Texas Register Preamble
The Texas Health and Human Service Commission (HHSC) adopts on behalf of the Department of Family and Protective Services (DFPS), amendments to §§748.3, 748.43, 748.61, 748.65, 748.191, 748.301, 748.303, 748.309, 748.313, 748.315, 748.361, 748.363, 748.393, 748.395, 748.505, 748.533, 748.535, 748.539, 748.563, 748.571, 748.575, 748.605, 748.681, 748.721, 748.725, 748.729, 748.801, 748.861, 748.867, 748.869, 748.883, 748.885, 748.935, 748.937, 748.939, 748.941, 748.943, 748.945, 748.985, 748.987, 748.1009, 748.1013, 748.1021, 748.1103, 748.1109, 748.1117, 748.1119, 748.1205, 748.1207, 748.1209, 748.1211, 748.1213, 748.1215, 748.1217, 748.1219, 748.1223, 748.1225, 748.1263, 748.1269, 748.1303, 748.1331, 748.1335, 748.1337, 748.1341, 748.1345, 748.1349, 748.1351, 748.1381, 748.1385, 748.1389, 748.1433, 748.1435, 748.1437, 748.1501, 748.1531, 748.1539, 748.1541, 748.1543, 748.1549, 748.1551, 748.1581, 748.1661, 748.1695, 748.1697, 748.1741, 748.1743, 748.1751, 748.1757, 748.1759, 748.1761, 748.1763, 748.1791, 748.1793, 748.2003, 748.2009, 748.2053, 748.2101, 748.2151, 748.2231, 748.2233, 748.2309, 748.2401, 748.3015, 748.3017, 748.3351, 748.3353, 748.3357, 748.3365, 748.3601, 748.3603, 748.3701, 748.3705, 748.3751, 748.3753, 748.3757, 748.3765, 748.3801, 748.3891, 748.3931, 748.4043, 748.4045, 748.4213, 748.4261, 748.4265, 748.4301, 748.4403, 748.4471, and 748.4473; the repeals of §§748.101, 748.103, 748.105, 748.107, 748.109, 748.111, 748.131, 748.133, 748.161, 748.163, 748.231, 748.233, 748.235, 748.237, 748.239, 748.241, 748.307, 748.341, 748.435, 748.501, 748.727, 748.731, 748.1101, 748.1105, 748.1753, 748.1765, 748.3481, 748.3535, 748.3567, 748.4041, and 748.4047; and new §§748.101, 748.103, 748.105, 748.107, 748.109, 748.111, 748.113, 748.115, 748.117, 748.119, 748.121, 748.123, 748.125, 748.127, 748.129, 748.151, 748.153, 748.155, 748.157, 748.161, 748.341, 748.343, 748.345, 748.347, 748.724, 748.731, 748.1101, 748.1340, 748.1386, 748.1753, 748.1765, and 748.4041 in Chapter 748, Minimum Standards for General Residential Operations, concerning a comprehensive review. The amendments to §§748.43, 748.303, 748.801, 748.937, 748.939, 748.1263, 748.1349, 748.1543, 748.1695, 748.1757, 748.2009, 748.2233, 748.2309, 748.3365, 748.3603, and 748.3757, and new §748.113 and §748.724; are adopted with changes to the proposed text in the August 26, 2016, issue of the Texas Register (41 TexReg 6409). The amendments to §§748.3, 748.61, 748.65, 748.191, 748.301, 748.309, 748.313, 748.315, 748.361, 748.363, 748.393, 748.395, 748.505, 748.533, 748.535, 748.539, 748.563, 748.571, 748.575, 748.605, 748.681, 748.721, 748.725, 748.729, 748.861, 748.867, 748.869, 748.883, 748.885, 748.935, 748.941, 748.943, 748.945, 748.985, 748.987, 748.1009, 748.1013, 748.1021, 748.1103, 748.1109, 748.1117, 748.1119, 748.1205, 748.1207, 748.1209, 748.1211, 748.1213, 748.1215, 748.1217, 748.1219, 748.1223, 748.1225, 748.1269, 748.1303, 748.1331, 748.1335, 748.1337, 748.1341, 748.1345, 748.1351, 748.1381, 748.1385, 748.1389, 748.1433, 748.1435, 748.1437, 748.1501, 748.1531, 748.1539, 748.1541, 748.1549, 748.1551, 748.1581, 748.1661, 748.1697, 748.1741, 748.1743, 748.1751, 748.1759, 748.1761, 748.1763, 748.1791, 748.1793, 748.2003, 748.2053, 748.2101, 748.2151, 748.2231, 748.2401, 748.3015, 748.3017, 748.3351, 748.3353, 748.3357, 748.3601, 748.3701, 748.3705, 748.3751, 748.3753, 748.3765, 748.3801, 748.3891, 748.3931, 748.4043, 748.4045, 748.4213, 748.4261, 748.4265, 748.4301, 748.4403, 748.4471, and 748.4473, the repeals of §§748.101, 748.103, 748.105, 748.107, 748.109, 748.111, 748.131, 748.133, 748.161, 748.163, 748.231, 748.233, 748.235, 748.237, 748.239, 748.241, 748.307, 748.341, 748.435, 748.501, 748.727, 748.731, 748.1101, 748.1105, 748.1753, 748.1765, 748.3481, 748.3535, 748.3567, 748.4041, and 748.4047, and new §§748.101, 748.103, 748.105, 748.107, 748.109, 748.111, 748.115, 748.117, 748.119, 748.121, 748.123, 748.125, 748.127, 748.129, 748.151, 748.153, 748.155, 748.157, 748.161, 748.341, 748.343, 748.345, 748.347, 748.731, 748.1101, 748.1340, 748.1386, 748.1753, 748.1765, and 748.4041, are adopted without changes to the proposed text published in the August 26, 2016, issue of the Texas Register (41 TexReg 6409) and will not be republished. Also in this issue of the Texas Register, DFPS is withdrawing the amendment to §748.2307. DFPS agrees with a commenter that "screaming" is too open for interpretation.
