Texas Register Preamble
The Texas Health and Human Service Commission (HHSC) adopts, on behalf of the Department of Family and Protective Services (DFPS), the repeal of §§746.103, 746.105, 746.107, 746.109, 746.507, 746.615, 746.617, 746.619, 746.621, 746.703, 746.903, 746.905, 746.1019, 746.1031, 746.1033, 746.1035, 746.1041, 746.1043, 746.1101, 746.1103, 746.1113, 746.1115, 746.1301, 746.1325, 746.1401, 746.1403, 746.2411, 746.2801, 746.2809, 746.2813, 746.3005, 746.3409, 746.3411, and 746.5009; new §§746.111, 746.113, 746.121, 746.123, 746.615, 746.1031, 746.1301, 746.1401, 746.2411, 746.2426, 746.3420, and 746.3606; and amendments to §§746.201, 746.301, 746.303, 746.405, 746.501, 746.503, 746.505, 746.603, 746.613, 746.623, 746.631, 746.705, 746.801, 746.803, 746.909, 746.1015, 746.1017, 746.1021, 746.1037, 746.1039, 746.1057, 746.1105, 746.1107, 746.1109, 746.1203, 746.1315, 746.1316, 746.1317, 746.1319, 746.1323, 746.2205, 746.2401, 746.2403, 746.2405, 746.2407, 746.2409, 746.2413, 746.2415, 746.2417, 746.2419, 746.2421, 746.2425, 746.2427, 746.2428, 746.2431, 746.2501, 746.2505, 746.2507, 746.2509, 746.2607, 746.2707, 746.2803, 746.2805, 746.2905, 746.2911, 746.3117, 746.3119, 746.3123, 746.3201, 746.3203, 746.3309, 746.3313, 746.3401, 746.3405, 746.3415, 746.3419, 746.3421, 746.3501, 746.3503, 746.3601, 746.3607, 746.3701, 746.3703, 746.3707, 746.3709, 746.3801, 746.3901, 746.4207, 746.4213, 746.4501, 746.4503, 746.4507, 746.4601, 746.4609, 746.4907, 746.4971, 746.5015, 746.5105, 746.5305, 746.5607, and 746.5621, concerning a comprehensive review of Chapter 746, Minimum Standards for Child-Care Centers.
The new §§746.123, 746.1031, 746.2426, 746.3420 and 746.3606; and amendments to §§746.201, 746.301, 746.303, 746.405, 746.501, 746.603, 746.623, 746.631, 746.801, 746.1015, 746.1017, 746.1021, 746.1037, 746.1039, 746.1057, 746.1105, 746.1107, 746.1109, 746.1317, 746.1323, 746.2415, 746.2421, 746.2427, 746.2428, 746.2803, 746.3309, 746.3415, 746.3501, 746.3503, 746.3607, 746.3703, 746.3707, 746.3709, 746.3801, 746.4609, 746.5305, and 746.5621 are adopted with changes to the proposed text published in the September 9, 2016, issue of the Texas Register (41 TexReg 6970).
The repeal of §§746.103, 746.105, 746.107, 746.109, 746.507, 746.615, 746.617, 746.619, 746.621, 746.703, 746.903, 746.905, 746.1019, 746.1031, 746.1033, 746.1035, 746.1041, 746.1043, 746.1101, 746.1103, 746.1113, 746.1115, 746.1301, 746.1325, 746.1401, 746.1403, 746.2411, 746.2801, 746.2809, 746.2813, 746.3005, 746.3409, 746.3411, and 746.5009; new §§746.111, 746.113, 746.121, 746.615, 746.1301, 746.1401, and 746.2411; and amendments to §§746.503, 746.505, 746.613, 746.705, 746.803, 746.909, 746.1203, 746.1315, 746.1316, 746.1319, 746.2205, 746.2401, 746.2403, 746.2405, 746.2407, 746.2409, 746.2413, 746.2417, 746.2419, 746.2425, 746.2431, 746.2501, 746.2505, 746.2507, 746.2509, 746.2607, 746.2707, 746.2805, 746.2905, 746.2911, 746.3117, 746.3119, 746.3123, 746.3201, 746.3203, 746.3313, 746.3401, 746.3405, 746.3419, 746.3421, 746.3601, 746.3701, 746.3901, 746.4207, 746.4213, 746.4501, 746.4503, 746.4507, 746.4601, 746.4907, 746.4971, 746.5015, 746.5105, and 746.5607 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 amendment to §746.1029 because the term "management" for required college courses is the more commonly used term and was correctly used in the current rule versus the use of "business management", which was used in the proposed rule; and the repeal and new §746.4607 because the new rule included a change that inadvertently allowed the maximum height of the designated play surface to be higher than was intended, so DFPS is reverting to the current rule.
BACKGROUND AND JUSTIFICATION
The justification for the repeals, new sections and amendments is to implement Texas Human Resources Code (HRC) §42.042(b) which requires Child Care Licensing (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 in Chapter 746.
During this review of standards, CCL's goal was to review the concerns of child advocacy groups, child-care centers, children, and parents and to formulate standards that balance children's health and safety with affordability and availability of care.
