Texas Register Preamble

The Texas Department of Protective and Regulatory Services (PRS) proposes new Chapter 745, Licensing, consisting of Subchapter A, Precedence and Definitions, Division 1, Precedence, §745.1; Division 2, Definitions for the Language Used in This Chapter, §745.11; Division 3, Definitions for Licensing, §745.21; Subchapter B, Child Care and Other Operations that We Regulate, §§745.31, 745.33, 745.35, 745.37, 745.39, 745.41; Subchapter C, Operations that are Exempt from Regulation, Division 1, Definitions, §745.101; Division 2, Exemptions from Regulation, §§745.111, 745.113, 745.115, 745.117, 745.119, 745.121, 745.123, 745.125, 745.127, 745.129, 745.131, 745.133, 745.135, 745.137, 745.139, 745.141, 745.143; Subchapter D, Application Process, Division 1, Definitions, §745.201; Division 2, Stages of the Application Process and Pre-application Interview, §§745.211, 745.213, 745.215; Division 3, Submitting the Application Materials, §§745.241, 745.243, 745.245, 745.247, 745.249, 745.251, 745.253; Division 4, Public Notice and Hearing Requirements for Residential Child-Care Operations, §§745.271, 745.273, 745.275; Division 5, Accepting or Returning the Application, §745.301, §745.303; Division 6, Reviewing the Application for Compliance with Minimum Standards, Rules, and Statutes, §§745.321, 745.323, 745.325, 745.327; Division 7, The Decision to Issue or Deny a Permit, §§745.341, 745.343, 745.345, 745.347, 745.349, 745.351, 745.353; Division 8, Dual and Multiple Permits, §§745.371, 745.373, 745.375, 745.379, 745.381, 745.383, 745.385; Division 9, Reapplying for a Permit, §§745.401, 745.403, 745.405, 745.407, 745.409; Division 10, Relocation of Operation, §§745.431, 745.433, 745.435; Subchapter E, Fees, §§745.501, 745.503, 745.505, 745.507, 745.509, 745.511, 745.513, 745.515, 745.517, 745.519; Subchapter F, Background Checks, Division 1, Definitions, §745.601; Division 2, Requesting Background Checks, §§745.611, 745.613, 745.615, 745.617, 745.619, 745.621, 745.623, 745.625, 745.627, 745.629, 745.631, 745.633, 745.635; Division 3, Criminal Convictions and Central Registry Findings of Child Abuse or Neglect, §§745.651, 745.653, 745.655, 745.657, 745.659, 745.661, 745.663; Division 4, Evaluation of Risk Because of a Criminal Conviction or a Central Registry Finding of Child Abuse or Neglect, §§745.681, 745.683, 745.685, 745.687, 745.689, 745.691, 745.693, 745.695, 745.697, 745.699, 745.701, 745.703, 745.705, 745.707, 745.709, 745.711; Division 5, Designated and Sustained Perpetrators of Child Abuse or Neglect, §§745.731, 745.733, 745.735; Division 6, Immediate Threat or Danger to the Health or Safety of Children, §745.751, §745.753; Subchapter G, Child Day-Care Minimum Standards, §745.801, §745.803; Subchapter H, Residential Child-Care Minimum Standards, Division 1, Immunizations, §745.4001, §745.4003; Division 2, Child-Placing Agency Standards, §745.4021, §745.4023; Subchapter I, Maternity Home Minimum Standards, §745.8001, §745.8003; Subchapter J, Waivers and Variances for Minimum Standards, §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, 745.8319; Subchapter K, Inspections and Investigations, Division 1, Overview of Inspections and Investigations, §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8419; Division 2, Notification, §§745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8451, 745.8453, 745.8455; Division 3, Confidentiality, §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493; Division 4, Voluntary Actions, §§745.8511, 745.8513, 745.8515, 745.8517, 745.8519, 745.8521, 745.8523, 745.8525, 745.8527, 745.8529, 745.8531, 745.8533; Subchapter L, Remedial Actions, Division 1, Overview of Remedial Actions, §§745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8611, 745.8613; Division 2, Corrective Actions, §§745.8631, 745.8633, 745.8635; Division 3, Adverse Actions, §§745.8651, 745.8653, 745.8655, 745.8657, 745.8659; Division 4, Judicial Actions, §§745.8681, 745.8683, 745.8685, 745.8687; Division 5, Monetary Actions, §745.8711; Subchapter M, Administrative Reviews and Due Process Hearings, Division 1, Administrative Reviews, §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, 745.8817; Division 2, Due Process Hearing, §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855; Division 3, Operations Pending the Administrative Review and Due Process Hearing, §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881; Subchapter N, Child-Care Administrator's Licensing, Division 1, Overview of Child-Care Administrator's Licensing, §§745.8901, 745.8903, 745.8905, 745.8907, 745.8909, 745.8911, 745.8913; Division 2, Submitting Your Application Materials, §745.8931, §745.8933; Division 3, Licensing's Review of Your Application, §§745.8951, 745.8953, 745.8955, 745.8957, 745.8959, 745.8961, 745.8963, 745.8965, 745.8967, 745.8969; Division 4, Renewing Your CCAL, §§745.8991, 745.8993, 745.8995, 745.8997, 745.8999, 745.9001, 745.9003, 745.9005, 745.9007, 745.9009, 745.9011, 745.9013; and Division 5, Remedial Actions, §§745.9031, 745.9033, 745.9035, 745.9037, 745.9039, and 745.9041. The purpose of the new chapter is to rewrite the Licensing rules using a question and answer format so they are easier to understand. The majority of Chapter 725, General Licensing Procedures, is being repealed in this issue of the Texas Register. The proposed new chapter incorporates policy and enough information to better and more fully explain this program to the public and to facilitate understanding of the law and Licensing requirements. In an effort to be user-friendly, the rules have been placed in an order that follows the Licensing Business Process from a licensee's or potential licensee's perspective with simple and descriptive titles. The primary purpose of the proposed rules is not to change the substance of existing rules and policies, but to make these rules easier to understand. However, in order to improve and strengthen Licensing rules some significant changes have been made:

Exemptions for Certain Educational Facilities (§745.101(1)-(2); §745.119-§745.121) - Some of the rules governing exemptions for educational facilities have been changed to be consistent with the Texas Education Code which governs public and private schools. The current rule exempts such programs serving children aged two years and older. The proposed rule exempts programs serving children aged pre-kindergarten and older. This change is being made to conform to the ages and grade levels currently being served in public schools and accredited private schools. Ages of pre-kindergarten (three and four years) and kindergarten children (four and five years) are defined in the Education Code and are the ages incorporated into this new rule. For those operations that will be subject to regulation due to this change, a new rule is proposed to license only that portion of the program serving children younger than pre-kindergarten.

Neighborhood Recreation Programs (§745.129(1)) - A new rule regarding neighborhood recreation programs has been written which clarifies the program components that distinguish a neighborhood recreation program from after-school child care. This proposed rule clarifies the intent of an exemption for neighborhood youth programs where children come and go without adult permission because they live in the neighborhood.

Foster Home Exemptions (§745.129(2)) - Caregivers occasionally have a written agreement with a parent to provide residential care. (For example, a parent moves out of state and allows a teenager to stay and finish a school year by living with a friend.) A new rule is proposed to exempt such arrangements, which are not considered to be child care.

Exemption Request Timeframes (§745.133 and §745.137) - Currently, there is no required timeframe to process and complete an exemption request. A new rule establishes a timeframe for staff to process an exemption request and notify the operator of the results. In addition, if the operator disagrees with a Licensing decision denying the requested exemption, a new rule allows the operator to request an administrative review before submitting an application for a permit.

Submitting Background Checks (§745.623 and §745.625) - A background check form must be submitted to Licensing for every person in an operation that is required to have a check completed. A new rule requires that the operator verify the information documented on a background check form for each person listed. Also, the operator must submit the form to the local Licensing office no later than two business days after the person is hired or present. The current rule allows two weeks to submit this form to Licensing, and this is being amended so that the results of a background check are obtained in a more timely manner.

