The Texas Health and Human Services Commission (HHSC) adopts 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 of §§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.

Amendments to §§748.43, 748.303, 748.869, 748.885, 748.2009, 748.2307, 748.2507, 748.2553, 748.2651; and new §748.1553 and §748.1937 are adopted with changes to the proposed text as published in the December 24, 2021, issue of the Texas Register (46 TexReg 8904). These rules will be republished.

Amendments to §§748.105, 748.311, 748.535, 748.721, 748.725, 748.729, 748.801, 748.831, 748.867, 748.881, 748.882, 748.883, 748.935, 748.937, 748.939, 748.943, 748.944, 748.947, 748.1211, 748.1217, 748.1303, 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, 748.2857, 748.3281, 748.3283, and 748.3363; and repeals of §§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 are adopted without changes to the proposed text, as published in the December 24, 2021, issue of the Texas Register (46 TexReg 8904). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments, new sections, and repeals are necessary to implement Texas Human Resources Code (HRC) §42.042(b), which requires HHSC Child Care Regulation (CCR) to conduct a comprehensive review of all minimum standards every six years. The rule changes are a result of the comprehensive review of all minimum standards located in Chapter 748. In addition, one of the rule 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 21, 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 rules for informal public comment. CCR received 125 comments during the informal comment period from July 12 to August 6, 2021. CCR carefully considered the comments when drafting rules for formal comment.

In addition to this consideration, the rule changes also include 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.

COMMENTS

The 31-day formal comment period ended January 24, 2022. During this period, HHSC received 102 comments regarding the proposed rules from three commenters: the Texas Alliance of Child and Family Services, Disability Rights Texas, and the Texas Council for Developmental Disabilities. A summary of comments relating to the rules and HHSC CCR's responses follows.

Comment: Regarding the rules process in general, one commenter recommended that CCR have face-to-face meetings with stakeholders to obtain feedback instead of relying on written comments.

Response: HHSC agrees with the commenter that face-to-face meetings with stakeholders are an important part of the rules process. Several stakeholder forums for this rule project were held both in person and virtually in February, March, July, and August of 2020. These forums were open to the general public, and they helped CCR determine what rule changes were needed in its comprehensive review of Chapter 748. Also, a temporary workgroup comprised of stakeholders met in January 2021 to provide additional input. While CCR recognizes the benefit of receiving stakeholder feedback through forums and meetings, CCR also welcomes written comments and recognizes their value in the rules process.

Comment: One commenter indicated that this comprehensive review of Chapter 748 was not truly comprehensive because the current rules process does not allow for meaningful reform. The commenter also recommended other ways to improve the rules process, such as (1) having a third-party reviewer make recommendations about the regulatory scheme in Texas, (2) developing new standards to coincide with program service models for funding rates or to implement new license types, and (3) creating standards that allow for "deemed status" or other recognition of compliance with relevant accreditation standards.

Response: HHSC disagrees with the commenter that the current review is not truly comprehensive. CCR started its comprehensive review of Chapter 748 rules in 2019. The review has included multiple occasions and methods for regulated operations, stakeholders, and the public to provide input and comments on all rules. During the review, HHSC ensured drafted changes to the rules balanced both stakeholder requests for enhancing child health and safety and provider requests for minimizing regulatory burden on operations.

Comment: Regarding the proposed rules in general, one commenter indicated that, while the commenter appreciated HHSC simplified many rules, thereby making the burden of compliance a little lower for operations, there were instances in which the fiscal implications for the provider community were overlooked. The commenter indicated that some of the rule changes would require, among other things, operational policies to be updated, additional training for staff to be developed, and development of methods to monitor and maintain compliance with those rule changes. The commenter indicated that these and similar tasks would constitute an administrative and regulatory burden that would result in a fiscal impact to operations.

Response: HHSC disagrees with the commenter. The rule proposals for this project do not impose any additional costs for operations. Changes to regulations do not always carry a fiscal impact for operations. While some of the proposed changes add new requirements for providers, many proposed changes reduce or eliminate existing requirements. With respect to the rule proposals for training, several of the training requirements were decreased to reduce the burden on the provider community. After the rule changes are adopted, HHSC will inform operations of the adopted rules and when they will be effective. HHSC will also provide operations with a six-month period of technical assistance so that compliance with the rules can be achieved.

