PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 745. LICENSING
SUBCHAPTER N. ADMINISTRATOR'S LICENSING
The Texas Health and Human Services Commission (HHSC) adopts amendments to §§745.8901, 745.8903, 745.8909, 745.8915, 745.8917, 745.8919, 745.8933, 745.8935, 745.9031, and 745.9037; new §§745.8906, 745.8908, 745.8923, 745.8925, 745.8927, 745.8929, 745.8930, 745.8973, 745.8975 - 745.8977, 745.8979, 745.8981 - 745.8983, 745.8985 - 745.8987, and 745.8989; and repeal of §§745.8991, 745.8994, 745.8999, 745.9007, 745.9019, 745.9021, and 745.9023 in Title 26, Texas Administrative Code, Chapter 745, Licensing, Subchapter N, Administrator's Licensing.
Amended §§745.8901, 745.8903, 745.8909, 745.8915, 745.8917, 745.8919, 745.8933, 745.8935, 745.9031, and 745.9037; new §§745.8906, 745.8908, 745.8923, 745.8925, 745.8927, 745.8929, 745.8930, 745.8973, 745.8975 - 745.8977, 745.8979, 745.8981 - 745.8983, 745.8985 - 745.8987, and 745.8989; and repealed §§745.8991, 745.8994, 745.8999, 745.9007, 745.9019, 745.9021, and 745.9023 are adopted without changes to the proposed text as published in the May 26, 2023,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.
BACKGROUND AND JUSTIFICATION
The rule changes implement Senate Bill (S.B.) 1896, 87th Legislature, Regular Session, 2021, as it relates to Section 25 of the bill.
Section 25 amended Texas Human Resources Code (HRC) §43.0081(a) to add (a)(2)(A) and (B) to allow HHSC Child Care Regulation (CCR) to issue a provisional child-care administrator's license when an applicant does not meet the one-year supervisory experience requirement provided in HRC §43.004(a)(4), but otherwise qualifies for a license so long as the applicant complies with any additional requirements established in rule. Section 25 also amended HRC §43.0081 by adding subsection (e), to allow the executive commissioner to establish in rule any additional requirements that apply when a provisional child-care administrator's license is issued under HRC §43.0081(a)(2)(A).
In addition to implementing Section 25 of S.B. 1896, CCR is adopting other changes to Chapter 745, Licensing, Subchapter N, Administrator's Licensing. These changes add administrator conduct expectations, update rules to reflect current business practice, update wording in the rules to improve understanding and readability, add a new division, renumber divisions, and reorganize divisions to improve the overall organization of Subchapter N.
COMMENTS
The 31-day comment period ended June 26, 2023. During this period, HHSC received two comments regarding the rules from Texas Alliance of Child and Family Services. A summary of comments relating to rules and HHSC's responses follows.
Comment: Regarding §745.8929, the commenter recommended that HHSC provide clarity on what the rule means by "retaliation" and "harassment," asking if there are criminal or other definitions that HHSC could incorporate and whether harassment means situations when a provider insists CCR respond timely or complete investigations. The commenter recommended CCR consider adding clarification to include that these terms mean a level of misconduct that is reportable to authorities.
Response: HHSC disagrees with the comment and declines to amend the rule. HHSC agrees that consistent interpretation is important and will train CCR staff appropriately. However, as CCR regulates administrators and childcare operations, HHSC disagrees that an incident should be reportable to a third-party authority in order for CCR to apply the terms in the rule and to enforce the rule. As for the meaning of "retaliation" and "harassment," HHSC believes that a reasonable interpretation of these terms would require egregious behavior well beyond merely insisting that CCR respond timely or complete investigations. HHSC also expects that CCR will develop policy to support consistent and fair implementation of this rule and its terms.
Comment: Regarding §745.8973, the commenter recommended that HHSC remove the reference to "a complaint against" an administrator. The commenter also requested removal of language in the rule relating to abuse or neglect because, the Child Care Regulation Handbook outlines that the Texas Department of Family and Protective Services (DFPS) notifies HHSC of these investigations.
Response: HHSC disagrees with this comment and declines to amend the rule. The language proposed in 745.8973(a)(7) already exists in current rule (proposed repealed §745.9021(a)(7)) and was moved to a new division in the subchapter for improved organization of the subchapter. This rule ensures that CCR has the information needed to track if an individual is still eligible for an administrator's license. The commenter refers to a CCR handbook policy that requires DFPS Child Care Investigations (CCI) to communicate investigation details with CCR; however, in this rule, the terms "abuse" and "neglect" do not relate exclusively to investigations completed by CCI.
DIVISION 1. OVERVIEW OF ADMINISTRATOR'S LICENSING
STATUTORY AUTHORITY
The amendments and new sections, 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, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303592
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The amendments 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, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303593
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
26 TAC §§745.8973, 745.8975 - 745.8977, 745.8979, 745.8981 - 745.8983, 745.8985 - 745.8987, 745.8989
STATUTORY AUTHORITY
The new sections 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, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303594
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
26 TAC §§745.8991, 745.8994, 745.8999, 745.9007, 745.9019, 745.9021, 745.9023
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 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, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303596
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
STATUTORY AUTHORITY
The amendments 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, HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303597
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
The Texas Health and Human Services Commission (HHSC) adopts amendments to §748.153, concerning What changes must I notify Licensing about regarding my operation and §748.533, concerning Can a child-care administrator be an administrator for two residential child-care operations; and new §748.154, concerning What is my timeframe for filling my child-care administrator position if it becomes vacant while I do not have a back-up administrator to carry out the administrator duties and §748.532, concerning When can a child-care administrator with a provisional license serve as the administrator for a general residential operation, in Title 26, Texas Administrative Code, Chapter 748, Minimum Standards for General Residential Operations.
