PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 745. LICENSING
The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC), Title 26, Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, new §745.43; new Subchapter I, Non-Enforcement Voluntary Actions, new §§745.5001, 745.5003, 745.5051, 745.5101, 745.5103, 745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, and 745.5201; new Subchapter K, Inspections, Investigations, and Confidentiality, and new §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8581, 745.8583, and 745.8585.
New §§745.5101, 745.8405, 745.8487, and 745.8493 are adopted with changes to the proposed text as published in the March 17, 2023, issue of the Texas Register (48 TexReg 1518). These rules will be republished.
New §§745.43, 745.5001, 745.5003, 745.5051, 745.5103, 745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, 745.5201; 745.8401, 745.8403, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8481, 745.8483, 745.8485, 745.8489, 745.8491, 745.8581, 745.8583, and 745.8585 are adopted without changes to the proposed text as published in the March 17, 2023, issue of the Texas Register (48 TexReg 1518). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The new sections are necessary to finalize the rule compliance requirements for House Bill (H.B.) 5, 85th Legislature, Regular Session, 2017, directing the Texas Department of Family and Protective Services (DFPS) to become a stand-alone agency that is separate from the Texas Health and Human Services Commission (HHSC) and the health and human services system. This bill also moved the regulation of child care from DFPS to HHSC, with only the responsibility for investigating allegations of child abuse, neglect, and exploitation in child care operations remaining at DFPS.
Since HHSC Child Care Regulation (CCR) is responsible for the administrative rules in TAC Title 40, Chapter 745, Licensing, that impact child care operations, these rules had to be transferred from DFPS to HHSC. In 2019, CCR administratively transferred all the rules in Title 40, Chapter 745 to Title 26, Chapter 745, except for Subchapters K and M; those subchapters could not be administratively transferred since some of the rules also applied to responsibilities that remained with DFPS. In March 2023, CCR repealed Title 40, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings, and adopted new rules in Title 26, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings.
DFPS has also adopted rules applicable to DFPS responsibilities in Title 40, Chapter 707. In addition, CCR is adopting a new rule in Title 26, Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, and new rules in new Subchapter I, Non-Enforcement Voluntary Actions, and new Subchapter K, Inspections, Investigations, and Confidentiality, all applicable to CCR responsibilities. The repeal of Title 40, Chapter 745, Subchapter K, Inspections and Investigations, is being adopted elsewhere in this issue of the Texas Register.
In addition to replacing the content of the Title 40, Chapter 745, Subchapter K rules with new rules in Title 26, Chapter 745, Subchapters, B, I, and K, the changes in the adopted rules (1) remove any duties directly related to any DFPS responsibilities, including the investigation of child abuse, neglect, and exploitation, as DFPS has rules to address those responsibilities; (2) update the rules with current practices; and (3) update the rules for better readability and understanding.
COMMENTS
The 31-day comment period ended April 17, 2023. During this period, HHSC received two comments regarding the proposed rules from the Texas Alliance of Child and Family Services (TACFS). HHSC also received one additional comment stating support for the TACFS comments, from Hendrick Home for Children, a general residential operation. A summary of comments relating to the rules and HHSC's responses follows.
Comment: Regarding §745.8411, the comment urged for helpful information and training to be provided to inspectors that focus on carrying out inspections in a manner that is sensible and recognizes other needs, including the child's own need for as much normalcy and as little repeated trauma as possible, an operation's need to meet ratios and to continue serving children, and an operation's need to take immediate steps to make sure children are safe.
Response: HHSC agrees with the comment, but changes to the rule are not required. The comment relates to the implementation of the rule. The comment was forwarded to CCR management.
Comment: Regarding §745.8483, the comment recommended that HHSC preserve current rule language that addresses sharing confidential information during an open investigation with operations when it is appropriate to ensure a child's safety.
Response: HHSC agrees with the comment and made appropriate changes to §745.8487 and §745.8493, clarifying that CCR may release to a child care operation confidential information in HHSC records related to an open HHSC investigation or a DFPS investigation when the operation needs the information to protect the health, safety, or well-being of a child, as provided by state and federal law including the federal Child Abuse Prevention and Treatment Act.
HHSC also made minor editorial changes to §745.5101 and §745.8405(a).
SUBCHAPTER B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE
STATUTORY AUTHORITY
The new section is adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302442
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
DIVISION 1. OVERVIEW OF VOLUNTARY ACTIONS
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302443
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new section is adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302444
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
§745.5101.What must I do when I temporarily relocate my operation because of a renovation or damage that makes the operation temporarily unsuitable for child care?
