PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
DIVISION 1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS
The Texas Health and Human Services Commission (HHSC) adopts amendments to §745.8401, concerning Who is responsible for inspecting or investigating an operation under this division, and §745.8411, concerning What are an operation's responsibilities when an authorized representative inspects or investigates the operation.
The amendment to §745.8401 is adopted without changes to the proposed text as published in the July 19, 2024, issue of the Texas Register (49 TexReg 5312). This rule will not be republished.
The amendment to §745.8411 is adopted with changes to the proposed text as published in the July 19, 2024, issue of the Texas Register (49 TexReg 5312). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The amendments are necessary to implement House Bill (H.B.) 4696, 88th Legislature, Regular Session, 2023. H.B. 4696 placed the responsibility for investigating an allegation of abuse, neglect, and exploitation of an elderly person or adult with a disability who resides in a residential child-care facility in Texas Human Resources Code (HRC) §48.251(a)(3) and §48.252(b) and (c), which correspond with the investigatory authority of HHSC Long-Term Care Regulation Provider Investigations. Accordingly, because HHSC Child Care Regulation (CCR) also conducts investigations at residential child-care facilities, CCR is adopting amended 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.
COMMENTS
The 31-day comment period ended August 19, 2024. During this period, HHSC received one comment from one commenter representing the Texas Alliance of Child and Family Services. A summary of the comment relating to the rules and the response from HHSC follows.
Comment: The commenter did not have feedback on the text of the rules but suggested that HHSC provide more background information in the rule's preamble and on state agency websites regarding the underlying and complex statutory changes that occur over time. The commenter indicated it can be difficult to ascertain which entity has jurisdiction for which function when there is so much in regulatory overlap among departments and agencies that conduct investigations or inspections at residential child-care operations.
Response: HHSC appreciates the general feedback from the commenter, but HHSC disagrees that it did not provide enough background information in the rule proposal preamble or on the HHSC website. In August 2023, HHSC emailed to residential providers and posted online a communication that included a summary of H.B. 4696, the specific operation types the bill applies to, and what rule changes that HHSC would later propose. In the July 19, 2024, issue of the Texas Register, HHSC included the following information in the rule proposal preamble: (1) the specific statutes that H.B. 4696 amended; (2) the bill's purpose in amending those statutes; (3) what rule amendments CCR is generally proposing to implement the bill; and (4) a section-by-section summary of each proposed rule amendment. Additionally, HHSC emailed providers a link to that Texas Register issue and posted a news story on the CCR website with that link. HHSC will continue to make every effort to clearly communicate rule proposals to stakeholders and the public.
Minor editorial changes were made to §745.8411 to eliminate the use of first-person ("I," "me," "we," or "us") and second-person ("you," "your," or "yours") pronouns and possessive determinators, and to correct one capitalization error.
STATUTORY AUTHORITY
The amendments are 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 §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out the duties of HHSC under Texas Government Code Chapter 531. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
§745.8411.What are an operation's responsibilities when an authorized representative inspects or investigates the operation?
(a) An operation must ensure that no one at the operation interferes with an inspection or investigation by Child Care Regulation (CCR), another department of the Texas Health and Human Services Commission (HHSC), or the Department of Family and Protective Services (DFPS).
(b) For an inspection or investigation described in subsection (a), the operation must ensure that the operation:
(1) Admits authorized representatives involved in conducting the inspection or investigation;
(2) Provides access to all areas of the operation;
(3) Provides access to all records; and
(4) Does not delay or prevent authorized representatives from conducting an inspection or investigation.
(c) If anyone at the operation refuses to admit, refuses access, or prevents or delays an authorized representative of CCR, another department of HHSC, or DFPS from visiting, inspecting, or investigating the operation, any or all of the following may occur:
(1) CCR may issue the operation a deficiency;
(2) CCR may recommend an enforcement action as specified in Subchapter L of this chapter (relating to Enforcement Actions); or
(3) CCR, DFPS, or HHSC may seek a court order granting access to the operation and records maintained by the operation.
