The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, 745.8319, and 745.8321; and repeals of §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, and 745.8319 in Title 26, Texas Administrative Code (TAC), Chapter 745, Subchapter J, Waivers and Variances for Minimum Standards.

BACKGROUND AND PURPOSE

The proposal is necessary to align 26 TAC Chapter 745, Subchapter J, with 42 United States Code §671(a)(10) so that HHSC Child Care Regulation (CCR) may only approve a waiver request for a kinship foster home.

The proposal is also necessary to align 26 TAC Chapter 745, Subchapter J, with current practices and update the subchapter as needed for clarity.

SECTION-BY-SECTION SUMMARY

Proposed new §745.8301 provides terms and definitions needed to understand the subchapter. The proposed rule has the content from repealed §745.8303. Additional content includes the terms "Foster family home," "Foster parent," and "Kinship foster home" and their definitions.

Proposed new §745.8303 clarifies that a minimum standard is ineligible for a waiver or variance if the standard is required by state or federal law. The proposed rule incorporates relevant content from repealed §745.8307.

Proposed new §745.8305 covers how an operation must request a waiver or variance. The proposed rule (1) incorporates the content from repealed §745.8305 and clarifies what an operation must submit in writing to request a waiver or variance; (2) clarifies that a waiver or variance request may only be for one operation and one minimum standard number or subsection; and (3) clarifies that if a child-placing agency is requesting a waiver or variance for a minimum standard related to foster care, the request can be for only one foster home.

Proposed new §745.8307 indicates how long CCR has to process a request for a waiver or variance. The proposed rule (1) incorporates the content from repealed §745.8309; and (2) clarifies CCR's procedures for processing a waiver or variance and how long the processing takes, including when CCR will notify the requestor of the final decision.

Proposed new §745.8309 describes when a waiver or variance expires and what must happen before it expires. The proposed rule (1) incorporates the content from repealed §745.8311; (2) adds timeframes for requesting a new waiver or variance prior to the expiration date of the current one; and (3) clarifies that an operation must comply with the minimum standard at the time a waiver or variance expires, even if a new request relating to that standard is pending CCR's review.

Proposed new §745.8311 clarifies what conditions CCR may place on an approved waiver or variance. The proposed rule (1) incorporates the content from repealed §745.8313; (2) provides that CCR may place any condition on an approved waiver or variance; and (3) clarifies that the operation must comply with each condition while the waiver or variance is in place.

Proposed new §745.8313 lists the factors that CCR considers when deciding whether to grant a waiver or variance. The proposed rule (1) incorporates relevant content from repealed §745.8307; (2) adds whether the minimum standard is ineligible for a waiver or variance described in proposed new §745.8303 as a factor; (3) clarifies that the factor for compliance history includes past and present enforcement actions; (4) adds the operation's permit status as a factor; (4) adds whether the operation is on heightened monitoring as a factor; and (5) adds a reference to the additional considerations for foster homes in proposed new §745.8315 as a factor.

Proposed new §745.8315 describes factors, in addition to those in §745.8313, that CCR considers when deciding whether to grant a waiver or variance for a foster home. The proposed rule adds the compliance history of the foster home as a factor when the request is associated with a foster home. The proposed rule also adds any limitations in state or federal law as a factor, including (1) only granting a waiver for a kinship foster home; and (2) considering certain limitations to increasing the maximum number of foster children cared for by a foster home.

Proposed new §745.8317 provides the factors that CCR considers when determining the expiration date and conditions are the same as the factors in proposed new §745.8313.

Proposed new §745.8319 (1) describes when CCR can amend or revoke a waiver or variance; and (2) provides a cross-reference to proposed new §745.8321. The proposed rule incorporates content from repealed §745.8301 that explains a waiver or variance is not an entitlement and most of the content from repealed §745.8317.

Proposed new §745.8321 describes what an operation may do if it disagrees with CCR's decision related to a waiver or variance. Specifically, the rule provides procedures on how the operation may dispute the decision, and what the operation must do to be in compliance while disputing the decision. The proposed rule incorporates some of the content from repealed §745.8315 and §745.8319.

The proposed repeal of §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, and 745.8319 accommodates the new rules being proposed and removes content no longer needed because the new rules incorporate most of the repealed content.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for the first year of the first five years that the rules will be in effect, there will be an estimated additional cost to state government as a result of enforcing or administering the rules as proposed. Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local governments.

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $24,468 in fiscal year (FY) 2024, $0 in FY 2025, $0 in FY 2026, $0 in FY 2027, and $0 in FY 2028.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new rules;

(6) the proposed rules will repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules (1) are necessary to protect the health, safety, and welfare of the residents of Texas; (2) do not impose a cost on regulated persons; and (3) are necessary to comply with federal law.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rule is in effect the public benefit will be (1) increased compliance with statutory requirements; and (2) more clarity for stakeholders regarding the requirements and procedures for waivers and variances.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules will not incur economic costs.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Ryan Malsbary by email at Ryan.Malsbary@hhs.texas.gov.

Written comments on the proposal may be submitted to Ryan Malsbary, Rules Writer, Child Care Regulation, Health and Human Services Commission, E-550, P.O. Box 149030, Austin, Texas 78714-9030; or by email to CCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R113" in the subject line.

STATUTORY AUTHORITY

The repealed rules are authorized by 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.

The repealed rules affect Texas Government Code §531.0055 and Texas Human Resources Code §42.042 and §42.048.