The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§749.43, 749.61, 749.305, 749.307, 749.421, 749.423, 749.425, 749.501, 749.503, 749.509, 749.513, 749.515, 749.535, 749.539, 749.551, 749.553, 749.571, 749.573, 749.577, 749.581, 749.585, 749.633, 749.635, 749.663, 749.667, 749.669, 749.673, 749.675, 749.679, 749.725, 749.761, 749.767, 749.801, 749.861, 749.867, 749.869, 749.881, 749.901, 749.933, 749.935, 749.937, 749.939, 749.941, 749.945, 749.1005, 749.1007, 749.1011, 749.1021, 749.1107, 749.1109, 749.1111, 749.1113, 749.1115, 749.1131, 749.1133, 749.1135, 749.1151, 749.1153, 749.1183, 749.1187, 749.1291, 749.1301, 749.1307, 749.1309, 749.1313, 749.1317, 749.1321, 749.1323, 749.1331, 749.1335, 749.1339, 749.1363, 749.1369, 749.1371, 749.1401, 749.1409, 749.1415, 749.1421, 749.1423, 749.1425, 749.1433, 749.1463, 749.1469, 749.1503, 749.1521, 749.1541, 749.1581, 749.1583, 749.1803, 749.1813, 749.1815, 749.1819, 749.1863, 749.1891, 749.1893, 749.1895, 749.1921, 749.1923, 749.1925, 749.1959, 749.1961, 749.2001, 749.2151, 749.2201, 749.2203, 749.2231, 749.2305, 749.2403, 749.2445, 749.2447, 749.2451, 749.2453, 749.2471, 749.2475, 749.2487, 749.2488, 749.2497, 749.2599, 749.2623, 749.2635, 749.2655, 749.2803, 749.2805, 749.2815, 749.2903, 749.2904, 749.2905, 749.2909, 749.2911, 749.2913, 749.2917, 749.2931, 749.2961, 749.3027, 749.3031, 749.3039, 749.3061, 749.3075, 749.3103, 749.3133, 749.3135, 749.3137, 749.3139, and 749.4153; repeal of 749.101, 749.103, 749.105, 749.107, 749.131, 749.133, 749.161, 749.163, 749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359, 749.507, 749.531, 749.533, 749.601, 749.671, 749.681, 749.769, 749.771, 749.1003, 749.1523, and 749.2902; and new 749.101, 749.103, 749.105, 749.107, 749.109, 749.111, 749.113, 749.115, 749.117, 749.119, 749.121, 749.123, 749.125, 749.127, 749.129, 749.131, 749.133, 749.135, 749.137, 749.139, 749.141, 749.151, 749.153, 749.161, 749.304, 749.529, 749.531, 749.533, 749.534, 749.769, 749.1003, 749.1312, 749.1336, 749.2902, and 749.3151, concerning a comprehensive review of Chapter 749, Minimum Standards for Child-Placing Agencies. The amendments to §§749.43, 749.503, 749.761, 749.767, 749.801, 749.869, 749.935, 749.937, 749.941, 749.945, 749.1115, 749.1133, 749.1153, 749.1187, 749.1313, 749.1321, 749.1409, 749.1423, 749.1425, 749.1469, 749.1583, 749.1813, 749.1819, 749.1959, 749.2305, and 749.3137; and new §§749.103, 749.107, 749.115, 749.153, 749.161, 749.769, and 749.1003, are adopted with changes to the proposed text in the June 10, 2016 issue of the Texas Register (41 TexReg 4170). The amendment to §§749.61, 749.305, 749.307, 749.421, 749.423, 749.425, 749.501, 749.509, 749.513, 749.515, 749.535, 749.539, 749.551, 749.553, 749.571, 749.573, 749.577, 749.581, 749.585, 749.633, 749.635, 749.663, 749.667, 749.669, 749.673, 749.675, 749.679, 749.725, 749.861, 749.867, 749.881, 749.901, 749.933, 749.939, 749.1005, 749.1007, 749.1011, 749.1021, 749.1107, 749.1109, 749.1111, 749.1113, 749.1131, 749.1135, 749.1151, 749.1183, 749.1291, 749.1301, 749.1307, 749.1309, 749.1317, 749.1323, 749.1331, 749.1335, 749.1339, 749.1363, 749.1369, 749.1371, 749.1401, 749.1415, 749.1421, 749.1433, 749.1463, 749.1503, 749.1521, 749.1541, 749.1581, 749.1803, 749.1815, 749.1863, 749.1891, 749.1893, 749.1895, 749.1921, 749.1923, 749.1925, 749.1961, 749.2001, 749.2151, 749.2201, 749.2203, 749.2231, 749.2403, 749.2445, 749.2447, 749.2451, 749.2453, 749.2471, 749.2475, 749.2487, 749.2488, 749.2497, 749.2599, 749.2623, 749.2635, 749.2655, 749.2803, 749.2805, 749.2815, 749.2903, 749.2904, 749.2905, 749.2909, 749.2911, 749.2913, 749.2917, 749.2931, 749.2961, 749.3027, 749.3031, 749.3039, 749.3061, 749.3075, 749.3103, 749.3133, 749.3135, 749.3139, and 749.4153; repeal of 749.101, 749.103, 749.105, 749.107, 749.131, 749.133, 749.161, 749.163, 749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359, 749.507, 749.531, 749.533, 749.601, 749.671, 749.681, 749.769, 749.771, 749.1003, 749.1523, and 749.2902; and new 749.101, 749.105, 749.109, 749.111, 749.113, 749.117, 749.119, 749.121, 749.123, 749.125, 749.127, 749.129, 749.131, 749.133, 749.135, 749.137, 749.139, 749.141, 749.151, 749.304, 749.529, 749.531, 749.533, 749.534, 749.769, 749.1312, 749.1336, 749.2902, and 749.3151 are adopted without changes to the proposed text and will not be republished. Also in this issue of the Texas Register, DFPS is withdrawing the amendments to §749.1957 to make this rule consistent with its sister rule in Chapter 748, where the sister rule was withdrawn in response to a comment received; and §749.4259 because on further review the proposed changes to this rule were previously proposed and adopted.

