Response: DFPS disagrees with the commenter and adopts this rule without change. Most, if not all, professions are allowing web-based training and not mandating in-person training. The commenter pointed out that this change was only made with regard to first-aid and not CPR, because CPR training does require face-to-face instructional training. A 50% to 80% increase was made to the self-instructional training standards for child-care homes in 2012 with no noticeable increase in complaints or quality of training. Ultimately though, it is the center's responsibility to assess the quality of the training curriculum provided to staff, including first-aid training.

Comment concerning §746.1317, relating to training criteria: The commenter recommended deleting the option that allows training to be provided by someone with a "generally recognized credential . . . or documented knowledge relevant to the training." The commenter stated this option allows for loopholes in the training requirements.

Response: DFPS disagrees with the commenter but adopts this rule with changes. This training option cannot be deleted because it is mandated by HRC §42.0421(f). However, DFPS is adopting this rule with changes to delete a masculine pronoun and to remove language that self-instructional training may not be used for CPR, because it is redundant and can already be found in §746.1315. This change will also make this rule consistent with corresponding rules in Chapters 744 and 747.

No comments concerning §746.1323, relating to a caregiver or director obtaining training from another operation. However, DFPS is adopting this rule with changes to reorganize the rule and clarify the wording of the rule to improve readability and ease of understanding without impacting the content of the rule.

Comments concerning §746.2205, relating to an activity plan: Two commenters recommended changes to this rule to clarify that: (1) media viewing is not permitted during meal or snack time; (2) a TV/video or computer should not be used for more than 30 minutes once a week and only for educational purposes; and (3) outdoor activities should be provided two or three times a week, should include structured and unstructured play, should include vigorous activity, and centers should have written policies to promote physical activity. Another commenter also supports encouraging outdoor play to reduce child obesity.

Response: DFPS disagrees with the commenters and adopts this rule without change. (1) §746.2207 already states that media viewing cannot be used as an activity unless it is related to the planned activity. This rule would not allow children just to watch television or a movie while eating. (2) Section 746.2205 is not appropriate to make the change related to the length of time that a TV/video or computer may be used, because §746.2207 (which is not proposed for change) already addresses the issue at two hours per day. For such a major change (from two hours a day to 30 minutes a week), it would not be prudent to make the change to the rule without first proposing the change to allow centers and parents an opportunity to comment. Even so, DFPS will need to conduct additional research regarding this issue before such a proposed change would be contemplated. There are currently some proponents for more frequent computer usage for educational purposes and in response to teacher directed use. (3) Sections 746.2507, 746.2607, and 746.2707 currently address the commenter's activity issues for children with the exception of a policy requirement, which is not necessary in light of these rules.

No comments concerning §746.2415, relating to equipment that is prohibited for infants. However, DFPS is adopting this rule with changes, which are in response to comments related to corresponding rules in Chapters 748 and 749. The changes clarify that cribs must be bare except for a tight fitting sheet and a crib mattress cover that is designed for the crib, is tight fitting and thin, and is not designed to make the sleep surface softer. These changes also make the rule consistent with corresponding rules in Chapters 744, 747, 748, and 749.

Comment concerning §746.2421, relating to an infant's written feeding instructions: To be consistent with other rule changes in this chapter, the commenter recommended that any "health-care professional", not just a "physician", be allowed to provide written feeding instructions for infants.

Response: DFPS agrees with the commenter and adopts this rule with the appropriate change.

No comments concerning §§746.2426, 746.2427, and 746.2428, relating to infants sleeping in restrictive devices, sleeping on their backs, and swaddling, respectively. However, DFPS is adopting these three rules with changes to allow an exception in all of these instances if there is a completed Sleep Exception Form with a signed statement from a health-care professional stating that the exception is medically necessary.

No comments concerning §746.2803, relating to methods of discipline and guidance that may be used. However, DFPS is adopting this rule with changes to correct a grammatical error and to clarify the wording of the rule to improve readability and ease of understanding.

Comments concerning §§746.3305, 746.3315, and 746.3316, relating to nutrition: Two commenters recommended that the nutrition rules should also address children younger than 12 months of age, should align with the Child and Adult Care Food Program (CACFP), and at a minimum should specify nine requirements that were listed by the commenter. One additional commenter supports revising standards to reflect the nutrition requirements of the state obesity prevention program.

Response: These rules were not proposed for public comment; therefore, these comments are outside the scope of the proposed rulemaking. However, DFPS does plan on working with the Department of State Health Services (DSHS), advocates, parents, and providers to determine whether the current rules regarding nutrition need to be updated.

