Part 1. TEXAS DEPARTMENT OF HUMAN SERVICES
Subchapter Q. FORMAL APPEALS
The Texas Department of Human Services (DHS) proposes amendments to §79.1603, concerning venue; and §79.1605, concerning request for a hearing, in its Legal Services chapter. The purpose of the amendments is to clarify the venue for medication aide appeals, to clarify requirements for requesting an appeal, and to correct a rule citation.
Eric M. Bost, commissioner, has determined that for the first five- year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.
Mr. Bost 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 access to clear rules. There will be no effect on large, small, or micro businesses, because the changes are only for clarification. There is no anticipated economic cost to persons who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Fairy Rutland at (512) 438-4874 in DHS's Hearings Department. Written comments on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-142, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .
Under §2007.003(b) of the Texas Government Code, the department has determined that Chapter 2007 of the Government Code does not apply to these rules. Accordingly, the department is not required to complete a takings impact assessment regarding these rules.
The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 31, which authorizes the department to administer public and financial assistance programs.
The amendments implement the Human Resources Code, §§22.001- 22.030 and §§31.001-31.0325.
§79.1603.Venue.
(a)-(b)
(No change.)
(c)
Special requirements for medication aide appeals. In any appeal involving a medication aide for whom there has been a finding of an alleged act of abuse, neglect, or misappropriation of resident property, the hearing shall be conducted in a location as near as possible to the place of residence of the medication aide.
§79.1605.Request for a Hearing.
(a)
(No change.)
(b)
Form of request. The request must be in writing, in the form of a petition or letter, and must state the basis of the appeal of the adverse action. The person must include with the request a legible copy of the letter or notice received from DHS which specified the proposed adverse action. The request for a hearing is not complete without a copy of the adverse action notice, and the Hearings Department will not forward a request for appeal to the State Office of Administrative Hearings unless it is accompanied by a copy of DHS's adverse action notice.
(c)-(j)
(No change.)
(k)
Election of arbitration as alternative to hearing.
(1)
A person or DHS may elect binding arbitration as an alternative to a hearing for any of the following adverse actions, unless the United States Health Care Financing Administration requires that the appeal be resolved by the federal government:
(A)-(D)
(No change.)
(E)
assessment of a penalty pursuant to the Texas Human Resources
Code,
§32.021(n)
[
§32.021(k)
].
(2)-(3)
(No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on January 31, 2000.
TRD-200000668
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 12, 2000
For further information, please call: (512) 438-3108
Chapter 700. CHILD PROTECTIVE SERVICES
Subchapter C. ELIGIBILITY FOR CHILD PROTECTIVE SERVICES
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Department of Protective and Regulatory Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Protective and Regulatory Services (TDPRS) proposes the repeal of §700.323, concerning eligibility during absences from the foster care facility; and proposes new §700.323, concerning continuation of foster care payments during absences from care, in its Child Protective Services chapter. The purpose of the proposal is to reduce the number of days for which TDPRS will pay when a child runs away from a facility, as opposed to an approved absence for another reason. The proposal also sets a shorter time limit for temporary absences from providers of emergency care, since these placements are by definition short-term.
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 Texas can conserve state and federal foster care funds by reducing the number of days of care for which the state will pay when a child is absent from a facility. Adoption of this rule may have a slight adverse effect on small, large, and micro businesses that provide foster care services, because the proposal reduces the number of days for which a foster care provider will receive reimbursement during the absence of a child, under certain circumstances. The effect cannot be precisely calculated because TDPRS has no historical data which distinguishes between foster care reimbursements made during a child's care from those made during a child's absence. Moreover, the loss of foster care reimbursements to any given provider will be offset by the provider's ability to fill the space which had formerly been reserved for the absent child, thereby eliminating or reducing any negative effect from this rule. There is no legal or feasible alternative to this rule which would alleviate the possible negative effect on small, large, and micro businesses while still accomplishing the intent of this rule to conserve federal, state and local foster care funds expended during a child's absence from care. Implementation of this rule will not affect the provider's cost of doing business, as it imposes no new record keeping or reporting requirements on the provider. 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 Kathy J.
Campbell at (512) 438-3288 in TDPRS's Child Protective Services Section. Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-126, Texas Department of Protective and Regulatory Services E-205, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
The repeal is proposed under the Human Resources Code (HRC),
Title 2, Chapter 40, which provides the department with the authority to propose
and adopt rules to comply with state law and implement departmental programs;
and under the Texas Family Code, Chapters 261 and 264, which authorizes the
department to provide services to alleviate the effects of child abuse and
neglect.
The repeal implements the Human Resources Code, Chapter 40, and the Texas
Family Code, Chapters 261 and 264.
§700.323.Eligibility during Absences from the Foster Care Facility.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on January 28, 2000.
TRD-200000639
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The new section is proposed under the
Human Resources Code (HRC), Title 2, Chapter 40, which provides the department
with the authority to propose and adopt rules to comply with state law and
implement departmental programs; and under the Texas Family Code, Chapters
261 and 264, which authorizes the department to provide services to alleviate
the effects of child abuse and neglect.
The new section implements the Human Resources Code, Chapter 40, and the
Texas Family Code, Chapters 261 and 264.
§700.323.Continuation of Foster Care Payments During Absences from Care.
(a)
Under certain circumstances, the Texas Department of Protective
and Regulatory Services (TDPRS) will continue to make foster care payments
to a provider on behalf of a child who is no longer in that provider's care,
in order to reserve space for the child's anticipated return to that provider
at a date in the near future. The maximum duration of continued payments to
the provider during a child's absence is subject to the limitations set forth
in this section.
(b)
Payments to a provider for foster care during a child's
absence will only be made if each of the following conditions are met:
(1)
TDPRS plans to return the child to the provider at the
end of the absence;
(2)
The provider agrees to reserve space for the child's
return for as long as payments are made in the child's absence; and
(3)
TDPRS is not making foster care payments on behalf
of this same child to any other provider during the child's absence.
(c)
If a child is temporarily absent from an emergency shelter
or other provider contracted to provide emergency care, TDPRS may continue
to pay the provider for not more than five additional days during the child's
absence.
(d)
If a child's temporary absence from non-emergency foster
care is authorized by TDPRS, TDPRS may continue to pay the foster care provider
for not more than 30 days during the child's absence, unless a greater period
of payment is approved by the Child Protective Services (CPS) program administrator.
TDPRS may pay for not more than 90 days of care during a child's authorized
absence if the CPS program administrator approves. In unusual circumstances,
payments may continue for an authorized absence of longer than 90 days with
prior written approval by the CPS director. If a child's temporary absence
from non-emergency care is not authorized by TDPRS, TDPRS may pay for not
more than 15 additional days of care during the child's unauthorized absence.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000640
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
Subchapter C. ELIGIBILITY FOR CHILD PROTECTIVE SERVICES
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes the repeal of §700.338 and new §700.338 and §700.348,
concerning additional eligibility requirements for federal Title IV-E adoption
assistance, and continuing eligibility for Title IV-E adoption assistance
in subsequent adoptions, in its Child Protective Services (CPS) chapter. The
purpose of the new sections is to implement, clarify, and achieve consistency
with federal law. New §700.338 will implement immigration status requirements
enacted under the Personal Responsibility and Work Opportunities Act of 1996.
In addition, the proposal clarifies that the Title IV-E adoption assistance
eligibility requirements are the same whether the child is placed by TDPRS
or a Texas-licensed, nonprofit, child-placing agency. New §700.348 will
implement requirements contained in the Adoption and Safe Families Act relating
to preserving Title IV-E adoption assistance eligibility.
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 fiscal implications for state government as a result of enforcing or administering
the sections. The effect on state government for the first five-year period
the sections will be in effect is an estimated additional cost of $10,697
in fiscal year (FY) 2000; $124,909 in FY 2001; $234,318 in FY 2002; $343,727
in FY 2003; and $453,137 in FY 2004. There will be no fiscal implications
for 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 eligible special needs children placed for adoption
by Texas-licensed, nonprofit, child- placing agencies will qualify for adoption
assistance. Implementation of the federal immigration and status provisions
will ensure federal funds are targeted only to eligible children. There will
be no effect on large, small, or micro businesses because the rules relate
to children's eligibility for federally funded assistance which is determined
by TDPRS. The source of the funding does not impact business. 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 Susan Klickman
(512) 438-3302 in TDPRS's Child Protective Services Division. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-123,
Texas Department of Protective and Regulatory Services E-205, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeal is proposed under the Human Resources
Code (HRC), Title 2, Chapter 40, which authorizes the department to propose
and adopt rules to comply with state law and implement departmental programs,
and under Texas Family Code, Chapters 261 and 264, which authorizes the department
to provide services to alleviate the effects of child abuse and neglect.
The repeal implements the Human Resources Code, Chapter 40, and Texas Family
Code, Chapters 261 and 264.
§700.338.Additional Eligibility Requirements for Title IV-E Subsidy.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on January 28, 2000.
TRD-200000637
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The new sections are proposed under the Human Resources Code
(HRC), Title 2, Chapter 40, which authorizes the department to propose and
adopt rules to comply with state law and implement departmental programs,
and under Texas Family Code, Chapters 261 and 264, which authorizes the department
to provide services to alleviate the effects of child abuse and neglect.
The new sections implement the Human Resources Code, Chapter 40, and Texas
Family Code, Chapters 261 and 264.
§700.338.Additional Eligibility Requirements for Federal Title IV-E Adoption Assistance.
(a)
In addition to the requirements set forth in §700.337(2)-(7)
of this title (relating to Eligibility Requirements for State-paid Adoption
Assistance), the following eligibility requirements apply for federal Title
IV-E adoption assistance for special needs children:
(1)
The adoptive placement was made by the Texas Department
of Protective and Regulatory Services (TDPRS), by another Texas state agency
or a nonprofit, private child-placing agency licensed by TDPRS.
(2)
At the time the child was placed for adoption, the
placing agency held court-ordered managing conservatorship of the child, and
parental rights had been terminated.
(3)
The child's removal from the home was the result of
a judicial determination that continuation in the home would be contrary to
the child's welfare. If the child was voluntarily relinquished, court proceedings
must still be instituted to review the foster care placement and determine
that the child should not be returned home. The requirement for a judicial
determination would not be met if a court merely sanctions a voluntary relinquishment
in a proceeding to terminate parental rights.
(4)
At least one of the following conditions must be met:
(A)
During the month that the court proceedings referred to
in paragraph (3) of this subsection were initiated, the child would have been
eligible for Aid to Families with Dependent Children (AFDC) Program benefits
under the AFDC eligibility rules in effect on July 16, 1996.
(B)
At some time during the six-month period before the month
in which court proceedings referred to in paragraph (3) of this subsection
were initiated, the child lived with a relative specified in 45 Code of Federal
Regulations 233.90(c)(v)(A)(1)-(4) and the child would have been eligible
for AFDC benefits under the eligibility rules in effect on July 16, 1996,
if the child had been living with that relative during the month in which
court proceedings were initiated.
(5)
The child was deprived of parental support under
AFDC eligibility rules in effect on July 16, 1996, immediately before parental
rights were terminated.
(6)
If the child does not meet the requirements of paragraphs
(3) through (5) of this subsection, then the child must meet one of the following
conditions:
(A)
The child met all eligibility requirements for supplemental
security income (SSI) benefits prior to adoption, as determined by the federal
Social Security Administration.
(B)
The child's foster care assistance, paid under Title IV-E,
was based on the minor parent's Title IV-E eligibility.
(7)
The citizenship or immigration status of the
child must be verified in accordance with federal law. If not a United States
citizen, the child must have been a permanent resident or other qualified
alien, as defined in Title 8 United States Code (U.S.C.) §1641(b), for
at least five years at the time the adoption assistance agreement is signed.
When the child is a permanent resident or other qualified alien, but does
not meet the five-year requirement, the child can be eligible only under one
of the following exceptions:
(A)
the child entered the U.S. as a permanent resident or other
qualified alien prior to August 22, 1996;
(B)
the child qualifies for an exemption as a refugee or asylee
described under Title 8 U.S.C. §1613(b); or
(C)
the child is being adopted by a U.S. citizen, permanent
resident, or other qualified alien. When this exception applies, the citizenship
or immigration status of the adoptive parent must also be verified.
(b)
A child determined eligible to receive adoption assistance
under this section cannot also receive adoption assistance under the state-
paid program described in §700.337 of this title (relating to Eligibility
Requirements for State-paid Adoption Assistance).
§700.348.Continuing Eligibility for Title IV-E Adoption Assistance in Subsequent Adoptions.
(a)
A child can remain eligible for adoption assistance payments
in a subsequent adoption if the following conditions are met:
(1)
verification of the death of the adoptive parents or termination
of their parental rights is provided to the Texas Department of Protective
and Regulatory Services (TDPRS);
(2)
the child is less than 18 years old and meets one
of the special needs criteria listed in §700.337(3) of this title (relating
to Eligibility Requirements for State-paid Adoption Assistance); and
(3)
a new adoption assistance agreement is signed prior
to consummation of the subsequent adoption.
(b)
If the Decree of Adoption is not provided to TDPRS within
24 months after the signing of the adoption assistance agreement, payments
may be terminated unless TDPRS determines that continuation of payments would
be in the best interest of the child.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000638
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes an amendment to §700.518, concerning Texas Department
of Protective and Regulatory Services (TDPRS) Managing Conservatorship of
Children in TDPRS Regulated Care, in its Child Protective Services (CPS)
chapter. The purpose of the amendment is to modify the rule to agree with
those proposed by the Child Care Licensing division and to allow for certain
exceptions when foster or adoptive parents have a sustained finding of abuse
and neglect.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed section will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Fields also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be to provide consistency with Child Care Licensing (CCL)
rules. CPS rules must comply with CCL rules, because CCL rules are the regulatory
body over all child- placing agencies, including CPS. There will be no effect
on large, small, or micro businesses because the amendment allows foster and
adoptive parents to function under certain exceptions when they have a sustained
finding of abuse or neglect. There is no anticipated economic cost to persons
who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Scott Dixon
at (512) 438-5378 in TDPRS's Child Protective Services Division. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-121,
Texas Department of Protective and Regulatory Services E-205, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 40, which provides the department with the authority to propose
and adopt rules to comply with state law and implement departmental programs;
and under the Texas Family Code, Chapters 261 and 264, which authorizes the
department to provide services to alleviate the effects of child abuse and
neglect.
The amendment implements the Human Resources Code, Chapter 40, and the
Texas Family Code, Chapters 261 and 264.
§700.518.Texas Department of Protective and Regulatory Services (TDPRS) Managing Conservatorship of Children in TDPRS Regulated Care.
(a)
If the investigation finding is reason-to-believe in a
case of reported abuse or neglect involving children in TDPRS's managing conservatorship,
TDPRS's
Division
[
(1)-(4)
(No change.)
(b)
If there is a finding of abuse and/or
neglect in a TDPRS foster or pre-consummated adoptive home, CPS must follow
the rules promulgated by the Child Care Licensing Division of TDPRS.
[
(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 28, 2000.
TRD-200000635
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes an amendment to §700.1502, concerning foster and adoptive
home inquiry and screening, in its Child Protective Services chapter. The
purpose of the amendment is to delete obsolete language that is in conflict
with child care licensing rules. In addition, the amendment adds screening
requirements for foster and adoptive parent applicants' citizenship and/or
alien status.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed section will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Fields also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be to eliminate confusion for staff and individuals desiring
to be foster and adoptive parents. The addition of the citizenship and alien
status screening requirements will eliminate potential confusion in placement
decisions and placement delays and will ensure compliance with federal law.
There will be no effect on large, small, or micro businesses because Child
Protective Services has been complying with the child care licensing rules
regarding criminal history checks. The screening requirement for citizenship
and alien status will not require any special staff or cost, because it is
done through questions and viewing immigration documents in possession of
foster and adoptive parent applicants. There is no anticipated economic cost
to persons who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Norton Teutsch
at (512) 438-2939 in TDPRS's Child Protective Services Division. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-122,
Texas Department of Protective and Regulatory Services E-205, P.O. Box 149030,
Austin, Texas 78714-9030, within 30 days of publication in the
Texas Register
.
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 40, which provides the department with the authority to propose
and adopt rules to comply with state law and implement departmental programs;
and under the Texas Family Code, Chapters 261 and 264, which authorizes the
department to provide services to alleviate the effects of child abuse and
neglect.
The amendment implements the Human Resources Code, Chapter 40, and the
Texas Family Code, Chapters 261 and 264.
§700.1502.Foster and Adoptive Home Inquiry and Screening.
The Texas Department of Protective and Regulatory Services' (TDPRS')
policies for responding to inquiries and screening and approval of foster
and adoptive homes are as follows:
(1)
(No change.)
(2)
Screening and approval of foster and adoptive homes.
(A)-(L)
(No change.)
(M)
Criminal history. Criminal history background
checks must be completed on all prospective foster and adoptive parents and
the members of their households who are 14 years of age or older and not in
the legal conservatorship of TDPRS. Criminal history background checks will
be conducted in accordance with the criminal history rules promulgated by
the Child Care Licensing Division of TDPRS.
[
Criminal history.]