Criminal History Matches (§745.651 and §745.653) - Current rules require Licensing staff to respond to all criminal history matches, including hot checks, shoplifting, and traffic violations. Over 80% of the criminal history convictions found by Licensing's background checks fall into two categories: (1) convictions such as petty theft, hot checks, traffic violations, trespassing, immigration violations, credit card abuse, or forgery; or (2) one-time offenses that occurred ten or more years ago. Because a large percentage of the convictions do not pose a risk to children or impact a person's ability to work or be present in an operation, a new rule has been developed to target Licensing's resources by focusing on those matches which will help protect children. With the proposed rule, criminal convictions not identified as posing a risk to children will still be reported to an operation, but the presence of the person possessing the criminal history will not be a licensing violation and will require no action on the operator's part. The convictions that will be monitored because they may pose a risk to children are: (1) a misdemeanor or felony under Title 5 (Offenses Against the Person), Title 6 (Offenses Against the Family), Chapter 29 (Robbery) of Title 7, Chapter 43 (Public Indecency) or §42.072 (Stalking) of Title 9, §15.031 (Criminal Solicitation of a Minor) of Title 4, §38.17 (Failure to Stop or Report Aggravated Sexual Assault of a Child) of Title 8 of the Texas Penal Code, or any like offense under the law of another state or federal law; (2) a misdemeanor or felony under the Texas Controlled Substances Act, §46.13 (Making a Firearm Accessible to a Child) or Chapter 49 (Intoxication and Alcoholic Beverage Offenses) of Title 10 of the Texas Penal Code, or any like offense under the law of another state or federal law that the person committed within the past ten years; (3) any other felony under the Texas Penal Code, or any like offense under the law of another state or federal law that the person committed within the past ten years; and (4) deferred adjudications covering an offense listed above, if the person has not completed the probation successfully.

Risk Evaluations (§745.693) - A new rule clarifies, for those criminal convictions Licensing will monitor, which convictions are eligible for a risk evaluation, and at what point a person with a criminal conviction can be present in an operation. Currently a person with a felony conviction under Title 5, Title 6, or Chapter 43 of Title 9 of the Penal Code, or any like offense in another state, may not be present in a facility while children are in care. A new rule adds the following additional offenses to this list: a felony conviction under Chapter 29 of Title 7, §15.031 of Title 4, §38.17 of Title 8, §42.072 of Title 9 of the TPC, or any like offense under the federal law. A person who has been convicted of any of these offenses is permanently barred from being present in an operation while children are in care and is not eligible for a risk evaluation. In addition, this new rule proposes that a misdemeanor conviction under Chapter 29 of Title 7, §42.072 of Title 9, §15.031 of Title 4, or §38.17 of Title 8 of the TPC, or any like offense under federal law be added to the list of those misdemeanors that already bar a listed or registered family home from being listed or registered. A person in any other type of operation may request a risk evaluation for these misdemeanor convictions and will be allowed to return to the operation if the risk evaluation is approved. The existing rule states that a person with any other type of criminal history may not be present in a regulated facility while children are in care until a risk evaluation has been completed. In addition to the above, this new rule lists the remaining convictions for which a person may request a risk evaluation. The rule states that a person can remain at the operation if a risk evaluation has previously been approved. These convictions are: (1) a felony or misdemeanor conviction of an offense under the Texas Controlled Substances Act, §46.13 (Making a Firearm Accessible to a Child), or Chapter 49 (Intoxication and Alcoholic Beverage Offenses) of Title 10 of the Texas Penal Code, or any like offense under the law of another state or federal law that the person committed within the past ten years; and (2) a felony conviction of an offense under any other title of the TPC, or any like offense under the law of another state or federal law that the person committed within the past ten years. A deferred adjudication for any offense will be treated the same as a conviction for that same offense until the probation is successfully completed.

Future Risk Evaluations (§745.697) - A proposed rule clarifies that once a risk evaluation is approved for a person for either a criminal conviction or central registry finding, an operation does not have to renew this risk evaluation. This person may remain in an operation if a subsequent background check doesn't reveal new convictions or findings, and the circumstances of the person's contact with children in the operation remain the same.