BACKGROUND AND JUSTIFICATION

The justification of the amendments, new, and repeals is for Child Care Licensing (CCL) to be in compliance with Texas Human Resources Code (HRC) §42.042(b), which requires CCL to conduct a comprehensive review of all rules and minimum standards every six years. The adopted changes are a result of the comprehensive review of all minimum standards located in Chapter 749.

During this review of standards, CCL's goal was to balance the concerns of child advocacy groups, child-placing agencies, foster parents, children, and biological parents to formulate standards that promote the safety of every child in care.

In preparation for the review of minimum standards, CCL conducted a web-based survey open to permit holders, caregivers, advocates, parents, and anyone in the general public interested in commenting on the standards. The survey was available for public input from late August through December 2014. The next step in the review was to hold a series of 13 stakeholder forums throughout the state between September and November 2015 to solicit additional input from the public about proposed changes to the minimum standards.

Between the web-based survey and the stakeholder forums, CCL received almost three hundred comments (for both Chapters 748, Minimum Standards for General Residential Operations, and 749) from stakeholders for consideration in the review. These comments, along with a line-by-line review of all minimum standards conducted by both regional and State Office Licensing staff, formed the basis of the first round of recommendations that were then presented to a temporary workgroup. The temporary workgroup, comprised of 13 participants, including providers from child-placing agencies and general residential operations and representatives from Child Protective Services, Residential Contracts, and Licensing, met twice on December 16, 2015 and February 2, 2016. The workgroup reviewed and provided additional comments regarding the recommendations.

The repeals, amendments and new rules will function to (1) clarify the Minimum Standards for Child-Placing Agencies (CPAs); (2) place DFPS in compliance with HRC §42.042(b); and (3) reduce the risk to children.

DFPS received 24 comments from six commenters: Texas Boys Ranch, Athletes For Change, Breathable Baby, a Child Protective Services Supervisor, the Coalition for Nurses in Advanced Practice, and One Voice Texas. Responses to comments are noted below.

Comments concerning §§749.43, 749.1135(3)(A), and 749.1433: The commenter requested that DFPS add a definition for Advanced Practice Registered Nurse (APRN) and allow APRNs to sign written orders for the admission of children with primary medical needs into a CPA, and allow APRNs to review a child's primary medical needs.

