The Texas Health and Human Services Commission (HHSC) adopts 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 the repeal 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, Licensing.

New §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8317, 745.8319, and 745.8321; and the repeal of §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, and 745.8319, are adopted without changes to the proposed text, as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2661). These rules will not be republished.

New §745.8315 is adopted with changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2661). This rule will be republished.

BACKGROUND AND JUSTIFICATION

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

COMMENTS

The 31-day formal comment period ended June 26, 2023. During this period, HHSC received six comments regarding the proposed rules from three commenters, which included the Texas Alliance of Child and Family Services, a child-placing agency, and a member of the public. A summary of comments relating to the rules and HHSC's responses follows.

Comment: Regarding the rules in general, one commenter referenced rules in Chapters 748 and 749 that provide certain exemptions to minimum standard requirements, indicating that those exemptions are oftentimes confused with the waivers and variances under Chapter 745.

Response: HHSC disagrees with the comment. The rules in Chapter 745, Subchapter J, allow CCR to approve a waiver or variance if the operation or foster home cannot comply with a minimum standard. The rules in Chapters 748 and 749 allow for the operation to approve exemptions without submitting a request for CCR's review or approval. Some of these exemptions were created by state legislation to (1) provide flexibility with training requirements for certain persons, and (2) recognize a medical reason and a reason of conscience for immunization requirements.

Comment: Regarding the rules in general, one commenter stated that it appears that variances are used for documentation purposes and as a means for agencies to avoid citations, rather than first considering and assessing the risk involved to varying a standard.

Response: HHSC disagrees with the comment. New §745.8313, which incorporates relevant content from repealed §745.8307, requires CCR to consider risk to children when deciding whether to grant a variance; therefore, CCR assesses the potential risk to children involved in varying a standard before determining whether a variance should be granted.

Comment: Regarding §745.8303, two commenters recommended adding a list of categorical exclusions or a chart that identifies which minimum standards are required by state or federal law. One of the two commenters also indicated that this information could be provided in "sub-regulatory guidance."

Response: HHSC disagrees in part with the comment. It would be difficult and impractical to include in rule a list or chart identifying the minimum standards required by state or federal law because state and federal laws requiring certain minimum standards are in flux, which would make updates to rule more frequent if the categorical exclusions or chart existed there. Therefore, HHSC agrees with the suggestion to provide information in "sub-regulatory guidance," which may be interpreted to include a policy update in CCR's publicly available handbook or publishing information on a web page for providers to view. In doing this, information on state and federal requirements can be easily updated in time with any changes that are made to those requirements.

Comment: Regarding §745.8313, one commenter noted that heightened monitoring status is listed as one of CCR's considerations prior to deciding on whether to grant or deny a waiver or variance. The commenter asked that heightened monitoring status be considered as it relates to the heightened monitoring plan and not as a "global mark" against the operation.

Response: HHSC disagrees with the comment. CCR considers compliance history when evaluating a waiver or variance request and heightened monitoring is a part of that compliance history, which must be considered prior to CCR granting a waiver or variance. Doing so allows CCR to have a more comprehensive evaluation of any waiver or variance request, which could reduce risk to children.

Comment: Regarding §745.8315, one commenter recommended that the rule language be clarified for better understanding, especially with regard to referencing 26 TAC §749.2551(b).

Response: HHSC agrees with the comment. HHSC revised the rule to improve readability and provide clarity on how 26 TAC §749.2551(b) relates to the rule.

STATUTORY AUTHORITY

The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the GRO 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, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC Chapter 42.