Comment concerning §749.1003(b)(1)(C): The commenter stated that the laundry list of discrimination grounds should not be deleted. Rather, all of the discrimination grounds, including sexual orientation and gender identity, should be listed to clearly outline what is prohibited.

Response: DFPS recommends that the subparagraph of this rule be adopted without changes. DFPS is committed to making sure there is no discrimination, but a laundry list is complicated, confusing, and not all encompassing. What is important is that a child be treated fairly in all situations.

Comment concerning §749.1003(b)(3)(C): The commenter stated the language of this rule ("The right to have the child's religious needs met. The child has the right to choose a church or not to practice a religion.") was troublesome and would be problematic for faith-based organizations. Many residential care agencies are faith-based. These policies and contract mandates restrict operations and compound the problems of the Texas foster care system.

Response: DFPS recommends that the subparagraph of this rule be adopted with changes. The last sentence in question will be deleted and the right will say "the right to have the child's religious needs met", which is the language that is in the current rule that is being replaced and has been in existence since 2007. This change meets the intent to protect the child's right to practice a religion consistent with the child's belief system without unnecessary and prescriptive language in the rule.

Comment concerning §749.1007: The commenter stated that a child's right to contact the Foster Care Ombudsman should be added to this rule regarding educational rights.

Response: DFPS recommends that this rule be adopted without changes. The right to contact the HHSC Ombudsman for Children and Youth in Foster Care is currently included in new 749.1003(b)(7).

Comment concerning §749.1011(c): The commenter stated that the re-evaluation of restrictions on contact with siblings should occur every 30 days, because contact with siblings is essential to a child's well-being as long as it is not contrary to their safety.

Response: DFPS recommends that this rule be adopted without changes. The current rule reduces the time frame for the re-evaluation of restrictions on a child's contact with siblings from 90 days to 60 days. A further reduction is not recommended at this time. In addition, if a further reduction in time for the re-evaluation of restrictions on a child's contact with siblings were to be recommended, it would be prudent to propose the change in the future to put child-placing agencies and advocates on notice and to allow child-placing agencies and advocates an opportunity to comment on such a change to the rule.

Comment concerning §749.1013: The commenter stated that the CPA should also document the child's reaction to the news that the child is being discharged or transferred from a placement.

Response: DFPS recommends that this rule be adopted without changes. DFPS is not opposed to this recommendation and plans on obtaining additional information regarding this change. However, DFPS does not recommend this change at this time, because the recommendation (if it is to be made) may have a cost implication and it would be prudent to propose the change to put child-placing agencies and advocates on notice and to allow child-placing agencies and advocates an opportunity to comment on such change to the rule.

No comments concerning §749.1115. However, DFPS recommends a change to clarify the language of the rule.

No comments concerning §749.1133. However, DFPS recommends a change to delete the requirement for a rationale for the appropriateness of the admission, because this would be clarified in the requirement on how the needs of the child can be met.

No comments concerning §749.1153. However, DFPS recommends a change to clarify that a child younger than three years old must have a dental examination if it is recommended by any health-care professional (not just a physician), and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1187. However, DFPS recommends a change to clarify the language of the rule, including clarifying that assessments must also be signed, dated, and documented in the child's record, and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1313. However, DFPS recommends a change to simplify and clarify that a child's parents and foster parents must have at least two weeks advance notice of the initial service plan and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1321. However, DFPS recommends a change to clarify that a child 14 and over must receive a copy or summary of the child's initial service plan unless there is a justification not to provide the plan, the child must review and sign the plan, and the agency must document a child's refusal to sign the plan or if a child disagrees with the plan; and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1409. However, DFPS recommends a change to clarify the language of the rule and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1423. However, DFPS recommends a change to correct a cite in the rule.

No comments concerning §749.1425. However, DFPS recommends reorganizing this proposed rule regarding the documentation requirements for immunization records. The changes, which are partially in response to a comment related to a sister rule in Chapter 748, delete the address requirement for health-care professionals, add a requirement for clinic contract information when the immunization record is generated from an electronic health record system, simplify and clarify the language of the rule, and make this rule consistent with its sister rules in Chapters 744, 746, and 748.

Comment concerning §749.1469(a)(2): The commenter discussed this rule, which requires the CPA to inform a child's physician of the administration and dosage of non-prescription medication and supplements to ensure there is not a contraindication with prescribed medication or the condition of the child. The commenter recommends broadening the term "physician" to "prescribing health-care professional", which would include an advanced practice registered nurse or physician's assistant that prescribes medication. The change would allow the relevant health-care professional to be informed of the administration and dosage of non-prescription medication and supplements and provide the most up to date information on the child.

