Comment: Regarding §748.303, one commenter recommended reverting back to the language originally used in §748.303(d)(2), that is "the parents," instead of the proposed language since "legally authorized representative" is now captured by the proposed definition of "parent" in §748.43.

Response: HHSC agrees with the commenter and will use "parent" in §748.303(d)(2) since the proposed definition of "parent" now captures "legally authorized representative."

Comment: Regarding §748.303, one commenter expressed concern regarding the report of "an allegation" in instances when an employee or caregiver inappropriately used EBI or used a prohibited EBI technique. The comment indicated "an allegation" can be widely interpreted to include any offhand statement, complaint, or concern.

Response: HHSC disagrees with the commenter's recommendation to revise the rule. The purpose of this rule is to require operations to report allegations of inappropriate emergency behavior interventions to HHSC and to parents so that (1) HHSC can independently evaluate compliance with minimum standards, and (2) parents have relevant information about the child.

Comment: Regarding §748.303, one commenter indicated that there is no requirement in the standard to notify parents of any EBI that occurs. The commenter said this requirement is stated in proposed §748.2857, but not in §748.303.

Response: HHSC disagrees with the commenter's recommendation to revise §748.303 because, as the commenter indicated, the proposed requirement to notify parents of any EBI used with a child is proposed in a separate rule where the requirement is more appropriately placed, especially when consideration is given that not every EBI may constitute a serious incident.

Comment: Regarding §748.511, two commenters indicated support for the rule's clarification that an employee, contract service provider, or volunteer must not be in possession of a handgun while at the operation or while caring for children.

Response: HHSC appreciates the support for the rule.

Comment: Regarding §748.535, one commenter recommended that the rule require a child-care administrator to comply with a corrective action plan while the operation is on probation.

Response: HHSC agrees with the commenter that a child-care administrator be required to comply with a corrective action plan while the operation is on probation but declines to revise the rule. An operation must already comply with a corrective action plan while on probation according to §745.8641, and §748.535 outlines that the administrator has the administrative responsibility for the overall operation, which includes ensuring that the operation complies with all applicable laws and rules, including those in Chapter 745, Licensing.

Comment: Regarding §748.725, one commenter indicated support for the clarifications made to the rule's allowance for a volunteer or volunteer's family to take a child in care for an overnight or weekend visit.

Response: HHSC appreciates the support for the rule.

Comment: Regarding §§748.801, 748.833, 748.863, 748.867, 748.930, 748.931, 748.937, and 748.947, two commenters recommended all training be competency-based and that employees and caregivers be able to demonstrate their mastery of what was taught to them.

Response: HHSC disagrees with the commenters' recommendations to revise the rules to require competency-based training for all trainings. Pre-service and annual training for EBI have been, and continue to be, competency-based; however, requiring all trainings to be competency-based would likely result in additional costs and administrative and regulatory burdens on providers. The proposed changes to many of the training requirements are meant to provide operations with greater flexibility and clarity while making the rules consistent with changes already adopted for Chapter 749, Minimum Standards for Child-Placing Agencies. While further changes to these rules will not be made at this time, HHSC may consider the commenters' recommendation during future revisions to Chapter 748.

Comment: Regarding §748.863, two commenters indicated a caregiver should not be able to administer a short personal restraint prior to completing all the required pre-service training for EBI. One of the two commenters also suggested that examples be provided regarding what a short personal restraint should not entail, such as arm twisting, knee buckling, throttling or choking, throwing or holding a child against a wall, or similar maneuvers.

Response: HHSC disagrees with the commenters' recommendation to revise the rule because there may be instances when a caregiver needs to use a short personal restraint to ensure a child's safety, even though the caregiver has not completed all pre-service training for EBI. The proposed rule is meant to provide operations with greater flexibility while making the rule consistent with changes already adopted for Chapter 749, Minimum Standards for Child-Placing Agencies, and §748.2461 already outlines what precautions must be taken when implementing a short personal restraint.

Comment: Regarding §748.864, two commenters recommended that child-care administrators, professional level service providers, treatment directors, and case managers be required to complete pre-service training for EBI before beginning job duties, not within 90 days of beginning job duties.

Response: HHSC disagrees with the commenters' recommendation to revise the rule because the purpose the 90-day timeframe is to provide operations with flexibility. Also, the proposed rule makes changes consistent with what is currently required by Chapter 749, Minimum Standards for Child-Placing Agencies.

Comment: Regarding §748.869 and §748.941, two commenters recommended that an instructor be certified in a recognized method of EBI, rather than being able to document knowledge of EBI and the course material, methods of delivering the training, and methods for evaluating and assessing a participant's knowledge and competency of the training and physical techniques, if applicable.

