The Texas Health and Human Services Commission, on behalf of the Department of Family and Protective Services (DFPS), adopts amendments to §§744.101, 744.201, 744.301, 744.303, 744.305, 744.401, 744.405, 744.501, 744.503, 744.505, 744.603, 744.605, 744.613, 744.623, 744.627, 744.705, 744.801, 744.803, 744.909, 744.1001, 744.1003, 744.1015, 744.1017, 744.1023, 744.1035, 744.1037, 744.1051, 744.1053, 744.1055, 744.1103, 744.1105, 744.1107, 744.1203, 744.1315, 744.1317, 744.1319, 744.1321, 744.1325, 744.2001, 744.2005, 744.2103, 744.2105, 744.2207, 744.2211, 744.2409, 744.2411, 744.2413, 744.2501, 744.2505, 744.2515, 744.2519, 744.2551, 744.2571, 744.2573, 744.2577, 744.2601, 744.2603, 744.2607, 744.2609, 744.2651, 744.2701, 744.2905, 744.2907, 744.3003, 744.3007, 744.3051, 744.3101, 744.3107, 744.3111, 744.3209, 744.3251, 744.3255, 744.3351, 744.3413, 744.3505, 744.3561, 744.3605, 744.3607, 744.3619, 744.3757, 744.3801, 744.3805, 744.3807, 744.3817, and 744.3821; the repeal of §§744.103, 744.105, 744.107, 744.109, 744.507, 744.615, 744.617, 744.619, 744.621, 744.703, 744.903, 744.905, 744.1019, 744.1029, 744.1031, 744.1033, 744.1039, 744.1041, 744.1101, 744.1111, 744.1301, 744.1327, 744.1401, 744.1403, 744.2101, 744.2111, 744.2113, 744.2115, 744.2305, 744.2509, 744.2511, and 744.3409; and new §§744.111, 744.113, 744.121, 744.123, 744.615, 744.1029, 744.1301, 744.1401, 744.2520, and 744.2576 in Chapter 744, concerning Minimum Standards for School-Age and Before or After-School Programs.

The amendments §§744.405, 744.501, 744.603, 744.623, 744.801, 744.1037, 744.1055, 744.1105, 744.1107, 744.1325, 744.2103, 744.2409, 744.2577, 744.2603, 744.2607, 744.2609, 744.3111, 744.3605, 744.3607, 744.3817, and 744.3821, and new §§744.123, 744.1029, 744.1319, and 744.2520 are adopted with changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8560).

The amendments §§744.101, 744.201, 744.301, 744.303, 744.305, 744.401, 744.503, 744.505, 744.605, 744.613, 744.627, 744.705, 744.803, 744.909, 744.1001, 744.1003, 744.1015, 744.1017, 744.1023, 744.1035, 744.1051, 744.1053, 744.1103, 744.1203, 744.1315, 744.1317, 744.1321, 744.2001, 744.2005, 744.2105, 744.2207, 744.2211, 744.2411, 744.2413, 744.2501, 744.2505, 744.2515, 744.2519, 744.2551, 744.2571, 744.2573, 744.2601, 744.2651, 744.2701, 744.2905, 744.2907, 744.3003, 744.3007, 744.3051, 744.3101, 744.3107, 744.3209, 744.3251, 744.3255, 744.3351, 744.3413, 744.3505, 744.3561, 744.3619, 744.3757, 744.3801, 744.3805, and 744.3807; repeals §§744.103, 744.105, 744.107, 744.109, 744.507, 744.615, 744.617, 744.619, 744.621, 744.703, 744.903, 744.905, 744.1019, 744.1029, 744.1031, 744.1033, 744.1039, 744.1041, 744.1101, 744.1111, 744.1301, 744.1327, 744.1401, 744.1403, 744.2101, 744.2111, 744.2113, 744.2115, 744.2305, 744.2509, 744.2511, and 744.3409; and new §§744.111, 744.113, 744.121, 744.615, 744.1301, 744.1401, and 744.2576 are adopted without changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8560).