[
Criminal history checks are required for all
persons 18 years old and older who live in the applicant's home. A criminal
history check must be completed for persons who have child care responsibilities
for the children in the managing conservatorship of TDPRS. Criminal history
is evaluated in terms of the potential danger it presents to placement, rearing,
and protection of children. Persons who have been convicted of offenses against
the person, offenses against the family, public indecency, or a felony violation
of the Texas Controlled Substances Act must submit proof of rehabilitation
to TDPRS for their application to be considered further.]
[
TDPRS staff may provide a copy of the criminal
records check received from the Texas Department of Public Safety or local
law enforcement to the court when the court will accept the material in lieu
of ordering adoptive parents to provide their own criminal records check to
the court.]
[
Criminal history checks for foster parents
are required to be updated every two years to determine if a criminal action
has occurred since the subsequent information was obtained from the Texas
Department of Public Safety or local law enforcement.]
[
Criminal history checks for adoptive parents
must have been completed within one year of the time the court orders a criminal
history based on a petition filed for adoption. If the criminal history is
not within one year, a new criminal history is required.]
(N)
(No change.)
(O)
Citizenship and immigration. Only U.S.
citizens, permanent residents, or other qualified aliens (as defined in 8
U.S.C. §1641(b)) can be approved as foster or adoptive parents. If an
applicant who seeks to adopt a child does not have the required immigration
status, the Director of Child Protective Services can grant a waiver if it
is in the best interest of the child to do so. Relevant factors in assessing
whether to grant a waiver include any family relationship or other significant
prior relationship between the child and the applicant, and the applicant's
ability to meet the child's particular needs.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on January 28, 2000.
TRD-200000636
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes amendments to §§715.103, 715.205, 715.207, 715.305, 715.307,
715.407, 715.605, 715.607, 715.705, and 715.707, concerning people in the
home, director qualifications, staff qualifications and responsibilities,
and personal restrictions for criminal history and central registry background,
in its Day Care Licensing chapter. The current rules prevent any person who
has (1) a criminal conviction or deferred adjudication for an offense under
Title 5, Title 6, and Chapter 43 of Title 9 of the Texas Penal Code, or (2)
a finding of abuse or neglect, from being present in a regulated child care
setting while children are in care. The purpose of the amendments is to provide
consistency and clarity regarding the application of criminal and central
registry history for all persons. In addition, it will allow the Director
of Licensing to have greater flexibility to approve persons for child care
that no longer pose a risk to children.
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 to increase the number of adoptive homes, foster parents,
and quality child care providers. Currently, there is a well-recognized shortage
of these individuals. The proposed rules will allow individuals who have old
and/or minor criminal convictions, criminal deferred adjudications, or central
registry findings, but do not pose a risk to children, to be able to request
consideration to adopt, foster, and provide care to children. There will be
no effect on large, small, or micro businesses because there is no fiscal
impact to child care providers, other than the indirect consequence of broadening
the potential pool of child caregivers. 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 Sasha Rasco
at (512) 438-3249 in TDPRS's Licensing Division. Written comments on the proposal
may be submitted to Supervisor, Rules and Handbooks Unit-114, Texas Department
of Protective and Regulatory Services E-205, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the
Texas Register.
Subchapter B. MINIMUM STANDARDS FOR REGISTERED FAMILY HOMES
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-
42.077.
§715.103.People in the Home.
(a)
(No change.)
(b)
The registered family home must meet the requirements
in §725.1801 of this title (relating to Criminal History and Central
Registry Background Checks).
[
[
[
[
(c)
Until charges are dropped, a person who is indicted for
any
felony offense under Title 5, Title 6, or Chapter 43 of Title 9 of
the Penal Code
[
(d)
A person who is under investigation by the department
for the abuse or neglect of a child must not have contact with children in
care unless the Licensing Division determines that the person does not pose
a risk to the children in care or until the investigation is closed without
a finding of abuse or neglect. The facility must notify the Licensing Division
of any investigation of abuse or neglect within 24 hours of awareness or by
the next workday.
[
(e)-(f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 28, 2000.
TRD-200000610
C. Ed Davis
Deputy Director
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendments are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The amendments implement the Human Resources Code, §§42.001-
42.077.
§715.205.Director Qualifications.
(a)-(e)
(No change.)
[
No one may serve as director
of a school who has been convicted of any of the following offenses:]
[
A felony or misdemeanor classified as an offense
against the person or family,]
[
A felony or misdemeanor classified as
public indecency, or]
[
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.]
[
[
[
[
(g)
The director must meet the
requirements in §725.1801 of this title (relating to Criminal History
and Central Registry Background Checks).
(h)
Until charges are dropped,
a director who is indicted for any felony offense under Title 5, Title 6,
or Chapter 43 of Title 9 of the Penal Code or who is the subject of an official
criminal complaint (related to those offenses) that has been accepted by
a county or district attorney must not be at the facility or have contact
with the children while the children are in care. Until charges are dropped,
a person who is indicted for any other criminal offense or who is the subject
of an official criminal complaint (related to these other offenses) that has
been accepted by a county or district attorney must not be at the facility
or have contact with the children while the children are in care, unless it
is determined by the Licensing Division that the person does not pose a risk
to the children in care. The facility must notify the Licensing Division of
the indictments or complaints within 24 hours of awareness or by the next
workday.
(i)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
§715.207.Staff Qualifications and Responsibilities.
(a)-(h)
(No change.)
(i)
Facility staff must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(j)
Until charges are dropped,
a person who is indicted for any felony offense under Title 5, Title 6, or
Chapter 43 of Title 9 of the Penal Code or who is the subject of an official
criminal complaint (related to those offenses) that has been accepted by
a county or district attorney must not be at the facility or have contact
with the children while the children are in care. Until charges are dropped,
a person who is indicted for any other criminal offense or who is the subject
of an official criminal complaint (related to these other offenses) that has
been accepted by a county or district attorney must not be at the facility
or have contact with the children while the children are in care, unless it
is determined by the Licensing Division that the person does not pose a risk
to the children in care. The facility must notify the Licensing Division of
the indictments or complaints within 24 hours of awareness or by the next
workday.
(k)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(l)
[
(m)
[
(n)
[
(o)
[
(p)
[
(q)
[
(r)
[
(s)
[
(t)
[
(1)
any significant information he has about a child; and
(2)
a list of children present in the group. This may
be the class roll sheet.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on January 28, 2000.
TRD-200000611
C. Ed Davis
Deputy Director
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendments are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The amendments implement the Human Resources Code, §§42.001-
42.077.
§715.305.Director Qualifications.
(a)-(b)
(No change.)
(c)
The director must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(d)
Until charges are dropped,
a director who is indicted for any felony offense under Title 5, Title 6,
or Chapter 43 of Title 9 of the Penal Code or who is the subject of an official
criminal complaint (related to those offenses) that has been accepted by
a county or district attorney must not be at the facility or have contact
with the children while the children are in care. Until charges are dropped,
a person who is indicted for any other criminal offense or who is the subject
of an official criminal complaint (related to these other offenses) that has
been accepted by a county or district attorney must not be at the facility
or have contact with the children while the children are in care, unless it
is determined by the Licensing Division that the person does not pose a risk
to the children in care. The facility must notify the Licensing Division of
the indictments or complaints within 24 hours of awareness or by the next
workday.
(e)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(f)
[
[
[
[
Information about all
pending criminal charges, including deferred adjudication.]
(a)-(g)
(No change.)
(h)
Facility staff must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(i)
Until charges are dropped, a person who
is indicted for any felony offense under Title 5, Title 6, or Chapter 43 of
Title 9 of the Penal Code or who is the subject of an official criminal complaint
(related to those offenses) that has been accepted by a county or district
attorney must not be at the facility or have contact with the children while
the children are in care. Until charges are dropped, a person who is indicted
for any other criminal offense or who is the subject of an official criminal
complaint (related to these other offenses) that has been accepted by a county
or district attorney must not be at the facility or have contact with the
children while the children are in care, unless it is determined by the Licensing
Division that the person does not pose a risk to the children in care. The
facility must notify the Licensing Division of the indictments or complaints
within 24 hours of awareness or by the next workday.
(j)
A person who is under investigation by
the department for the abuse or neglect of a child must not have contact with
children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(k)
[
(l)
[
(m)
[
(n)
[
(o)
[
(p)
[
(q)
[
(r)
[
(1)
any significant information he has about a child; and
(2)
a list of children present in the group. This may
be the class roll sheet.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on January 28, 2000.
TRD-200000612
C. Ed Davis
Deputy Director
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-
42.077.
§715.407.Personnel Restrictions for Criminal History and Central Registry Background .
(a)
All personnel must meet the requirements
in §725.1801 of this title (relating to Criminal History and Central
Registry Background Checks).
[
(b)
Until charges are dropped, a person who
is indicted for any felony offense under Title 5, Title 6, or Chapter 43 of
Title 9 of the Penal Code or who is the subject of an official criminal complaint
(related to those offenses) that has been accepted by a county or district
attorney must not be at the facility or have contact with the children while
the children are in care. Until charges are dropped, a person who is indicted
for any other criminal offense or who is the subject of an official criminal
complaint (related to these other offenses) that has been accepted by a county
or district attorney must not be at the facility or have contact with the
children while the children are in care, unless it is determined by the Licensing
Division that the person does not pose a risk to the children in care. The
facility must notify the Licensing Division of the indictments or complaints
within 24 hours of awareness or by the next workday.
(c)
A person who is under investigation by
the department for the abuse or neglect of a child must not have contact with
children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on January 28, 2000.
TRD-200000613
C. Ed Davis
Deputy Director
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendments are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The amendments implement the Human Resources Code, §§42.001-
42.077.
§715.605.Director Qualifications.
(a)
(No change.)
(b)
The director must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(c)
Until charges are dropped,
a person who is indicted for any felony offense under Title 5, Title 6, or
Chapter 43 of Title 9 of the Penal Code or who is the subject of an official
criminal complaint (related to those offenses) that has been accepted by
a county or district attorney must not be at the facility or have contact
with the children while the children are in care. Until charges are dropped,
a person who is indicted for any other criminal offense or who is the subject
of an official criminal complaint (related to these other offenses) that has
been accepted by a county or district attorney must not be at the facility
or have contact with the children while the children are in care, unless it
is determined by the Licensing Division that the person does not pose a risk
to the children in care. The facility must notify the Licensing Division of
the indictments or complaints within 24 hours of awareness or by the next
workday.
(d)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(e)
[
[
[
[
§715.607.Staff Qualifications and Responsibilities.
(a)-(f)
(No change.)
(g)
Facility staff must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(h)
Until charges are dropped,
a person who is indicted for any felony offense under Title 5, Title 6, or
Chapter 43 of Title 9 of the Penal Code or who is the subject of an official
criminal complaint (related to those offenses) that has been accepted by
a county or district attorney must not be at the facility or have contact
with the children while the children are in care. Until charges are dropped,
a person who is indicted for any other criminal offense or who is the subject
of an official criminal complaint (related to these other offenses) that has
been accepted by a county or district attorney must not be at the facility
or have contact with the children while the children are in care, unless it
is determined by the Licensing Division that the person does not pose a risk
to the children in care. The facility must notify the Licensing Division of
the indictments or complaints within 24 hours of awareness or by the next
workday.
(i)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(j)
[
(k)
[
(l)
[
(m)
[
(n)
[
(o)
[
(p)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on January 28, 2000.
TRD-200000614
C. Ed Davis
Deputy Director
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendments are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The amendments implement the Human Resources Code, §§42.001-
42.077.
§715.705.Director Qualifications.
(a)-(e)
(No change.)
(f)
The director must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(g)
Until charges are dropped, a person who
is indicted for any felony offense under Title 5, Title 6, or Chapter 43 of
Title 9 of the Penal Code or who is the subject of an official criminal complaint
(related to those offenses) that has been accepted by a county or district
attorney must not be at the facility or have contact with the children while
the children are in care. Until charges are dropped, a person who is indicted
for any other criminal offense or who is the subject of an official criminal
complaint (related to these other offenses) that has been accepted by a county
or district attorney must not be at the facility or have contact with the
children while the children are in care, unless it is determined by the Licensing
Division that the person does not pose a risk to the children in care. The
facility must notify the Licensing Division of the indictments or complaints
within 24 hours of awareness or by the next workday.
(h)
A person who is under investigation by
the department for the abuse or neglect of a child must not have contact with
children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(i)
[
[
[
[
§715.707.Staff Qualifications and Responsibilities.
(a)-(f)
(No change.)
(g)
Facility staff must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
[
[
(h)
Until charges are dropped, a person who
is indicted for any felony offense under Title 5, Title 6, or Chapter 43 of
Title 9 of the Penal Code or who is the subject of an official criminal complaint
(related to those offenses) that has been accepted by a county or district
attorney must not be at the facility or have contact with the children while
the children are in care. Until charges are dropped, a person who is indicted
for any other criminal offense or who is the subject of an official criminal
complaint (related to these other offenses) that has been accepted by a county
or district attorney must not be at the facility or have contact with the
children while the children are in care, unless it is determined by the Licensing
Division that the person does not pose a risk to the children in care. The
facility must notify the Licensing Division of the indictments or complaints
within 24 hours of awareness or by the next workday.
(i)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(j)
[
(k)
[
(l)
[
(m)
[
(n)
[
(o)
[
(p)
[
(q)
[
(r)
[
(1)
any significant information he has about a child; and
(2)
a list of children present in the group. This may
be the class roll sheet.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on January 28, 2000.
TRD-200000615
C. Ed Davis
Deputy Director
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes amendments to §§720.35, 720.50, 720.231, 720.316, 720.408,
and 720.909, concerning general personnel requirements, adoption policies,
qualifications, personnel requirements for independent foster group homes,
personnel policies and practices, and qualifications and responsibilities,
in its 24-Hour Care Licensing chapter.
The current rules prevent any person who has: (1) a criminal conviction
or deferred adjudication for an offense under Title 5, Title 6, and Chapter
43 of Title 9 of the Texas Penal Code, or (2) a finding of abuse or neglect,
from being present in a regulated child care setting while children are in
care. The purpose of the amendments is to provide consistency and clarity
regarding the application of criminal and central registry history for all
persons. In addition, it will allow the Director of Licensing to have greater
flexibility to approve persons for child care that no longer pose a risk to
children.
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 to increase the number of adoptive homes, foster parents,
and quality child care providers. Currently, there is a well-recognized shortage
of these individuals. The proposed rules will allow individuals who have old
and/or minor criminal convictions, criminal deferred adjudications, or central
registry findings, but do not pose a risk to children, to be able to request
consideration to adopt, foster, and provide care to children. There will be
no effect on large, small, or micro businesses because there is no fiscal
impact to child care providers, other than the indirect consequence of broadening
the potential pool of child caregivers. There is no anticipated economic cost
to persons who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Sasha Rasco
at (512) 438-3249 in TDPRS's Licensing Division. Written comments on the proposal
may be submitted to Supervisor, Rules and Handbooks Unit-114, Texas Department
of Protective and Regulatory Services E-205, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the
Texas Register
.
Subchapter A. STANDARDS FOR CHILD-PLACING AGENCIES
The amendments are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The amendments implement the Human Resources Code, §§42.001-42.077.
§720.35. General Personnel Requirements.
General personnel requirements are that:
(1)
the child-placing agency must reassign or remove from
direct contact with clients any employee, volunteer, or foster parent
who does not meet the requirements in §725.1801 of this title (relating
to Criminal History and Central Registry Background Checks).
[
[
an indictment alleging commission
of any felony classified as an offense against the person or family, or of
public indecency, or of violation of the Texas Controlled Substances Act;]
[
an indictment alleging commission
of any misdemeanor classified as an offense against the person or family,
or of public indecency; and]
[
an official criminal complaint
accepted by a district or county attorney alleging commission of a misdemeanor
classified as an offense against the person or family, or of public indecency.]
(2)
such reassignment or removal, as described in
paragraph (1) of this
section
[
(3)
until charges are dropped, a person who is indicted
for any felony offense under Title 5, Title 6, or Chapter 43 of Title 9 of
the Penal Code or who is the subject of an official criminal complaint (related
to those offenses) that has been accepted by a county or district attorney
must not be at the facility or have contact with the children while the children
are in care. Until charges are dropped, a person who is indicted for any other
criminal offense or who is the subject of an official criminal complaint (related
to these other offenses) that has been accepted by a county or district attorney
must not be at the facility or have contact with the children while the children
are in care, unless it is determined by the Licensing Division that the person
does not pose a risk to the children in care. The facility must notify the
Licensing Division of the indictments or complaints within 24 hours of awareness
or by the next workday.
[
(4)
a person who is under investigation by the department
for the abuse or neglect of a child must not have contact with children in
care unless the Licensing Division determines that the person does not pose
a risk to the children in care or until the investigation is closed without
a finding of abuse or neglect. The facility must notify the Licensing Division
of any investigation of abuse or neglect within 24 hours of awareness or by
the next workday.
[
[
the agency must report
any occurrences under paragraphs (1)-(3) of this section to TDPRS by the end
of the first workday after learning of the occurrence.]
[
(6)
[
(7)
[
(A)
date of employment;
(B)
documentation that the person meets the qualifications
for the position;
(C)
tuberculosis test reports, if required, for persons having
contact with children;
(D)
reports on the
criminal background check and
the
child abuse/neglect [
(E)
documentation that the person meets training requirements;
and
(F)
date and reason for separation, if applicable.