Response: DFPS agrees with the commenter and recommends that this rule be adopted with the noted changes.

Comments concerning §749.1583(b)(2) and (3): The commenter recommended substituting "physician" and "prescribing physician" with "prescribing health-care professional" to allow other health-care professionals than can prescribe medication (for example, an advanced practice registered nurse or physician's assistant) to be notified of a child's side effects.

Response: DFPS agrees with the commenter and recommends that this rule be adopted with the noted changes.

Comment concerning §749.1813(b) and (c), formerly proposed as §749.1813(a)(6): As proposed, the rule added language to an existing rule enumerating types of products not allowed in a crib for an infant younger than 12 months of age. Of particular relevance to this rule, DFPS proposed adding a clarification that crib bumpers, which were not allowed under prior rule and interpretation, included "mesh bumpers." The commenter stated that there is a difference between bumper pads/mesh bumpers and mesh liners. The commenter disputed CCL's rationale for the changes that liners pose risks to children in care. According to the commenter, mesh liners prevent an infant's limbs from being entrapped between the crib slats. In addition, the mesh liners are much more permeable (from 14 to 46 times more permeable) than bumper pads and are not a risk for suffocation. The commenter provided studies they paid for to support both of these points, which conclude that for 13 plus years there have been no known injuries or deaths as a result of the mesh liners. The commenter expressed concern that there was no definition for bumper pads. One solution suggested was to ban bumper pads (including mesh bumpers) that incorporate any padding or other materials that are more than 12mm in thickness. The commenter indicated that were DFPS to adopt a ban on all types of bumpers and liners, the agency would be out of step with current research and pending action on the part of the Consumer Products Safety Commission (CPSC).

In addition, the commenter voiced concerns regarding whether DFPS complied with the Administrative Procedures Act in the proposal of the rule. Specifically, the commenter complained that product manufacturers were not specifically included in the preparatory outreach DFPS conducted prior to the rule's proposal in the Texas Register. The commenter next took issue with the fact that the rule proposal had an incorrect cite regarding the statutory authority under which the rules were proposed, which the commenter indicated delayed their assessment of the impact of the rule. Finally, the commenter also expressed that fiscal implications to manufacturers should have been calculated as a part of DFPS' fiscal impact analysis.

Response: DFPS recommends that the rule be adopted with changes. The DFPS rationale for the rule change is based on existing research that states that the safest course for a sleeping infant is a bare crib. However, DFPS agrees that the language could be clarified. First, DFPS determined it would be of maximum clarity to the public to reiterate the agency's stance, which mirrors that of the American Academy of Pediatrics (AAP) and the agency's own safe sleep campaigns that to be as safe as possible, the crib must be bare of anything other than a tight fitting sheet. Second, DFPS is clarifying, as the AAP has noted, that a crib mattress cover used to protect against wetness is also allowable if the cover is designed specifically for the crib or crib mattress, tight fitting, thin, and not designed to make the sleep surface softer. Lastly, rather than specifically enumerating any particular product, DFPS has concluded that it would be of maximum aid to the public's understanding to simply restate the basic principle that only a tight fitting sheet, or mattress cover if appropriately used, are allowed in a crib for an infant under 12 months.

DFPS carefully reviewed the information provided by the commenter, along with other available information regarding safe sleep; arranged a meeting with the commenter and high level agency staff; and have continued dialogue regarding the rule on an ongoing basis. However, DFPS continues to view the safest mode of sleep for an infant is a crib with nothing other than a bare sheet, which has been the agency's historical interpretation of this rule without the clarification DFPS proposed. While CPSC may propose safety standards for alternatives to crib bumpers in the future, and while it is true that some states have carved mesh liners from their prohibitions, DFPS is committed to reviewing and applying existing research with an eye to maximum child protection. A close reading of the most recent CPSC information provided by the commenter indicates that while the concern of suffocation with bumper pads may not be as great with alternatives to bumper pads (mesh liners and vertical bumpers), there is still a lingering concern regarding alternatives to bumper pads being a strangulation hazard.

DFPS has concluded that the current CPSC review supports a ban of all bumpers and alternatives. Should the CPSC revisit their conclusions, CCL remains open to revisiting the corresponding regulations. However, in addition to the CPSC review, the American Academy of Pediatrics updated their guidelines regarding safe sleep as recently as October 24, 2016 and continues to recommend that for the maximum safety of infants, cribs be bare. While not specifically differentiating between cloth bumpers and mesh liners or other alternatives, the AAP's recommendations for the crib do not suggest that anything beyond a tight fitting sheet and possibly a tight fitting thin mattress cover if needed to protect the mattress against wetness. See http://pediatrics.aappublications.org/content/early/2016/10/25/peds.2016-2938.