Also in this issue of the Texas Register, DFPS is withdrawing the repeal and new §744.3109 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 of the amendments, new sections, and repeals is to be in compliance with the 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 744.

During this review of standards, CCL's goal was to review the concerns of child advocacy groups, operations, 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, 745 (Licensing), 746 (Minimum Standards for Child-Care Centers), 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 Chapter 744 (and Chapters 746 and 747).

The function of the amendments, new sections and repeals as a result of the changes will be (1) clarification of the Minimum Standards for School-Age and Before or After-School Programs resulting in more compliance; (2) DFPS will be in compliance with HRC §42.042(b); and (3) there will be reduced risk to children.

COMMENTS

The 30-day comment period ended November 27, 2016. During this period, DFPS received one comment regarding one topic from the Coalition for Nurses in Advanced Practice.

Comment concerning §744.123(26), relating to the definition of a health-care professional: The commenter recommended that the definition of "health-care professional" for an advance practice registered nurse be consistent with newer terminology used in the Texas Nursing Practice Act and throughout the other states, and that it be clarified that this definition does not apply to nurses not licensed to practice in the United States.

Response: DFPS agrees with the commenter and adopts this paragraph with the appropriate changes.

Also included below are changes to rules with no comments with an explanation of why additional clarification of the rule was needed.

There were no comments concerning §744.123, relating to definitions, with the exception of the comment immediately above concerning §744.123(26). However, DFPS is adopting this rule with changes to (1) clarify that "clock hour" includes an hour of self-study training; (2) add a definition for "group activities"; (3) correctly alphabetize a couple of definitions; (4) move a definition of "high school equivalent" from proposed §744.1105 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 addressed basic competencies and clarify the wording of the rule to improve readability and ease of understanding; (5) modify the definition for "self-instructional training" to state that "self-study training" is a type of self-instructional training; (6) 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; (7) make minor clarifications in the wording of the rule to improve readability and ease of understanding; and (8) renumber the definitions.

No comments concerning §744.405, relating to what telephone numbers must be posted and where they must be posted. However, DFPS is adopting this rule with changes to clarify that phone numbers must be posted in a prominent place and deleting the outdated requirement to post on the phone handset.

No comments concerning §744.501, relating to a program's operational policies. However, DFPS is adopting this rule with changes to the policy to correct a grammatical error in paragraph (18) and to clarify paragraph (21) to improve readability and ease of understanding.

No comments concerning §744.603, relating to the records an operation must keep. However, DFPS is adopting this rule with changes to clarify that written recommendations from a health-care professional must be kept in the child's record.

No comments concerning §744.623, relating to documentation requirements for an immunization record. However, DFPS is adopting this rule with changes to clarify the rule by including additional examples in paragraphs (2) and (3), to clarify the wording of the rule to improve readability and ease of understanding, and to make the rule consistent with corresponding rules in Chapters 746, 748, and 749.

No comments concerning §744.801, relating to what records must be kept at an operation. However, DFPS is adopting this rule with changes to clarify the personnel and training records requirement by adding a relevant cite, and to clarify the wording of the rule to improve readability and ease of understanding.

No comments concerning §744.1029, relating to documentation requirements for child development and management education qualifications. However, DFPS is adopting this rule with changes to clarify the question to improve readability and ease of understanding.

No comments concerning §744.1037, relating to additional documentation requirements for a director. However, DFPS is adopting this rule with changes to clarify that there are four requirements under subsection (a) as opposed to three, and moves a sentence that was in the wrong place to paragraph (3) to clarify the meaning of the paragraph.

No comments concerning §744.1055, relating to what happens when a director's credential expires. However, DFPS is adopting this rule with changes by clarifying that in some instances a director's certificate will expire if the director does not submit the required documentation confirming that the director's credential is current.