Comments concerning §746.3309, relating to parents providing meals and snacks: Two commenters recommended a change to this rule for those centers that ask parents to supply a child's lunches and/or snacks. The commenters stated that given the importance of nutrition in a child's first few years and the absence of other channels for effectively communicating with parents, the state should leverage the child care provider's relationship with parents to require the centers to give information to parents regarding the nutritional value of food, sample menus, food allergies, and choking hazards.

Response: DFPS agrees in part and disagrees in part with the commenters and adopts this rule with changes. DFPS agrees that nutrition for young children is important and currently has information in the Technical Assistance Library on the DFPS website regarding age-appropriate nutrition, food allergies, and choking hazards (but not sample menus). DFPS currently encourages providers to communicate with parents about nutrition, food allergies, and choking hazards. However, in some instances parents may already be getting this information through other programs (for example, parents currently receiving benefits through the CACFP or Women, Infants, and Children (WIC)). DFPS does not believe a mandatory rule is necessary at this time. In any event, it would not be prudent to make this change to the rule without first proposing the change to allow centers and parents an opportunity to comment on the change. DFPS will add information to the current Helpful Information box immediately following the rule that is located on the DFPS public website version of the minimum standards to further encourage communication with the parents regarding nutrition, food allergies, and choking hazards. In addressing a separate issue from the comment, DFPS is making the wording of this rule consistent with its corresponding rule in Chapter 747 by adding language to clarify that a parent may provide baked goods for a celebration party at the center, and clarifying the wording of the rule to improve readability and ease of understanding.

Comment concerning §746.3407(13), relating to a healthy environment for children: One commenter really appreciated the addition that requires centers to use, store, and dispose of hazardous materials "as recommended by the manufacturer".

Response: This rule was not proposed for public comment; therefore, this comment is outside the scope of the proposed rulemaking. Note: DFPS appreciates the comment even though the changes were proposed for public comment earlier in the year and became effective on September 1, 2016.

No comments concerning §746.3415, relating to when employees must wash their hands. However, DFPS is adopting this rule with changes to correct a grammatical error.

Comment concerning §746.3420, relating to the use of hand sanitizer: The commenter disagrees with allowing the use of hand sanitizer, except in the case of a field trip where water and soap are not available. Her experience is that hand sanitizer dries out sensitive skin and does not provide the same cleanliness as soap and water. She would like to see medical research that shows it is appropriate for young children.

Response: DFPS disagrees with the commenter but adopts this rule with changes. This new rule, which allows hand sanitizers under certain conditions, is consistent with the recommendations of the American Association of Pediatrics and the national standards of Caring for Our Children, which represent the best evidence, expertise, and experience in the country on quality health and safety practices and policies in early childhood care. However, DFPS is clarifying that hand sanitizers may only be used when all of the conditions in the rule are met, and is reorganizing the order of the conditions to improve the understanding of the rule. DFPS is also adding a Helpful Information box immediately following the rule that is located on the DFPS public website version of the minimum standards that states hand sanitizers should be used in moderation and should not be substituted for all hand washing.

Comment concerning §746.3501, relating to the steps for diaper changing: The commenter disagrees with allowing powder with or without the parent's permission and believes powder should not be allowed because of the recent findings connecting talcum powder to cancer.

Response: DFPS agrees with the commenter; however, DFPS is making limited changes to the rule. The proposed change inadvertently allowed the use of powder when changing a diaper with or without the parent's permission. It would not be prudent to completely disallow the use of powders without first proposing a rule change to allow centers and parents an opportunity to comment on such a change. DFPS is reverting to the original premise of only allowing powder with the parent's permission, with some clarification changes to improve readability. DFPS is also making some clarification changes to paragraphs (2) and (3) to improve readability and to be consistent with similar changes made in its corresponding rule in Chapter 747.

Comment concerning §746.3503, relating to equipment for diaper changing: For diaper changing surfaces above the floor, the commenter disagrees that a caregiver should have an option to only be facing the child instead of using safety mechanisms or keeping a hand on the child. The new standard does not specify how far away the caregiver can be from the child and puts the safety of children at risk.

Response: DFPS agrees with the commenter and has clarified the wording of the rule to make it clear that if the caregiver is using the option of facing the child when changing a diaper on a surface above the floor, then the caregiver must also be within an arm's length of the child at all times.

No comments concerning §746.3606, relating to when an ill child may return to care. However, DFPS is adopting this rule with changes to clarify the wording of the rule without changing the content to improve readability and ease of understanding, and to make it consistent with its corresponding rules in Chapters 744 and 747.

Comment concerning §746.3607, relating to how a caregiver should respond to an illness or injury that requires the immediate attention of a health-care professional: To be consistent with other changes made to the rules, when there is an illness or injury that requires the immediate attention of a health-care professional, the commenter recommended also contacting the physician "or health-care professional" identified in the child's record, because it may not be a physician.