Response: HHSC disagrees with the commenters' recommendation to revise the rules to require all EBI instructors to be certified because HHSC anticipates this change would result in a fiscal impact to providers due to the copyrights associated with some recognized methods of EBI. HHSC needs more time to evaluate this recommendation and obtain input from providers, stakeholders, and the public before making substantive changes to requirements associated with who may serve as an EBI instructor.

Comment: Regarding §748.869, two commenters recommended a grammatical change so that EBI training may include instruction on more than one technique.

Response: HHSC agrees with the commenters' recommendation and revised the rule to clarify that EBI training may include instruction on more than one technique.

Comment: Regarding §748.882, two commenters indicated that the impact of trauma be added as a curriculum component to the pre-service training for normalcy.

Response: HHSC disagrees with the commenters' recommendation to revise the rule because trauma informed care already constitutes a separate pre-service curriculum component, as referenced in §748.881.

Comment: Regarding §748.885, two commenters recommended that the rule echo what is already noted in proposed §748.863, specifically that pre-service training for administering psychotropic medication is required before any caregiver administers the medication. In addition, the two commenters recommended adding language so that policies and procedures for administering psychotropic medication include the documentation of the medication administered.

Response: HHSC partially agrees with the commenters. HHSC declines to revise the rule to add requirements that are covered by proposed §748.863; however, HHSC agrees to revise the rule to include the documentation of the medication administration as part of the curriculum component for any related policies and procedures.

Comment: Regarding §748.887, two commenters recommended that the EBI policies for an operation clearly state that caregivers are prohibited from using any EBI if the operation does not allow the use of any EBI. The two commenters also recommended that de-escalation, successful conflict resolution, alternatives to physical techniques, and trauma informed care be included as curriculum components. Finally, the two commenters expressed their support for the curriculum component relating to "less restrictive strategies caregivers can use to engage a child and de-escalate a situation."

Response: HHSC appreciates the commenters' support for the curriculum component, but disagrees with their recommendations and declines to revise the rule because the purpose of the rule is to address what curriculum components must be included in the EBI pre-service training for an operation that does not allow the use of EBI. An operation's policies regarding a caregiver's use of EBI are covered by a separate rule. Moreover, de-escalation, successful conflict resolution, and alternatives to physical techniques are already addressed in the proposed rule language. In addition, trauma informed care already constitutes a pre-service curriculum component on its own.

Comment: Regarding §748.889, two commenters indicated support for the pre-service curriculum component relating to "strategies for re-integration of children into the environment after the use of emergency behavior intervention, including the debriefing of caregivers and the child" for an operation that does allow the use of EBI. Furthermore, the two commenters recommended that a debriefing routinely occur after the use of any EBI.

Response: HHSC appreciates the commenters' support for the curriculum component mentioned in their comment. However, HHSC disagrees with the commenters' recommendation to revise the rule to address when routine debriefings occur; post-emergency behavior intervention discussions are already addressed by §748.2851.

Comment: Regarding the repeal of §748.931, one commenter indicated that the 180-day timeframe for completing annual training for EBI is confusing when there are 365 days in a calendar year and the intention of timeframe appears to require EBI training twice a year. On a general note, the commenter indicated that CCR inspectors are issuing "hyper-technical citations" after calculating the number of exact days and finding that the operation is out of compliance.

Response: HHSC disagrees with the commenter. HHSC understands the commenter's concern; however, the 180-day timeframe is being repealed as part of the repeal of §748.931. Proposed §748.936 instead requires a caregiver to complete EBI annual training within six months of the date the caregiver last received the training if children receive treatment services at the operation.

Comment: Regarding §748.935, two commenters recommended deleting "with the exception of emergency behavior intervention training" from the rule's direction on when an employee or caregiver must complete annual training.

Response: HHSC disagrees with the commenters' recommendation to revise the rule because the purpose of the rule is to address all annual training except for that relating to EBI. Proposed §748.936 addresses when a caregiver must complete annual EBI training.

Comment: Regarding §748.936, two commenters expressed confusion regarding whether this rule addressed annual EBI training or pre-service EBI training. The two commenters also recommended that a caregiver or employee should not be able to physically intervene in an emergency situation until the completion of EBI training.

Response: HHSC disagrees with the commenters' recommendations to revise the rule that pertains to annual EBI training for caregivers, because a caregiver may need to physically intervene during an emergency situation to ensure child safety even if the caregiver is overdue for annual EBI training.

Comment: Regarding §748.939, two commenters indicated that, while CCR does not endorse training resources or trainers for annual training, it is within CCR's authority and responsibility to delineate what the trainings must cover, and this must be incorporated into the rule.

Response: HHSC disagrees with the commenters' recommendation to revise the rule further because the purpose of the rule is to simply state that CCR does not endorse training resources or trainers to meet annual training hour requirements. There are other rules to indicate what trainings must or may be used to meet annual training requirements. Proposed Chapter 748, Subchapter F, Division 8 (relating to Topics and Curriculum Components for Annual Training) identifies curriculum components for annual training.