In preparation for the review of minimum standards, CCL conducted a web-based survey open to permit holders, caregivers, advocates, parents, CCL staff, 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 31 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 more than 1,200 comments relating to Chapters 744 (Minimum Standards for School-Age and Before- or After-School Programs), 745 (Licensing), 746, and 747 (Minimum Standards for Child-Care Homes) 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 was comprised of approximately 15 participants, including providers from child-care centers, a provider from a school-age and before- and after-school program, a parent, representatives from Licensing, and a representative from the Texas Workforce Commission. The workgroup had an introductory meeting on March 22, 2016, and subsequently met twice on April 5, 2016 and May 16, 2016 to review and provide comments regarding the recommended changes to Chapters 746, as well as Chapters 744 and 747.
The repeals, amendments and new rules will function to (1) clarify the Minimum Standards for Child-Care Centers; (2) place DFPS in compliance with HRC §42.042(b); and (3) reduce the risk to children.
The 30-day comment period ended October 9, 2016. During this period, DFPS received comments regarding 18 topics from 76 commenters, including Mainspring Schools, Texas Medical Association, Hill Country Fellowship Christian Academy, First3Years, Kinder Care Education, Texas League of Women Voters, Coalition for Nurses in Advanced Practice, Texans Care for Children, Partnership for a Healthy Texas, Texas Women's University, Atmos Pipeline Texas, Early Matters, Commit!, Momentous Institute, Family Services Association of San Antonio, Bell Nunnally, Dave Perry Miller & Associates, Temple Emanu-El, Bazosport College, Clinical Dermatology & Dermatological Surgery, and Texas Association for the Education of Young Children. A summary of the comments and the DFPS responses follow. Also included are changes to rules with no comments with an explanation of why additional clarification of the rule was needed.
There were no comments concerning §746.123, relating to definitions, with the exception of the comment immediately below concerning §746.123(28). However, DFPS is adopting this rule with changes to (1) correct a cite in the definition of "caregiver"; (2) correctly alphabetize a couple of definitions; (3) clarify that "clock hour" includes an hour of self-study training; (4) add a definition for "group activities"; (5) move a definition of "high-school equivalent" from proposed §746.1107 to this definitions rule because the term is used in several rules, and in order to clarify that there must be documentation of a GED or confirmation of home-schooling that adequately addresses basic competencies and clarify the wording of the rule to improve readability and ease of understanding; (6) modify the definition for "self-instructional training" to state that "self-study training" is a type of self-instructional training; (7) add a definition for "self-study training", which is 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, and clarifies that self-study training is limited to three hours of annual training per year; (8) renumber the definitions; and (9) make minor clarifications in the wording of the rule to improve readability and ease of understanding, including grammatical corrections and the deletion of a masculine pronoun.
Comment concerning §746.123(28), relating to the definition of a health-care professional: The commenter recommended adding a definition for "advanced practice registered nurse (APRN)", and amending the definition of "health-care professional" related to an APRN to be consistent with newer terminology used in the Texas Nursing Practice Act and throughout the other states.
Response: DFPS disagrees in part and agrees in part with the commenter and adopts this paragraph with changes. At this time a separate definition for APRN will not be added because this is the only time the APRN terminology is used in this chapter. DFPS will monitor the necessity of adding a definition of APRN in the future. DFPS will update the terminology for an APRN in the definition of a "health-care professional" as recommended by the commenter. Within the definition of "health-care professional" DFPS is also making some minor changes to delete a masculine pronoun and correct a grammatical error.
No comments concerning §746.201, relating to a permit holder's responsibilities. However, DFPS is adopting this rule with changes to correct a cite and to make several minor clarifications in the wording of the rule to improve readability and ease of understanding.
No comments concerning §746.301, relating to changes at a center that require notification to Licensing. However, DFPS is adopting this rule with changes to clarify when a change in ownership requires notification to Licensing, including adding a relevant cite.
No comments concerning §746.303, relating to director changes that require notification to Licensing. However, DFPS is adopting this rule with changes to clarify a designee, to clarify the rule to improve readability and ease of understanding, and to make the rule more consistent with its corresponding rule in Chapter 744.
No comments concerning §746.405, relating to what telephone numbers must be posted and where must they be posted. However, DFPS is adopting this rule with changes to clarify that phone numbers must be posted in a prominent place, delete the outdated requirement to post on the phone headset, and to make the rule more consistent with its corresponding rules in Chapters 744 and 747.
No comments concerning §746.501, relating to a center's operational policies. However, DFPS is adopting this rule with changes to the policy regarding a parent visiting and observing a center to clarify in more detail that the observation may include the center's building, premises, and equipment. DFPS is also making one minor clarification to paragraph (22) to improve readability and ease of understanding.
No comments concerning §746.603, relating to the records a center must keep. However, DFPS is adopting this rule with changes to clarify what type of daily tracking system for children is required, including adding a relevant cite. DFPS is also making a change to paragraph (10) to clarify that the written documentation must be maintained in the child's record, and two minor clarifications to paragraphs (6) and (10) to make the terms "vision and hearing screening" and "health-care professional" consistent throughout the chapter.