New §748.532 is adopted with changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2675). This rule will be republished.
Amended §748.153 and §748.533; and new §748.154 are adopted without changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2675). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The rule changes implement Senate Bill (S.B.) 1896, 87th Legislature, Regular Session, 2021, as it relates to Sections 22 and 25 of the bill.
Section 22 added Texas Human Resources Code (HRC) §42.080 to prohibit HHSC Child Care Regulation (CCR) from issuing a citation or taking any other disciplinary action against a general residential operation for failing to employ a licensed administrator as long the operation or agency has been without a licensed administrator for fewer than 60 days and makes substantial efforts to hire a qualified administrator.
Section 25 amended HRC §43.0081(a) to add (a)(2)(A) and (B) to allow CCR to issue a provisional child-care administrator's license when an applicant does not meet the one-year supervisory experience requirement provided in HRC §43.004(a)(4), but otherwise qualifies for a license so long as the applicant complies with any additional requirements established in rule. Section 25 also amended HRC §43.0081 by adding subsection (e), to allow the executive commissioner to establish in rule any additional requirements that apply when a provisional child-care administrator's license is issued under HRC §43.0081(a)(2)(A).
COMMENTS
The 31-day comment period ended June 26, 2023. During this period, HHSC received one comment regarding the rules from the Texas Alliance of Child and Family Services. A summary of the comment and HHSC's response follows.
Comment: Regarding §748.532, the commenter recommended that operations on heightened monitoring be allowed to have an administrator with a provisional child-care administrator's license. The commenter said there is a lack of qualified and experienced administrators who are willing to work at an operation on heightened monitoring. The commentor requested CCR develop a process for possible approval to allow a general residential operation that is on heightened monitoring to hire a child-care administrator with a provisional child-care administrator's license.
Response: HHSC agrees with this comment and has updated the rule to remove the reference to heightened monitoring.
SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION
DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS
STATUTORY AUTHORITY
The amendment and new section 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, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC 42, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303598
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
DIVISION 2. CHILD-CARE ADMINISTRATOR
STATUTORY AUTHORITY
The amendment and new section 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, HRC §42.042(a) requires HHSC to adopt rules to carry out the requirements of HRC 42, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
§748.532.When can a child-care administrator with a provisional license serve as the administrator for a general residential operation?
A child-care administrator with a provisional license may serve as the child-care administrator at a general residential operation if, at the time the administrator is hired, the operation is not:
(1) On a voluntary plan of action;
(2) On corrective action;
(3) Subject to an adverse action; or
(4) Pending due process for a corrective or an adverse action.
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 September 29, 2023.
TRD-202303600
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
The Texas Health and Human Services Commission (HHSC) adopts amendments to §749.153, concerning What changes must I notify Licensing about regarding my child-placing agency and §749.633, concerning Can a child-placing agency administrator be an administrator for two residential child-care operations; and new §749.154, concerning What is my timeframe for filling my child-placing agency administrator position if it becomes vacant while I do not have a back-up administrator to carry out the administrator duties, in Title 26, Texas Administrative Code, Chapter 749, Minimum Standards for Child-Placing Agencies.
New §749.154 and amended §749.153 and §749.633 are adopted without changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2677). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The rule changes implement Senate Bill 1896, 87th Legislature, Regular Session, 2021, as it relates to Sections 22 and 25 of the bill.
Section 22 added Texas Human Resources Code (HRC) §42.080 to prohibit HHSC Child Care Regulation (CCR) from issuing a citation or taking any other disciplinary action against a child-placing agency for failing to employ a licensed administrator as long the operation or agency has been without a licensed administrator for fewer than 60 days and makes substantial efforts to hire a qualified administrator.
Section 25 amended HRC §43.0081(a) to add (a)(2)(A) and (B) to allow CCR to issue a provisional child-care administrator's license when an applicant does not meet the one-year supervisory experience requirement provided in HRC §43.004(a)(4), but otherwise qualifies for a license so long as the applicant complies with any additional requirements established in rule. Section 25 also amended HRC §43.0081 by adding subsection (e), to allow the executive commissioner to establish in rule any additional requirements that apply when a provisional child-care administrator's license is issued under HRC §43.0081(a)(2)(A).
COMMENTS
The 31-day comment period ended June 26, 2023. During this period, HHSC received no comments regarding the rules in Chapter 749.
SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION
DIVISION 2. OPERATIONAL RESPONSIBILITIES AND NOTIFICATIONS
STATUTORY AUTHORITY
The amendment and new section 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 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, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303602
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269
DIVISION 2. CHILD-PLACING AGENCY ADMINISTRATOR
STATUTORY AUTHORITY
The amendment 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 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, and HRC §43.005 requires HHSC to adopt rules to carry out requirements of HRC Chapter 43.
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 September 29, 2023.
TRD-202303603
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: October 19, 2023
Proposal publication date: May 26, 2023
For further information, please call: (512) 438-3269