§720.50. Adoption Policies.
(a)-(b)
(No change.)
(c)
Adoption policies on screening
adoptive parents and families for criminal or child abuse/neglect history
must meet the requirements in §725.1801 of this title (relating to Criminal
History and Central Registry Background Checks).
(d)
[
(e)
[
(f)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 28, 2000.
TRD-200000616
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-42.077.
§720.231. Qualifications.
(a)
(No change.)
(b)
Foster family homes must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
(c)
Until charges are dropped, a person who is indicted
for any felony offense under Title 5, Title 6, or Chapter 43 of Title 9 of
the Penal Code or who is the subject of an official criminal complaint (related
to those offenses) that has been accepted by a county or district attorney
must not be in the home or have contact with the children while the children
are in care. Until charges are dropped, a person who is indicted for any other
criminal offense or who is the subject of an official criminal complaint (related
to these other offenses) that has been accepted by a county or district attorney
must not be in the home or have contact with the children while children are
in care, unless it is determined by the Licensing Division that the person
does not pose a risk to the children in care. The facility must notify the
Licensing Division of the indictments or complaints within 24 hours of awareness
or by the next workday.
[
[
an indictment alleging commission
of any felony classified as an offense against the person or family or of
public indecency, or of violation of the Texas Controlled Substances Act;]
[
an indictment alleging
commission of any misdemeanor classified as an offense against the person
or family, or of public indecency;]
[
an official criminal
complaint accepted by a district or county attorney alleging commission of
a misdemeanor classified as an offense against the person or family, or of
public indecency.]
(d)
A person who is under investigation by the department
for the abuse or neglect of a child must not have contact with children in
care unless the Licensing Division determines that the person does not pose
a risk to the children in care or until the investigation is closed without
a finding of abuse or neglect. The facility must notify the Licensing Division
of any investigation of abuse or neglect within 24 hours of awareness or by
the next workday.
[
(e)-(f)
(No change.)
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000617
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-42.077.
§720.316. Personnel Requirements for Independent Foster Group Homes.
(a)
(No change.)
(b)
Foster group homes must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
(c)
Until charges are dropped, a person who is indicted
for any felony offense under Title 5, Title 6, or Chapter 43 of Title 9 of
the Penal Code or who is the subject of an official criminal complaint (related
to those offenses) that has been accepted by a county or district attorney
must not be in the home or have contact with the children while the children
are in care. Until charges are dropped, a person who is indicted for any other
criminal offense or who is the subject of an official criminal complaint (related
to these other offenses) that has been accepted by a county or district attorney
must not be in the home or have contact with the children while the children
are in care, unless it is determined by the Licensing Division that the person
does not pose a risk to the children in care. The facility must notify the
Licensing Division of the indictments or complaints within 24 hours of awareness
or by the next workday.
[
(d)
A person who is under investigation by the department
for the abuse or neglect of a child must not have contact with children in
care unless the Licensing Division determines that the person does not pose
a risk to the children in care or until the investigation is closed without
a finding of abuse or neglect. The facility must notify the Licensing Division
of any investigation of abuse or neglect within 24 hours of awareness or by
the next workday.
[
[
An indictment alleging commission
of any felony classified as an offense against the person or family, or of
public indecency, or of violation of the Texas Controlled Substances Act.]
[
An indictment alleging
commission of any misdemeanor classified as an offense against the person
or family, or of public indecency.]
[
An official criminal
complaint accepted by a district or county attorney alleging commission of
a misdemeanor classified as an offense against the person or family, or of
public indecency. Such reassignment or removal shall remain in effect pending
resolution of the charges. Notification of such action shall be made to the
Licensing Branch within 24 hours or the next working day.]
(e)-(g)
(No change.)
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000618
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-42.077.
§720.408. Personnel Policies and Practices.
(a)-(e)
(No change.)
(f)
All personnel must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
a felony classified as an
offense against the person or family.]
[
a felony classified
as public indecency.]
[
a felony violation of
any law intended to control the possession or distribution of any substance
classified as a controlled substance in the Texas Controlled Substances Act.]
[
a misdemeanor classified
as an offense against the person or family or as public indecency.]
(g)
Until charges are dropped, a person who is indicted
for any felony offense under Title 5, Title 6, or Chapter 43 of Title 9 of
the Penal Code or who is the subject of an official criminal complaint (related
to those offenses) that has been accepted by a county or district attorney
must not be at the facility or have contact with the children while the children
are in care. Until charges are dropped, a person who is indicted for any other
criminal offense or who is the subject of an official criminal complaint (related
to these other offenses) that has been accepted by a county or district attorney
must not be at the facility or have contact with the children while the children
are in care, unless it is determined by the Licensing Division that the person
does not pose a risk to the children in care. The facility must notify the
Licensing Division of the indictments or complaints within 24 hours of awareness
or by the next workday.
[
[
an indictment alleging the
person committed any felony classified as an offense against the person or
family, public indecency, or violation of any statute intended to control
the possession or distribution of any substance classified as a controlled
substance in the Texas Controlled Substances Act.]
[
an indictment alleging
the person committed any misdemeanor classified as an offense against the
person or family or public indecency.]
[
an official criminal
complaint accepted by a district or county attorney alleging the person committed
a misdemeanor classified as an offense against the person or family or public
indecency.]
[
The person must be removed
from contact with children until the charges are resolved.]
[
Licensing must be notified
of the indictment or complaint by the next workday.]
[
A person who has received
deferred adjudication on any of these charges must be removed from contact
with children for the duration of the deferment unless the director of licensing
has ruled that proof of rehabilitation has been established.]
(h)
A person who is under investigation by the department
for the abuse or neglect of a child must not have contact with children in
care unless the Licensing Division determines that the person does not pose
a risk to the children in care or until the investigation is closed without
a finding of abuse or neglect. The facility must notify the Licensing Division
of any investigation of abuse or neglect within 24 hours of awareness or by
the next workday.
[
[
employees.]
[
adults living at the
facility who are not employees or in care.]
[
volunteers who are counted
in the staff-child ratio.]
(i)
(No change.)
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000619
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-42.077.
§720.909. Qualifications and Responsibilities.
(a)
Facility staff must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks).
[
[
a felony classified as an
offense against the person or family, or of public indecency, or a violation
of the Texas Controlled Substances Act; or]
[
a misdemeanor classified
as an offense against the person or family or of public indecency.]
Until charges are dropped,
a person who is indicted for any felony offense under Title 5, Title 6, or
Chapter 43 of Title 9 of the Penal Code or who is the subject of an official
criminal complaint (related to those offenses) that has been accepted by a
county or district attorney must not be at the facility or have contact with
the children while the children are in care. Until charges are dropped, a
person who is indicted for any other criminal offense or who is the subject
of an official criminal complaint (related to these other offenses) that has
been accepted by a county or district attorney must not be at the facility
or have contact with the children while the children are in care, unless it
is determined by the Licensing Division that the person does not pose a risk
to the children in care. The facility must notify the Licensing Division of
the indictments or complaints within 24 hours of awareness or by the next
workday.
(c)
A person who is under investigation
by the department for the abuse or neglect of a child must not have contact
with children in care unless the Licensing Division determines that the person
does not pose a risk to the children in care or until the investigation is
closed without a finding of abuse or neglect. The facility must notify the
Licensing Division of any investigation of abuse or neglect within 24 hours
of awareness or by the next workday.
(d)
[
(e)
[
(f)
[
(g)
[
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000620
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes new §§720.1001-720.1013, concerning the consolidation
and revision of rules regulating the use of behavior interventions in residential
child-care settings, in its 24-Hour Care Licensing chapter.
Section 720.1001 creates a new definition section that contains definitions
applicable to the use of behavior intervention.
Section 720.1002 establishes the precedence of §§720.1001-720.1013
over all other rules in Chapter 720.
Section 720.1003 outlines the requirements for each residential child-care
facility and/or child-placing agency's behavior intervention policies and
procedures.
Section 720.1004 creates rules regulating the use of less restrictive forms
of behavior intervention, such as quiet time and time out.
Section 720.1005 outlines the general requirements for the use of different
types of restraint.
Section 720.1006 creates consolidated and revised rules regulating the
use of emergency medication.
Section 720.1007 creates consolidated and revised rules regulating the
use of personal restraint.
Section 720.1008 creates consolidated and revised rules regulating the
use of mechanical restraint.
Section 720.1009 creates consolidated and revised rules regulating the
use of protective devices.
Section 720.1010 creates consolidated and revised rules regulating the
use of supportive devices.
Section 720.1011 creates consolidated and revised rules regarding the use
of seclusion.
Section 720.1012 creates consolidated and revised rules regulating required
training in behavior intervention for foster parents and child care facility
staff.
Section 720.1013 creates rules regulating the evaluation of behavior intervention
policies and procedures. The new sections are proposed in Subchapter O, General
Policies and Procedures.
TDPRS published proposed rules on this subject in the November 5, 1999,
issue of the
Texas Register
, which TDPRS is
withdrawing in this issue of the Texas Register. The proposal which follows
reflects many substantive changes from the November 5th proposal.
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 children's rights in residential child-care settings
will be better protected; the risk of a child being wrongfully restrained,
medicated, or secluded or abused due to improper use of restraint, emergency
medication, or seclusion will be lowered; and child caregivers will be better
able to positively manage children's behavior. There will be an adverse economic
effect on persons who are required to comply with the proposed sections and
small businesses because of the requirements for increased pre-service training
in behavior intervention and additional requirements for orders allowing mechanical
restraint and seclusion. The estimated cost of the increased pre-service training
to small and micro businesses for each employee is $100, compared to $50 per
employee in large businesses. There will be an additional cost to residential
treatment centers and institutions serving mentally retarded children, per
child requiring orders for mechanical restraint, of $15.86 for an initial
psychiatric assessment and an additional $19.62 for each emergency order for
mechanical restraint. There will be an additional cost to residential treatment
centers and institutions serving mentally retarded children, per child requiring
PRN orders for seclusion, of $15.86 for an initial psychiatric assessment
or an $15.65 for each emergency order for seclusion from a licensed psychologist.
This cost will be the same for large, small, and micro businesses. There is
no additional anticipated economic cost to persons who are required to comply
with the proposed sections. Reducing the economic effect of the rules would
result in inequitable protections and inequitable quality of care for children
in different child-care facility types.
Questions about the content of the proposal may be directed to Sasha Wozniak
Rasco at (512) 438-3249 in TDPRS's Licensing Division. Written comments on
the proposal may be submitted to Supervisor, Rules and Handbooks Unit-013,
Texas Department of Protective and Regulatory Services E-205, P.O. Box 149030,
Austin, Texas, 78714-9030, within 30 days of publication in the
Texas Register
.
The new sections are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The new sections implement the Human Resources Code, §§42.001-42.077.
§720.1001.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings. The following definitions take precedence over all
other similar definitions in this chapter, in the event of a conflict.
(1)
Caregiver--A foster parent and/or child-care facility staff
member.
(2)
Caregiver qualified in behavior intervention--A caregiver
who meets minimum standard qualifications and is further qualified by training
and experience in crisis management and the proper use of de-escalation techniques,
restraints, and/or seclusion allowed in the child-care facility.
(3)
Child--An individual younger than 18 years of age
in placement at a child-care facility.
(4)
Child-care facility--A facility licensed or certified
by the department to provide assessment, care, training, education, custody,
treatment, or supervision for a child who is not related by blood, marriage,
or adoption to the owner or operator of the facility, for 24-hours per day,
whether or not the facility is operated for profit or charges for the services
it offers.
(5)
Child-placing agency--A person, including an organization,
other than the natural parents or guardian of a child who plans for the placement
of or places a child in a child-care facility, agency foster home, agency
foster group home, or adoptive home.
(6)
Department--The Texas Department of Protective and
Regulatory Services (TDPRS).
(7)
Emergency medication--The use of any chemical, including
pharmaceuticals, through topical application, oral administration, injection,
or other means, solely for the purpose of restraining an individual in an
emergency situation. Medication that has a restraining effect, but is administered
for medical reasons other than the restraint of the child are not emergency
medications (e.g. benadryl for an allergic reaction or medication to control
seizures).
(8)
Emergency order--An order given in an emergency situation
for the immediate use of restraint, emergency medication, or seclusion. An
emergency order is limited to the specific emergency situation and is not
valid on a standing or PRN order basis.
(9)
Emergency situation--A situation in which a child
is endangering himself or others and it is immediately necessary to restrain
or seclude a child to prevent death or substantial bodily harm to the child
or to others.
(10)
Escorting--Use of physical force by a caregiver to
move or direct a child to another location. Escorting is a type of personal
restraint. Escorting does not include the re-direction or guidance of a child
that does not physically resist moving with the caregiver and the situation
does not escalate into a need to physically force the child to move.
(11)
Imminent significant risk--Risk that is immediate.
Given the situation, a prudent person must be able to conclude that bodily
harm will occur to either the child or to another person if there is no immediate
intervention. Imminent significant risk does include the probability of imminent
harm resulting from a child running away. Imminent significant risk does not
include:
(A)
harm that might occur over time or at a later time; or
(B)
verbal threats or verbal attacks.
(12)
Involuntary self-injury--Involuntary movements
that are potentially self-injurious (e.g., helmets for individuals with seizures,
use of bedrails to prevent individuals from falling out of bed, seat belts
to prevent individuals from falling out of wheelchairs).
(13)
Mechanical restraint--The application of a device
for the purpose of restricting the free movement of the whole or a portion
of a child's body in order to control physical activity.
(14)
Personal restraint--The application of physical force,
including escorting, without the use of any device for the purpose of restricting
the free movement of the whole or a portion of a child's body in order to
control physical activity.
(15)
Physical force--Pressure applied to a child's body
that reduces or eliminates the child's ability to move freely.
(16)
PRN order--Pro re nata or "as needed according to
circumstances" order.
(17)
Protective devices--Mechanical restraints used to
prevent involuntary self-injury, to permit wounds to heal, or to administer
medication prescribed by a physician.
(18)
Quiet time--A procedure in which a child voluntarily
enters and remains in a designated area for a period of time.
(19)
Restraint--The use of physical force alone, the use
of a device, or the use of emergency medication in order to control physical
activity.
(20)
Seclusion--The placement of a child, for any period
of time, in a room or other area where the child is alone and is physically
prevented from leaving by a locked or barricaded entryway. An intervention
that restricts a child to a room which involves a caregiver placing his or
her body between the child and the exit from that area (e.g. standing in the
doorway of a room) is not a seclusion because the child is not alone.
(21)
Standing orders--An order or prescription in force
permanently or until specifically changed or canceled.
(22)
Substantial bodily harm--Physical injury serious
enough that a prudent person would conclude that the injury required professional
medical attention. It does not include minor bruising or the risk of minor
bruising or similar forms of minor bodily harm that will resolve healthily
without professional medical attention.
(23)
Supportive devices--Mechanical restraints used to
posturally support an individual or to assist individuals who cannot obtain
and/or maintain normal bodily functioning as outlined in §720.1010 of
this title (relating to Supportive Devices).
(24)
Time out--A procedure in which a child is restricted
to a designated area, including his room, for a period of time for purposes
of behavior modification, but is not physically prevented from leaving by
a locked or barricaded entryway. A caregiver may close a door or stand in
an entryway to enforce the time-out, as long as the door is not locked.
§720.1002.Behavior Intervention Precedence.
Sections 720.1001-720.1013 of this title (relating to Definitions,
Behavior Intervention Precedence, Required Behavior Intervention Policies
and Procedures, Less Restrictive Behavior Interventions, Restraint and Seclusion:
General Requirements, Emergency Medication, Personal Restraint, Mechanical
Restraint, Protective Devices, Supportive Devices, Seclusion, Behavior Intervention
Training, and Evaluation of Behavior Interventions) take precedence over all
other rules in this chapter, in the event of a conflict.
§720.1003.Required Behavior Intervention Policies and Procedures.
(a)
All child-care facilities and child-placing agencies must
have policies and procedures consistent with §§720.1001-720.1013
of this title (relating to Definitions, Behavior Intervention Precedence,
Required Behavior Intervention Policies and Procedures, Less Restrictive Behavior
Interventions, Restraint and Seclusion: General Requirements, Emergency Medication,
Personal Restraint, Mechanical Restraint, Protective Devices, Supportive Devices,
Seclusion, Behavior Intervention Training, and Evaluation of Behavior Interventions)
addressing behavior interventions.
(b)
These policies and procedures must include a complete description
of permitted behavior interventions.
(c)
The child-care facility and/or child-placing agency must
set, in its behavior intervention policies, the specific intervention techniques
that will be used within the parameters set by minimum standards.
(d)
The facility's behavior intervention procedures must include
all child-care facility and/or child-placing agency requirements for and restrictions
on the use of permitted interventions.
(e)
The facility's behavior intervention policies and procedures
must be approved by the Texas Department of Protective and Regulatory Services
(TDPRS) before implementation.
(f)
Changes to these policies and procedures must not be implemented
before obtaining TDPRS approval.
(g)
The child-care facility and/or child-placing agency must
follow its written behavior intervention policies and procedures.
(h)
The child-care facility must post the behavior interventions
allowed in the child-care facility in a place where the children/clients can
view them, or at admission, must provide each child and parent(s) or managing
conservator with a personal copy of the behavior interventions allowed in
the facility.