Comment: Regarding the rules process in general, one commenter recommended that HHSC obtain input from operations when assigning weights to the rules especially given the weights' importance in determining which operations are placed on heightened monitoring.

Response: HHSC disagrees with the commenter that HHSC should obtain input from operations when assigning weights to the rules. However, if an operation, stakeholder, or person had any recommendations regarding the weights for proposed rules, those recommendations may be submitted to HHSC while the rules are open for public comment. HHSC recognizes that an operation's noncompliance with high and medium-high weighted rules may impact determinations regarding heightened monitoring; however, weights are assigned based on the risk of harm to children if an operation violates the rule. HHSC has made changes to the structure of some rules to separate requirements that present a lower risk of harm from those that present a higher risk of harm in anticipation of adjusting the weights accordingly after rules are adopted.

Comment: Regarding the rule proposals for training in general, one commenter indicated that HHSC should use the competency-based training standards developed for psychiatric hospitals as a model.

Response: HHSC disagrees with the commenter. The standards for psychiatric hospitals mentioned by the commenter do not have the same applicability for child-care operations, which operate differently and serve a different population.

Comment: Regarding §748.43, two commenters indicated the terms and definitions for "medically pertinent incident," "emergency health situation," and "emergency care services" should be added to the rule.

Response: HHSC disagrees with the commenters' recommendation to revise the rule to include these terms and definitions. Any attempts at defining "emergency health situation" and "emergency care services" may pose problems if the definitions do not include all possible circumstances. Also, the use of "medically pertinent incident" in §748.303(b) suggests it is an incident that does not rise to the level of a serious incident and does not require reporting; therefore, the meaning of "medically pertinent incident" is described in the context of that rule and distinguishes it from what would need to be reported, such as a substantial physical injury or critical illness that a reasonable person would conclude needs treatment by a medical professional or hospitalization.

Comment: Regarding §748.43, two commenters indicated the definition of "chemical restraint" should say it is not to be used as discipline or convenience, and it is not standard treatment or dosage normally used for the child's medical or dental condition.

Response: HHSC disagrees with the commenters' recommendation to revise the rule because the proposed change to the definition already indicates that a "chemical restraint" is prohibited. Furthermore, the rule outlines that a "chemical restraint" is an emergency behavior intervention (EBI), and EBI rules prohibit a provider from using EBI as a punishment or convenience.

Comment: Regarding §748.43, two commenters indicated the definition of "immediate danger" needs to eliminate the age specification for a child running away.

Response: HHSC agrees with the commenters and revised the rule to ensure there is no age specification for a child running away in order for the situation to constitute "immediate danger" and to make the language in the definition more consistent with the same definition in Chapter 749, Minimum Standards for Child-Placing Agencies.

Comment: Regarding §748.43, two commenters indicated the definition of "personal restraint" should describe escorting as a response to a child resisting verbally in addition to physically.

Response: HHSC partially agrees with the commenters and revised the rule by deleting the sentence that addresses escorting from the definition of "personal restraint." It is not necessary to address escorting or other types of personal restraints in this definition, either in the current language or as requested by the commenters.

Comment: Regarding §748.43, two commenters recommended that the definition of "psycho-social assessment" include a reference to a diagnosis based on the "DM-ID 2" manual, so that diagnosis can be noted for a child who is dually diagnosed with a mental health condition and an intellectual or developmental disability.

Response: HHSC disagrees with the commenters that the definition of "psycho-social assessment" needs to be revised at this time to incorporate the commenters' recommendation. HHSC needs more time to evaluate this recommendation and obtain input from providers, stakeholders, and the public before making substantive changes to the definition of "psycho-social assessment."

Comment: Regarding §748.43, one commenter recommended that the definition for "seclusion" be clarified so that a child does not need to be alone for seclusion to occur.