Persons Charged with a Crime (§745.701) - A current rule requires any person charged with a crime under Title 5, Title 6, and Chapter 43 of Title 9 of the TPC be removed from an operation while children are in care until the charges are dropped or the person is acquitted. A person charged with any other crime may be present if Licensing determines this person does not pose a risk to children. The revised rule allows Licensing staff to determine on a case-by-case basis whether someone charged with a crime may be present in an operation while children are in care. The person may not be present if a conviction for the charged offense would prohibit him from being at the operation pending the outcome of a risk evaluation, or if we determine that he poses an immediate threat to the health or safety of children. This proposed rule allows Licensing to remove a person under criminal investigation who poses an immediate threat to the health or safety of children, while also balancing the possibility of the person's innocence.

Persons Under Investigation for Abuse or Neglect (§745.705) - A current rule states that a person being investigated for abuse or neglect may not be present while children are in care unless Licensing determines that the person does not pose a risk to children in care. A new rule provides that a person being investigated for abuse or neglect may have contact with children unless we determine that he poses an immediate threat or danger to the health or safety of children. This rule allows the investigation unit along with regional staff to make the determination based on the risk to the children, and it also allows a family home or foster home to continue operating during those investigations where there may be some concern, but the risk to children does not justify the interruption to children in care.

Risk Evaluation Decisions (§745.707) - At this time the Director of Licensing must evaluate and deny or approve all risk evaluations for past criminal history and past findings of child abuse or neglect. The proposed rule allows the Director of Licensing to designate other PRS staff to complete this task. If a child day-care operation requests the evaluation, the designee will be a regional director. If a residential child-care operation requests the evaluation, the designee will be a division administrator. The analysis required to grant or deny a risk evaluation is consistent with the kinds of regulatory decisions made in the regions on a daily basis. This change will free the Director of Licensing to devote additional time to other managerial duties.

Operation During Appeal (§745.8877) - Current rule §725.4003 includes a list of specific standards that when violated pose a risk to the health or safety of children. Chapter 42 of the Human Resources Code prohibits a facility under revocation from operating during an appeal to the State Office of Administrative Hearings if the operation poses a risk to children. Many factors are considered when assessing the risk to children in a regulated setting, such as the severity, the repetition, and the type of violations, how long it will take to correct a violation, the operation's compliance history, and/or immediacy of danger or threat of danger. Rather than using a list of standards to determine when there is a risk to children, a proposed rule will allow Licensing to evaluate the entire situation and make a decision on a case-by-case basis of those violations that pose an immediate threat or danger to the health or safety of children in care.

Alternative Accreditation - The rules governing Alternative Accreditation are not included in the proposed rules because the 77th Texas Legislature did not pass legislation designed to reenact Alternative Accreditation.

Mary Fields, Budget and Federal Funds Director, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Fields also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the rules will be easier to understand, which should help improve compliance and reduce mistakes. There will be no effect on large, small, or micro-businesses. There may be approximately ten educational facilities that must license their two-year-old program due to proposed changes in the exemption requirements. A recent survey of existing educational facilities with approved exemptions showed less than ten facilities serving two-year-old children. We anticipate a minimal effect on these operations because these facilities are already in business. The only known cost is the fees required to become licensed, which are minimal. The Alternative Accreditation rules are being repealed. There are seven facilities alternatively accredited through the Texas Association of Christian Child-Care Agencies. At least two of these facilities may be exempt as educational facilities. The remaining five facilities will need to be licensed to continue operating as child-care facilities. There is no anticipated fiscal impact to these facilities since they are already required to meet standards equal to Licensing's minimum standards and to pay fees to the accrediting organization comparable to Licensing fees. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of the proposal may be directed to the following people in PRS's Licensing Division: for Subchapter A, contact Diane Gazaway at 438-3250; for Subchapters B and C, contact Beverly Duffee at 438-2092; for Subchapters D and N, contact Pat Smith at 438-3246; for Subchapters E, F, L, and M, contact Carol Allen at 438-5339; for Subchapters G and J, contact Michele Adams at 438-3262; for Subchapters H and I, contact Lizet Alaniz at 438-4538; and for Subchapter K, contact Pam Wood at 438-3259. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-181, Texas Department of Protective and Regulatory Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

The new section is proposed under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

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