(i)
Prior to or at admission, a caregiver must explain to children,
based on their level of functioning and comprehension, the child-care facility's
policies and practices on the use of restraint. The explanation must include
who can use a restraint, the actions caregivers must first attempt to defuse
the situation and avoid the use of restraint, the kinds of situations in which
restraint may be used, the types of restraints authorized by the agency under
which the home operates, when the use of a restraint must cease, what action
the child must exhibit to be released from the restraint, and the way to report
an inappropriate restraint. This explanation must be documented in the child's
record.
(j)
Prior to or at admission, children must be notified, based
on their level of functioning and comprehension, of their right to voluntarily
provide comments on any restraint or seclusion, including the incident that
led to the restraint/seclusion and the manner in which staff intervened, in
which they are the subject or to which they are a witness. This notification
must include an explanation of the process for submitting such comments, which
must be easily understood and accessible. This notification need not be made
after every restraint and seclusion that occurs at the facility as long as
the process for submitting such comments has been made clear and accessible.
For example, a facility could create a standardized form that is easily accessible
or give children the permission to submit such comments on regular paper to
any staff person.
§720.1004.Less Restrictive Behavior Interventions.
(a)
A child-care facility and/or child-placing agency's policies
and procedures must address the use of less restrictive and intrusive behavior
interventions as preventive measures and de-escalating interventions to avoid
the need for the use of restraint or seclusion.
(b)
Less restrictive measures may include, but are not limited
to, quiet time and time out.
§720.1005.Restraint and Seclusion: General Requirements.
(a)
Before the emergency use of any form of restraint or seclusion,
other preventive, de-escalative, and less restrictive techniques must have
been attempted and proven ineffective at diffusing the situation, if such
less restrictive techniques can be used without endangering the safety of
the individuals involved.
(b)
Before the use of personal restraint, a caregiver qualified
in behavior intervention must make the determination that the situation presents
an imminent significant risk. The basis for this decision must be documented.
(c)
Before the use of seclusion, mechanical restraint, or emergency
medication, a caregiver qualified in behavior intervention must make the determination
that the situation is an emergency situation. The basis for this decision
must be documented.
(d)
Any form of restraint or seclusion may only be administered
by a caregiver qualified in behavior intervention.
(e)
No type of restraint or seclusion may be used as:
(1)
punishment;
(2)
a convenience for caregivers; or
(3)
a substitute for program treatment.
(f)
All reports to Licensing of child death, suicide attempts,
and incidents in which a child experiences substantial bodily harm must include
the complete documentation of any emergency medications, restraints, and/or
seclusions which were implemented within 48 hours prior to the incident.
§720.1006.Emergency Medication.
(a)
General.
(1)
The use of psychotropic or psychoactive medication as restraint
is only permitted in emergency situations and only when ordered by a licensed
physician.
(2)
The use of chemical sprays, drops, ointments, or any
form of topically-administered substance, including tear gas and pepper sprays,
for emergency medication is prohibited.
(b)
Orders for emergency medication.
(1)
A licensed physician's order allowing psychotropic or psychoactive
medication as a restraint in emergency situations must include information
on administering the medication and a complete description of the behaviors
(e.g. hitting, biting, kicking) and circumstances under which medication may
be administered to restrain the child.
(2)
The physician ordering emergency medication must first
take into consideration any potential medical contraindications, including
psychiatric contraindications such as sexual abuse, and behavioral contraindications
such as substance abuse.
(3)
The physician ordering emergency medication may use
PRN orders as long as all of the information in paragraphs (1) and (2) of
this subsection is included in the order. PRN orders for emergency medication
must be reviewed by the physician at least every three months.
(c)
Implementation of emergency medication.
(1)
A caregiver qualified in behavior intervention must administer
the medication only after conducting an assessment of the precipitating behaviors
and circumstances and determining that an emergency situation exists.
(2)
Emergency medication may be simultaneously implemented
in combination with personal restraint, seclusion, or mechanical restraint
only if specifically allowed by the written orders and only if the specified
restraint(s) or seclusion are allowed in the facility by the rules in this
section. These orders must include clinical justification for the combination.
(3)
A child must be provided with an opportunity to privately
discuss the situation which led to the need for emergency medication and the
caregiver's reaction to that situation as soon as possible and no later than
72 hours after the cessation of the emergency medication.
(4)
Caregivers involved in the emergency medication must
make every attempt to debrief concerning the incident.
(d)
Documentation of emergency medication.
(1)
The use of emergency medication must be documented in the
child's record as soon as possible and no later than 24 hours after the initiation
of the restraint.
(2)
Documentation must include:
(A)
the child's name;
(B)
a description and assessment of the precipitating circumstances
and the specific behaviors which constituted the emergency situation;
(C)
the use of alternative strategies attempted before the
use of emergency medication and the child's reaction to those strategies;
(D)
the time the emergency medication was administered;
(E)
the name of the caregiver(s) participating in the emergency
medication;
(F)
the specific medication used;
(G)
any injury the child sustained as a result of the incident
or the use of medication; and
(H)
the actions the caregiver took to facilitate the child's
return to normal activities following the end of the emergency medication.
§720.1007.Personal Restraint.
(a)
General.
(1)
Except as noted in subparagraphs (A), (B), (C) and (D)
of this subsection, personal restraint may only be used in situations of imminent
significant risk as defined in §720.1001 of this title (relating to
Definitions), or to administer intra-muscular medication or other medical
treatments prescribed by a physician.
(A)
Short personal restraints that last no longer than one
minute are not regulated as personal restraints under this chapter. Any serious
incident report of an injury resulting from a short personal restraint that
is made to Licensing must include documentation of the restraint and the precipitating
circumstances and specific behaviors which led to the restraint.
(B)
In situations where a child is significantly damaging property,
but is not posing a risk of harm to himself or others, a personal restraint
of limited, short duration may be used to intervene only to immediately prevent
the damage and only if less restrictive techniques have been attempted and
have failed. The child must be released from this restraint as soon as the
damaging behavior has been de-escalated.
(C)
At times, caregivers must protect children, particularly
young children, from immediate danger's for example, keeping a toddler from
running into the street or coming in contact with a hot stove. Such action
is not considered an escort or a personal restraint. The child's behavior
is being restrained because of the external hazard. The restraint must end
immediately after the danger is averted.
(D)
When caring for children under the age of five (chronological
or developmental age), a physical response, such as picking a child up, on
the part of the caregiver is sometimes needed to intervene if the child's
behavior is disruptive or inciting, such as a tantrum in a public place. When
the physical response is an appropriate response to disruptive and/or inciting
behavior, efforts to de-escalate the behavior have failed, and the physical
response is of a short duration and does not escalate into a personal restraint,
then the physical response is not considered an escort or a personal restraint.
(2)
Before the use of personal restraint, other preventive,
de-escalative, less restrictive techniques must be attempted and proven ineffective
at diffusing the situation.
(b)
Implementation of personal restraint.
(1)
When personal restraint is appropriate, it must be discontinued
as soon as the child's behavior no longer constitutes imminent significant
risk.
(2)
Personal restraint must be initiated in a way that
minimizes the risk of physical discomfort, harm, or pain to the child. Only
the minimal amount of reasonable and necessary physical force may be used
to implement personal restraint.
(3)
Only a caregiver qualified in behavior intervention
may apply personal restraint.
(4)
When a child must be personally restrained, the caregiver
must consider the characteristics of the immediate physical environment and
the permitted forms of personal restraint and act to protect the child's safety.
Caregivers must make every effort to act to protect the child's privacy, including
shielding the child from onlookers. Caregivers must make every effort to act
to protect the child's personal dignity and well-being, including ensuring
that the child's body is appropriately covered.
(5)
During any personal restraint, a caregiver qualified
in behavior intervention shall monitor the child's breathing and other signs
of physical distress and take appropriate action to ensure adequate respiration,
circulation, and overall well-being. Appropriate action would include responding
when a child indicates he or she cannot breathe.
(6)
If an emergency health situation occurs during personal
restraint, the child must be released immediately and treatment obtained.
(7)
As soon as possible after personal restraint is started,
appropriate caregiver(s) must explain to the child in restraint the behaviors
the child must exhibit to be released from the restraint or have the restraint
reduced, and permit the child to make suggestions about what actions the caregiver(s)
can take to help the child de-escalate.
(8)
If the child does not appear to understand what action
he must take to be released from the restraint, the caregiver(s) must attempt
to re-explain it every 15 minutes until understanding is reached or the child
is released from restraint.
(9)
Personal restraint may be simultaneously implemented
in combination with emergency medication or mechanical restraint only if specifically
allowed by written orders and only if the specified restraint(s) is allowed
in the facility by the rules in this section. These orders must include clinical
justification for the combination.
(c)
Personal restraint follow-up.
(1)
When a child is released from personal restraint, the caregiver(s)
must take appropriate actions to help the child return to normal activities.
A child does not have to return to the activities he was engaged in prior
to the restraint or the activities in which the group is participating at
the time the child is released from restraint. The actions of the caregiver(s)
must include:
(A)
providing the child with an appropriate transition and
offering the child an opportunity to return to regular activities;
(B)
observing the child for at least 15 minutes; and
(C)
providing the child with an opportunity to privately discuss
the situation which led to the need for personal restraint and the caregiver's
reaction to that situation as soon as possible and no later than 72 hours
after the release from restraint.
(2)
Staff involved in the personal restraint must
make every attempt to debrief concerning the incident.
(d)
Documentation of personal restraint. The use of personal
restraint must be documented as soon as possible and no later than 24 hours
after the initiation of the restraint. Documentation must include:
(1)
the child's name;
(2)
a description and assessment of the precipitating
circumstances and the specific behaviors which constituted the initial situation
of imminent significant risk, and if applicable, the specific behaviors which
continued to constitute a situation of imminent significant risk;
(3)
the use of alternative strategies attempted before
the use of personal restraint and the child's reaction to those strategies;
(4)
the time the restraint began;
(5)
the name of the caregiver(s) participating in the
restraint;
(6)
the specific restraint techniques used;
(7)
the de-escalating strategies employed during the restraint;
(8)
the total length of time the child was restrained;
(9)
all attempts to explain to the child what behaviors
were necessary for release from the restraint;
(10)
any injury the child sustained as a result of the
incident or the use of restraint, and the care or treatment provided; and
(11)
the actions the caregiver(s) took to facilitate the
child's return to normal activities following release from restraint.
§720.1008.Mechanical Restraint.
(a)
General.
(1)
The use of mechanical restraints is prohibited in all child-care
facilities except residential treatment centers and institutions serving mentally
retarded children.
(2)
Mechanical restraints may only be used in emergency
situations.
(3)
Before the emergency use of a mechanical restraint,
other preventive, de-escalative, less restrictive techniques must be attempted
and proven ineffective at diffusing the situation.
(4)
Only commercially available devices specifically designed
for the safe and comfortable restraint of humans may be used as mechanical
restraints. Any alteration of commercially available devices must:
(A)
be based on an individual child's special physical needs;
(B)
take into consideration any potential medical contraindications,
including psychiatric contraindications, for example history of sexual abuse;
and
(C)
be approved by a licensed psychiatrist.
(5)
Mechanical restraint devices must be inspected
after each use to ensure that they are in good repair and are free from tears
or protrusions that may cause injury. Damaged devices may not be used to restrain
a child.
(6)
The following types of devices must not be used to
restrain children:
(A)
those with metal wrist or ankle cuffs;
(B)
those with rubber bands, rope, cord, or padlocks or key
locks as fastening devices;
(C)
long ties, such as leashes; or
(D)
bed sheets.
(b)
Mechanical restraint orders.
(1)
No form of mechanical restraint may be used with a child
without emergency orders from a licensed psychiatrist.
(2)
The psychiatrist ordering mechanical restraint must
first take into consideration any potential medical and or psychiatric contraindications,
including a child's history of physical or sexual abuse. This consideration
must be documented in the child's records.
(3)
PRN orders for mechanical restraints are not permitted.
(4)
Orders for mechanical restraint must designate the
specific device or devices authorized, including any specific measures required
to ensure the child's health, safety, and well being.
(5)
Orders must include the circumstances under which
the intervention may be used, instructions for observation of the child while
in restraint, the behaviors that indicate the child is ready to be released
from restraint, and the maximum amount of time the child may be restrained
regardless of behaviors exhibited.
(6)
For children and adolescents ages 9 to 17 years, maximum
time in mechanical restraint must not exceed one hour. For children under
age nine years, this must not exceed 30 minutes. If a child is released from
mechanical restraint and then restrained again within the same 12-hour period,
the time spent in restraint is cumulative and may not exceed the stated maximums.
(7)
Continuation beyond the maximum amount of time permitted
by the original order requires authorization from the prescribing psychiatrist.
Authorization to extend must be obtained before the end of the time period
or the restraint must be discontinued. If authorization for continuation is
obtained over the telephone, continuation orders must be documented and the
psychiatrist must personally sign, date, and indicate the time on the telephone
order within 72 hours of the time the order was issued. For additional regulations
required when the restraint is continued beyond the maximum amount of time,
see subsection (c)(10) of this section.
(c)
Implementation of mechanical restraint.
(1)
Mechanical restraint must not be implemented without the
required orders.
(2)
When mechanical restraint is the appropriate intervention,
it must be discontinued as soon as the child is no longer a danger to himself
or others.
(3)
Mechanical restraint must be initiated in a way that
minimizes the risk of physical discomfort, harm, or pain to the child. Only
the minimal amount of reasonable and necessary physical force may be used
to implement mechanical restraint.
(4)
Only a caregiver qualified in behavior intervention
may apply mechanical restraint.
(5)
The child-care facility and/or child-placing agency
must provide a protected, private, observable environment for a child placed
in restraint. The environment must safeguard the child's personal dignity
and well being.
(6)
If an emergency health situation occurs during mechanical
restraint, the child must be released immediately and treatment obtained.
(7)
As soon as possible after mechanical restraint is
started, the appropriate caregiver(s) must explain to the child in restraint
the behaviors the child must exhibit to be released from the restraint or
have the restraint reduced and permit the child to make suggestions about
what actions the caregiver(s) can take to help the child de-escalate.
(8)
If the child does not appear to understand what actions
he must take to be released from the restraint, a caregiver must attempt to
re-explain it every 15 minutes until understanding is reached or the child
is released from restraint.
(9)
A caregiver qualified in behavior intervention must
provide continuous face-to-face observation of a child in mechanical restraint.
In addition to the continuous observation, a caregiver qualified in behavior
intervention must ensure that the child has adequate respiration and circulation
at all times. Checks for circulation, skin color, and respiration must be
conducted at least every 15 minutes by a caregiver qualified in behavior intervention,
in addition to continual observation.
(10)
If a mechanical restraint continues, with the appropriate
orders specified in subsection (b)(7) of this section, beyond the maximum
one hour, a child must be allowed:
(A)
bathroom privileges at least once every two hours;
(B)
an opportunity to drink water or other appropriate liquids
at least once every two hours;
(C)
regularly prescribed medications unless otherwise ordered
by the physician;
(D)
regularly scheduled meals and snacks served in a safe and
appropriate manner;
(E)
an environment that is free of safety hazards, adequately
ventilated during warm weather, adequately heated during cold weather, and
appropriately lighted; and
(F)
an opportunity for range of motion or exercise for at least
five minutes of each hour a child is in restraint.
(11)
Mechanical restraint may be simultaneously implemented
in combination with emergency medication or personal restraint only if specifically
allowed by the written orders and only if the specified restraint(s) or seclusion
are allowed in the facility by the rules in this section. These orders must
include clinical justification for the combination. The clinical justification
must indicate what behaviors continued to be exhibited that constituted an
emergency despite the mechanical restraint. Mechanical restraint may not be
simultaneously implemented in combination with seclusion.
(d)
Release from mechanical restraint.
(1)
When a child exhibits release behaviors described in the
written order, a caregiver qualified in behavior intervention must release
the child from restraint. The child must be released no later than five minutes
after the child begins exhibiting the required behaviors.
(2)
If a child falls asleep in mechanical restraint, he
must be released from the restraint. The child must then remain under continuous
observation until he awakens and is evaluated.
(e)
Mechanical restraint follow up.
(1)
When a child is released from mechanical restraint, the
caregiver(s) must take appropriate actions to help the child return to normal
activities. This must include:
(A)
providing the child with an appropriate transition and
offering the child an opportunity to return to regular activities;
(B)
observing the child for at least 15 minutes; and
(C)
providing the child with an opportunity to privately discuss
the situation which led to the need for mechanical restraint and the caregiver's
reaction to that situation as soon as possible and no later than 72 hours
after the release from restraint. If the child refuses the opportunity to
discuss the restraint, he shall be allowed to discuss the matter at any subsequent
time.
(2)
Staff involved in the mechanical restraint must
make every attempt to debrief concerning the incident.
