The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), the repeal of §§747.103, 747.105, 747.107, 747.109, 747.111, 747.113, 747.209, 747.615, 747.617, 747.619, 747.621, 747.623, 747.625, 747.703, 747.907, 747.1009, 747.1123, 747.1125, 747.1127, 747.1133, 747.1135, 747.1205, 747.1215, 747.1217, 747.1219, 747.1303, 747.1323, 747.2311, 747.2701, 747.2711, 747.2715, 747.2907, 747.3205, 747.3207, 747.4107, and 747.4311; new sections §§747.111, 747.113, 747.115, 747.117, 747.121, 747.123, 747.615, 747.623, 747.1123, 747.1303, 747.2311, 747.2326, 747.3216, and 747.3406; and amendments to §§747.207, 747.301, 747.401, 747.403, 747.501, 747.503, 747.505, 747.603, 747.605, 747.613, 747.705, 747.801, 747.803, 747.909, 747.1007, 747.1107, 747.1113, 747.1129, 747.1131, 747.1137, 747.1145, 747.1147, 747.1149, 747.1153, 747.1207, 747.1209, 747.1211, 747.1305, 747.1309, 747.1311, 747.1313, 747.1314, 747.1315, 747.1317, 747.1321, 747.1401, 747.1501, 747.2103, 747.2301, 747.2305, 747.2307, 747.2309, 747.2313, 747.2315, 747.2317, 747.2319, 747.2321, 747.2323, 747.2325, 747.2327, 747.2328, 747.2331, 747.2401, 747.2405, 747.2407, 747.2507, 747.2605, 747.2607, 747.2703, 747.2705, 747.2801, 747.2803, 747.2805, 747.2807, 747.2811, 747.3003, 747.3101, 747.3109, 747.3117, 747.3203, 747.3211, 747.3215, 747.3217, 747.3301, 747.3303, 747.3307, 747.3401, 747.3403, 747.3407, 747.3411, 747.3503, 747.3505, 747.3507, 747.3601, 747.3619, 747.3701, 747.3903, 747.4011, 747.4015, 747.4113, 747.4203, 747.4301, 747.4303, 747.4305, 747.4307, 747.4309, 747.4401, 747.4407, 747.4751, 747.4803, 747.4807, 747.4809, 747.4815, 747.5013, 747.5101, 747.5103, 747.5105, 747.5107, 747.5109, 747.5115, 747.5117, 747.5401, 747.5405, 747.5407, 747.5409, 747.5411, 747.5417, 747.5419, and 747.5421 in Chapter 747, concerning Minimum Standards for Child-Care Homes.

The new sections §§747.123, 747.623, 747.2326, 747.3216, and 747.3406; and amendments to §§747.501, 747.603, 747.909, 747.1113, 747.1131, 747.1149, 747.1211, 747.1321, 747.2327, 747.2328, 747.3301, 747.3303, 747.3407, 747.3503, 747.3507, 747.5105, 747.5107, 747.5115, and 747.5417 are adopted with changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10096).

The repeal of §§747.103, 747.105, 747.107, 747.109, 747.111, 747.113, 747.209, 747.615, 747.617, 747.619, 747.621, 747.623, 747.625, 747.703, 747.907, 747.1009, 747.1123, 747.1125, 747.1127, 747.1133, 747.1135, 747.1205, 747.1215, 747.1217, 747.1219, 747.1303, 747.1323, 747.2311, 747.2701, 747.2711, 747.2715, 747.2907, 747.3205, 747.3207, 747.4107, and 747.4311; new sections §§747.111, 747.113, 747.115, 747.117, 747.121, 747.615, 747.1123, 747.1303, and 747.2311; and amendments to §§747.207, 747.301, 747.401, 747.403, 747.503, 747.505, 747.605, 747.613, 747.705, 747.801, 747.803, 747.1007, 747.1107, 747.1129, 747.1137, 747.1145, 747.1147, 747.1153, 747.1207, 747.1209, 747.1305, 747.1309, 747.1311, 747.1313, 747.1314, 747.1315, 747.1317, 747.1401, 747.1501, 747.2103, 747.2301, 747.2305, 747.2307, 747.2309, 747.2313, 747.2315, 747.2317, 747.2319, 747.2321, 747.2323, 747.2325, 747.2331, 747.2401, 747.2405, 747.2407, 747.2507, 747.2605, 747.2607, 747.2703, 747.2705, 747.2801, 747.2803, 747.2805, 747.2807, 747.2811, 747.3003, 747.3101, 747.3109, 747.3117, 747.3203, 747.3211, 747.3215, 747.3217, 747.3307, 747.3401, 747.3403, 747.3411, 747.3505, 747.3601, 747.3619, 747.3701, 747.3903, 747.4011, 747.4015, 747.4113, 747.4203, 747.4301, 747.4303, 747.4305, 747.4307, 747.4309, 747.4401, 747.4407, 747.4751, 747.4803, 747.4807, 747.4809, 747.4815, 747.5013, 747.5101, 747.5103, 747.5109, 747.5117, 747.5401, 747.5405, 747.5407, 747.5409, 747.5411, 747.5419, and 747.5421 are adopted without changes to the proposed text published in the December 23, 2016, issue of the Texas Register (41 TexReg 10096) and will not be republished.

