Comment concerning §748.1757(b) and (c) [proposed as §748.1757(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 specifically designed for the crib and 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 general residential operations subject to its regulatory authority.

Comment concerning §748.2009(a)(2): The commenter discussed this rule, which requires the GRO 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 adopts this rule with changes. The language of "prescribing health-care professional" has been incorporated into the rule.

Comment concerning §748.2053: The commenter states the rule says "child", but wants further clarification on whether this standard regarding medication dosage for a self-medication program applies to residents who are 18 years and older.

Response: DFPS adopts this rule without changes. In response to the commenter's question, the rule only applies to children. All of the minimum standards are only monitored for and only apply to children in care and do not apply to adults in care, with very rare exceptions. For example, Subchapter G regarding Child/Caregiver Ratios specifically states that the ratios apply to adult residents.

No comments concerning §748.2233(b)(2). However, DFPS adopts this rule with changes to clarify that when reporting serious side effects to the health-care professional, the reporting should be to a "prescribing" health-care professional.

Comment concerning §748.2307(8): The commenter is concerned that "screaming" at a child will be at times too open to interpretation, especially in crisis situations and when a firm voice tone is needed.

Response: DFPS agrees with the commenter, and is withdrawing the amendment.

No comments concerning §748.2309(b). However, DFPS adopts this rule with changes to correct a typographical error.

Comment concerning §748.3365: The commenter would like temporary exceptions not in the child's bedroom to allow a mattress to be on the floor when additional support/supervision of the child is needed, especially when a child is a danger to self or others.

Response: DFPS agrees with the commenter, and adopts this rule with changes. DFPS agrees that in certain situations a child will need additional supervision, which may entail a child sleeping in other areas when the child is sick or needs additional supervision. The rule has been changed to clarify that a bed in the child's bedroom must elevate the mattress off the floor, and other wording has been changed to clarify that the linen requirements apply in all situations.

Comment concerning §748.3603(m): The commenter wanted clarification on the intent of the standard, assuming it means to protect children from entering the pool area versus exiting the pool area. Please clarify that furniture inside the fencing is not subject to this rule.

Response: DFPS agrees with the commenter, and adopts this rule with changes. DFPS clarified the rule to state that it is only applies to areas outside of the fence around the pool to keep a child from entering the pool area.

No comments concerning §748.3757. However, DFPS recommends a change to clarify that subsection (b) is only applicable when all of the children in the group are four years of age and older and to clarify in that situation at least two adults must supervise four or more children who are actually in the water.

The amendment is 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 amendment implements HRC §42.042.