(f)
Documentation of mechanical restraint. The use of mechanical
restraint must be documented as soon as possible and no later than 24 hours
after the initiation of the restraint. Documentation must include:
(1)
the child's name;
(2)
a description and assessment of the precipitating
circumstances and the specific behaviors which constituted the initial emergency
situation, and if applicable, the specific behaviors which continued to constitute
an emergency situation;
(3)
the use of alternative strategies attempted before
the use of mechanical restraint and the child's reaction to those strategies;
(4)
the time restraint began;
(5)
the name of caregiver(s) participating in the restraint;
(6)
the specific restraint device used;
(7)
the de-escalating strategies employed during the restraint;
(8)
the total length of time the child was restrained;
(9)
continuous observation and regular respiration and
circulation checks;
(10)
all attempts to explain to the child what behaviors
were necessary for release from the restraint;
(11)
any injury the child sustained as a result of the
incident or the use of restraint; and
(12)
the actions that the caregiver(s) took to facilitate
the child's return to normal activities following release from restraint.
§720.1009.Protective Devices.
(a)
Protective devices may be used only if permitted by a physician's
orders. The orders must indicate the circumstances under which the protective
device is permitted. Orders may be obtained at the child's initial visit to
the physician after placement.
(b)
Protective devices may not be used to restrain a child
for any other reason than to prevent involuntary injury, permit wounds to
heal, or administer intra-muscular medication or other medical treatments
prescribed by a physician.
(c)
The use of protective devices must be documented in a child's
record and must be part of the child's plan of service when it is developed
and reviewed. The plan of service and its review must include discussion of
ways to reduce the need for protective devices.
(d)
Devices intended to encourage mobility and/or restrain
a child for safety purposes, such as wheelchairs, car seats, high-chairs,
strollers, and child leashes manufactured and sold specifically to harness
young children for safety purposes, are not regulated as protective devices
if used appropriately.
(e)
Protective devices and the devices listed in subsection
(d) of this section may not be used as:
(1)
punishment;
(2)
a convenience for caregivers; or
(3)
a substitute for program treatment.
§720.1010.Supportive Devices
(a)
Supportive devices may be used to posturally support an
individual or assist in obtaining and maintaining normal bodily functioning
(for example, use of posey vests for individuals who are not able to posturally
support themselves). The facility and/or agency must have written policies
and procedures that address the proper implementation and monitoring of supportive
devices.
(b)
The use of a supportive device is considered an adjunct
to proper care of an individual, and may not be used as a substitute for appropriate
nursing care.
(c)
The use of a supportive device must be prescribed by a
physician whose written order indicates the circumstances under which the
supportive device is permitted.
(d)
The use of supportive devices must be documented in a child's
record and must be part of the child's plan of service when it is developed
and reviewed. The plan of service and its review must include discussion of
ways to reduce the need for supportive devices.
(e)
If the prescribed device is not specifically for assisting
with sleep or safety during sleep, it must be removed during the night and
other rest periods.
(f)
Supportive devices may not be used:
(1)
as punishment;
(2)
for the purpose of convenience of staff or other individuals;
or
(3)
as a substitute for effective treatment or habilitation.
§720.1011.Seclusion.
(a)
General.
(1)
The use of seclusion is prohibited in all child-care facilities
except residential treatment centers, child-care facilities serving children
with autistic-like behavior, and emergency shelters.
(2)
Seclusion may only be used in emergency situations.
Emergency shelters may only use seclusion in an emergency situation and only
until the child is no longer a danger to himself or others or until immediate
medical attention can be obtained.
(3)
Before the emergency use of seclusion, other preventive,
de-escalative, less restrictive techniques must be attempted and proven ineffective
at diffusing the situation.
(b)
Seclusion orders.
(1)
No form of seclusion may be used with a child without appropriate
orders in the child's record. Only a licensed psychiatrist, licensed physician,
or licensed psychologist may write orders for the use of seclusion for a specific
child. The professional ordering seclusion must first take into consideration
any potential medical and or psychiatric contraindications, including a child's
history of physical or sexual abuse. This consideration must be documented
in the child's records. Orders for seclusion are not required in an emergency
shelter.
(2)
A licensed psychiatrist ordering seclusion may use
PRN orders. PRN orders are not permitted to extend the maximum amount of time
allowed in seclusion as outlined in paragraph (5) of this subsection. PRN
orders for seclusion must be reviewed by the psychiatrist at least every three
months. PRN orders from a licensed general physician or a licensed psychologist
are not permitted.
(3)
Orders for seclusion must include any specific measures
for ensuring the child's health, safety, and well being.
(4)
Orders must include the circumstances under which
the seclusion may be used, any instructions for heightened observation of
the child while in seclusion, the behaviors that indicate the child is ready
to be released from seclusion, and the maximum amount of time the child may
be secluded regardless of behaviors exhibited.
(5)
For children and adolescents ages 9 to 17 years, maximum
time in seclusion must not exceed two hours. For children under age nine years,
this must not exceed one hour. If a child is released from seclusion and then
secluded again within the same 12-hour period, the time spent in seclusion
is cumulative and may not exceed the stated maximums.
(6)
Continuation beyond the maximum amount of time permitted
by the original order requires authorization from the prescribing psychiatrist,
physician, or psychologist and is allowed only subsequent to a face-to-face
evaluation with the child by a caregiver qualified in behavior intervention.
Authorization to extend must be obtained before the end of the time period
or seclusion must be discontinued. If authorization for continuation is obtained
over the telephone, continuation orders must be documented and the psychiatrist,
physician, or psychologist must personally sign, date, and indicate the time
of the telephone order within 24 hours of the time the order was issued. For
additional regulations required when the seclusion is continued beyond the
maximum amount of time, see subsection (c)(12) of this section.
(c)
Implementation of seclusion.
(1)
When seclusion is the appropriate intervention, it must
be discontinued as soon as the child is no longer a danger to himself or others.
(2)
Seclusion must be initiated in a way that minimizes
the risk of physical discomfort, harm, or pain to the child. Only the minimal
amount of reasonable and necessary physical force may be used to implement
seclusion.
(3)
Only a caregiver qualified in behavior intervention
may place a child in seclusion.
(4)
Seclusion must not be implemented without the required
orders, except for the emergency use of seclusion in an emergency shelter.
If orders do not exist for a child in residential treatment centers or child-care
facilities serving children with autistic-like behavior and seclusion is necessary
to protect the child from endangering himself or others, a caregiver qualified
in behavior intervention may place a child in seclusion, but must obtain and
document a licensed psychiatrist's, physician's, or psychologist's verbal
order by telephone no later than one hour following initiation of the seclusion.
The psychiatrist, physician, or psychologist must personally sign, time, and
date the telephone order within 24 hours of the time the order was issued.
(5)
The child-care facility and/or child-placing agency
must provide a protected, private, observable environment for a child placed
in seclusion. The environment must safeguard the child's personal dignity
and well being.
(6)
A room used for seclusion must have at least 40 square
feet of floor space, be free of safety hazards, be adequately ventilated during
warm weather, be adequately heated during cold weather, and be appropriately
lighted.
(7)
The seclusion room must have at least a mat and bedding,
except when the psychiatrist writes orders to the contrary specific to a child.
(8)
If an emergency health situation occurs during seclusion,
the child must be released immediately and treatment obtained.
(9)
As soon as possible after seclusion is started, the
caregiver(s) must explain to the child in seclusion the behaviors the child
must exhibit to be released from seclusion, and permit the child to make suggestions
about what actions the caregiver(s) can take to help the child de-escalate
the situation.
(10)
If the child does not appear to understand what actions
he must take to be released from seclusion, a caregiver must re-explain it
every 15 minutes until understanding is reached or the child is released from
seclusion.
(11)
Caregivers must continuously observe a child placed
in seclusion. This observation can take place through such means as a window,
a one-way mirror, or a real-time security camera with audio.
(12)
If a seclusion continues, with the appropriate orders
specified in subsection (b)(6) of this section, beyond the maximum two hours,
a child must be allowed:
(A)
bathroom privileges at least once every two hours;
(B)
an opportunity to drink water or other appropriate liquids
at least once every two hours;
(C)
regularly prescribed medications unless otherwise ordered
by the physician; and
(D)
regularly scheduled meals and snacks served in a safe and
appropriate manner.
(13)
Seclusion may be simultaneously implemented
in combination with emergency medication or personal restraint only if specifically
allowed by the written orders and only if the specified restraint(s) or seclusion
are allowed in the facility by the rules in this section. These orders must
include clinical justification for the combination. Seclusion may not be simultaneously
implemented in combination with mechanical restraint.
(d)
Release from seclusion.
(1)
When a child exhibits release behaviors described in the
written order, a caregiver qualified in behavior intervention must release
the child from seclusion. The child must be released no later than five minutes
after the child begins exhibiting the required behaviors. Children in emergency
shelters must be released as soon as they are no longer a danger to themselves
or others, or until immediate medical attention can be obtained.
(2)
If a child falls asleep in seclusion, the door must
be unlocked. The child must remain under continuous observation until he awakens
and is evaluated.
(e)
Seclusion follow up.
(1)
When a child is released from seclusion, the caregiver(s)
must take appropriate actions to help the child return to normal activities.
This must include:
(A)
providing the child with an appropriate transition and
offering the child an opportunity to return to regular activities;
(B)
observing the child for at least 15 minutes; and
(C)
providing the child with an opportunity to privately discuss
the situation which led to the need for seclusion and the caregiver's reaction
to that situation as soon as possible and no later than 72 hours after the
release from seclusion.
(2)
This subsection does not apply to emergency shelters.
(3)
Staff involved in the seclusion must make every attempt
to debrief concerning the incident.
(f)
Documentation of seclusion. The use of seclusion must be
documented as soon as possible and no later than 24 hours after initiating
the seclusion. Documentation must include:
(1)
the child's name;
(2)
a description of the precipitating circumstances and
the specific behaviors which constituted an emergency situation;
(3)
the use of alternative strategies attempted before
the use of seclusion and the child's reaction to those strategies;
(4)
the time seclusion began;
(5)
the name of the caregiver(s) participating in the
seclusion;
(6)
the de-escalating strategies employed during seclusion;
(7)
the total length of time the child was secluded;
(8)
all attempts to explain to the child what behaviors
were necessary for release from the restraint;
(9)
any injury the child sustained as a result of the
incident or the use of seclusion; and
(10)
the actions that the caregiver(s) took to facilitate
the child's return to normal activities following release from seclusion.
§720.1012.Behavior Intervention Training.
(a)
Training policies and procedures.
(1)
All child-care facilities and child-placing agencies must
have a training policy for therapeutic behavior intervention. The policy must
include the amount and type of training required for different levels of caregivers
(if applicable), training content, and how the training will be delivered.
Child-care facilities and child-placing agencies must require training in
the use of restraints or seclusion allowed by the child-care facility and/or
child-placing agency's behavior intervention policies.
(2)
The training policy and curriculum must be approved
by the Texas Department of Protective and Regulatory Services (TDPRS) before
implementation. Changes to the policy and curriculum must be approved by TDPRS
before implementation.
(3)
The curriculum, subject to approval, must include
drawings, photographs, or videos of each personal restraint intervention permitted
by the child-care facility and/or child-placing agency policy.
(4)
The curriculum, subject to approval, must include
drawings or photographs of each mechanical restraint device permitted by the
child-care facility policy and complete specifications from the manufacturer.
Any modifications to the specifications from the manufacturer on the use of
a mechanical restraint device must be shown along with the required approval
from a licensed psychiatrist.
(b)
Pre-service training.
(1)
All new caregivers who will have contact with children
must complete a curriculum of therapeutic behavior intervention that meets
the requirements in paragraphs (3) through (7) of this subsection prior to
being responsible for the care of children.
(2)
New caregivers who already meet both of the requirements
set out in subparagraphs (A) and (B) of this paragraph are not required to
complete the required pre-service training. These qualifications must be documented
in the caregiver's record. The new caregiver has:
(A)
been employed in a residential child care setting within
the previous year; and
(B)
received training within the previous year in the types
of behavior intervention used at the child-care facility and/or child-placing
agency where the caregiver will be employed, and the new caregiver can demonstrate
his or her knowledge and understanding of the training.
(3)
The training must be direct delivery training
provided by a qualified instructor. The use of video conferencing is considered
direct delivery training if the video and audio are interactive and in real-time
and the participants can ask the instructor questions during the training.
The use of video instruction as part of a training curriculum is considered
direct delivery training as long as the instructor is available for questions
during the training. Training on the implementation of restraints or seclusion
must be delivered directly by the instructor and cannot be delivered by a
video.
(4)
A qualified instructor is an instructor certified
in a recognized method of therapeutic behavior intervention or is an instructor
who is able to document knowledge of the subject material, training delivery
methods and techniques, and training evaluation or assessment methods and
techniques.
(5)
The training must be competency-based.
(6)
Caregivers who are providing care in a home or facility
whose policies do not allow for the use of any type of restraint or seclusion,
including personal restraint, must meet the curriculum requirements in subparagraphs
(A) through (G) of this paragraph. Caregivers who are providing care in a
home or facility whose policies allow for the use of any one type of restraint
or seclusion must meet all of the curriculum requirements listed in this paragraph
and at least three quarters of this initial training must focus on early identification
of potential problem behaviors and strategies and techniques of less restrictive
interventions. The training components are:
(A)
developing and maintaining an environment or milieu that
supports positive constructive behaviors;
(B)
causes of behaviors potentially harmful to self or others
in children and adolescents including aspects of the environment or milieu;
(C)
early signs of behaviors that may become dangerous to self
or others;
(D)
strategies and techniques the child can use to avoid harmful
behaviors;
(E)
teaching children to use the strategies and techniques
to avoid harmful behavior and supporting the children's efforts;
(F)
less restrictive strategies caregivers can use to intervene
in potentially harmful behaviors;
(G)
less restrictive strategies caregivers can use to work
with oppositional children; and
(H)
strategies for re-integration of children into the milieu
after restraint or seclusion.
(7)
The remainder of the initial behavior intervention
training for caregivers who are providing care in a home or facility whose
policies allow for the use of any one type of restraint or seclusion must
focus on the different roles and responsibilities of caregivers qualified
in behavior intervention and caregivers who are not qualified in behavior
intervention and the safe implementation of the restraints and/or seclusion
permitted by the rules in this chapter and by the child-care facility and/or
child-placing agency's policies and procedures. If a child-care facility and/or
child-placing agency's behavior intervention policies do not allow for a certain
type of restraint, the child-care facility and/or child-placing agency does
not have to offer training in the use of that restraint or seclusion.
(c)
Annual training.
(1)
All caregivers having contact with children must complete
at least four clock hours annually of behavior intervention training specific
to the behavior interventions allowed by the facility's policies.
(2)
Annual training must focus on reinforcing basic principles
covered in the initial training and developing and refining caregivers' skills.
The facility may determine the content of the annual training based on the
facilities evaluation of behavior intervention needs in the facility or homes.
Training in any of the areas specified in subsection (b)(6) of this section
and training in the proper use and implementation of restraints and/or seclusion
is acceptable.
(3)
The four clock hours will be considered part of the
overall annual training requirements.
(4)
All annual training must be direct delivery training
provided by a qualified instructor, as described in subsection (b)(4) of this
section.
(d)
Caregiver qualified in behavior intervention.
(1)
Only caregivers designated as caregivers qualified in behavior
intervention may implement any form of restraint or seclusion.
(2)
The child-care facility and/or child-placing agency
must have policies that specify the qualifications for assuming the responsibility
for restraint and/or seclusion implementation, including required experience
and training requirements.
(3)
If a residential treatment center or institution serving
mentally retarded children allows the use of mechanical restraint, the facility
must address the caregivers qualified to implement mechanical restraint separately.
These caregivers must be registered nurses, at a minimum.
(4)
All child-care facility and/or child-placing agency's
policies must be compliant with the types of interventions the child-care
facility and/or child-placing agency is permitted to use under minimum standards
and the needs of the specific population for whom the child-care facility
and/or child-placing agency provides care.
(5)
The policy on caregivers qualified in behavior intervention
must also include an evaluation component for determining when a specific
caregiver meets the requirements of a caregiver qualified in behavior intervention,
and an on-going program to evaluate caregivers qualified in behavior intervention
and the use of restraint and seclusion. In regards to agency homes, the child-placing
agency, not its agency homes, is responsible for these evaluations.
§720.1013.Evaluation Of Behavior Interventions.
(a)
Individual case evaluations. For each child in care, the
child-care facility and/or child-placing agency must evaluate the use and
effectiveness of behavior intervention techniques as part of each child's
plan of service or treatment plan. The evaluation must take place at each
review of the child's plan of service or treatment plan. The evaluation must
focus on:
(1)
the frequency, patterns, and effectiveness of specific
behavior interventions;
(2)
strategies to reduce the need for behavior interventions
overall; and
(3)
specific strategies to reduce the need for use of
personal, chemical, and/or mechanical restraint or seclusion, where applicable.
(b)
Child-care facility and/or child-placing agency policy
evaluation.
(1)
The child-care facility and/or child-placing agency must
develop an overall evaluation program with the following objectives:
(A)
development and maintenance of an environment or milieu
that supports positive and constructive behaviors on the part of children
in care;
(B)
safe, appropriate, and effective use of any form of restraint
or seclusion; and
(C)
elimination or reduction of physical injuries and any other
negative impact of necessary restraints or seclusions on the child's behaviors
or emotional development.
(2)
The child-care facility and/or child-placing
agency evaluation program must be approved by the Texas Department of Protective
and Regulatory Services (TDPRS) and the results of the regular evaluation
made available to TDPRS. In regards to agency homes, the child-placing agency,
not its agency homes, is responsible for these evaluations.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on January 28, 2000.