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 747.

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

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

COMMENTS

The 36-day comment period ended January 28, 2017. During this period, DFPS received comments regarding eleven different rules from four commenters, including the Coalition of Nurses in Advanced Practice and Texans Care for Children.

Comment concerning §747.123(28), relating to the definition of a health-care professional: The commenter recommends 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.

Comment concerning §747.123(43) and (44), relating to the definitions of self-instructional training and self-study training: The commenter recommends that caregivers be allowed to obtain all annual training hours through self-instructional training and not limit self-instructional training to three hours. The commenter stated that requiring so much instructor-led training takes away from family time.

Response: DFPS adopts these two paragraphs without changes. Section 747.1305(g) and 747.1309(j) state that 80% of annual training may be obtained from self-instructional training. The 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", only limits self-study training to three hours. Other annual training can be obtained through self-instructional training, up to 80% of the annual training hours. For example, if 15 hours of annual training is required, 12 hours (80% X 15) may be obtained through self-instructional training. Of those 12 hours, only 3 hours may be obtained through self-study training.

Comment concerning §747.207, relating to the responsibilities of the primary caregiver: The commenter recommends increasing the number of children allowed in a licensed child-care home to 15 based on the home size and number of caregivers. The current limit of 12 children restricts home providers from meeting the growing need for child care in the communities. The commenter stated that in-home child care is the best care for infants and the most affordable.

Response: DFPS adopts this rule without changes. The rule the commenter cited does not relate to the number of children allowed in licensed child-care homes. There are other rules that do limit the number of children allowed in child-care homes to 12, including §745.37(2)(C)) and many rules in Subchapter E, Child-Caregiver Ratios and Group Sizes. These rules were not proposed for public comment; therefore, these comments are outside the scope of the proposed rulemaking.

Comment concerning §747.909, relating to what records must be maintained: The commenter recommending changing "health card or a physician's statement" to "health card or a health-care professional's statement" to be consistent with the changes made earlier this year to §747.1401.

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

Comment concerning §747.1305, relating to the topics for annual training: The commenter appears to be recommending that child health, nutrition, and physical activity should be added as a training option for the annual training requirements for caregivers.

Response: DFPS adopts this rule without changes. A caregiver in a registered child-care home must receive 15 hours of annual training per year. A caregiver in a licensed child-care home must receive 24 hours of annual training per year. §747.1305 lists the mandated topics caregivers must receive training on. A caregiver will usually need to complete additional annual training hours after completing the mandated training. §747.1305(f) requires that the remaining training hours be in certain topics, including "child health (for example, nutrition and physical activity)". This optional requirement already appears to meet the intent of the commenter's recommendation.

Comments concerning §747.2103, relating to activity plans: The commenter recommends (1) two or more structured (caregiver-led) activities that promote movement; (2) outdoor active play two or three times daily, weather permitting; (3) 60 - 120 minutes outdoor play/physical activity based on a child's age, and prorated for part-time programs; and (4) written policies to promote physical activity. The commenter stated that these recommendations are in line with evidence-based standards for early child care and are supported by the American Academy of Pediatrics.

Response: DFPS adopts this rule without changes. The current rule was written with less specificity than the center rules, because it is a home environment. In any event, the commenter's recommended changes were not proposed and published for public comment. For such changes, it would not be prudent to make the changes to the rule without first proposing the changes to allow homes and parents an opportunity to comment. Even so, DFPS will need to conduct additional research regarding these issues before such proposed changes would be contemplated.

Comments concerning §747.2105, relating to the use of media viewing (TV, computer, and video games) as activities for children: The commenter recommends (1) no media viewing during meal or snack times; and (2) no more than 30 minutes of media viewing once a week and only for educational purposes.