Response: DFPS recommends that these rules be adopted without changes. DFPS is in agreement with the commenter. However, DFPS does not recommend this change at this time, because it would be prudent to propose the change in the future to put child-placing agencies and physicians on notice and to allow child-placing agencies and physicians an opportunity to comment on any change to the rules.

No comments concerning §749.43(11). However, DFPS recommends a change to clarify the definition of "chemical restraint" and to make the definition consistent with the wording in Chapter 748.

No comments concerning §749.43(20). However, DFPS recommends a change to clarify the definition of "emergency medication" and to make the definition consistent with the wording in Chapter 748.

No comments concerning §749.43(35). However, DFPS recommends a change to the definition of "immediate danger to self or others" to clarify that "serious physical injury" is to "self or others" and to make the definition consistent with the wording in Chapter 748.

No comments concerning §749.43(59). However, DFPS recommends a change to clarify the definition of "sanitize" and to make the definition consistent with wording in Chapter 748.

No comments concerning §749.43(66). However, DFPS recommends a change to clarify the definition of "substantial physical injury" by changing "substantial" to "serious" when discussing evidence of a physical injury to make the language in the definition consistent throughout.

No comments concerning §749.103. However, DFPS recommends a change to correct a typographical error.

No comments concerning §749.107. However, DFPS recommends a change to delete the discussion of consanguinity and affinity, because it is already clarified in the definition of "family member". In addition, information regarding consanguinity and affinity is being added to a Helpful Information box located on the DFPS public website version of the minimum standards immediately following §749.43.

Comments concerning §749.113: One commenter had two comments regarding this rule, which stated: (1) For §749.113(1) the policies regarding a child's visitation rights should be the same as those rights in the Child Protective Services (CPS) policy; and (2) a policy should be added to this rule that says a child has the right to contact the Foster Care Ombudsman.

Response: DFPS recommends that this rule be adopted without changes. (1) Not all foster home placements are CPS placements. CPS also has to abide by federal guidelines. There are minimum standards that must be enforced, and CPS may have requirements above the minimum standards that CPS will enforce; and (2) The right to contact the HHSC Ombudsman for Children and Youth in Foster Care has already been added in new §749.1003(b)(7).

Comment concerning §749.115(8): The commenter stated that a "child in care" should be included amongst the individuals against whom retaliation is prohibited.

Response: DFPS recommends that this rule be adopted with changes. The new rule includes "child" and "resident". However, DFPS agrees that "child in care" is clearer and has made this change to the rule.

No comments concerning §749.153. However, DFPS recommends a change to correct a typographical error.

No comments concerning §749.161. However, DFPS recommends a change to correct a typographical error.

Comment concerning §749.503(a)(2): The commenter was not sure what the proposed new definition for "substantial physical injury" is.

Response: DFPS recommends that the relevant paragraph of the rule be adopted without changes. The definition for "substantial physical injury" has been modified but is still included in §749.43(66), which primarily means a physical injury serious enough that a reasonable person would conclude that the injury needs treatment by a medical professional. The definition also provides examples of what is and what is not a substantial physical injury.

Comment concerning §749.503(a)(4) and (a)(5): The commenter had concerns regarding reporting child-on-child physical abuse and sexual abuse as a serious incident, because there are fights all the time at the facility, including pushing, slapping, kicking, punching, teasing, name-calling, bullying, as well as physical fights. The commenter wondered if these would need to be called in as serious incidents.

Response: DFPS recommends that these two paragraphs of the rule be adopted without changes. The only changes made to these two paragraphs related to clarifying that "physical abuse occurs when there is substantial physical injury" and the timing of the reporting. If any of these incidents result in substantial physical injury as defined in §749.43(66) or sexual abuse as defined in paragraph §749.503(a)(5), then the incident would need to be reported as a serious incident.

Comment concerning §749.503(a)(6): The commenter stated that they have a close relationship with local police and sometimes call them to help calm a teen boy, but the commenter would think twice about doing this if now they are required to report the law enforcement response to the foster home as a serious incident.

Response: DFPS recommends that this paragraph of the rule be adopted without changes. There should be many solutions to de-escalating a situation with a teen. However, if the situation has escalated to the point that law enforcement must be called, then a serious incident report is appropriate.