TRD-200000609
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes amendments to §§725.1506, 725.1801, and 725.5011, concerning
background and criminal history checks, criminal history and central registry
background checks, and applicant qualifications; proposes new §725.1814,
concerning evaluation of risk based on past criminal history and/or past findings
of child abuse and/or neglect; and proposes the repeal of §§725.2027,
725.3070, and 725.5015, concerning opportunity to show rehabilitation, special
procedures for facilities wanting to employ persons with previous convictions,
and procedures for establishing proof of rehabilitation, in its General Licensing
Procedures chapter. The current rules prevent any person who has (1) a criminal
conviction or deferred adjudication for an offense under Title 5, Title 6,
and Chapter 43 of Title 9 of the Texas Penal Code, or (2) a finding of abuse
or neglect, from being present in a regulated child care setting while children
are in care. The purpose of the proposal is to provide consistency and clarity
regarding the application of criminal and central registry history for all
persons. In addition, it will allow the Director of Licensing to have greater
flexibility to approve persons for child care that no longer pose a risk to
children.
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 to increase the number of adoptive homes, foster parents,
and quality child care providers. Currently, there is a well-recognized shortage
of these individuals. The proposed rules will allow individuals who have old
and/or minor criminal convictions, criminal deferred adjudications, or central
registry findings, but do not pose a risk to children, to be able to request
consideration to adopt, foster, and provide care to children. There will be
no effect on large, small, or micro businesses because there is no fiscal
impact to child care providers, other than the indirect consequence of broadening
the potential pool of child caregivers. There is no anticipated economic cost
to persons who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Sasha Rasco
at (512) 438-3249 in TDPRS's Licensing Division. Written comments on the proposal
may be submitted to Supervisor, Rules and Handbooks Unit-114, Texas Department
of Protective and Regulatory Services E-205, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the
Texas Register
.
Subchapter P. ALTERNATIVE ACCREDITATION
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.101-
42.111.
§725.1506.Background and Criminal History Checks.
(a)
(No change.)
(b)
To qualify for accreditation as a child care administrator,
an applicant must meet the requirements in §725.1801 of this title (relating
to Criminal History and Central Registry Background Checks).
[
(c)
TDPRS shall revoke the organization's accreditation of
a child- care administrator if the results of the background or criminal history
check show that a person
does not meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 28, 2000.
TRD-200000621
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment and new section are proposed under the Human
Resources Code (HRC), Title 2, Chapter 42, which authorizes the department
to administer general child-placing and child care licensing programs.
The amendment and new section implement the Human Resources Code, §§42.001-42.077.
§725.1801.Criminal History and Central Registry Background Checks.
(a)
Applicants to operate a [
(1)-(3)
(No change.)
(4)
person(s) applying to adopt children
through a licensed child-placing agency;
(5)
[
(6)
[
(b)-(d)
(No change.)
(e)
The identifying information must be sent to the licensing
representative on a department form:
[
When an unregulated facility
sends an application or request to register.]
[
(2)
once every 24 months.
(f)
If the department obtains information from any law enforcement
agency or its Central Registry indicating that a person at a facility or family
home has a relevant criminal history or
abuse or neglect
[
(g)
(No change.)
(h)
An application for a license, certification, registration,
or listing may be denied or a license, certification, registration, or listing
may be revoked based on the results of a central registry or criminal history
check. [
(i)
The department shall deny an application
or renewal for a listing or registration or shall revoke a family home's listing
or registration if the results of the criminal history check conducted by
the department show that a person has been convicted of a misdemeanor or felony
offense under Title 5, Title 6, or Chapter 43 of Title 9 of the Penal Code,
or any like offense in another state.
(j)
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, may not be licensed as a child care administrator, and may not
adopt a child. A person with any other type of criminal history may not be
present in a regulated facility while children are in care, may not be licensed
as a child care administrator, and may not adopt a child, unless it is determined
under §725.1814 of this title (relating to Evaluation of Risk Based
on Past Criminal History and/or Past Findings of Child Abuse and Neglect)
that the person does not pose a risk to the health and safety of children.
(k)
A person with a sustained finding of physical
abuse or sexual abuse or a finding of physical abuse or sexual abuse that
meets a preponderance of the evidence standard may not be present in a facility
while children are in care, may not be licensed as a child care administrator,
and may not adopt a child. A person with other findings of child abuse or
neglect that meet a preponderance of the evidence standard may not be present
in a facility while children are in care, may not be licensed as a child care
administrator, and may not adopt a child, unless it is determined under §725.1814
of this title (relating to Evaluation of Risk Based on Past Criminal History
and/or Past Findings of Child Abuse and Neglect) that the person does not
pose a risk to the health and safety of children.
(l)
[
(m)
[
§725.1814.Evaluation of Risk Based on Past Criminal History and/or Past Findings of Child Abuse and/or Neglect.
(a)
Evaluation of risk based on past criminal history.
(1)
An applicant or a facility must request that the director
of licensing evaluate the risk posed by a person if:
(A)
the applicant or facility wants an individual who has a
criminal history allowed for consideration under §725.1801 of this title
(relating to Criminal History and Central Registry Background Checks) to
be present at the facility or adopt children; or
(B)
the applicant for licensure as a child care administrator
has a criminal history allowed for consideration under §725.1801 of this
title (relating to Criminal History and Central Registry Background Checks).
(2)
A valid rationale must be presented that the
person does not pose a risk to the health and safety of children.
(3)
Until Licensing Division determines that risk does
not exist:
(A)
the individual with the criminal history must not be in
contact with the children;
(B)
children must not be placed with an adoptive parent or
foster family; and
(C)
an applicant for licensure as a child care administrator
must not be issued a license.
(4)
Evidence to be considered in evaluating the risk
includes:
(A)
A copy of the record of judicial finding or conviction.
(B)
If the individual was incarcerated:
(i)
a copy of local, state, or federal release order;
(ii)
the date that the individual was released from incarceration;
and
(iii)
the terms and conditions of parole.
(C)
If the individual was given a probated sentence, information
related to the terms and conditions of probation.
(D)
Nature and seriousness of the crime.
(E)
The extent and nature of the person's past criminal history.
(F)
Age of the person at the time of commission.
(G)
The amount of time that has elapsed since the person's
last criminal activity.
(H)
Evidence of rehabilitative effort.
(I)
The conduct and work activity of the person.
(J)
Other evidence of the person's present fitness, including
letters of recommendation from prosecution, law enforcement, and correctional
officers who prosecuted, arrested, or had custodial responsibility of the
person; the sheriff, and chief of police in the community where the person
lives; and any other persons in contact with the individual.
(K)
Documentation substantiating that the person has maintained
a record of steady employment, has supported his dependents, has maintained
a record of good conduct, and has paid all outstanding court costs, supervision
fees, fines, and restitution as may have been ordered.
(L)
If the person is an employee/volunteer or potential employee/volunteer,
information related to job responsibilities that would be performed, plans
for supervision, and hours and days of service.
(b)
Federal requirements. In evaluating the risk presented
by a person's criminal history, the director of licensing will consult and
follow any federal requirements for adoptive and foster parents regarding
criminal history.
(c)
Evaluation of risk based on past findings of child abuse
and/or neglect. If the Texas Department of Protective and Regulatory Services
(TDPRS) finds that an individual who has contact with children or who is
applying for licensure as a child care administrator also has a finding of
child abuse or neglect that is allowed for consideration under §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks), the director of licensing will evaluate the current risk posed by
the person. Evidence to be considered in evaluating risk includes:
(1)
The child abuse or neglect record.
(2)
Evidence that factors which impact the risk of future
abuse or neglect have changed.
(3)
Other evidence of the person's present fitness, including
letters of recommendation from employers, caseworker, or others who have or
have had contact with the individual.
(4)
Nature and seriousness of the abuse/neglect finding(s).
(5)
The extent and nature of the person's past abuse/neglect
history.
(6)
Age of the person at the time of the abuse/neglect.
(7)
The amount of time that has elapsed since the person's
last abuse/neglect activity.
(8)
The conduct and work activity of the person.
(9)
Documentation substantiating that the person has maintained
a record of steady employment, has supported his dependents, and has maintained
a record of good conduct.
(10)
If the person is an employee/volunteer or potential
employee/volunteer, information related to job responsibilities that would
be performed, plans for supervision, and hours and days of service.
(d)
Notification. The applicant or facility is entitled to
be notified of TDPRS's determination of risk.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000622
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeal is proposed under the Human Resources
Code (HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The repeal implements the Human Resources Code, §§42.001- 42.077.
§725.2027.Opportunity to Show Rehabilitation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000623
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeal is proposed under the Human Resources
Code (HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The repeal implements the Human Resources Code, §§42.001- 42.077.
§725.3070.Special Procedures for Facilities Wanting To Employ Persons with Previous Convictions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000624
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 43, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§43.003-
43.012.
§725.5011.Applicant Qualifications.
(a)
To qualify for a child care administrator's license, an
applicant must meet the qualifications in Human Resources Code, §43.004,
[
[
Any felony, or]
[
A misdemeanor involving
fraud, deceit, or classified as one of the following:]
[
An offense against the person,]
[
An offense against the family, or]
[
Public indecency.]
(b)-(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000625
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeal is proposed under the Human Resources
Code (HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The repeal implements the Human Resources Code, §§42.001- 42.077.
§725.5015.Procedures for Establishing Proof of Rehabilitation.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on January 28, 2000.
TRD-200000626
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes amendments to §§725.1515, 725.2011, 725.5012, and 725.5014,
concerning registration to operate under accreditation, separate licenses,
handling applications, and renewal requirements; proposes the repeal of §§725.1809,
725.2006, 725.2008, and 725.3044, concerning application returned as incomplete,
submission and acceptance of application and application fees, application
received after revocation or denial of license, and application; and proposes
new §725.1809, concerning application fees and timeframes, in its General
Licensing Procedures chapter.
The purpose of the proposal is to put Child Care Licensing rules that apply
to the issuances of licenses, certifications, registrations, and listings
in compliance with Chapter 2005 of the Texas Government Code, which sets forth
requirements for rules dealing with procedures and timeframes for permit processing,
and to meet requirements set forth in Chapter 43 of the Human Resources Code.
Chapter 2005 also requires TDPRS to publish with these rules a statement of
TDPRS's minimum, maximum, and median times for processing an application from
the date that TDPRS received an initial application to the date of the final
permit decision using TDPRS's performance in the 12 months preceding the date
the proposed rules are published. The minimums, maximums, and medians are
as follows: Day Care Facilities (1 day, 244 days, 18 days); Registered Family
Homes (1, 112, 21); Residential Facilities (1, 58, 27); Listed Family Homes
(1,138, 24); and Child Care Administrators Licensing (20, 60, 45). The time
periods in this proposal allow sufficient time for the licensing staff to
process these applications efficiently without causing unnecessary risk to
children.
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 TDPRS's permit processing rules are in fewer sections,
making vital information more accessible to the public. New §725.1809
presents a considerable amount of information with greater clarity. These
revisions are consistent with TDPRS's long-term goal of reorganizing, consolidating,
and redrafting its child care licensing rules, a process from which anyone
who has to deal with the rules will benefit. There will be no effect on large,
small, or micro businesses because the proposal clarifies information currently
in the rules. 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 Mary Panella
at (512) 438-3246 in TDPRS's Licensing Section. Written comments on the proposal
may be submitted to Supervisor, Rules and Handbooks Unit-115, Texas Department
of Protective and Regulatory Services E-205, P.O. Box 149030, Austin, Texas
78714-9030, within 30 days of publication in the
Texas Register
.
Subchapter P. ALTERNATIVE ACCREDITATION
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §42.104.
§725.1515.Registration to Operate Under Accreditation.
(a)-(b)
(No change.)
(c)
TDPRS shall reimburse all
fees paid by the applicant for this registration if the director determines
that TDPRS:
(1)
exceeded the established period for application
processing; and
(2)
did not establish good cause for exceeding
the established period.
(d)
TDPRS has good cause to exceed
its established time frame for processing the application if:
(1)
the number of applications to be processed
exceeds by at least 15% the number of applications received by TDPRS in the
same quarter of the previous calendar year;
(2)
TDPRS must rely on another public or private
entity to process all or part of the applications received by TDPRS, and the
delay is caused by that entity; or
(3)
other conditions exist that give TDPRS
good cause for exceeding the established time period.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on January 28, 2000.
TRD-200000628
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeal is proposed under the Human Resources
Code (HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The repeal implements the Human Resources Code, §§42.001 - 42.077.
§725.1809. Application Returned as Incomplete.
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000629
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The new section is proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The new section implements the Human Resources Code, §§42.001
- 42.077.
§725.1809. Application Fees and Timeframes.
(a)
Each individual, governing body, corporation, association,
partnership, or other entity planning to operate a facility or a family home
that is required to be licensed, certified, registered, or listed must return
a completed application to the Texas Department of Protective and Regulatory
Services (TDPRS).
(b)
The following charts contain the fees required for applications
and provisional, non-expiring, or annual licenses, registrations, and listings,
as appropriate, for facilities, including day care, 24-hour care facilities,
child placing agencies, and maternity homes:
(1)
The following chart contains fees required for licenses
for facilities, including day care and 24-hour facilities, child-placing agencies,
and maternity homes:
Figure: 40 TAC §725.1809(b)(1)
(2)
The following chart contains fees required for registered
family homes:
Figure: 40 TAC §725.1809(b)(2)
(3)
The following chart contains fees required for listed
family homes:
Figure: 40 TAC §725.1809(b)(3)
(c)
If an applicant/licensee wants separate licenses for a
day care center, kindergarten and nursery school, and/or a school at the same
location, the applicant/licensee must submit to TDPRS a separate application,
a $35 application fee, and a $35 provisional license fee for each license.
(d)
Fee requirements do not apply to facilities requiring
certification.
(e)
Applicants for a license to operate the following types
of facilities have to pay an application fee, but do not have to pay fees
for licenses if they are:
(1)
licensed foster homes and licensed foster group homes;
(2)
nonprofit facilities regulated under this chapter
that provided 24-hour care for a child in the managing conservatorship of
TDPRS during the 12-month period immediately preceding the anniversary date
of the facility's license; or
(3)
facilities operated by a nonprofit corporation or
foundation that provides 24-hour residential care and does not charge for
the care provided.
(f)
Applicants who withdraw their application or request after
paying the initial fees for an application, provisional license, non-expiring
license, registration, and/or listing do not have to pay new fees if they
reapply within 30 days after withdrawing the application.
(g)
Within 21 calendar days of receiving the application for
license or request for registration or listing, TDPRS must notify the applicant
in writing that the application or request is:
(1)
complete and accepted for filing; or
(2)
incomplete, and/or the materials submitted do not
substantiate compliance with relevant statutes, rules, and minimum standards.
The notification letter must explain what is needed to complete the application
or request or explain why compliance is not substantiated.
(h)
The applicant may change or add to an incomplete application
or request by fax.
(i)
Within 60 days of the date that a completed application
or request is accepted for filing, TDPRS will decide to issue or deny the
license, certification, registration, or listing.
(j)
The applicant may file a complaint if TDPRS exceeds the
timeframes required in subsections (g) and (i) of this section. The applicant
may file an appeal regarding the denial of an application or request.
(1)
To issue a complaint, the applicant must submit a written
request within 30 days after the TDPRS time limit expires. The applicant must
send the request stating the nature of the dispute to the Director of Licensing,
Mail Code E-550, Texas Department of Protective and Regulatory Services, P.O.
Box 149030, Austin, Texas 78714. The Director of Licensing will resolve the
dispute in a timely manner. If TDPRS does not establish good cause for exceeding
the time limit, TDPRS must reimburse the applicant for the application fee
and any other licensing fee relevant to the complaint.
(2)
To appeal a denial, the applicant must submit a written
request within 30 days after the TDPRS 60-day time limit expires. The applicant
must send the request stating the nature of the dispute to the Docket Clerk,
Legal Services Division, Mail Code E-611, Texas Department of Protective and
Regulatory Services, P.O. Box 149030, Austin, Texas 78714.
(k)
The requirements regarding an application received after
revocation or denial of a license are as follows:
(1)
If TDPRS denies an application for a license because of
noncompliance with standards or violation of the child care or maternity home
licensing laws, time limits for an appeal must have ended and the facility
must have closed and remained closed before a new application for a license
can be accepted. If a facility ceases operation before the end of the time
to request an appeal, and if that facility waives in writing the right to
request an appeal, TDPRS staff must accept a completed application. If the
facility then begins operation before the provisional license is issued, TDPRS
staff must deny the application. The actual cost of reimbursing TDPRS for
publishing the notice of revocation, as required by the Human Resources Code,
Chapter 42, §42.077, must be added to the application fee at the time
the facility reapplies.
(2)
A person whose license, certification, registration,
or listing is revoked may not apply for any license, certification, registration,
or listing under this section before the second anniversary of the date on
which the revocation by TDPRS or court order took effect, whichever is later.
The cost of reimbursing TDPRS for publishing the notice of revocation, as
required by the Human Resources Code, Chapter 42, §42.077, must be added
to the application fee at the time the facility reapplies.
(l)
If three applications are returned as incomplete within
a period of one year, an applicant may not reapply until one year from the
date the last application was returned as incomplete. This subsection applies
to applications for licenses, certifications, registrations, and listings.