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 November 7, 2024.
TRD-202405408
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: December 22, 2024
Proposal publication date: July 19, 2024
For further information, please call: (512) 438-3269
SUBCHAPTER D. REPORTS AND RECORD KEEPING
DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §748.303, concerning When must a general residential operation (GRO) report and document a serious incident.
The amendment to §748.303 is adopted with changes to the proposed text as published in the July 19, 2024, issue of the Texas Register (49 TexReg 5317). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The amendment is necessary to implement House Bill (H.B.) 4696, 88th Legislature, Regular Session, 2023. H.B. 4696 placed the responsibility for investigating an allegation of abuse, neglect, and exploitation of an elderly person or adult with a disability who resides in a residential child-care facility in Texas Human Resources Code (HRC) §48.251(a)(3) and §48.252(b) and (c), which correspond with the investigatory authority of HHSC Long-Term Care Regulation Provider Investigations. Accordingly, because HHSC Child Care Regulation (CCR) also conducts investigations at residential child-care facilities, CCR is adopting an amended rule to clarify that a report must be made to HHSC through the Texas Abuse and Neglect Hotline if there is reason to believe an adult resident has been abused, neglected, or exploited.
COMMENTS
The 31-day comment period ended August 19, 2024. During this period, HHSC received one comment from one commenter representing the Texas Alliance of Child and Family Services. A summary of the comment relating to the rule and the response from HHSC follows.
Comment: The commenter did not have feedback on the text of the rule but suggested that HHSC provide more background information in the rule's preamble and on state agency websites regarding the underlying and complex statutory changes that occur over time. The commenter indicated it can be difficult to ascertain which entity has jurisdiction for which function when there is so much in regulatory overlap among departments and agencies that conduct investigations or inspections at residential child-care operations.
Response: HHSC appreciates the general feedback from the commenter, but HHSC disagrees that it did not provide enough background information in the rule proposal preamble or on the HHSC website. In August 2023, HHSC emailed to residential providers and posted online a communication that included a summary of H.B. 4696, the specific operation types the bill applies to, and what rule changes that HHSC would later propose. In the July 19, 2024, issue of the Texas Register, HHSC included the following information in the rule proposal preamble: (1) the specific statutes that H.B. 4696 amended; (2) the bill's purpose in amending those statutes; (3) what rule amendment CCR is generally proposing to implement the bill; and (4) a detailed summary of the proposed rule amendment. Additionally, HHSC emailed providers a link to that Texas Register issue and posted a news story on the CCR website with that link. HHSC will continue to make every effort to clearly communicate rule proposals to stakeholders and the public.
Minor editorial changes were made to §748.303 to eliminate the use of most first-person ("I," "me," "we," or "us") and second-person ("you," "your," or "yours") pronouns and possessive determinators, including non-substantive changes to make the resulting wording consistent, and change "Licensing" to "Child Care Regulation."
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 §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out the duties of HHSC under Texas Government Code Chapter 531. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
§748.303.When must a general residential operation (GRO) report and document a serious incident?
(a) A GRO must report and document the following types of serious incidents involving a child in its 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) (.pdf)
(b) If there is a medically pertinent incident that does not rise to the level of a serious incident, a GRO does not have to report the incident but the GRO 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 child returns before the required reporting timeframe outlined in (a)(8) - (10) in Figure: 26 TAC §748.303(a), the GRO is not required to report the absence as a serious incident. Instead, the GRO must document within 24 hours after becoming 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, the GRO must document the incident in the same manner as a serious incident. The GRO must also 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) Law enforcement, if there is a fatality; and
(3) The parent, if the adult resident is not capable of making decisions about the resident's own care.
(e) A GRO must report and document the following types of serious incidents involving the GRO, 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) (.pdf)
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 November 7, 2024.
TRD-202405409
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: December 22, 2024
Proposal publication date: July 19, 2024
For further information, please call: (512) 438-3269
SUBCHAPTER D. REPORTS AND RECORD KEEPING
DIVISION 1. REPORTING SERIOUS INCIDENTS AND OTHER OCCURRENCES
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §749.503, concerning When must a child-placing agency (CPA) report and document a serious incident.