Comments concerning §749.503(a)(9): There were two comments from two different commenters (and one additional comment from another commenter that was received regarding a sister rule in Chapter 748) regarding reporting as a serious incident when a child 13 and older is absent from the foster home and still missing for more than two hours (previously 24 hours). The commenters stated that teens often leave without permission to clear their heads; there are some 16 year-olds that are practicing independent living skills and participating in normalcy activities in the community, such as riding the bus, going to school events after school, and working, and these teens may push the boundaries of their "curfews" and agreed upon times to return; 85% of teens return within two hours, 95% of teens come back within 4-6 hours, and very rarely does a teen stay gone for more than 24 hours; reporting these incidents will increase the workload for hotline intakes, which already take 30 minutes or more to answer a phone call; police will not take a report until it has been 24 hours; this will hurt a child's chances for a placement if they have a lot of run-away history; and one commenter recommended making the time frame 5 hours instead of 2.

Response: DFPS recommends that this paragraph of the rule be adopted with changes. The National Center for Missing and Exploited Children (NCMEC) are the experts in this area, and NCMEC states that the quicker children are reported, the more likely and quickly they will be found. Also, law enforcement must take reports on missing children and must report the child to the National Crime Information Center (NCIC) database immediately. The Department of Public Safety Crimes Against Children Unit has been calling law enforcement agencies all over Texas to remind them of this duty. With that said, DFPS understands the need to give teenagers space, especially in relation to independent living and normalcy. DFPS also understands that CPAs and foster parents need the ability to make prudent parenting decisions. DFPS recommends adopting a six hour time frame for reporting, but adding information that if a child has been alleged or determined to be a trafficking victim or you believe the child has been abducted or has no intention of returning to the foster home, then you must report this absence immediately. DFPS is also adding information regarding prudent decision making to a Helpful Information box located on the DFPS public website version of the minimum standards immediately following this rule.

No comments concerning §749.761. However, DFPS recommends a change to further clarify the language of the rule for ease of understanding.

No comments concerning §749.767. However, DFPS recommends reworking this proposed rule regarding when a contractor/volunteer from another organization is subject to the CPA's policies and procedures to clarify the language of the rule without changing the content and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.769. However, DFPS recommends reworking this proposed rule, because DFPS already has background check rules that apply to employees, but the changes will clarify that a person may not perform community service at a CPA; and to make this rule consistent with its sister rule in Chapter 748.

No comments concerning §749.801. However, DFPS recommends a change as noted below in the response to comments concerning §749.935(d).

No comments concerning §749.869. However, DFPS recommends a change to further clarify "qualified instructor" and to make this rule consistent with its sister rule in Chapter 748.

Comment concerning §749.935(d): The commenter stated that the number of self-instructional training hours (as part of annual training) should not be increased from 1/3 to 1/2 without a thorough review of the materials available for self-instruction. Many of these materials allow users to skip to the end of the training without gaining any real knowledge.

Response: DFPS recommends that this rule be adopted with changes. Most, if not all, professions are allowing web-based training and not mandating in-person training. A similar 50% to 80% change was made to the child-care home self-instructional training standards in 2012 with no noticeable increase in complaints regarding quality of training. Ultimately, it is the CPA's responsibility to make sure their staff and caregivers are receiving high quality training. However, DFPS recommends three changes to further clarify these issues: (1) §749.801 is being changed to add a definition for "self-study training", which is non-standardized training where an individual reads written materials, watches a training video, or listens to a recording to obtain certain knowledge that is required for annual training. The definition for "self-instructional training" is also being changed to clarify that self-study training is a type of self- instructional training; (2) §749.935(d) is being clarified further to state that no more than three hours of the self-instructional training may come from self-study training; and (3) the training requirements in §749.937 are being clarified so it is clear that they apply to instructor-led training and self-instructional training, but not self-study training.

No comments concerning §749.937. However, DFPS recommends a change as noted above in the response to comments concerning §749.935(d).

No comments concerning §749.941. However, DFPS recommends a change to clarify the language of the rule.

No comments concerning §749.945. However, DFPS recommends a change to correct a grammatical error in the question.