(m)
TDPRS has good cause to exceed the period it establishes
for processing an application if:
(1)
the number of applications to be processed exceeds by
at least 15% the number of applications processed in the same quarter of the
previous calendar year;
(2)
TDPRS must rely on another public or private entity
to process all or part of the applications received by TDPRS, and the delay
is caused by that entity;
(3)
there is a pending investigation regarding the applicant;
or
(4)
other conditions exist that give TDPRS good cause
for exceeding the established period.
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000630
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under the Human Resources
Code (HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The repeals implement the Human Resources Code, §§42.001 - 42.077.
§725.2006. Submission and Acceptance of Application and Application Fees.
§725.2008. Application Received after Revocation or Denial of License.
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000631
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001 -
42.077.
§725.2011. Separate Licenses.
[
If an applicant/licensee
wants separate licenses for a day care center, kindergarten and nursery school,
and/or a school at the same location, the applicant/licensee must submit to
the department separate applications, $35 application fees, and $35 provisional
license fees for each license.]
[
(1)
more than one kindergarten or nursery school session;
(2)
more than one school session; or
(3)
both a kindergarten or nursery school program and
a school program.
(b)
[
(1)
The group day care home may not operate during the same
hours as the kindergarten/nursery school or school.
(2)
A facility may not be licensed as a day care center
and a group day care home.
(3)
A facility may not be both licensed and registered.
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000632
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Protective and Regulatory Services or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeal is proposed under the Human Resources
Code (HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The repeal implements the Human Resources Code, §§42.001 - 42.077.
§725.3044. Application.
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000633
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
The amendments are proposed under the Human Resources Code
(HRC), Title 2, Chapter 42, which authorizes the department to administer
general child-placing and child care licensing programs.
The amendments implement the Human Resources Code, §§42.001 -
42.077.
§725.5012. Handling Applications.
(a)
(No change.)
(b)
Within
21 calendar days
[
(c)
Within
15 calendar days
[
(d)
Within
15 calendar days
[
(e)
(No change.)
(f)
If an applicant believes his application was not processed
within appropriate time frames, he may submit a written complaint and documentation,
if any, and request a review by the director. Within 30 days of receiving
the request, the director notifies the applicant of his decision.
TDPRS
shall reimburse all filing fees paid by the applicant for a license application
if the director determines that TDPRS:
(1)
exceeded the established period
for application processing; and
(2)
did not establish good
cause for exceeding the established period.
(g)
TDPRS has good cause to exceed
its established time frame for processing the application if:
(1)
the number of license applications to be processed
exceeds by at least 15% the number of license applications received by TDPRS
in the same quarter of the previous calendar year;
(2)
TDPRS must rely on another public or private
entity to process all or part of the applications received by TDPRS, and the
delay is caused by that entity; or
(3)
other conditions exist that give TDPRS
good cause for exceeding the established time period.
(h)
[
§725.5014. Renewal Requirements.
(a)
(No change.)
(b)
If the
Texas Department of Protective and Regulatory
Services (TDPRS)
[
(1)
if the request for renewal is received within 90 days
after the expiration date,
TDPRS
[
(2)
if a license has been expired for longer than 90
days but less than
one year
[
(3)
(No change.)
(c)
(No change.)
Filed with the Office of the Secretary of State, on January 28, 2000.
TRD-200000634
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
Subchapter B. MATERNITY HOME PERSONNEL
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes an amendment to §727.203, concerning general personnel
requirements, in its Licensing of Maternity Facilities chapter. The current
rule prevents any person who has (1) a criminal conviction or deferred adjudication
for an offense under Title 5, Title 6, and Chapter 43 of Title 9 of the Texas
Penal Code, or (2) a finding of abuse or neglect, from being present in a
regulated child care setting while children are in care. The purpose of the
amendment is to provide consistency and clarity regarding the application
of criminal and central registry history for all persons. In addition, it
will allow the Director of Licensing to have greater flexibility to approve
persons for child care that no longer pose a risk to children.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed section will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Fields also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be to increase the number of adoptive homes, foster parents,
and quality child care providers. Currently, there is a well-recognized shortage
of these individuals. The proposed rule will allow individuals who have old
and/or minor criminal convictions, criminal deferred adjudications, or central
registry findings, but do not pose a risk to children, to be able to request
consideration to adopt, foster, and provide care to children. There will be
no effect on large, small, or micro businesses because there is no fiscal
impact to child care providers, other than the indirect consequence of broadening
the potential pool of child caregivers. There is no anticipated economic cost
to persons who are required to comply with the proposed section.
Questions about the content of the proposal may be directed to Sasha Rasco
at (512) 438-3249 in TDPRS's Licensing Division. Written comments on the proposal
may be submitted to Supervisor, Rules and Handbooks Unit-114, Texas Department
of Protective and Regulatory Services E-205, P.O. Box 149030, Austin, Texas,
78714-9030, within 30 days of publication in the
Texas Register
.
The amendment is proposed under the Human Resources Code (HRC),
Title 2, Chapter 42, which authorizes the department to administer general
child-placing and child care licensing programs.
The amendment implements the Human Resources Code, §§42.001-42.077.
§727.203.General Personnel Requirements.
[(a)
The maternity home must reassign or remove
from direct contact with clients any employee or volunteer against whom:]
[(1)
an indictment is returned alleging commission of any felony
classified as an offense against the person or family, or of public indecency,
or of violation of the Texas Controlled Substances Act; or]
[(2)
an indictment is returned alleging commission of
any misdemeanor classified as an offense against the person or family, or
of public indecency; or]
[(3)
an official criminal complaint is accepted by a district
or county attorney alleging commission of a misdemeanor classified as an offense
against the person or family, or of public indecency.]
[(b)
Reassignment or removal of any employee
or volunteer from direct contact with clients must remain in effect pending
resolution of the charges as specified in subsection (a)(1)-(3) of this section.]
[
(b)
Until charges are dropped, a person who
is indicted for any felony offense under Title 5, Title 6, or Chapter 43 of
Title 9 of the Penal Code or who is the subject of an official criminal complaint
(related to those offenses) that has been accepted by a county or district
attorney must not be at the facility or have contact with the children while
the children are in care. Until charges are dropped, a person who is indicted
for any other criminal offense or who is the subject of an official criminal
complaint (related to these other offenses) that has been accepted by a county
or district attorney must not be at the facility or have contact with the
children while the children are in care, unless it is determined by the Licensing
Division that the person does not pose a risk to the children in care.
(c)
[
(d)
A person who is under investigation by
TDPRS for the abuse or neglect of a child must not have contact with children
in care unless the Licensing Division determines that the person does not
pose a risk to the children in care or until the investigation is closed without
a finding of abuse or neglect. The facility must notify the Licensing Division
of any investigation of abuse or neglect within 24 hours of awareness or by
the next workday.
(e)-(g)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on January 28, 2000.
TRD-200000627
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
Subchapter E. MEMORANDA OF UNDERSTANDING FOR COORDINATION OF APS INVESTIGATIONS
The Texas Department of Protective and Regulatory Services
(TDPRS) proposes new §736.508, concerning assisted living facilities,
in its Memoranda of Understanding with Other State Agencies chapter. The purpose
of the new section is to set forth a memorandum of understanding (MOU) among
TDPRS, the Texas Department of Human Services (DHS), and the Office of the
Attorney General (OAG) that is required under the Health and Safety Code, §247.046
and §247.062. This MOU sets forth the agreement and the process whereby
TDPRS will cooperate to locate suitable placement for residents displaced
by facility closure due to violations or deficiencies.
Mary Fields, Budget and Federal Funds Director, has determined that for
the first five-year period the proposed section will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Fields also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be that each agency will be involved with the protection
of persons residing in assisted living facilities. There will be no effect
on large, small, or micro businesses as a result of enforcing or administering
the section. There is no anticipated economic cost to persons who are required
to comply with the proposed section.
Questions about the content of the proposal may be directed to Kathleen
Dickens at (512) 438-3187 in TDPRS's Adult Protective Services department.
Written comments on the proposal may be submitted to Supervisor, Rules and
Handbooks Unit-239, Texas Department of Protective and Regulatory Services
E-205, 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),
Title 2, Chapter 48, which authorizes the department to administer protective
services for elderly persons and adults with disabilities; and the Health
and Safety Code, §247.06, as revised during the 75th legislative session.
The new section implements the Human Resources Code, Chapter 48.
§736.508.Assisted Living Facilities.
(a)
Basis. The Texas Department of Human Services, hereinafter
referred to as DHS, the Texas Office of the Attorney General, hereinafter
referred to as OAG, and the Texas Department of Protective and Regulatory
Services, hereinafter referred to as TDPRS are required under the provisions
of Health and Safety Code §247.046 and §247.062 to enter into a
memorandum of understanding (MOU) regarding their respective responsibilities,
procedures, enforcement needs, and plans for correcting violations or deficiencies
in assisted living facilities. This MOU implements those requirements.
(b)
DHS responsibilities.
(1)
DHS accepts applications and issues licenses in accordance
with the requirements of Chapter 247, and DHS rules and standards adopted
to implement the law.
(2)
If DHS finds a licensed assisted living facility operating
in violation of minimum standards or licensing requirements and the violation
creates an immediate threat to the health and safety of a resident in the
facility, DHS may suspend the license or order the immediate closing of all
or part of the facility. DHS shall retain primary responsibility for assisting
families in finding new placements for individuals displaced when facilities
licensed by or subject to licensure by DHS are closed. DHS will inquire whether
a resident is receiving services from a mental health authority (MHA) and
will contact the MHA accordingly to ensure continuation of service and placement
assistance.
(3)
DHS shall investigate each allegation of abuse, exploitation,
or neglect of a resident of a assisted living facility in accordance with
Chapter 247 of the Health and Safety Code, Chapter 48 of the Human Resources
Code, and DHS rules. If the investigation reveals abuse, exploitation, or
neglect, DHS shall implement enforcement measures, including closing the facility,
revoking the facility's license, relocating residents, and making referrals
to law enforcement agencies (including the OAG) as appropriate.
(4)
DHS may refer a facility to the OAG or a local prosecuting
attorney for the purpose of petitioning a district court for a temporary restraining
order to restrain a continuing violation of standards or licensing requirements
for assisted living facilities. If DHS finds that the violation creates an
immediate threat to the health and safety of the assisted living facility
residents, the referral is made to the OAG along with all affidavits necessary
to prosecute the case. If the violation does not create an immediate threat
to the health and safety of assisted living facility residents, the referral
is to a local prosecuting attorney. DHS, through the OAG or a local prosecuting
attorney, may petition a district court for a restraining order to inspect
a facility that is operating without a license when admission to the facility
cannot be obtained. In these inspection situations, DHS shall first contact
the local prosecuting attorney for assistance.
(5)
DHS shall cooperate with the OAG and/or the local
prosecuting attorney in the preparation and prosecution of injunctive actions
against assisted living facilities against which DHS has requested legal proceedings.
(6)
DHS may refer persons who do not possess a license,
or assisted living facilities that violate the Personal Care Facility Licensing
Act (Chapter 247 of the Health and Safety Code) or a rule adopted under that
act, whose violation threatens the health and safety of a resident of a assisted
living facility, to the OAG for the purpose of petitioning a district court
for civil penalties under §247.045 of the Health and Safety Code. DHS
will refer civil penalty cases to the local district attorney, county attorney,
or city attorney if the OAG does not take action within 30 days of the referral.
DHS shall cooperate with the OAG and the local prosecuting attorneys in the
preparation for and prosecution of civil penalty actions.
(c)
TDPRS responsibilities. TDPRS will assist DHS, upon request,
in finding suitable placement for incapacitated individuals who have no family
willing to assist and who must be relocated due to the closing of a assisted
living facility licensed or subject to licensure by DHS.
(d)
OAG responsibilities.
(1)
The OAG will work in close cooperation with DHS throughout
any legal proceeding requested by DHS under Chapter 247 of the Health and
Safety Code.
(2)
The OAG will keep DHS informed of the status of all
cases referred to the OAG under Chapter 247 of the Health and Safety Code
upon the request of DHS.
(3)
The OAG will represent DHS to the full extent of the
law in Chapter 247 actions.
(4)
When the OAG chooses not to prosecute a Chapter 247
case referred by DHS, it will immediately inform DHS so that alternative action
can be taken.
(e)
Complaint investigations and opportunities for corrective
action.
(1)
When a complaint is received about a licensed or a unlicensed
assisted living facility, DHS will do a complaint investigation of the facility.
If the owner of an unlicensed facility denies DHS investigators access to
a facility, DHS may, through the OAG or a local prosecutor's office, petition
a district court for a temporary restraining order to inspect the facility.
(2)
If the investigation indicates that there is a violation
of minimum standards and the violation creates an immediate threat to the
health and safety of a facility resident, DHS will suspend the license and
order closing of the facility for a ten day period.
(3)
If the investigation indicates that there is a violation
of minimum standards or licensing requirements and the violation is a threat
to resident health and safety, DHS immediately makes a referral to the Attorney
General's office to enjoin the facility's operation, enjoin the facility from
violating standards or licensing requirements, and/or for assessment of civil
monetary penalties.
(4)
If the OAG does not take action on a civil penalty
referral within 30 days of the referral, DHS will refer the case to the local
prosecuting attorney.
(5)
If the investigation indicates a violation of minimum
standards or licensing requirements but the violation is not a threat to resident
health and safety, DHS may notify the owner that he is in violation and make
a referral to the local prosecuting attorney or the OAG only after the facility
owner is given an opportunity to take appropriate action to come into compliance
within a reasonable time.
(6)
If the local prosecuting attorney refuses to prosecute
a case, DHS may seek the assistance of the OAG.
(7)
DHS may deny, suspend, or revoke the license of a
licensed facility for violating the Personal Care Facility Licensing Act or
rules adopted under that act.
(8)
If further investigation or monitoring of a facility
that has previously indicated that it will come into compliance, indicates
that violations have continued, DHS may immediately seek injunctive or other
appropriate relief in coordination and cooperation with the OAG or the local
prosecuting attorney.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on January 28, 2000.
TRD-200000607
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: March 31, 2000
For further information, please call: (512) 438-3734
Chapter 700.
CHILD PROTECTIVE SERVICES
Subchapter E. INTAKE, INVESTIGATION, AND ASSESSMENT
Office
] of
Child
Protective
Services
(CPS)
[
for Families and Children
] staff must
notify:
(b)
If the investigation finding is reason-to-believe
in a case of reported abuse or neglect involving a child in a foster care
home or in an adoptive home before the adoption is consummated, TDPRS considers
removing the child from the home. If there is a continuing risk of substantial
harm to the child, TDPRS removes the child. If TDPRS does not remove the child,
the department and the foster or adoptive family must develop and implement
a plan for corrective action within 30 days after the investigation is completed.
The plan must address the needs of all children in TDPRS's conservatorship
who reside in the home. TDPRS must also review its records regarding the foster
or adoptive home, including the plan for corrective action, and determine
whether to continue placing children in the home.
]
Subchapter O. FOSTER AND ADOPTIVE HOME DEVELOPMENT
(M)
(i)
(ii)
(iii)
(iv)
Chapter 715.
DAY CARE LICENSING
When children are present, a person
who is convicted of any of the following offenses is not allowed in the home
and must not be in contact with the children while in care (see Appendix
VIII, relating to Criminal Offenses from the Texas Penal Code, in the Minimum
Standards for Registered Family Homes):
]
(1)
felony or misdemeanor classified as an
offense against the person or the family,
]
(2)
felony or misdemeanor classified
as public indecency, or
]
(3)
felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
of the offenses listed in §715.103(b) of this
section
] or who is the subject of an official criminal complaint (related
to those offenses) that has been accepted by a county or district attorney
must not be in the home or have contact with the children while the children
are in care.
Until charges are dropped, a person who is indicted for
any other criminal offense or who is the subject of an official criminal complaint
(related to these other offenses) that has been accepted by a county or district
attorney must not be in the home or have contact with the children while children
are in care, unless it is determined by the Licensing Division that the person
does not pose a risk to the children in care. The facility must notify the
Licensing Division
[
The department must be notified
] of the
indictments or complaints within 24 hours of awareness or by the next workday.
The caregiver must submit a completed criminal
history information form for any new caregiver, substitute caregiver, or adult
resident of the home within two weeks after that person begins the new role.
]
Subchapter C. STANDARDS FOR KINDERGARTENS AND NURSERY SCHOOLS
(f)
(1)
(2)
(3)
(f)
(g)
] The director must send the
department
a record of training and experience
[
the following
] on a department form
.
[
:
]
(1)
A record of training and experience;
]
(2)
Information about all felony and
misdemeanor convictions; and
]
(3)
Information about all pending criminal
charges, including deferred adjudication.
]
A person convicted of any of the following offenses must
not be at the school when children are in care and must not serve in any capacity
where there is contact with children in care:
]
(1)
A felony or misdemeanor classified as
an offense against the person or the family,
]
(2)
A felony or misdemeanor classified
as public indecency, and
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(j)
] People whose behavior or health
appears to endanger the health, safety, or well-being of children must not
be at the school.
(k)
] People must not smoke in the
presence of children or consume alcohol when children are at the school. People
who appear to be under the influence of alcohol or other drugs must not be
in the school when children are present.
