The Texas Health and Human Services Commission (HHSC) adopts amendments to §748.151 and §748.303; and new §§748.158, 748.159, 748.160, 748.317, 748.319, and 748.1767 in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

New §748.158 is adopted with changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9159). This rule will be republished.

The amendments to §748.151 and §748.303; and new §§748.159, 748.160, 748.317, 748.319, and 748.1767 are adopted without changes to the proposed text as published in the December 18, 2020, issue of the Texas Register (45 TexReg 9159). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments and new rules are necessary to implement the portions of Senate Bill 568, 86th Legislature, Regular Session, 2019, that amended Chapter 42, Human Resources Code to require HHSC Child Care Regulation (CCR) to establish minimum standards for safe sleeping, expand liability insurance requirements, and alter reporting requirements for certain incidents and deficiencies.

COMMENTS

The 31-day comment period ended January 19, 2021. During this period, HHSC received comments regarding the proposed rules from two commenters, including Texas Alliance for Child and Family Services and Disability Rights Texas. Both commenters had multiple comments. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Regarding §748.158, one commenter recommended adding clarifying language to specify that the injury coverage under the required liability insurance policy is for non-accidental injuries or those related to negligence. The commenter also noted concerns regarding whether the language surrounding off-premises liability increased the requirements beyond those in statute and currently in place.

Response: HHSC agrees with the comment and is revising the rule as recommended. HHSC is also removing language related to injuries that occur off the premises of the operation.

Comment: Regarding §748.303 and §748.317, one commenter recommended that HHSC expand the rules to require an operation to notify a child's parents of any use of emergency behavioral interventions or deficiencies related to emergency behavioral interventions.

Response: HHSC declines to revise the rules. This recommendation is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 748. This will ensure the public can comment on any proposed changes.

Comment: Regarding §748.303(a)(3)(B), one commenter issued a statement of support for the rule that requires an operation to notify a parent immediately if there is an allegation that the child has been abused, neglected, or exploited.

Response: HHSC appreciates support of the rule.

Comment: Regarding §748.303(b), one commenter recommended HHSC expand the rule to require an operation to report a medically pertinent incident to parents within 24 hours of the incident.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 748. This will ensure the public can comment on any proposed changes.

Comment: Regarding §748.303(d), one commenter recommended HHSC expand the rule to require an operation to report incidents involving adult residents to CCR.

Response: HHSC declines to revise the rule. This paragraph was not proposed for change and is beyond the scope of this project. However, HHSC will consider the comment during the comprehensive review project for Chapter 748. This will ensure the public can comment on any proposed changes.

Comment: Regarding §748.317(a)(2), one commenter issued a statement of support for the rule that requires an operation to report a deficiency in abuse, neglect, or exploitation to the parent of each child residing at the operation.

Response: HHSC appreciates support of the rule.

Comment: Regarding §748.317(a)(2), one commenter requested CCR allow administrative sharing of information between HHSC and the Texas Department of Family and Protective Services to constitute notice of an abuse, neglect, or exploitation deficiency to a child's caseworker.

Response: HHSC disagrees with the comment and declines to revise the rule. Statute requires the operation, not HHSC, to notify a child's parent or guardian of the deficiency.

Comment: Regarding §748.319(a), one commenter was concerned that the five-day timeframe for an operation to notify parents of an abuse, neglect, or exploitation deficiency is too delayed. The commenter recommended changing the notification timeframe to 24 hours. A second commenter requested the notification requirement be extended to allow for notification once due process is complete.

Response: HHSC understands the reason for the comment but declines to revise the rule. HHSC and the Texas Department of Family and Protective Services have processes in place to mitigate risk to children during an investigation involving the alleged abuse, neglect, or exploitation of a child. HHSC has determined that the proposed timeframe is an appropriate amount of time to make the notification. To account for concerns regarding due process, CCR has added language to the required reporting form that allows an operation to indicate to parents whether it has requested due process for the deficiency.

Comment: Regarding §748.319(a), one commenter requested HHSC clarify the definition of "parent" by incorporating or referencing the definition in the rule.

Response: HHSC declines to revise the rule. The term "parent" is included in the definitions at the beginning of Chapter 748 and is used throughout the chapter. To further clarify the term for this rule, however, HHSC has added information and a reference to the definition of parent in a Helpful Information box following the rule in the Minimum Standards publications on the HHSC provider webpage.

Comment: Regarding §748.319(a), one commenter recommended the language in the rule be changed from "parent" to "parent or guardian" when the context indicates notice to a natural or biological parent is required.

Response: HHSC disagrees with the comment and declines to revise the rule. The rule requires notification to the child's parents, a term which is defined as a person who has legal responsibility for a child. The term is included in the definitions at the beginning of Chapter 748 and is used throughout the chapter. Adding "or guardian" to this rule would be inconsistent with the other rules referring to a parent in Chapter 748.

Comment: Regarding §748.319(b) and (c), one commenter requested HHSC share the deficiency notification forms with the provider community so that the community may offer input on the forms. The commenter also recommended adding a field to the forms to indicate the date the incident occurred.

Response: This comment does not require a change to the rule. The forms are currently available on HHSC's Child Care Regulation Provider website and HHSC may consider future revisions where warranted.

STATUTORY AUTHORITY

The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.02011, which transferred the regulatory functions of the Texas Department of Family and Protective Services to HHSC. In addition, Texas Human Resources Code §42.042(a) requires HHSC to adopt rules to carry out the requirements of Texas Human Resources Code Chapter 42.