No comments concerning §746.623, relating to documentation requirements for an immunization record. However, DFPS is adopting this rule with changes to reorganize the documentation requirements. The changes, which are partially in response to a comment related to a corresponding rule in Chapter 748, also delete the address requirement for health-care professionals, add a requirement for clinic contact information when the immunization record is generated from an electronic health record system, simplify and clarify the wording of the rule to improve readability and ease of understanding, and make this rule consistent with corresponding rules in Chapters 744, 748, and 749.
No comments concerning §746.631, relating to signing children in and out of the center. However, DFPS is adopting this rule with changes to move the requirement to keep the daily tracking system for children to §746.801(19), which is the rule that lists the records that must be kept at a center. The timeline for keeping this tracking system will no longer be needed, because it is now covered in §746.803(a).
No comments concerning §746.801, relating to what records must be kept at a center. However, DFPS is adopting this rule with changes to clarify the infant feeding instructions and the daily tracking system by adding relevant cites for each requirement, to move the requirement to keep the daily tracking system for children to this rule (this requirement was previously in §746.631), and to clarify the wording of the rule to improve readability and ease of understanding.
No comments concerning §§746.1015 and 746.1017, relating to director qualifications. However, DFPS is adopting these two rules with changes to replace the term "business management" for required college courses to the more commonly used term "management" and to delete the subsection that states some director qualification options require periodic renewal, because this information is redundant and already included at §§746.1053 and 746.1055. DFPS will add the periodic renewal information to a Helpful Information box located on the DFPS public website version of the minimum standards immediately following each of these rules.
No comments concerning §746.1021, relating to what constitutes experience. However, DFPS is adopting this rule with changes to clarify that experience in a licensed or registered child-care home also includes experience as a substitute caregiver, and to clarify the wording to improve readability and ease of understanding.
No comments concerning §§746.1031 and 746.1037, relating to documentation requirements for management education qualifications and when clock hours or CEUs may be substituted for management education qualifications. However, DFPS is adopting these two rules with changes to replace the term "business management" with the more commonly used term "management" as it relates to the education qualifications.
No comments concerning §746.1039, relating to additional documentation requirements for a director. However, DFPS is adopting this rule with changes to correct two typographical errors.
No comments concerning §746.1057, relating to what happens when a director's credential expires. However, DFPS is adopting this rule with changes to clarify that a director's certificate will expire if the director does not submit the required documentation confirming that the credential is current.
No comments concerning §746.1105, relating to minimum qualifications for employees. However, DFPS is adopting this rule with a change to clarify that only DSHS or a local health authority may require TB exams, because there is no "regional" DSHS.
Comment concerning §746.1107, relating to the minimum qualifications of a caregiver: The commenter stated that caregivers should be required to have some type of Early Childhood credential.
Response: DFPS disagrees with the commenter but adopts this rule with changes. Credentials are mandated for directors. Credentials are also good for caregivers, and in many instances staffs are encouraged to obtain a credential where possible (for example, Texas Rising Star (a quality rating and improvement system for early childhood programs) and accreditation organizations). However, it is cost prohibitive to mandate credentials for all staff. In addressing a separate issue from the comment, DFPS is moving the definition for "high-school equivalent" to the definitions rule at §746.123, because the term is used in several other rules.
No comments concerning §746.1109, relating to when persons under 18 may be employed. However, DFPS is adopting this rule with changes to clarify the question for ease of understanding, delete a redundant cite, and make the wording of the rule consistent with its corresponding rule in Chapter 747.
Comments concerning §746.1309, relating to the annual training hours for caregivers: (1) Two commenters stated that they disagreed with increasing the number of training hours that caregivers may obtain through self-instruction. One commenter prefers to reduce the number of hours. The commenter states this is the least effective method of learning, and caregivers need time to interact with experts and get feedback. The other commenter stated that self-instructional courses should be properly vetted. (2) Two additional commenters recommended that the optional orientation and annual training regarding child nutrition, age-appropriate foods and snacks, and ways to develop age-appropriate activities and games that promote active play should be changed to mandated training.
Response: This rule was not proposed for public comment; therefore, these comments are outside the scope of the proposed rulemaking. Note: (1) This rule was proposed for public comment earlier in the year in response to the federal reauthorization of the Child Care and Development Block Grant (CCDBG). The rule changes made some significant changes to the required training curriculum and became effective on September 1, 2016. The self-instructional training hours issue was changed and discussed in the previous rule adoption. (2) Training on nutrition and active play are currently available through AgriLife and elsewhere. With the September 1, 2016 CCDBG changes to the training curriculum for centers, additional changes for training at this time will be confusing and burdensome. In addition, more mandated annual training will probably require an increase in the actual number of hours of annual training that each employee will need, which will result in additional costs for the provider.
Comment concerning §746.1315, relating to first-aid and CPR training: The commenter disagreed with allowing first-aid training to be conducted through self-instructional training. The commenter believes that face-to-face instruction is necessary and self-instruction courses should be properly vetted.Cont'd...
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