The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§748.43, 748.105, 748.303, 748.311, 748.535, 748.721, 748.725, 748.729, 748.801, 748.831, 748.867, 748.869, 748.881, 748.882, 748.883, 748.885, 748.935, 748.937, 748.939, 748.943, 748.944, 748.947, 748.1211, 748.1217, 748.1303, 748.2009, 748.2307, 748.2507, 748.2553, 748.2651, 748.2801, 748.2953, 748.3273, 748.3301, 748.3361, 748,3421, 748.3443, 748.3601, 748.3603, 748.3757, 748.3931, and 748.4001; new §§748.511, 748.811, 748.813, 748.833, 748.863, 748.864, 748.887, 748.889, 748.911, 748.913, 748.915, 748.930, 748.931, 748.936, 748.941, 748.945, 748.1553, 748.1937, 748.2857, 748.3281, 748.3283, and 748.3363; and repeals to §§748.833, 748.863, 748.868, 748.901, 748.903, 748.931, 748.941, 748.945, 748.981, 748.983, 748.985, 748.987, 748.989, 748.1937, and 748.3363 in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement Texas Human Resources Code (HRC) §42.042(b), which requires Child Care Regulation (CCR), a division of HHSC, to conduct a comprehensive review of all minimum standards every six years. The proposed changes are a result of the comprehensive review of all minimum standards located in Chapter 748. In addition, one of the proposed changes implements a section of statute added by House Bill (H.B.) 700, 87th Texas Legislature, Regular Session, 2021.

During the review of standards, CCR's goal was to balance the concerns of child advocacy groups, General Residential Operations (GROs), children, and parents to ensure that standards in Chapter 748 promote the health, safety, and welfare of children in care and meet other requirements described in HRC §42.042(e).

In preparation for the review of minimum standards, CCR conducted a web-based survey to solicit feedback from permit holders, licensed administrators, caregivers, advocates, parents, CCR staff, and the general public. The survey was available September 4 - 19, 2019. During the next step in the review, CCR held a series of nine stakeholder forums throughout the state, in February and March 2020. Additional stakeholder forums were held virtually between July 31 and August 7, 2020. During the forums, CCR presented the survey results and solicited additional input from the public about possible changes to the minimum standards CCR was considering based upon the survey results.

CCR used the input obtained through the survey, stakeholder forums, and a review of all minimum standards conducted by both regional and State Office CCR staff, as the basis of the first round of recommendations for changes to minimum standards. The recommendations were presented on January 8, 2021, to a temporary workgroup that comprised 26 invited participants, including providers from GROs and representatives from CCR, the Texas Department of Family and Protective Services (DFPS) Child Protective Services division, and the DFPS Residential Contracts division. The workgroup reviewed and provided additional comments regarding the recommendations.

CCR used all the feedback received to draft proposed changes to the rules for informal public comment. CCR received 125 comments during the informal comment period on July 12 through August 6, 2021. CCR carefully considered the comments when drafting rules for formal comment.

In addition to this consideration, this proposal also includes rules that CCR drafted to implement §264.1214(c) of Texas Family Code, which was added by H.B. 700, to allow an adult in care to share a bedroom with a child in care who is at least 16 years old and the age difference is not more than 24 months.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.43 (1) adds the terms "contract service provider," "employee," "normalcy," and "residential child-care operation," and their respective definitions for the chapter; (2) clarifies the definitions for the terms "chemical restraint," "general residential operation," "group of children," "health-care professional," "parent," "residential treatment center," "school-age child," and "seclusion"; (3) changes the term "state or local fire inspector" to "state or local fire authority" and clarifies its definition; and (4) renumbers the subsections and makes other non-substantive changes.

The proposed amendment to §748.105 (1) deletes language in subsection (3) that is repetitive; (2) clarifies that an employee must report suspected abuse, neglect, or exploitation directly to the Texas Abuse and Neglect Hotline, and may not delegate this responsibility, be required to seek approval to file a report, or be required to notify the GRO that a report was made; and (3) makes non-substantive changes to improve understanding and readability.

The proposed amendment to §748.303 (1) updates the rule to require a GRO to notify CCR and the parent as soon as possible, but no later than two hours after a child's death; (2) clarifies what type of "alleged incident" involving a child and law enforcement that a GRO needs to report; (3) indicates that a GRO must notify parents as soon as possible or within 24 hours after becoming aware of a child being issued a ticket or citation without being detained; (4) renumbers several of the paragraphs in subsection (a); (5) deletes "such as a seizure" in subsection (b), so that a seizure is not used as an example to describe a medically pertinent incident that does not rise to the level of a serious incident; (6) corrects references in subsection (c) and clarifies the language regarding the documentation of unauthorized absences for children who return before the required reporting timeframe; (7) clarifies that law enforcement needs to be notified if an adult resident dies, but there are no other requirements to notify law enforcement concerning adult residents; (8) replaces "parents" with "legally authorized representative" in subsection (d); (9) clarifies in subsection (e) that the Child Care Investigations division of the Texas Department of Family and Protective Services investigates child abuse or neglect, not CCR; (10) clarifies that CCR must be notified if law enforcement executes an arrest warrant and narrows the timeframe for reporting situations described in paragraph (e)(6); (11) adds a requirement and timeframe for reporting law enforcement's execution of a search warrant at the GRO; (12) adds requirements to notify CCR and parents when there is an allegation that an employee or caregiver used a prohibited emergency behavior intervention (EBI), a prohibited restraint technique, or an EBI inappropriately as outlined in specific rules; and (13) makes non-substantive changes to improve understanding and readability.

