The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§745.11, 745.201, 745.243, 745.273, 745.275, 745.321, 745.323, 745.325, 745.341, 745.343, 745.345, 745.347, 745.349, 745.351, 745.385, 745.435, 745.501, 745.505, 745.507, 745.509, 745.519, 745.8307, 745.8605, 745.8613, 745.8683, 745.8807, 745.8835, 745.8837, 745.8843, 745.8855, and 745.8875; new §§745.277, 745.279, 745.281, 745.401, 745.403, 745.405, 745.407, 745.437, 745.901, 745.903, 745.905, 745.907, 745.909, 745.911, 745.913, 745.915, 745.8419, 745.8425, 745.8661, and 745.8841; and the repeal of §§745.401, 745.403, 745.405, 745.407, 745.409, 745.8419, and 745.8841, in its Licensing chapter.

The proposed changes are the result of legislation passed during the 79th Legislature, Regular Session, 2005, and changes necessary to provide clarification to existing rules.

Legislated changes are the result of requirements stated in House Bill (H.B.) 183 and Senate Bill (S.B.) 6, passed by the 79th Legislature, Regular Session, 2005. These laws require the Executive Commissioner to adopt or amend regulated child-care facility rules relating to (1) a new definition for noncontiguous facilities; (2) controlling persons; (3) denial of permit applications submitted by an entity who has had a license revoked in another state; (4) invalidating agency home verifications if a public hearing was not held as required; and (5) changing the term "provisional license" to "initial license." Clarifications to existing rules address exemptions to regulation, public hearings, permit issuance, permit suspension due to nonpayment of fees, adverse action, and due process. Changes to specific rules are described below.

Section 745.11 expands the definition of "I, my, you, and your" by adding the phrase "or the context clearly indicates otherwise."

Section 745.201 is required by §1.93 of S.B. 6., Human Resources Code (HRC) §42.041(c), which describes when a noncontiguous residential operation may operate under a single license.

Section 745.243 is revised as follows. Paragraph (2) is amended to conform to Chapter 747, Minimum Standards for Registered Child-Care Homes. Paragraph (3) changes the name of a provisional license to an initial license as required by S.B. 6. Paragraph (4) adds the requirement to obtain a Controlling Person Form at the time of application so that Licensing is aware of all of the controlling persons involved in an operation prior to licensure. Subparagraphs (G) and (J) are combined and are now subparagraph (H), in order to clarify what is needed at the time of application for a residential permit, which are those items required by the residential minimum standards. Paragraph (6) adds the requirement to obtain a Controlling Person Form. Subparagraphs (E) and (F) are combined and become subparagraph (F) in order to clarify what is needed at the time of application for a residential permit. Sections 745.341, 745.343, 745.345, 745.347, 745.349, 745.351, 745.501, 745.509, 745.519, 745.8307, and 745.8875 also change the name of a provisional license to an initial license.

Sections 745.273 and 745.275 include provisions from HRC §42.0461, clarifying when independent foster family or group homes are subject to public notice and hearing requirements.

Sections 745.277, 745.279, and 745.281 list actions taken by Licensing when public notice and hearing requirements are not met as required in HRC §42.0461 and §1.00 of S.B. 6.

Section 745.321 changes the time frame to make a decision regarding issuance of a permit from 60 days to two months, as stated in HRC §42.046.

Sections 745.323 and 745.325 change the title of the Director of Licensing to the Assistant Commissioner for Child-Care Licensing, and update the name of this agency.

Section 745.385 amends the rule as required by §1.93 of S.B. 6., HRC §42.041(c), to add a grandfather clause for the residential child-care operations that will be affected by the changes to §745.201(1) regarding non-contiguous operations.

Sections 745.401, 745.403, 745.405, and 745.407 (previously §745.401 to §745.409) are a rewrite of the previous division of rules to add the HRC 42.072 requirement of a five-year bar from reapplying after denial or revocation of a residential permit. It also clarifies when a denial or revocation is final.

Section 745.435 is clarified to complement HRC §42.048(e), regarding revocation via a change in location.

Section 745.437 is clarified to complement HRC §42.048(e), regarding revocation via a change in ownership. This rule also clarifies what circumstances constitute and do not constitute a change in ownership.

Sections 745.505, 745.507, and 745.509 are revised to be more consistent with HRC §42.054(f), and to reflect that the permit holder's failure to pay an annual fee results in an automatic suspension of the permit.

Sections 745.901, 745.903, 745.905, 745.907, and 745.909 implement §1.90(18) and §1.107, S.B. 6 by defining controlling person, establishing how an operation has to submit information regarding a controlling person, establishing when Licensing will designate someone as a controlling person, establishing the consequences of such a designation, and establishing due process rights for "designated controlling persons."

Section 745.911 implements §1.105 of S.B. 6 by adding a provision that lists the consequences of being denied a license by us due to out-of-state compliance history.

Sections 745.913 and 745.915 add provisions to implement §1.105 and §1.107 of S.B. 6. Licensing will conduct checks and notify residential operations if a person is prohibited from employment in an operation.

Section 745.8419 clarifies Licensing's authority to leave an operation with copies of records from that operation.

Section 745.8425 contains information from previous §745.8419.

Section 745.8605 adds reasons when Licensing can take remedial action. This is based on §§1.99, 1.100, 1.107, and 1.110 of S.B. 6, and S.B. 325.

Section 745.8613 adds the right to a due process hearing when Licensing imposes an administrative penalty against an operation.

Section 745.8661 clarifies existing statute and requires that all operations send notification to parents or managing conservators after an adverse action is final. This is based on HRC §42.077(d).

Section 745.8683 updates the name of this agency.

Section 745.8807 is changed to apply to both administrator license types, to clarify under what circumstances an operation may request an administrative review, to add that a designated perpetrator of child abuse/neglect in a Licensing investigation is eligible to request an administrative review, and to add that a person designated as a controlling person is eligible to request an administrative review.

Section 745.8835 adds two situations when a person may request a due process hearing: (1) When Licensing takes action against a controlling person; and (2) When Licensing imposes an administrative penalty be imposed against a permit holder or controlling person. Also, the last paragraph of this rule has been changed to apply to both administrator license types.

Section 745.8837 is revised so it applies to both administrator license types. Two subsections are added to show who may request a due process hearing if certain actions are taken against them: (1) a controlling person; and (2) the governing body, director/administrator, or the designee if Licensing recommends the imposition of an administrative penalty.

Section 745.8841 (previous §745.8841) is rewritten to remove the address for the docket clerk, and to clarify that the address will be included in the notice sent to the permit holder.

Section 745.8843 clarifies the procedures DFPS takes after a person requests a due process hearing. It also creates circumstances in which DFPS may nullify a request for a release hearing without the person losing the right to a request a hearing in the future.

Section 745.8855 clarifies when an adverse action decision is effective once the right to the due process hearing has been waived.

Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Brown also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the protection of children in out-of-home care will be enhanced and the quality of regulated child care will improve. There will be no effect on large, small, or micro-businesses because the proposed changes do not impose new requirements on any business and do not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of the proposal may be directed to Amy Chandler at (512) 438-3134 in DFPS's Licensing Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-344, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

HHSC has determined that the proposed sections do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

The amendment is proposed 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; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendment implements HRC §42.042(a).