The Health and Human Services Commission adopts, 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 amendments to §§745.243, 745.8605, 745.8837, and 745.8855; and new §§745.907, 745.911, and 745.913 are adopted with changes to the proposed text published in the May 12, 2006, issue of the Texas Register (31 TexReg 3849). The amendments to §§745.11, 745.201, 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, 745.8613, 745.8683, 745.8807, 745.8835, 745.8843, 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, 745.909, 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 are adopted without changes to the proposed text and will not be republished.

The 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 (hereafter referred to as S.B. 6). 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.

The sections will function by enhancing the protection of children in out-of-home care and improving the quality of regulated child care.

During the public comment period, DFPS received comments from Central Texas Youth Services and a child-care provider. A summary of the comments and responses follows:

Comment concerning §745.243, What does a completed application for a permit include? One comment was received regarding §745.243(2)(H). The commenter stated that requiring a high school diploma or its equivalent in order to be registered is not needed and is irrelevant. The same commenter asked how they are to obtain such a document in order to verify the education, and if currently regulated operations are grandfathered. The commenter added this is discriminatory.

Response: DFPS is not revising this section as a result of comment. However, DFPS is revising paragraphs (4)(H) and (6)(F) to correspond with changes in the new minimum standards.

Comment concerning §745.275, What are the specific requirements for a public notice and hearing? DFPS received one comment regarding holding a hearing no later than one month after the date the application is accepted. The commenter stated that if DFPS denies the application based upon the results of the public hearing, the owner of the facility has lost the investment of remodeling or new construction. This commenter recommended DFPS alter the proposed rules to allow an application to be provisionally approved based on architectural renderings of remodeling or new construction followed by analysis of the public hearing requirement. Should the provisional application continue to be approved, then final inspection of the completed facility could result in any necessary modifications to meet full compliance and then full application approval.

Response: DFPS is adopting this section without change. The requirement to hold a public hearing no later than one month after the date the application is accepted by DFPS is in current rule; the amendment to this rule does not alter that requirement.

DFPS staff are responsible for providing information about the regulatory process and technical assistance to applicants as well as permit holders. Potential applicants are required to attend orientation prior to submitting an application. Licensing staff review floor plans with potential applicants and permit holders who are considering remodeling. DFPS staff will discuss compliance issues and offer technical assistance. Only certain residential operations must comply with public notice and hearing requirements. At orientation, DFPS staff provide information regarding the public hearing in order to help the applicant be prepared. Handouts include information regarding steps that should be taken prior to purchasing property, investing money, hiring staff, and submitting an application.

Human Resources Code (HRC), §42.046, requires DFPS staff to investigate after receipt of an application. DFPS staff must complete the investigation prior to issuance. HRC, §42.048 requires Licensing staff to issue a license after determining that an applicant has satisfied all requirements.

Comments concerning §745.321, What will Licensing do after accepting my application? One commenter stated that the facility must already be remodeled or built, in order to be inspected by Licensing. Only after the inspection will DFPS decide to issue or deny. If DFPS decides to deny the application, the owner has lost the investment of remodeling or new construction. The commenter recommended DFPS alter the proposed rules to allow an application to be provisionally approved based on architectural renderings of remodeling or new construction followed by analysis of the public hearing requirement. Should the provisional application continue to be approved, then final inspection of the completed facility could result in any necessary modifications to meet full compliance and then full application approval.

Response: DFPS is adopting this rule without change. The proposed amendment to this rule only changes a time frame to decide on an application from 60 days to two months, in order to correspond with HRC, §42.046.

DFPS staff are responsible for providing information about the regulatory process and technical assistance to applicants as well as permit holders. Potential applicants are required to attend orientation prior to submitting an application. Licensing staff review floor plans with potential applicants, as well as permit holders, who are considering remodeling. DFPS staff will discuss compliance issues and offer technical assistance.

HRC, §42.046, requires DFPS staff to investigate after receipt of an application. DFPS must complete the investigation prior to issuance. HRC, §42.048 requires Licensing staff to issue a license after determining that an applicant has satisfied all requirements.

In addition, DFPS is revising the following rules:

§745.907, What are the consequences of Licensing designating me as a controlling person? DFPS is revising subsection (a) to further clarify that the designation of a controlling person only applies to residential child-care licensing. Subsection (b) is clarified to reflect that a designated controlling person will not be "sustained" until after the revocation of an operation is final and the person's due process rights are exhausted.

§745.911, In what other circumstances may I not employ someone because of his previous involvement with a residential child-care operation? DFPS is changing the word "sustained" to "final" to reflect the language in S.B. 6 and Licensing policy when referring to the completion of due process for the denial of a permit.

§745.913, When does Licensing check whether someone is ineligible for employment at my residential child-care operation? DFPS is deleting the word "form" because most background checks are completed online.

§745.8605, When can Licensing take remedial action against me? To conform with the intent of S.B. 6, DFPS is clarifying this rule to reflect that the new actions where we can impose remedial actions only apply to residential childcare operations. The language is also being clarified to indicate that remedial action can be taken before your designation as a controlling person is sustained, and within five years after the designation is sustained.

§745.8837, Who can request the due process hearing? DFPS is revising this rule to clarify that a controlling person may request a due process hearing for an administrative penalty that is imposed against him.

§745.8855, Can I waive my right to a due process hearing? DFPS is clarifying this rule by referencing §745.907, which explains that the designation of a controlling person cannot become final until the revocation of an operation is final.

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; 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).