The proposed amendment to §748.311 clarifies that any update regarding an unauthorized absence, including a child's return to the operation, must be documented in the incident report.

Proposed new §748.511 clarifies what is already required in §748.3931 by stating that an employee, contract service provider, or volunteer must not be in possession of a handgun while at the GRO or while caring for children.

The proposed amendment to §748.535 (1) adds compliance with current heightened monitoring plans, if applicable, to the list of child-care administrator responsibilities; (2) specifies that a GRO must ensure that a child is not assigned, utilized, or allowed to act as a caregiver, as opposed to the currently more general language; and (3) specifies that a GRO must ensure that persons whose behavior or health status is known to present a danger to child are not allowed at the GRO.

The proposed amendment to §748.721 clarifies that a volunteer must not be required to seek approval to report suspected abuse, neglect, or exploitation.

The proposed amendment to §748.725 (1) removes references to "sponsoring family"; and (2) removes redundant language.

The proposed amendment to §748.729 removes references to "sponsoring family."

The proposed amendment to §748.801 (1) clarifies the definition of "instructor-led training," by stating that the training does not have to be in person, and allows blended learning; (2) clarifies that "self-instructional training" includes lessons or modules that have questions with clear right and wrong answers; (3) clarifies that "self-study training" relates to annual training; and (4) makes non-substantive edits for better understanding.

Proposed new Division 2 adds new §748.811 and §748.813, relating to an Overview of Training and Experience Requirements.

Proposed new §748.811 provides a summary of the training and experience requirements for a caregiver.

Proposed new §748.813 provides a summary of the training requirements for an employee.

The proposed amendment to Division 2 renumbers the Orientation division from two to three for organizational purposes.

The proposed amendment to §748.831 adds the orientation requirement for caregivers, whereas the rule previously only required orientation for employees.

The proposed repeal of §748.833 deletes the rule as no longer necessary, because the content of the rule is being added to proposed new §748.833 with non-substantive modifications.

Proposed new §748.833 simplifies and streamlines the proposed repeal of §748.833 by refocusing the rule on when a caregiver or employee may be exempt from orientation without changing the content of the rule.

The proposed amendment to Division 3 renumbers the Pre-Service Experience and Training division from three to four for organizational purposes.

The proposed repeal of §748.863 deletes the rule as no longer necessary, because the content of the rule is being added to proposed new §748.863 and §748.864 with substantive modifications.

Proposed new §748.863 incorporates a part of the proposed repeal of §748.863 into an updated table that clarifies the pre-service training requirements for a caregiver. The new table (1) clarifies what type of pre-service training is required; (2) offers more flexibility for when a caregiver must complete the training (a caregiver must complete at least four hours of training before the caregiver may be counted in the child to caregiver ratio, and the remaining hours must be completed within 30 days of becoming a caregiver); (3) clarifies that, except for a short personal restraint, a caregiver may not administer any form of emergency behavior intervention before completing the required training if the GRO allows the use of emergency behavior intervention; (4) incorporates into the table pre-service training requirements for safe sleeping and administering psychotropic medication, which is being deleted from the proposed amendments to §748.883 and §748.885; and (5) clarifies that a caregiver may not be counted in the child to caregiver ratio unless the caregiver has completed all of the pre-service training requirements or there is a fully qualified caregiver counted in the ratio at the same time.

Proposed new §748.864 (1) incorporates a part of the proposed repeal of §748.863 into an updated table that clarifies the pre-service training requirements for an employee; and (2) simplifies when an employee must complete normalcy training (within 90 days of beginning job duties).

The proposed amendment to §748.867 (1) simplifies and streamlines this rule by refocusing the content on when a caregiver or employee is exempt for pre-service training requirements; (2) incorporates the proposed repeal of §748.868 relating to when an employee is exempt from normalcy training and extends this exemption to caregivers; and (3) clarifies when a caregiver or employee is exempt for pre-service training for emergency behavior intervention.

The proposed repeal of §748.868 deletes the rule as no longer necessary, because the content of the rule is being added to the proposed amendment to §748.867 with substantive modifications.