No comments concerning §744.1105, relating to minimum qualifications for caregivers. However, DFPS is adopting this rule with changes by moving the definition for "high-school equivalent" to the definitions rule at §744.123, because the term is used in several other rules.

No comments concerning §744.1107, relating to when persons under 18 may be employed. However, DFPS is adopting this rule with changes to clarify the question to improve the understanding of the rule and make the wording of the rule consistent with corresponding rules in Chapters 746 and 747.

No comments concerning §744.1319, relating to training criteria. However, DFPS is adopting this rule with changes to clarify that the requirements in subsection (c) do not apply to self-study training.

No comments concerning §744.1325, relating to a caregiver or a director obtaining training from another operation. However, DFPS is adopting this rule with changes to reorganize the rule and clarify the wording of the rule to improve readability and ease of understanding without impacting the content of the rule.

No comments concerning §744.2103, relating to methods of discipline and guidance that may be used. However, DFPS is adopting this rule with changes to subsection (b) to correct a grammatical error and to clarify the wording of the rule to improve readability and ease of understanding.

No comments concerning §744.2409, relating to parents providing meals and snacks. However, DFPS is adopting this rule with changes to make the wording of this rule consistent with corresponding rules in Chapters 746 and 747 by adding language to clarify that a parent may provide baked goods for a celebration party at the operation, and to clarify the wording of the rule to improve readability and ease of understanding.

No comments concerning §744.2520, relating to the use of hand sanitizer. However, DFPS is adopting this rule with changes partially in response to a comment on a corresponding rule in Chapter 746. DFPS is clarifying that hand sanitizers may only be used when all of the conditions in the rule are met, and is reorganizing the order of the conditions to improve the understanding of the rule. DFPS is also adding a Helpful Information box immediately following the rule that is located on the DFPS public website version of the minimum standards that states hand sanitizers should be used in moderation and should not be substituted for all hand washing.

No comments concerning §744.2577, relating to how a caregiver should respond to an illness or injury that requires the immediate attention of a health-care professional. However, DFPS is adopting this rule with changes to clarify that the caregiver must also contact the physician or other health-care professional identified in the child's record to be consistent with corresponding rules in Chapters 746 and 747.

No comments concerning §744.2603, relating to ensuring the safety of children. However, DFPS is adopting this rule with changes to make it clear that the smoking of any e-cigarette, vaporizer, or tobacco product or otherwise use of any tobacco product is not allowed at the operation. Oil diffusers would be allowable. This change is in response to a comment on a corresponding rule in Chapter 747.

No comments concerning §744.2607, relating to firearms allowed at the operation. However, DFPS is adopting this rule with changes to clarify that while firearms and other weapons are prohibited on the premises of an operation, the prohibition does not apply to personal vehicles. This clarification is needed because a new definition of "premises" was added to §744.123.

No comments concerning §744.2609, relating to toys that explode or shoot. However, DFPS is adopting this rule with changes to clarify the wording of the rule to improve readability and ease of understanding without changing the content, and to make it consistent with corresponding rules in Chapters 746 and 747.

No comments concerning §744.3111, relating to the maximum height allowed for the highest designated play surface if an operation was licensed before 2010. However, DFPS is adopting this rule with changes to update a cite and to clarify the wording to improve readability and ease of understanding.

No comments concerning §§744.3605 and 744.3607, relating to the mounting of fire extinguishers, and the inspection and servicing of fire extinguishers, respectively. However, DFPS is adopting these two rules with changes to correct the grammar, so the answers and the questions will be consistent.

No comments concerning §744.3817, relating to the carrying of information in vehicles used to transport children. However, DFPS is adopting this rule with changes to clarify that drivers must have a current driver's license and carry it while transporting children.

No comments concerning §744.3821, relating to the communication requirements for a vehicle when transporting children. However, DFPS is adopting this rule with changes to reorganize the rule and clarify the wording of the rule to improve readability and ease of understanding without changing the content of the rule.

The amendments are 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.

The amendments implement HRC §42.042.