BACKGROUND AND JUSTIFICATION
The justification of the amendments, repeals, and new sections is to implement 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 changes are a result of the comprehensive review of all minimum standards located in Chapter 748.
During this review of standards, CCL's goal was to balance the concerns of child advocacy groups, general residential operations, children, and 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 changes to the minimum standards.
Between the web-based survey and the stakeholder forums, CCL received almost three hundred comments (for both Chapters 748 and 749, Minimum Standards for Child-Placing Agencies) 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 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 amendments, repeals, and new sections will function to: (1) clarify the Minimum Standards for General Residential Operations (GROs); (2) place DFPS in compliance with HRC §42.042(b); and (3) reduce the risk to children.
The 30-day comment period ended September 26, 2016. During this period, DFPS received 16 comments from six commenters: Texas Boys Ranch, Breathable Baby, the Coalition for Nurses in Advanced Practice, Devereux Advanced Behavior Health, The Settlement Home for Children, and One Voice Texas. A summary of the comments relating to the rules and DFPS' responses follow.
No comments concerning §748.43(64). However, DFPS adopts this paragraph of the rule with changes 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 §748.113(9). However, DFPS adopts this rule with changes in response to a comment received regarding a sister rule in Chapter 749. DFPS is clarifying the language to make it clear that a "child in care" is included amongst individuals against whom retaliation is prohibited.
Comments concerning §748.303(a)(9): There was one comment (and two additional comments from two other commenters that were received regarding a sister rule in Chapter 749) 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 agrees in part and disagrees in part with the commenter and adopts this paragraph of the rule 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 GROs need the ability to make prudent parenting decisions. DFPS is 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.
Comment concerning §748.363(7): The commenter would like to require employees to be trained on a GRO's operational policies, rather than just requiring that employees read these policies. The commenter stated that for adults reading is not an effective way to learn.
Response: DFPS agrees with the commenter, but adopts this rule without changes. DFPS agrees that training on the operational policies is important and a better method of learning, but §748.831(a)(1) currently requires a GRO to provide orientation that covers an operation's policies. In addition, training on operational policies can also be provided during general pre-service training or annual training. Additional specificity is not needed at this time.
Comment concerning §748.539: Concerning when an administrator is absent on a frequent and/or extended basis the administrator must designate another employee with an administrator's license to be responsible for the operation, the commenter requested that the terms "frequent and/or extended basis" be better defined.
Response: DFPS agrees with the commenter, but adopts this rule without changes. DFPS believes it would be more prudent to allow more time to work with GROs and advocates in an effort to develop appropriate definitions for "frequent and/or extended basis", and then propose the specific definitions to place all GROs and advocates on notice and to them an opportunity to comment on any proposed definitions.