You must:
(1) Complete the notice requirements in §745.5051 of this subchapter (relating to What notice and approval is required for a voluntary action?);
(2) Prior to a planned temporary relocation:
(A) Obtain any inspections at the temporary location that are identified in the applicable minimum standards, which may include fire, sanitation, and gas leak inspections;
(B) Ensure the temporary location complies with applicable licensing statutes, rules, and minimum standards;
(C) Allow us to conduct an inspection under §745.5103 of this division (relating to What actions will Licensing take after receiving a notice that you are temporarily relocating?); and
(D) Obtain our approval for any aspect of the temporary location that does not comply with the applicable licensing statutes, rules, and minimum standards; and
(3) For an emergency relocation:
(A) Complete each step in paragraph (1) of this section as soon as possible after the relocation; and
(B) If you are a residential child care operation, meet any additional reporting and documentation requirements under:
(i) §748.303(e)(1) and (3) of this title (relating to When must I report and document a serious incident?); or
(ii) §749.503(e)(1) and (3) of this title (relating to When must I report and document a serious incident?).
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302445
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
26 TAC §§745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302446
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302447
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
DIVISION 1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS
26 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
§745.8405.When does Licensing inspect or investigate an operation or program?
(a) The following chart describes when we inspect or investigate an operation:
Figure: 26 TAC §745.8405(a) (.pdf)
(b) We may inspect or investigate your operation or program during its hours of operation.
(c) If you operate a child-placing agency main office or branch office that is not open between 8:00 a.m. and 5:00 p.m., Monday through Friday, you must ensure that the office and employees are available upon our request for the purpose of inspecting or investigating your agency.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302448
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
26 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 749.8449
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302449
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
26 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
§745.8487.Are there any exceptions that allow the portions of a child care record that are confidential to be released to the public or certain persons?
Notwithstanding §745.8483 of this division (relating to What portions of a child care record are confidential?), the below exceptions allow certain portions of a child care record that are confidential to be released in the following manner:
(1) Information obtained during an open investigation that was confidential under §745.8483(1) of this division is no longer confidential under that provision after the investigation is completed.
(2) Information obtained during an open investigation that is otherwise confidential under §745.8483(1) of this division may be released to an operation if Licensing determines it is necessary to protect the health, safety, or well-being of a child and the release is compliant with applicable state and federal law including the federal Child Abuse Prevention and Treatment Act.
(3) A foster home screening, adoptive home screening, and post-placement adoptive report is confidential under §745.8483(4)(B) of this division, but the screening or report may be released to:
(A) The individual who is the subject of the screening or report; or
(B) Any other person, if the Associate Commissioner for Child Care Regulation or designee determines the release of the screening or report is necessary to protect the health or safety of a child.
(4) The location of a family violence shelter or a victims of trafficking shelter center is confidential under §745.8483(6) of this division, except for when the location of the shelter or center must be provided in a public hearing under Texas Human Resources Code §42.0461 because the shelter or center is a general residential operation that will provide services to children with emotional disorders. The operation does not have to identify that the operation intends to provide services to victims of human trafficking.
(5) Any photograph, audio or visual recording, or documentation of a child is confidential under §745.8483(8) of this division, unless it is releasable under §745.8491 of this division (relating to Who can review or have a copy of a photograph, audio or visual recording, or documentation of a child that is in our records?).
§745.8493.Will Licensing release any information related to a child abuse, neglect, or exploitation investigation conducted by the Texas Department of Family and Protective Services (DFPS)?
(a) DFPS investigations of child abuse, neglect, or exploitation remain confidential after DFPS provides the information to Licensing as described in Texas Human Resources Code §40.042(f).
(b) A person must request information related to an investigation conducted by DFPS from DFPS.
(c) We may release information related to a DFPS investigation in our records to:
(1) An operation to support a licensing statute, rule, or minimum standard deficiency that we assessed against the operation, so long as we redact any confidential information;
(2) An operation if Licensing determines that the operation needs the information to protect the health, safety, or well-being of a child, and the release is compliant with state and federal law including the federal Child Abuse Prevention and Treatment Act; or
(3) Any other person or entity authorized by state or federal law to have a copy.
(d) Any operation, person, or entity that receives information related to a DFPS child abuse, neglect, or exploitation investigation under this section:
(1) May only use the DFPS investigation information for the purpose or duty that authorized the release of the information; and
(2) May not release the DFPS investigation information to any other person or entity that is not authorized to have the information under this section.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302450
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269
26 TAC §§745.8581, 745.8583, 745.8585
STATUTORY AUTHORITY
The new sections are adopted under 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 DFPS to HHSC. In addition, Texas Human Resources Code (HRC) §42.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42 of HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 6, 2023.
TRD-202302451
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: August 23, 2023
Proposal publication date: March 17, 2023
For further information, please call: (512) 438-3269