether the applicant has a charge, adjudication, or conviction related to having an inappropriate relationship with a minor; (2) all relevant facts pertaining to any charge, adjudication, or conviction disclosed; and (3) if the disclosure is related to a charge, whether the charge was determined to be true or false. If the applicant discloses a charge, the child-care facility may employ the applicant if the facility determines that the charge was false based on the information disclosed in the affidavit.
COMMENTS
The 31-day comment period ended April 15, 2024. During this period, HHSC did not receive any comments regarding the proposed rules.
SUBCHAPTER C. RECORD KEEPING
DIVISION 4. PERSONNEL RECORDS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402704
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
DIVISION 2. EMPLOYEES AND CAREGIVERS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402705
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
SUBCHAPTER D. APPLICATION PROCESS
DIVISION 3. SUBMITTING THE APPLICATION MATERIALS
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §745.243, concerning What does a completed application for a permit include.
The amendment to §745.243 is adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1694). This rule will not be republished.
BACKGROUND AND JUSTIFICATION
The amendment is necessary to amend an existing rule in Chapter 745 to delete a reference to a "notarized Affidavit for Applicants for Employment with a Licensed Operation or Registered Child-Care Home" in the list of required application materials for a registered child-care home. The deletion aligns the rule with Texas Human Resources Code (HRC) §42.059, which requires the affidavit for prospective employees, but does not require it with the application.
COMMENTS
The 31-day comment period ended April 15, 2024. During this period, HHSC did not receive any comments regarding the proposed rules.
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.059.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402708
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
The Texas Health and Human Services Commission (HHSC) adopts amendments to §746.901, concerning What information must I maintain in my personnel records, and §746.1105, concerning What minimum qualifications must each of my child-care center employees meet.
The amendments to §746.901 and §746.1105 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1695). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The amendments are necessary to comply with Texas Human Resources Code (HRC) §42.0563, added by Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023. HRC §42.0563 requires an applicant for a position at a child-care facility to complete and submit an affidavit on a form developed by HHSC through which the applicant discloses (1) whether the applicant has a charge, adjudication, or conviction related to having an inappropriate relationship with a minor; (2) all relevant facts pertaining to any charge, adjudication, or conviction disclosed; and (3) if the disclosure is related to a charge, whether the charge was determined to be true or false. If the applicant discloses a charge, the child-care facility may employ the applicant if the facility determines that the charge was false based on the information disclosed in the affidavit.
COMMENTS
The 31-day comment period ended April 15, 2024.
During this period, HHSC received comments regarding the proposed rules from three commenters representing child-care centers. A summary of the comments relating to the rules and HHSC responses follows.
Comment: One commenter said that they did not understand the rule proposals.
Response: HHSC disagrees with the comment's implication that the rule language is not clear and declines to revise the rules. HHSC notified providers of the statutory requirements by email before the law took effect and will send additional information to providers on complying with the rule changes once adopted.
Comment: One commenter said that the rule proposals will add to the workloads of those working in child care.
Response: HHSC disagrees with the comment and declines to revise the rules. While the statutorily required affidavit constitutes additional paperwork to complete for new employees and others who will perform employee functions, the affidavit easily aligns with the current background check process.
Comment: One commenter expressed support for the rule proposals.
Response: HHSC appreciates the support for the rules.
SUBCHAPTER C. RECORD KEEPING
DIVISION 4. PERSONNEL RECORDS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402709
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call:(512) 438-3269
DIVISION 2. CHILD-CARE CENTER EMPLOYEES AND CAREGIVERS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402710
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
The Texas Health and Human Services Commission (HHSC) adopts amendments to §747.901, concerning What information must I maintain in my personnel records, and §747.1207, concerning What minimum qualifications must an assistant caregiver meet.