Response: This rule was not proposed for public comment; therefore, the comments are outside the scope of the proposed rulemaking. However, §747.2105 currently: (1) requires that media viewing must be related to planned activities. This rule would not allow children just to watch television or a movie while eating; and (2) limits media viewing to two hours per day. For such a major change (from two hours a day to 30 minutes a week), it would not be prudent to make the change to the rule without first proposing the change to allow homes and parents an opportunity to comment. Even so, DFPS will need to conduct additional research regarding these issues before such proposed changes would be contemplated. There are currently some proponents for more frequent computer usage for educational purposes and in response to caregiver directed use.

Comment concerning §747.3105, relating to a child's daily food needs: The commenter recommends that the food charts in §747.3105 be deleted and replaced with the easy to read infant and child meal patterns of the Child and Adult Care Food Program (CACFP).

Response: This rule was not proposed for public comment; therefore, the comment is outside the scope of the proposed rulemaking. Note: When DFPS began the Comprehensive Review for Chapters 744, 746, and 747, the CACFP nutrition guidelines were being updated. The updates to the CACFP guidelines have now been finalized. DFPS does plan on working with the Texas Department of Agriculture, advocates, parents, and providers to determine which nutrition rules need to be updated.

Comment concerning §747.3109, relating to parents providing meals and snacks: The commenter recommends a change to this rule for those homes that ask parents to supply a child's lunches and/or snacks. The commenter stated that given the importance of nutrition in a child's first few years and the absence of other channels for effectively communicating with parents, the state should leverage the child care provider's relationship with parents to require homes to give information to parents regarding healthy child lunches, sample menus, food allergies, and choking hazards.

Response: DFPS adopts this rule without changes. DFPS agrees that nutrition for young children is important and currently has information in the Technical Assistance Library on the DFPS website regarding age-appropriate nutrition, food allergies, and choking hazards (but not sample menus). DFPS currently encourages providers to communicate with parents about nutrition, food allergies, and choking hazards. However, in some instances parents may already be getting this information through other programs (for example, parents currently receiving benefits through the CACFP or Women, Infants, and Children (WIC)). DFPS does not believe a mandatory rule is necessary at this time. In any event, it would not be prudent to make this change to the rule without first proposing the change to allow homes and parents an opportunity to comment on the change. DFPS will add information to the current Helpful Information box immediately following the rule that is located on the DFPS public website version of the minimum standards to further encourage communication with the parents regarding nutrition, food allergies, and choking hazards.

Comment concerning §747.3407, relating to how a caregiver should respond to an illness or injury that requires the immediate attention of a health-care professional: To be consistent with other changes made to the rules, when there is an illness or injury that requires the immediate attention of a health-care professional, the commenter recommends also contacting the physician "or health-care professional" identified in the child's record, because it may not be a physician.

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

Comment concerning §747.3503, relating to ensuring the safety of children from other persons: The commenter is in favor of banning e-cigarettes, but is concerned that the banning of vapors will by definition also ban oil diffusers. The commenter is concerned that the cool mist that is diffused will be considered a vapor. The commenter believes that vapors from oil diffusers are therapeutic and are not harmful to children.

Response: DFPS adopts 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 home. This clarifies that the use of an oil diffuser would be allowable. This change also makes the rule consistent with corresponding rules in Chapters 744 and 746.

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 §747.123, relating to definitions, with the exception of the comments above concerning §747.123(28), (43), and (44). However, DFPS is adopting this rule with changes to (1) correctly alphabetize a couple of definitions; (2) clarify the definition of "high school equivalent" in relation to the confirmation of home-schooling that adequately addressed basic competencies; (3) add a clarification that lessons or modules in "self-instructional training" commonly include questions with clear right and wrong answers; (4) make minor clarifications in the wording of the rule to improve readability and ease of understanding; (5) renumber the definitions; and (6) make the language of the definitions consistent with the definitions in Chapters 744 and 746.

No comments concerning §747.501, relating to a home's operational policies. However, DFPS is adopting this rule with changes to the policy to clarify in paragraph (8) that parents may observe the home, the premises, and equipment.

No comments concerning §747.603, relating to a child's record that must be kept. 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 §747.623, 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 744, 746, 748, and 749.

No comments concerning §747.1113, relating to what records must be kept on the permit holder. However, DFPS is adopting this rule with changes 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 744 and 746.

No comments concerning §747.1131, relating to additional documentation requirements to qualify as a primary caregiver. However, DFPS is adopting this rule with changes to clarify that a Child-Care Director's Certificate form or original letters of training may also be used to verify educational requirements.