Furthermore, in proposing this rule DFPS complied with the requirements of the Administrative Procedures Act. While product manufacturers were not specifically sought out for input prior to the rule's publication in the Texas Register, the requirements of the APA are that the public be put on notice of the rule in the proposal, not beforehand. Moreover, DFPS conducted a web-based survey from August - December 2014, held 13 stakeholder forums from September - November 2015, and met with two temporary workgroups in December 2015 and February 2016. In addition, while it would have been preferable for DFPS to list the correct statutory citation for rulemaking authority in the preamble as proposed, that requirement goes to whether DFPS had the statutory authority to take the action that it did, which is not in dispute. In addition, DFPS complied with the Act's directive to include in the preamble an explanation of the rule as well as the contents of the rule. Tex. Gov't Code § 2001.024(a)(1) and (2). Public notice is effectuated through those requirements and not the listing of statutory authority, as evidenced by the fact that the commenter determined the subject matter of the rule and submitted comments within the public comment period. Finally, the APA requires DFPS to consider the economic impact of the rule on those required to comply with the rule. Tex. Gov't Code §2001.024(a)(5). In any event, DFPS was not modifying its interpretation but clarifying existing practice. Nor is DFPS affecting the manufacture or sale of mesh liners in the marketplace generally. DFPS is regulating the use of mesh liners only within the small subset of Texas child-placing agencies and foster homes subject to its regulatory authority.

No comments concerning §749.1819. However, DFPS recommends a change to clarify the language of the rule and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.1957. However, DFPS recommends withdrawing the amendment in response to a comment to a sister rule in Chapter 748 where the commenter stated that "screaming" at a child will be at times too open for interpretation, especially in crisis situations and when a firm voice tone is needed.

No comments concerning §749.1959. However, DFPS recommends a change to delete "schools and chores" as activities that cannot be restricted because "schools and chores" are confusing. School cannot be restricted because a child has to attend as a matter of law, and chores are not a restriction but instead something assigned to a child to do; and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.2305. However, DFPS recommends a change to clarify that the names of any persons who provided medical assistance or treatment must be documented, not just medical providers, and to make this rule consistent with its sister rule in Chapter 748.

Comment concerning §749.2445(d): The commenter stated that all criminal history, not just the history of family violence, needs to be reported to Licensing so they can make a complete assessment of the home.

Response: DFPS recommends that this rule be adopted without changes. CPAs are currently required in §749.2447(7) to gather all criminal history information on a foster family applicant and include all of the information in the foster home screening. Only the family violence portion of that information is required to be reported to Licensing, which is a particular requirement of HRC §42.0561. The CPA determines whether to verify a foster home, and Licensing monitors the verification of the foster home, which includes a review of the criminal history in the foster home screening. Additional reporting of that information directly to Licensing is over burdensome and not necessary.

No comments concerning §749.3137. However, DFPS recommends a change to clarify that subsection (b) is only applicable when all of the children in the group are fours year of age and older and to clarify in that situation at least two adults must supervise four children who are actually in the water.

Comments concerning rules that were not proposed for change: One commenter commented on three rules, the comments stated: (1) for §749.1009(d), restrictions on contact between a child and others that continue for more than 10 days should be re-evaluated every 10 days, instead of every month; (2) for §749.1013(d), restrictions on contact between a child and the parents that continue for more than 15 days should be re-evaluated every 15 days, instead of every month; and (3) for §749.1611, this rule regarding a health-care professional's requirements when prescribing psychotropic medication, needs to reflect the current requirements of HB 915 (83-R).

Response: These three comments concern rules that are not proposed for public comment; therefore, these comments are outside of the scope of the proposed rulemaking. However, for §749.1611, DFPS is reviewing this rule to determine if it needs to be updated, or if it can be repealed since the Texas Medical Board licenses physicians and physician's assistants.

Comments concerning chapters that were not proposed for change: one commenter stated that there needs to be a provision prohibiting discrimination against race, ethnicity, etc., and gender identity and sexual orientation needs to be added to the list in Chapters 743, 747, 748, and 750; and in Chapter 748 the discrimination laundry list under the rights of the child needs to be specific.

Response: These comments concern rules that are not proposed for public comment; therefore these comments are outside of the scope of the proposed rulemaking.

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services.

The amendments implement HRC §42.042.