The amendments to §747.901 and §747.1207 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1697). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The amendments are necessary to comply with Texas Human Resources Code (HRC) §42.0563, added by Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023. HRC §42.0563 requires an applicant for a position at a child-care facility to complete and submit an affidavit on a form developed by HHSC through which the applicant discloses (1) whether the applicant has a charge, adjudication, or conviction related to having an inappropriate relationship with a minor; (2) all relevant facts pertaining to any charge, adjudication, or conviction disclosed; and (3) if the disclosure is related to a charge, whether the charge was determined to be true or false. If the applicant discloses a charge, the child-care facility may employ the applicant if the facility determines that the charge was false based on the information disclosed in the affidavit.
COMMENTS
The 31-day comment period ended April 15, 2024.
During this period, HHSC received comments regarding the proposed rules from two commenters, including one licensed child-care home and one registered child-care home. A summary of the comments relating to the rules and HHSC responses follows.
Comment: One commenter said that they did not understand the rule proposals.
Response: HHSC disagrees with the comment's implication that the rule language is not clear and declines to revise the rules. HHSC notified providers of the statutory requirements by email before the law took effect and will send additional information to providers on complying with the rule changes once adopted.
Comment: One commenter said that the rule proposals will add to the workloads of those working in child care and cause a hardship on child-care operations.
Response: HHSC disagrees with the comment and declines to revise the rules. While the statutorily required affidavit constitutes additional paperwork to complete for new employees and others who will perform employee functions, the affidavit easily aligns with the current background check process.
SUBCHAPTER C. RECORD KEEPING
DIVISION 4. RECORDS ON CAREGIVERS AND HOUSEHOLD MEMBERS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402711
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
DIVISION 3. ASSISTANT CAREGIVERS AND SUBSTITUTE CAREGIVERS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402712
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
The Texas Health and Human Services Commission (HHSC) adopts amendments to §748.363, concerning What information must the personnel record of an employee include, and §748.505, concerning What minimum qualifications must all employees meet.
The amendments to §748.363 and §748.505 are adopted without changes to the proposed text as published in the March 15, 2024, issue of the Texas Register (49 TexReg 1699). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The amendments are necessary to comply with Texas Human Resources Code (HRC) §42.0563, added by Senate Bill (S.B.) 1469, 88th Legislature, Regular Session, 2023. HRC §42.0563 requires an applicant for a position at a child-care facility to complete and submit an affidavit on a form developed by HHSC through which the applicant discloses (1) whether the applicant has a charge, adjudication, or conviction related to having an inappropriate relationship with a minor; (2) all relevant facts pertaining to any charge, adjudication, or conviction disclosed; and (3) if the disclosure is related to a charge, whether the charge was determined to be true or false. If the applicant discloses a charge, the child-care facility may employ the applicant if the facility determines that the charge was false based on the information disclosed in the affidavit.
COMMENTS
The 31-day comment period ended April 15, 2024.
During this period, HHSC received one comment regarding the proposed rules from one commenter representing the Texas Alliance of Child and Family Services. A summary of the comment relating to the rules and HHSC response follows.
Comment: One commenter recommended a single affidavit to encompass the requirements of HRC §42.0563 and §42.059. The commenter said an additional form represents a separate administrative burden to providers and the potential for an additional citation.
Response: HHSC disagrees with the comment and declines to revise the rules. Each affidavit is statutorily required by a different section of the HRC. Each section requires its own affidavit. HRC §42.0563(a) requires HHSC to adopt the related form with no notarization requirement, while HRC §42.059 does require notarization and requires HHSC to include specific language in the related form. Moreover, the completion of both affidavits only pertains to one residential child-care operation type: general residential operations, not child-placing agencies. If the two affidavits were combined into one, some prospective employees for a child-placing agency may mistakenly complete the portion relating to HRC §42.0563, which is not required for those persons. Therefore, two separate affidavits will continue to be utilized to avoid confusion and comply with statutory requirements.
SUBCHAPTER D. REPORTS AND RECORD KEEPING
DIVISION 3. PERSONNEL RECORDS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402713
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269
DIVISION 1. GENERAL REQUIREMENTS
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42, including HRC §42.0563.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2024.
TRD-202402714
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 14, 2024
Proposal publication date: March 15, 2024
For further information, please call: (512) 438-3269