The proposed amendment to §748.869 (1) simplifies the question at the beginning of the rule; (2) clarifies that instructor-led training and self-instructional training must include objectives, an evaluation or assessment, and a completion certificate; (3) simplifies and streamlines the relevant instructor requirements throughout the rule; and (4) clarifies that only pre-service training relating to administering psychotropic medication and emergency behavior intervention must be instructor-led.

The proposed amendment to Division 4 (1) renames the division to "Curriculum Components for Pre-Service Training" to reflect the proposed rule changes in the division; and (2) renumbers the division from four to five for organizational purposes.

The proposed amendment to §748.881 updates the language of the rule to be consistent with other rules in this chapter.

The proposed amendment to §748.882 updates the language of the rule to be consistent with other rules in this chapter.

The proposed amendment to §748.883 (1) streamlines the rule so it only includes the curriculum components for safe sleeping pre-service training; and (2) deletes the safe-sleeping pre-service training requirement and incorporates the requirement into proposed new §748.863.

The proposed amendment to §748.885 (1) streamlines the rule so it only includes the curriculum components for administering psychotropic medication pre-service training; and (2) deletes the administering psychotropic medication pre-service training requirement and incorporates the requirement into proposed new §748.863.

Proposed new §748.887 replaces the proposed repeal of §748.901 to incorporate into Division 5 the curriculum components for pre-service training for emergency behavior intervention when a GRO does not allow the use of emergency behavior intervention.

Proposed new §748.889 replaces the proposed repeal of §748.903 to incorporate into Division 5 the curriculum components for pre-service training for emergency behavior intervention when a GRO allows the use of emergency behavior intervention.

The proposed repeal of Division 5 deletes the Pre-Service Training Regarding Emergency Behavior Intervention division because the content of the rules in this division are being added to proposed new Division 5, Curriculum Components for Pre-Service Training, for organizational purposes.

The proposed repeal of §748.901 deletes the rule as no longer necessary, because the content of the rule is being added to proposed new §748.887 without any modifications.

The proposed repeal of §748.903 deletes the rule as no longer necessary, because the content of the rule is being added to proposed new §748.889 without any modifications.

Proposed New Division 6, First Aid and CPR Certification, (1) replaces the proposed repeal of Division 7 to better organize the divisions in this subchapter; and (2) incorporates new rules from the proposed repeal of Division 7.

Proposed new §748.911 incorporates into this one rule the repealed §§748.981, 748.983, 748.985, and 748.987 and: (1) simplifies the language from those rules to make it easier to understand; (2) clarifies that the CPR training must be pediatric and/or adult based on the ages of the children the GRO serves; (3) clarifies that a caregiver may complete first aid training through instructor-led training or self-instructional training; and (4) requires first aid and CPR certification by a caregiver within 90 days of employment.

Proposed new §748.913 (1) incorporates the content of the proposed repeal of §748.987, relating to CPR training curriculum requirements; and (2) clarifies that a caregiver may complete CPR training through blended learning as long as the caregiver meets other requirements.

Proposed new §748.915 incorporates, with minor modifications, the content of the proposed repeal of §748.989 on what documentation a GRO must maintain for first aid and CPR certifications.

The proposed amendment to Division 6 renumbers the Annual Training division from six to seven for organizational purposes.

Proposed new §748.930 incorporates part of the content of the proposed repeal of §748.931, on the annual training requirements for caregivers, and: (1) includes a table regarding the overall number of required annual training hours; (2) adds a second table that lists the mandated annual training topics and the hours that a caregiver must complete; (3) decreases the number of annual training hours for normalcy from two hours to one hour; (4) replaces part of the content of the proposed repeal of §748.945 by adding into the second table the mandated annual training requirements for administering psychotropic medication if the caregiver administers such medication; (5) clarifies that to meet the mandated annual training requirements, the training must follow the applicable curriculum requirements in Division 8 of this subchapter; (6) clarifies that caregivers who only care for children receiving treatment services for primary medical needs are exempt from the four hours of emergency behavior intervention training; and (7) clarifies that any other non-mandated annual training must be in areas appropriate to the needs of children for whom the caregiver provides care.

The proposed repeal of §748.931 deletes the rule as no longer necessary because the content of the rule is being added to proposed new §748.930 and §748.931 with substantive modifications.

Proposed new §748.931 incorporates part of the content of the proposed repeal of §748.931, on the annual training requirements for employees, and: (1) includes a table that specifies the annual training hours for each type of employee; (2) adds a second table that lists the mandated annual training topics and the hours that an employee must complete; and (3) decreases the number of annual training hours for normalcy from two hours to one hour to be consistent with the change made for caregivers.

The proposed amendment to §748.935 (1) updates the language of the rule to make it easier to understand; and (2) clarifies that, with the exception of emergency behavior intervention training, a caregiver or employee must complete annual training within 12 months of being hired and every subsequent 12-month period after the anniversary date of hire.

Proposed new §748.936 clarifies the frequencies of emergency behavior intervention training at a GRO that serves children with treatment services and at a cottage home.