Comment concerning §748.721: The commenter asks how the system will manage multiple witnesses reporting the same abuse/neglect incident. The commenter also wants to know if an administrator must report to DFPS abuse/neglect witnessed by a volunteer that has already been reported by the volunteer.
Response: DFPS adopts this rule without changes. In response to the commenter's questions, Family Code §261.101 requires all persons to report abuse and neglect when the person believes the child has been abused or neglected. The current reporting system already has in place a mechanism for merging the same reports. An administrator should make the report to DFPS, because the administrator cannot know for sure that the volunteer made the report, and the incident is required to be reported as a serious incident.
No comments concerning §748.724. However, DFPS adopts this rule with changes to correct a typographical error.
No comments concerning §748.801. However, DFPS adopts this rule with changes as noted below in the response to comments concerning §748.937(d).
No comments concerning §748.937(d). However, DFPS adopts this rule with changes in response to a comment received to a sister rule in Chapter 749 relating to a concern about increasing the number of self-instructional training hours that are allowed, and to make the rules consistent with the sister rule in Chapter 749. DFPS adopts three changes to further clarify these issues: (1) §748.801 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) §748.937(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 §748.939 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 §748.939. However, DFPS adopts this rule with changes as noted above in the response to comments concerning §748.937(d).
Comment concerning §748.1101(b)(1)(C): The commenter stated the laundry list of discrimination grounds should not be deleted. Rather, all of the discrimination grounds, including sexual orientation and gender identity, should be listed to clearly outline what is prohibited.
Response: DFPS disagrees with the commenter, and adopts the subparagraph of this rule without changes. DFPS is committed to making sure there is no discrimination, but a laundry list is complicated, confusing, and not all encompassing. What is important is that a child be treated fairly in all situations.
Comment concerning §748.1101(b)(3)(C): The commenter stated that the language of this rule ("The right to have the child's religious needs met. The child has the right to choose a church or not to practice a religion.") was troublesome and would be problematic for faith-based organizations. Many residential care agencies are faith-based. These policies and contract mandates restrict operations and compound the problems of the Texas foster care system.
Response: DFPS agrees with the commenter, but adopts this rule without changes. Before publication of this rule, the language of this rule was modified and was published to say "The right to have the child's religious needs met", which is the language that was used in the previous rule that was in place for the last ten years. This meets the intent to protect the child's right to practice a religion consistent with the child's belief system without unnecessary and prescriptive language in the rule.
Comments concerning §748.1219(3)(A) and 748.1551: The commenter recommended that advanced practice registered nurses (APRNs) be able to sign written orders for the admission of children with primary medical needs into a GRO, and allow APRNs to review a child's primary medical needs.
Response: DFPS agrees with the commenter, but adopts these rules without changes. DFPS believes it would be prudent to propose these changes in the future to place GROs and physicians on notice and to allow GROs and physicians an opportunity to comment on any changes to the rules.
No comments concerning §748.1349. However, DFPS adopts this rule with changes to clarify the language in the rule.
Comment concerning §748.1539(c): The commenter proposes that a GRO be allowed 30 days after admission in all situations to obtain immunization records, because there are several circumstances besides the child being homeless or in foster care when a child's immunization records cannot be obtained immediately. Re-immunizing children multiple times carries a medical risk and should be avoided. And the referral to a health-care professional should be to "restart" the immunizations rather than to "obtain" the immunizations.
Response: DFPS disagrees with the commenter, and adopts these rules without changes. Provisional enrollment of a child without meeting immunization requirements is specified in the Department of State Health Services (DSHS) rules. Those rules only allow for provisional enrollment for children who are homeless or in foster care. No other option is available under law. Those rules also specify that the student should be promptly referred to an appropriate health care provider to "obtain" the required vaccinations/immunizations.
Comment concerning §748.1543: The commenter stated that DSHS uses an immunization record format that does not require the address and phone number of the health-care professional that administered the vaccine, and this information is not likely to be available.
Response: DFPS agrees with the commenter, and adopts this rule with changes. While the proposed rule does not mention phone numbers, it does require an address. DFPS agrees the DSHS rules do not require addresses, but do require clinic contact information if the immunization record was generated from an electronic health record system. DFPS has reorganized this proposed rule regarding the documentation requirements for immunization records to delete the address requirement, add the clinic contact information, simplify and clarify the language of the rule, and make this rule consistent with its sister rules in Chapters 744 and 746.
No comments concerning §748.1695. However, DFPS adopts this rule with changes to replace "child" with "infant".Cont'd...
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