(l)
] Staff must supervise children
at all times.
(m)
] People working with children
and counted in the staff-child ratio must be free from other duties except
those directly involving the teaching, care, and supervision of children.
These responsibilities include keeping the group's area clean. Administrative
and clerical functions that take the staff's attention away from the children,
meal preparation, or janitorial duties must not be included in the responsibilities
of staff while counted in the staff-child ratio.
(n)
] The school must ensure that
children are not out of control.
(o)
] The school must ensure that
a child is released only to a parent or an adult designated by the parent.
(p)
] If a parent calls to authorize
the emergency release of a child, the school must verify that the caller is
actually the parent.
(q)
] The school must have and follow
a plan to verify the identity of a person authorized to pick up a child but
not known to the staff. The school keeps this identifying information for
24 hours.
(r)
] If one staff leaves and another
staff is given responsibility for the children, the staff leaving must provide
the incoming staff with:
Subchapter D. STANDARDS FOR SCHOOLS: GRADES KINDERGARTENS AND ABOVE
No one may serve as director of a school who has been
convicted of any of the following offenses:
]
(1)
A felony or misdemeanor classified as
an offense against the person or family,
]
(2)
A felony or misdemeanor classified
as public indecency, or
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(d)
] The director must send the
department
a record of training and experience
[
the following
] on a department form
.
[
:
]
(1)
A record of training and experience;
]
(2)
Information about all felony and
misdemeanor convictions; and
]
(3)
§715.307.Staff Qualifications and Responsibilities.
A person convicted of any of the following offenses must
not be at the school when children are present and must not serve in any capacity
where there is contact with children:
]
(1)
A felony or misdemeanor classified as
an offense against the person or the family,
]
(2)
A felony or misdemeanor classified
as public indecency, or
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(i)
] People whose behavior or health
appears to endanger the health, safety, or well-being of children must not
be at the school.
(j)
] People must not smoke in the
presence of children or consume alcohol when children are at the school. People
who appear to be under the influence of alcohol or other drugs must not be
in the school when children are present.
(k)
] Staff must supervise children
at all times.
(l)
] People working with children
and counted in the staff-child ratio must be free from other duties except
those directly involving the care and supervision of children. These responsibilities
include keeping the group's area clean. Administrative and clerical functions
that take the staff's attention from the children, meal preparation, or janitorial
duties must not be included in responsibilities of staff while counted in
the staff-child ratio.
(m)
] The school must ensure that
children are not out of control.
(n)
] If a parent calls to authorize
the emergency release of a child, the school must verify that the caller is
actually the parent.
(o)
] The school must have and follow
a plan to verify the identity of a person authorized to pick up a child but
not known to the staff. The school keeps this identifying information for
24 hours.
(p)
] If one staff leaves and another
staff is given responsibility for the children, the staff leaving must provide
the incoming staff with:
Subchapter E. MINIMUM STANDARDS FOR DAY CARE CENTERS
No person may be present while children
are in care who has a conviction, is under indictment for, or is the subject
of an official criminal complaint alleging violation of any of the crimes
listed in the appendix titled "Criminal Offenses from the Texas Penal Code"
in the Texas Department of Protective and Regulatory Services' Minimum Standards
for Day Care Centers or who has a felony violation of the Texas Controlled
Substance Act.
]
Subchapter G. STANDARDS FOR GROUP DAY CARE HOMES
No one may serve as director of a home who has been convicted
of any of the following offenses:
]
(1)
A felony or misdemeanor classified as
an offense against the person or family,
]
(2)
A felony or misdemeanor classified
as public indecency, or
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(c)
] The director must send
a record of training and experience
[
the following
] to the
department on a department form
.
[
:
]
(1)
A record of training and experience;
]
(2)
Information about all felony and
misdemeanor convictions; and
]
(3)
Information about all pending criminal
charges, including deferred adjudication.
]
A person convicted of any of the following offenses must
not be in the home while children are in care and must not serve in any capacity
where there is contact with children in care:
]
(1)
A felony or misdemeanor classified as
an offense against the person or the family,
]
(2)
A felony or misdemeanor classified
as public indecency, or
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(h)
] People at the home must not
abuse, neglect, or sexually molest children.
(i)
] People whose behavior or health
appears to endanger the health, safety, or well-being of children must not
be at the home.
(j)
] People must not smoke in the
presence of children or consume alcohol when children are at the home. People
who appear to be under the influence of alcohol or other drugs must not be
in the home when children are present.
(k)
] Staff must supervise children
at all times.
(l)
] The home must ensure that
children are not out of control.
(m)
] The home must ensure that
a child is released only to a parent or an adult designated by the parent.
(n)
] The home must have and follow
a plan to verify the identity of a person authorized to pick up a child but
not known to staff. The home keeps this identifying information for 24 hours.
Subchapter H. MINIMUM STANDARDS FOR DROP-IN CARE CENTERS
No one may serve as director of a center who has been
convicted of any of the following offenses:
]
(1)
A felony or misdemeanor classified as
an offense against the person or family,
]
(2)
A felony or misdemeanor classified
as public indecency, or
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(g)
] The director must send the
department
a record of training and experience
[
the following
] on a department form
.
[
:
]
(1)
A record of training and experience;
]
(2)
Information about all felony and
misdemeanor convictions; and
]
(3)
Information about all pending criminal
charges, including deferred adjudication.
]
A person convicted of any of the following offenses must
not be at the center while children are in care and must not serve in any
capacity where there is contact with children in care:
]
(1)
A felony or misdemeanor classified as
an offense against the person or the family,
]
(2)
A felony or misdemeanor classified
as public indecency, or
]
(3)
A felony violation of any law intended
to control the possession or distribution of any substance included as a controlled
substance in the Texas Controlled Substances Act.
]
(h)
] People whose behavior or health
appears to endanger the health, safety, or well-being of children must not
be at the center.
(i)
] People must not smoke in the
presence of children or consume alcohol when children are at the center. People
who appear to be under the influence of alcohol or other drugs must not be
in the center when children are present.
(j)
] Staff must supervise children
at all times.
(k)
] People working with children
and counted in the staff-child ratio must be free from other duties except
those directly involving the teaching, care, and supervision of children.
These responsibilities include keeping the group's area clean. Administrative
and clerical functions that take the staff's attention from the children,
meal preparation, or janitorial duties must not be included in the responsibilities
of staff while the staff is counted in the staff-child ratio.
(l)
] The center must ensure that
children are not out of control.
(m)
] The center must ensure that
a child is released only to a parent or an adult designated by the parent.
(n)
] If a parent calls to authorize
the emergency release of a child, the center must verify that the caller is
actually the parent.
(o)
] The center must have and follow
a plan to verify the identity of a person authorized to pick up a child but
not known to the staff. The center keeps identifying information for 24 hours.
(p)
] If one staff leaves and another
staff is given responsibility for the children, the staff leaving must provide
the incoming staff with:
Chapter 720.
TWENTY-FOUR HOUR CARE LICENSING
against whom any of the following legal decisions are returned:
]
(A)
(B)
(C)
subsection
], must remain
in effect pending resolution of the charges.
no one may serve as a staff, volunteer,
or foster parent having contact with clients, or be approved as an adoptive
parent, who has been convicted of any felony classified as an offense against
the person or family, or of public indecency, or of violation of the Texas
Controlled Substances Act, or of any misdemeanor classified as an offense
against the person or family or of public indecency, unless the Texas Department
of Protective and Regulatory Services (TDPRS) has ruled that proof of rehabilitation
has been established.
]
no one may serve as a staff, volunteer, or foster
parent having contact with clients or be approved as an adoptive parent for
whom "reason to believe" (or a comparable determination in another state)
has been determined for child abuse or neglect, unless TDPRS determines that
such service is acceptable.
]
(5)
(5)
(6)
] persons whose behavior
or health status presents a danger to clients must not be allowed at the agency
or at homes verified by the agency.
(7)
] before having contact
with children in care, staff, volunteers, foster parents, foster family household
members, and employees in foster family homes must be tested for tuberculosis
according to the recommendations of the Texas Department of Health or local
health authorities.
(8)
] the agency must have
a personnel file for each employee, volunteer, and foster parent whose work
relates to child-placing activities, work with birth parents, and children
in care. Each file must contain the following:
report information system
] check
[
reports
];
(c)
] Agencies making adoptive placements
must specify in their service provision policy the degree to which birth parents
are involved in planning for and placing their child.
(d)
] Agencies making adoptive placements
must include counseling services and post-adoption services in their service
provision policies.
(e)
] Agencies must not have policies
or make adoption placement decisions on the presumption that placing a child
in a family of the same race or ethnicity as the race or ethnicity of the
child is in the best interest of the child.
Subchapter E. STANDARDS FOR FOSTER FAMILY HOMES
No one who has been convicted within the preceding ten
years of any felony classified as an offense against the person or family,
or of public indecency, or of violation of the Texas Controlled Substances
Act, or of a misdemeanor classified as an offense against the person or family,
or of public indecency, may serve as a foster parent or as an employee of
the foster home, unless the director of licensing has ruled that proof of
rehabilitation has been established.
]
A foster parent or employee shall be reassigned
or removed from any contact with children if any of the following are returned:
]
(1)
(2)
(3)
Such reassignment or removal shall remain in
effect pending resolution of the charges. Notification of such action shall
be made to the Licensing Branch within 24 hours or the next working day.
]
Subchapter F. STANDARDS FOR FOSTER GROUP HOMES
No one who has been convicted within the preceding ten
years of any felony classified as an offense against the person or family,
or of public indecency, or of violation of the Texas Controlled Substances
Act, or of any misdemeanor classified as an offense against the person or
family, or of public indecency, may serve as a foster parent or as an employee
of the foster group home, unless the Director of Licensing has ruled that
proof of rehabilitation has been established.
]
Each foster parent and any employee of
a foster home shall submit a statement providing information concerning any
felony or misdemeanor convictions, or both, within the preceding ten years
and any pending criminal charges.
]
Any foster parent or employee shall be reassigned
or removed from any contact with children if any of the following are returned:
]
(1)
(2)
(3)
Subchapter H. CONSOLIDATED STANDARDS FOR 24-HOUR CARE FACILITIES
Unless proof of rehabilitation has been established,
no person may be hired or kept employed in a position requiring contact with
children if that person has been convicted of the following:
]
(1)
(2)
(3)
(4)
A staff or person living on campus against
whom one of the following is returned must be removed from contact with children:
]
(1)
(2)
(3)
(A)
(B)
(C)
Within two weeks after a new person is at the
facility, information needed to conduct a criminal background check must be
submitted to licensing on a form(s) provided by the department. New people
include:
]
(1)
(2)
(3)
Subchapter M. STANDARDS FOR EMERGENCY SHELTERS
No one may serve as a member of the staff working with
children who has been convicted within the preceding 10 years of any of the
following offenses unless the director of licensing has ruled that the person
has established that he is rehabilitated:
]
(1)
(2)
(b)
(b)
] The emergency shelter must
verify the personal qualifications of employees. Each staff must submit a
statement to the facility concerning any felony and/or misdemeanor convictions
within the preceding ten years and of any pending criminal charges.
(c)
] The emergency shelter must
not allow in the shelter persons whose behavior or health status endangers
the children.
(d)
] Staff must have an examination
for tuberculosis within 12 months before employment. The emergency shelter
must ensure that reexamination is according to recommendations of local public
health authorities or the regional office of the Texas Department of Health.
Children of staff who have contact with other children at the shelter must
meet the same requirements as those for children in care.
(e)
] Child-care staff must be at
least 18 years old and be able to read and write.
Subchapter O. GENERAL POLICIES AND PROCEDURES
Chapter 725.
GENERAL LICENSING PROCEDURES
An approved accreditation organization shall not accredit a child-care administrator
if the results of the background or criminal history check conducted by the
organization show that a person has been convicted of an offense under Title
5 or 6, or Chapter 43 of the Penal Code or has a final finding of abuse or
neglect.
]
has been convicted of an offense under Title 5 or 6, or
Chapter 43 of the Penal Code or has a final finding of abuse or neglect,
]
and the organization fails to deny, revoke, or withdraw the accreditation
of the child-care administrator.
Subchapter S. ADMINISTRATIVE PROCEDURES
child-care
] facility
or family home,
an applicant for licensure as a child care administrator,
and operators after receiving a license, listing, registration, or
certification of approval[
, at least once during each 24 months,
]
must send the department required identifying information about:
(4)
] applicants for a license,
registration, listing, or certificate; and
(5)
] director, owner, or operator
of the facility or family home.
(1)
(1)
(2)
]
with the application
or
no later than two weeks after a new person(s) is at the facility
or family home [
if criminal history check information is required but
has not been sent.
]
;
and
background
] finding, licensing staff will inform the governing body
or administrator. [
Other releases of information are described in subsection
(j) of this section and will be released in accordance with the department's
rules found in Subchapter PP of this chapter (relating to Release Hearings).
]
As a result of the information, the
[
The
] facility
or family home
must take appropriate action [
as a result of this
information
]
according to the specifications of subsections (j)
and (k) of this section
.
If the person is an applicant for licensure
as a child care administrator, the department will inform the applicant of
any relevant criminal history or abuse or neglect finding.
The department shall deny an application or renewal for a license,
certificate, listing or registration or shall revoke a license, certificate,
or family home's listing or registration if the results of the background
or criminal history check conducted by the department show that a person has
been convicted of an offense under Title 5 or 6 of the Penal Code, or Chapter
43, Penal Code, or any like offense in another state.
]
(i)
] A child-care facility or registered
family home is required to pay to the department a fee of $2.00 which does
not exceed the administrative costs the department incurs in conducting background
and criminal history checks under this section.
(j)
] In addition to other release
of information under statutes and department rules, the department will release
central registry background information in accordance with §725.4051
of this title (relating to Release and Use of Confidential Information Under
Necessary Circumstances), and Subchapter PP of this chapter (relating to Release
Hearings).
Subchapter U. DAY CARE LICENSING PROCEDURES
Subchapter EE. AGENCY AND INSTITUTIONAL LICENSING PROCEDURES
Subchapter YY. INSTITUTIONAL ADMINISTRATORS LICENSING
and
] must not be addicted to dangerous drugs or intemperate in
the use of alcohol
, and must meet the requirements in §725.1801
of this title (relating to Criminal History and Central Registry Background
Checks)
. [
Unless the director of licensing rules that proof of
rehabilitation has been established, and applicant must not have been convicted
within the preceding 10 years of:
]
(1)
(2)
(A)
(B)
(C)
Chapter 725.
GENERAL LICENSING PROCEDURES
Subchapter S. ADMINISTRATIVE PROCEDURES
Subchapter U. DAY CARE LICENSING PROCEDURES
(a)
(a)
(b)
] If a day care facility has
separate licenses, and programs are provided in one location or by one governing
body, on any given day a child must not participate in:
(c)
] The only licenses that may
be combined for a facility are day care center or group day care home and
kindergarten/nursery schools and schools: grades kindergarten and above.
Subchapter EE. AGENCY AND INSTITUTIONAL LICENSING PROCEDURES
Subchapter YY. INSTITUTIONAL ADMINISTRATORS LICENSING
ten workdays
] of receiving
all
[
an
] application
materials
, staff determines the applicant's eligibility to take the appropriate
examination. The applicant is notified by mail. If additional information
is needed to determine eligibility, staff notifies the applicant of the information
required.
five workdays
] of receiving the examination from the testing organization, staff
send the applicant a notice of the results.
five workdays
] of receiving all application materials in subsection
(a)(1) -
(4)
[
(a)(1)(4)
] of this section and the examination results,
the applicant is notified that his application is approved or denied.
(g)
] An applicant for a child care
administrator's license may take the examination up to three times before
he is disqualified from re-examination for a one-year period, beginning with
the date of the third, failed examination. The applicant must pay a $25 examination
fee for each examination he takes. Examination fees are not refundable to
an applicant who fails to obtain a passing score on the examination.
department
] does not receive the request
for renewal within 10 days of the expiration date of the license, the administrator
must reapply and retake the examination or:
the department
] may
renew the license if the administrator pays
a renewal fee of $75
[
the required renewal fee and a fee equal to one-half of the examination
fee
].
two years
],
TDPRS
[
the department
] may renew the license if the administrator
pays
a renewal fee of $100
[
the renewal fee and a fee equal
to the examination fee
].
Chapter 727.
LICENSING OF MATERNITY FACILITIES
(a)
(c) No one may serve as a staff or volunteer
]
All staff and volunteers
having contact with clients
must meet the requirements in §725.1801 of this title (relating to Criminal
History and Central Registry Background Checks)
[
who has been convicted
of any felony classified as an offense against the person or family, or of
public indecency, or of violation of the Texas Controlled Substances Act,
or of any misdemeanor classified as an offense against the person or family
or of public indecency, unless the Texas Department of Protective and Regulatory
Services (TDPRS) has ruled that proof of rehabilitation has been established
].
(d)
] The maternity home must report
any occurrences as stated in subsections
(a)-(d)
[
(a)-(c)
] of this section to
the Texas Department of Protective and Regulatory
Services (TDPRS)
[
TDPRS
] by the end of the first workday
after learning of the occurrence.
Chapter 736.
MEMORANDA OF UNDERSTANDING WITH OTHER STATE AGENCIES