Response: HHSC disagrees with the commenter that the definition of "seclusion" needs to be revised at this time to incorporate the commenter's recommendation. HHSC needs more time to evaluate this recommendation and obtain input from providers, stakeholders, and the public before making substantive changes to the definition for "seclusion."

Comment: Regarding §748.43, two commenters indicated that objective criteria need to be developed and then included in the definition for "substantial physical injury," so that there is more consistency with other HHS programs in how injuries are assessed and reported.

Response: HHSC disagrees with the commenters that the definition of "substantial physical injury" needs to be revised at this time to incorporate the commenters' recommendation. HHSC needs more time to evaluate this recommendation and obtain input from providers, stakeholders, and the public before making changes to the definition of "substantial physical injury." Moreover, the current definition is consistent with the definition that DFPS uses in its investigations of possible child abuse, neglect, or exploitation in child-care investigations. See 40 Texas Administrative Code §707.801(b)(4).

Comment: Regarding §748.43, two commenters recommended that the definition for "trauma informed care" be clarified to emphasize methods of responding to certain situations.

Response: HHSC disagrees with the commenters' recommendation to revise the rule. Other rules already exist in Chapter 748 that require operations to integrate trauma-informed care into the care and treatment of each child.

Comment: Regarding §748.105, one commenter recommended that an operation's personnel policies and procedures include prohibited EBI practices.

Response: HHSC disagrees with the commenter's recommendation to revise the rule because existing rules require operational policies to cover prohibited EBI practices. The operational policies are shared with staff, and EBI training also covers what is prohibited.

Comment: Regarding §748.105, two commenters indicated support for the added language regarding (1) not delegating an employee's responsibility to report serious incidents and suspected abuse, neglect or exploitation, and (2) not requiring an employee to seek approval to file a report or notify the operation that a report was made. While both commenters supported the rule change, one commenter also recommended that a mandatory timeframe be added to make a report and the other commenter recommended that the same reporting requirements apply to any situation involving the safety of the child, including physical or sexual abuse committed by a child or a suicide attempt by a child.

Response: HHSC appreciates the support for the rule. However, HHSC disagrees with the commenters' recommendations to revise the rule further because (1) the rule references "serious incidents," which include physical or sexual abuse by a child or a suicide attempt, as referenced in §748.303; and (2) a mandatory timeframe for reporting is already required by §748.303.

Comment: Regarding §748.303, one commenter recommended revising the requirements to notify parents "immediately after ensuring the safety of the child" in instances when physical abuse is committed by a child against another child, sexual abuse is commented by a child against another child, and a child attempts suicide.

Response: HHSC agrees with the commenter and revised §748.303(a)(4)(B)(ii), (a)(5)(B)(ii), and (a)(12)(B)(ii) to say "Immediately after ensuring the safety of the child" to be consistent with the response already in place for a substantial physical injury in §748.303(a)(2)(B)(ii).

Comment: Regarding §748.303, one commenter expressed concern that providers will be more likely to report every single law enforcement response based on the revised language that says any alleged incident that "could result in criminal charges being filed against the child" needs to be reported.

Response: HHSC disagrees with the commenter's recommendation to revise the rule further because the purpose of the language is to narrow the instances in which reporting would be required. If the proposed rule language were not adopted, the requirement would remain that every instance in which "law enforcement responds to an alleged incident at the operation" must be reported. HHSC is clarifying with the amendments that a report is only necessary when law enforcement responds to an alleged incident at the operation "that could result in criminal charges being filed against the child."

Comment: Regarding §748.303, two commenters expressed concern that serious incidents involving an adult resident do not need to be reported to CCR. The commenters indicated that adult residents have the same rights to a safe environment and to have serious incidents involving them investigated.

Response: HHSC disagrees with the commenters' recommendation to revise the rule. HHSC's regulatory authority is exclusive to the care of children, and the definition of "child" in HRC §42.002(1) is a person under the age of 18. Although minimum standards do provide criteria for when a young adult may be admitted into the care of a GRO, to address certain needs that a person will have after turning 18, these standards exist to support the DFPS need to place young adults who were formerly in the conservatorship of the state in child-care operations.