Comment: Regarding §748.941, one commenter expressed concern that there is currently no indication that the online DFPS training related to administering psychotropic medication can satisfy the annual training requirement like it does for pre-service, as indicated in the "Helpful Information" section under §748.885, in the online courtesy publication of Chapter 748.

Response: HHSC agrees with the commenter and will include a "Helpful Information" section for proposed §748.941 in the online courtesy publication of Chapter 748 that mirrors the "Helpful Information" section for §748.885.

Comment: Regarding §748.943, two commenters asked that the impact of trauma and use of trauma informed care be added as topics that are appropriate for annual training.

Response: HHSC disagrees with the commenters' recommendation to revise the rule to include these topics because annual training regarding trauma informed care is already required by proposed §748.930 for caregivers and proposed §748.931 for employees.

Comment: Regarding §748.947, two commenters expressed confusion regarding whether annual training requirements for EBI are required because §748.931 states that there are no annual training requirements for EBI. The two commenters recommended that the rule mandate annual re-evaluation for EBI. The two commenters also recommended that the rule include what EBI curriculum is required and that a caregiver not be required to repeat the entire training as long as the caregiver could demonstrate continued mastery of the training.

Response: HHSC disagrees with the commenters' recommendation to revise §748.947. The rule pertains to caregivers, whereas §748.931 pertains to employees. Both rules have different requirements regarding annual EBI training for caregivers versus employees, and these differences are consistent with what is required in Chapter 749, Minimum Standards for Child-Placing Agencies. Regarding the recommendation to include what EBI curriculum is required, §748.947 refers to §748.887 and §748.889, which respectively relate to the basic principles and curriculum components required for EBI training so that those requirements can be reinforced to develop and refine the caregiver's skills. Regarding any requirement to repeat the entire EBI training, the proposed rule does not require a caregiver to repeat the training; rather a caregiver must demonstrate knowledge and competency of the training material at the end of the training to meet annual EBI training requirements, as stated in proposed §748.941.

Comment: Regarding §748.1217, one commenter indicated support for the addition of "any history of trauma" to the list of information required in an admission assessment prior to a child's non-emergency admission.

Response: HHSC appreciates the support for the rule.

Comment: Regarding §748.1303, one commenter recommended adding language allowing for the inclusion and use of an educational surrogate to attend Admission, Review, and Dismissal (ARD); Individual Education Plan (IEP); Individual Transitional Planning (ITP); and other school meetings.

Response: HHSC disagrees with the commenter's recommendation to revise the rule because the rule does not prevent an educational surrogate from participating in a child's educational plans.

Comment: Regarding §748.1553, one commenter indicated support for the rule's requirements regarding (1) what a caregiver must do when a child is injured or ill and requires immediate treatment by a health-care professional; and (2) a caregiver not being required to seek approval to contact emergency services or to take the child to the nearest emergency room. Another commenter recommended that the rule be clarified so that treatment of the child may be provided by a healthcare professional, either at the facility or in the community, which would not require emergency services to be called or the child to be taken to the emergency room.

Response: HHSC appreciates the support for the rule by one commenter. HHSC also agrees with the other commenter and revised the rule to allow the operation to use a healthcare professional in the community if one is not available at the operation.

Comment: Regarding §748.2009, one commenter expressed concern that it is impractical to consult with a health care professional in many instances to ensure that a non-prescription medication or supplement is not contraindicated with the prescribed medication. Another commenter suggested the language be revised to allow consultation with a pharmacist first and then the healthcare professional if a contraindication is identified.

Response: HHSC agrees with the commenter and revised the rule so that the language simply requires the operation to ensure the non-prescription medication or supplements are not contraindicated with the medication prescribed or the child's medical conditions. This provides the operation with flexibility while still ensuring a child's safety when taking a non-prescription medication or supplement.

Comment: Regarding §748.2307, one commenter recommended adding language to the rule to prohibit hot peppers or pepper sauce being put in a child's mouth as punishment.

Response: HHSC disagrees with the commenter's recommendation to revise the rule to specifically prohibit hot peppers or pepper sauce being placed in a child's mouth for punishment because these circumstances are covered by the current rule. However, HHSC revised the rule to delete the examples of "soap or tape" to eliminate possible interpretation that the examples in the rule are an exhaustive list. HHSC will add the examples in the current rule and those recommended by the commenter to a "Helpful Information" section under §748.2307 in the online courtesy publication of Chapter 748.

Comment: Regarding §748.2307, two commenters recommended that a list of approved devices to be used as mechanical restraints be added to the rule to distinguish those devices from the forbidden ones, such as using a "highchair, box, or other similar furniture or equipment" to confine and punish a child.