The amendment to §749.503 is adopted with changes to the proposed text as published in the July 19, 2024, issue of the Texas Register (49 TexReg 5318). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The amendment is necessary to implement House Bill (H.B.) 4696, 88th Legislature, Regular Session, 2023. H.B. 4696 placed the responsibility for investigating an allegation of abuse, neglect, and exploitation of an elderly person or adult with a disability who resides in a residential child-care facility in Texas Human Resources Code (HRC) §48.251(a)(3) and §48.252(b) and (c), which correspond with the investigatory authority of HHSC Long-Term Care Regulation Provider Investigations. Accordingly, because HHSC Child Care Regulation (CCR) also conducts investigations at residential child-care facilities, CCR is adopting an amended rule to clarify that a report must be made to HHSC through the Texas Abuse and Neglect Hotline if there is reason to believe an adult resident has been abused, neglected, or exploited.
COMMENTS
The 31-day comment period ended August 19, 2024. During this period, HHSC received one comment from one commenter representing the Texas Alliance of Child and Family Services. A summary of the comment relating to the rule and the response from HHSC follows.
Comment: The commenter did not have feedback on the text of the rule but suggested that HHSC provide more background information in the rule's preamble and on state agency websites regarding the underlying and complex statutory changes that occur over time. The commenter indicated it can be difficult to ascertain which entity has jurisdiction for which function when there is so much in regulatory overlap among departments and agencies that conduct investigations or inspections at residential child-care operations.
Response: HHSC appreciates the general feedback from the commenter, but HHSC disagrees that it did not provide enough background information was included in the rule proposal preamble or on the HHSC website. In August 2023, HHSC emailed to residential child-care providers and posted online a communication that included a summary of H.B. 4696, the specific operation types the bill applies to, and what rule changes that HHSC would later propose. In the July 19, 2024, issue of the Texas Register, HHSC included the following information in the rule proposal's preamble: (1) the specific statutes that H.B. 4696 amended; (2) the bill's purpose in amending those statutes; (3) what rule amendment CCR is generally proposing to implement the bill; and (4) a detailed summary of the proposed rule amendment. Additionally, HHSC emailed providers a link to that Texas Register issue and posted a news story on the CCR website with that link. HHSC will continue to make every effort to clearly communicate rule proposals to stakeholders and the public.
Minor editorial changes were made to §749.503 to eliminate the use of most first-person ("I," "me," "we," or "us") and second-person ("you," "your," or "yours") pronouns and possessive determinators, including non-substantive changes to make the resulting wording consistent, and change "Licensing" to "Child Care Regulation."
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 §531.033, which requires the Executive Commissioner to adopt rules necessary to carry out the duties of HHSC under Texas Government Code Chapter 531. In addition, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
§749.503.When must a child-placing agency (CPA) report and document a serious incident?
(a) A CPA must report and document the following types of serious incidents involving a child in the CPA's care. The reports must be made to the following entities, and the reporting and documenting must be within the specified timeframes:
Figure: 26 TAC §749.503(a) (.pdf)
(b) If there is a medically pertinent incident that does not rise to the level of a serious incident, a CPA does not have to report the incident but the CPA 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), the CPA is not required to report the absence as a serious incident. Instead, the CPA must document within 24 hours after the CPA becomes aware of the unauthorized absence in the same manner as for a serious incident, as described in §749.511 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, the CPA must document the incident in the same manner as a serious incident. The CPA must also report the incident to:
(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) Law enforcement, if there is a fatality; and
(3) The parent, if the adult resident is not capable of making decisions about the resident's own care.
(e) A CPA must report and document the following types of serious incidents involving the CPA, one of its 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) (.pdf)
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 November 7, 2024.
TRD-202405410
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: December 22, 2024
Proposal publication date: July 19, 2024
For further information, please call: (512) 438-3269