The Texas Department of Protective and Regulatory Services (PRS) adopts new Chapter 745, Licensing. New §§745.1, 745.21, 745.115, 745.243, 745.615, 745.621, 745.801, 745.4001, 745.8001, 745.8307, 745.8315, 745.8317, 745.8319, 745.8407, 745.8415, 745.8455, 745.8511, and 745.8611 are adopted with changes to the proposed text published in the September 21, 2001, issue of the Texas Register (26 TexReg 7230). New §§745.11, 745.31, 745.33, 745.35, 745.37, 745.39, 745.41, 745.101, 745.111, 745.113, 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, 745.201, 745.211, 745.213, 745.215, 745.241, 745.245, 745.247, 745.249, 745.251, 745.253, 745.271, 745.273, 745.275, 745.301, 745.303, 745.321, 745.323, 745.325, 745.327, 745.341, 745.343, 745.345, 745.347, 745.349, 745.351, 745.353, 745.371, 745.373, 745.375, 745.379, 745.381, 745.383, 745.385, 745.401, 745.403, 745.405, 745.407, 745.409, 745.431, 745.433, 745.435, 745.501, 745.503, 745.505, 745.507, 745.509, 745.511, 745.513, 745.515, 745.517, 745.519, 745.601, 745.611, 745.613, 745.617, 745.619, 745.623, 745.625, 745.627, 745.629, 745.631, 745.633, 745.635, 745.651, 745.653, 745.655, 745.657, 745.659, 745.661, 745.663, 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, 745.731, 745.733, 745.735, 745.751, 745.753, 745.803, 745.4003, 745.8003, 745.8301, 745.8303, 745.8305, 745.8309, 745.8311, 745.8313, 745.8401, 745.8403, 745.8405, 745.8409, 745.8411, 745.8413, 745.8417, 745.8419, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8451, 745.8453, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8513, 745.8515, 745.8517, 745.8519, 745.8521, 745.8523, 745.8525, 745.8527, 745.8529, 745.8531, 745.8533, 745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8613, 745.8631, 745.8633, 745.8635, 745.8651, 745.8653, 745.8655, 745.8657, 745.8659, 745.8681, 745.8683, 745.8685, 745.8687, 745.8711, 745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, 745.8817, 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, 745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881, 745.8901, 745.8903, 745.8905, 745.8907, 745.8909, 745.8911, 745.8913, 745.8931, 745.8933, 745.8951, 745.8953, 745.8955, 745.8957, 745.8959, 745.8961, 745.8963, 745.8965, 745.8967, 745.8969, 745.8991, 745.8993, 745.8995, 745.8997, 745.8999, 745.9001, 745.9003, 745.9005, 745.9007, 745.9009, 745.9011, 745.9013, 745.9031, 745.9033, 745.9035, 745.9037, 745.9039, and 745.9041 are adopted without changes to the proposed text and will not be republished.

The purpose of the new chapter is to rewrite the Licensing rules using a question and answer format so they are easier to understand. Chapter 725, General Licensing Procedures, excluding Subchapter JJJ, Court-ordered Social Studies, and Subchapter KKK, Adoptive Home Screening, is repealed in this issue of the Texas Register. The 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 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 new 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 adopted 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 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.

Residential 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 adopted 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 timelier 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 new 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 states 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 new 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 new 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 new 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 new 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 new 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 rules because the 77th Texas Legislature did not pass legislation designed to reenact Alternative Accreditation.

The new rules will function by being easier to understand, which should help improve compliance and reduce mistakes.

During the public comment period, PRS received comments from the Advisory Committee to Promote the Adoption of Minority Children, the Coalition of Texas YMCAs, the YMCA of San Antonio and the Hill Country, the Kerr County YMCA, the YMCA of Greater Williamson County, and the owner of four child-day care operations. A summary of the comments and PRS's responses follow:

Comments concerning §745.117(4): Several commenters stated that (1) children are at potential risk in unregulated care for the 8 to 11 weeks of summer; and (2) without regulation, there is no monitoring and no established standards for the activities.

Response: The concerns relate to what is perceived to be a change in current policy; however current practice allows programs of 11 or fewer weeks that are not otherwise regulated by our division to serve children, ages five years and older, without being licensed, because there is lower risk to these older children in care on a short-term basis. Furthermore, the application process along with receiving a provisional license takes longer than the duration of the limited timeframe for this exemption. PRS is adopting this section without change.

Comments concerning §745.119(2): Several commenters have concerns about the potential risk to children in after-school programs offered by educational facilities accredited by the Texas Education Agency (TEA) or other TEA-approved accrediting organizations that are exempt from regulation by our division.

Response: The comments relate to what is perceived as a change in current policy; however, this rule comes directly from the Human Resources Code, §42.041(a)(7). It has been law since the Child Care Licensing Act of 1975 and has been in practice for many years. What is new in this rule is the addition of a long-standing practice of offering an exemption for non-public schools accredited by members of the organization, Texas Private School Accreditation Commission (TEPSAC). TEA has been using this practice of accreditation for non-public schools since 1989. PRS is adopting this paragraph without change.

Comments concerning §745.119(3): Several commenters have concerns about the potential risk to children in after-school programs offered by contracted entities at educational facilities accredited by TEA or other TEA-approved accrediting organizations that are exempt from regulation by our division. They also have concerns that the various divisions at TEA may or may not approve the curriculum for these after-school programs.

Response: The comments relate to what is perceived as a change in current policy. This rule comes directly from the Human Resources Code, §42.041(a)(7). It has been law since the Child Care Licensing Act of 1975 and exemptions have been offered for programs that meet the criteria since that time. PRS is adopting this paragraph without change.

Comments concerning §745.381: Several commenters sought clarification regarding the definition of "occasional" when relating to overnight care, and whether standards would be in effect during occasional overnight care and how it would be monitored.

Response: Occasional overnight care is clearly defined in the rule as overnight care once a month, such as a slumber party. It is also clear in the rule that standards must be maintained during this overnight care. CCL would investigate any report received of an incident that occurred during the overnight care. CCL would possibly inspect the facility during the overnight care. PRS is adopting this section without change.

Comment concerning §745.625: One commenter addressed a change in the timeframe allowed for a provider to submit a background check request to PRS. The timeframe will change from two weeks to two business days, and the commenter felt that more time is needed to submit a background check.