Response: DFPS agrees with the commenter and adopts this rule with the appropriate change. In addition, DFPS is also deleting the word "critical" and adding language to make the question of the rule consistent with the answer, which applies to caregivers responding to an illness or injury "that requires the immediate attention of a health-care professional".

No comments concerning §746.3703, relating to ensuring the safety of children. However, DFPS is adopting this rule with changes to make it clear that prohibited tobacco products include smoking tobacco, e-cigarettes, and vaporizers. Oil diffusers would be allowable. This change is in response to a comment on a corresponding rule in Chapter 747.

No comments concerning §746.3707, relating to firearms allowed at the center. However, DFPS is adopting this rule with changes to clarify that while firearms and other weapons are prohibited on the premises of a center, the prohibition does not apply to personal vehicles. This clarification is needed because a new definition of "premises" was added to §746.123.

No comments concerning §746.3709, relating to toys that explode or shoot. However, DFPS is adopting this rule with changes to clarify the wording of the rule without changing the content to improve readability and ease of understanding, and to make it consistent with its corresponding rules in Chapters 744 and 747.

No comments concerning §746.3801, relating to medication. However, DFPS is adopting this rule with changes to delete a phrase that was added in the proposed amendment regarding the parent providing non-prescription medication, which was confusing and inadvertently altered the meaning of the rule.

No comments concerning §746.4609, relating to the maximum height allowed for the highest designated play surface if a center was licensed before 2010. However, DFPS is adopting this rule with changes to clarify that the grandfather date is September 1, 2010 (not December 1, 2010), when changes are made to the equipment the height requirements in §746.4607 must be met, and the wording of the question and answer to improve readability and ease of understanding.

No comments concerning §746.5305, relating to the mounting of fire extinguishers. However, DFPS is adopting this rule with changes to correct the grammar, so the answer and the question will be consistent.

No comments concerning §746.5621, relating to the communication requirements for a vehicle when transporting children. However, DFPS is adopting this rule with changes to reorganize the rule and clarify the wording of the rule to improve readability and ease of understanding.

There were also some general comments that were made:

Comment: The commenter wanted better training, but was not specific about the recommendation.

Response: No specific rule on training was proposed for public comment; therefore, this comment is outside the scope of the proposed rulemaking. Note: effective September 1, 2016 DFPS made numerous changes to the training requirements for centers in response to the federal reauthorization of the CCDBG.

Comment concerning vaccine-preventable diseases for employees: The commenter is concerned that the immunization requirements for caregivers are set as part of the facility's operational policies, and not all facilities have strong policies in place. The commenter encourages DFPS to establish tools to help facilities develop more effective policies and make a facility's policies more available to the public to help parents make informed decisions about selecting a center.

Response: The relevant rule for vaccine-preventable diseases is §746.3611, which was not proposed for public comment. Therefore, this comment is outside the scope of the proposed rulemaking. Note: HRC §42.04305 was passed in 2013, the 83rd Legislative Session, and established the type of policies a facility must have in relation to employees and vaccine-preventable diseases. Any changes to required policies would need to be consistent with the statute. DFPS will look at developing further tools for facilities and look at the possibility of encouraging on-line publication of policies within fiscal restraints.

Comments concerning Early Childhood Intervention (ECI): The commenter made three recommendations relating to ECI: (1) Add a standard that requires caregivers that suspect a child has a developmental delay or disability to make a referral to ECI, which the commenter stated is required by I.D.E.A.; (2) Allow ECI providers to serve children in the classroom versus removing them to an isolated room for services, unless special circumstances exist; and (3) Allow the current ECI criminal background checks to suffice for the CCL background check requirements.

Response: No rules regarding ECI or criminal background checks were proposed for public comment; therefore, the comments are outside of the scope of the proposed rulemaking. However, in response to each comment: (1) DFPS will meet with ECI and Legal staff to determine if additional rules and/or direction for centers are needed related to referrals to ECI; (2) the current language of §746.2201 already states that when appropriate ECI providers should be serving children in the child's current environment, which in most instances would mean the classroom. There are no rules that prevent a child from receiving ECI services in the classroom; (3) if a center does not employ or contract with a professional, the professional is only present in an official capacity, and parental consent is obtained before the professional has unsupervised access with the child, current §745.615(d) already excludes the necessity of a CCL background check for a professional who is licensed or required to have a background check to be compliant with another governmental entity's requirements. It appears that ECI would meet the requirements of this exclusion rule and would not require a CCL background check.

Comments concerning ratios: There were 67 commenters that recommended the ratios for children be lowered, expressed concern about DFPS stopping the statewide collection of data for a statewide study, and/or recommended that the study be resumed. Two commenters recommended that the ratios remain the same.

Response: No rules regarding ratios were proposed for public comment; therefore, the comments are outside 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.