Subchapter M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§746.615, 746.617, 746.619, 746.621, 746.623, 746.629, 746.1325, 746.3309, 746.3401, 746.3503, 746.3505, 746.4003, and 746.5403; the repeal of §746.4005; and new §746.5017, in its Minimum Standards for Child-Care Centers chapter. The amendments to §§746.623, 746.629, and 746.3309 are adopted with changes to the proposed text published in the March 4, 2005, issue of the Texas Register (30 TexReg 1263). The amendments to §§746.615, 746.617, 746.619, 746.621, 746.1325, 746.3401, 746.3503, 746.3505, 746.4003, and 746.5403; the repeal of §746.4005; and new §746.5017 are adopted without changes and will not be republished.

The amendments to §§746.615, 746.617, 746.619, 746.621, and 746.623 change the name of the Texas Department of Health to the Texas Department of State Health Services (DSHS). In addition, current DFPS rules conflict with new rules recently adopted by the DSHS, so DFPS is cross-referencing DSHS rules to ensure the DFPS minimum standards do not conflict with DSHS rules. The purpose of the amendment to §746.629 is to cross-reference the Department of State Health Services rules for Vision and Hearing requirements in the Texas Administrative Code. This will eliminate any conflicts in interpretation and will ensure that the child-care community and Licensing staff utilize the most current rules regarding vision and hearing screening requirements.

The amendment to §746.1325 clarifies the definition of self-instructional and instructor-led training. Typically, caregivers derive greater benefit from instructor-led training, due to the interaction with the trainer and others in the group, thus the current rules limit the amount of annual training that can be obtained through self-instructional methods. However, changes in technology have expanded the training resources available to the child-care community, including computer-based training modules, which may be either self-instructional or instructor-led. The rule will help centers, as well as DFPS Licensing staff, correctly classify training formats.

The justification for the amendment to §746.3309 is to clarify that baked goods provided by parents for celebrations can be shared with other children. This change is the result of a concern raised by parents and permit holders that the current rule limits a parent's opportunity to provide baked goods prepared outside of the child-care operation for not only their child, but all children in a group for birthdays or other type celebrations.

The amendment to §746.3401 clarifies that a sanitation inspection must be completed before a provisional permit can be issued and at least once every 12 months.

The amendments to §746.3503 and §746.3505 are the result of concerns that have been expressed regarding the length of time required for the diaper-changing surface to air dry between diaper changes as a part of the sanitizing process specified in §746.3409. When diapers are changed on consecutive children in an infant care room, waiting 10 minutes between each diaper change is not feasible. The rule change provides an option to use a non-absorbent paper liner on the changing surface or wipe the surface dry after approximately two minutes when changing children consecutively. Additionally, the directions for sanitizing the changing surface are moved to §746.3505, which is a more appropriate location for the topic.

The amendment to §746.4003 and the repeal of §746.4005 update the rules to be consistent with recent recommendations concerning syrup of ipecac. The American Academy of Pediatrics recently reported on the adverse effects of administering syrup of ipecac in the event of poisoning. Research has shown that the syrup can cause serious harm if not administered correctly. In many communities, syrup of ipecac is no longer available for purchase over the counter.

New §746.5017 addresses children swimming in a body of water other than a swimming pool. The current rules do not clearly prohibit swimming in bodies of water other than swimming or wading pools, such as rivers, lakes or ponds. The new rule clearly states this. Unlike properly maintained swimming pools and wading pools, caregivers cannot clearly see the bottom of a lake, river, pond, or creek to know when a child may be in distress in the water, a child is missing, or has drowned. In addition, bodies of water such as rivers, creeks, and coastal waters lack physical boundaries, which limit the area a child may swim in, may have an undercurrent that can quickly carry a child outside of a designated swimming area, and the water has not been treated chemically to protect children's health.

The title of §746.5403 is amended to make the rule consistent with §746.5401, which allows a gas leak inspection to be conducted once every two years, rather than annually.

The sections will function by protecting the health, safety, and well being of children.

During the public comment period, DFPS received comments from 14 child-care providers and the Department of State Health Services. A summary of the comments and responses follows:

Comments concerning §746.615: One commenter agreed with the change.

Comments concerning §746.617: One commenter stated that the Internet address referenced in the rule was not working properly and recommended the website address be placed next to the reference. The same commenter also recommended that the immunization requirements be placed in the publication. Another commenter agreed with the proposed rule change.

Response: The Internet address is now working correctly for DSHS and the immunization chart will be available on-line before the end of April. A copy of the immunization requirements will be sent to all providers with the revision pages and Licensing plans to set up a link from the DFPS website to the DSHS website. Licensing staff will also provide hard copies of the chart to those caregivers who do not have access to the Internet. DFPS is adopting this section without change.

Comments concerning §746.619: One commenter agreed with the change.

Comments concerning §746.621: One commenter stated the Internet address is not accessible and recommended that the requirements for provisional admittance be written in the rule. One commenter agreed with the proposed rule change.

Response: The DSHS Internet website is now working properly and up to date requirements for provisional admittance can be obtained from this site as well as from the Licensing representative. DFPS is adopting this section without change.

Comments concerning §746.623: Five comments were received. Three commenters expressed concern that existing immunization records would not comply with the new documentation requirements. One of these commenters explained that some doctor's offices charge a fee to obtain a copy of a shot record. One commenter recommended DFPS's sample enrollment form be updated to match the proposed rule. One commenter agreed with the proposed rule change.

Response: The rule deletes the option for provider's to make a handwritten copy; therefore, these are the only immunization records that will be impacted by the rule change. Providers will have the opportunity to update these records prior to the effective date of the rule. Procedurally, Licensing may also offer technical assistance rather than noting a deficiency to allow additional time for caregivers to comply. Sample forms will be updated after adoption of the final rule. Verification of vaccines with a signature or rubber stamp is not a new requirement; however, in response to commenters concerns staff is adopting subsection (b)(4) with a change to now read "the signature or stamp of a physician or other health professional validating the record." This change is in line with DSHS requirements for documentation and will allow the majority of immunization records that are already on file at operations to comply.

Comments concerning §746.629: One commenter recommended changes to the rule to be consistent with the Texas Administrative Code (TAC).

Response: DFPS is adopting the rule with the following changes:

(1) In subsection (a), add "and grades" at the end of the sentence.

(2) In subsection (b)(1), delete "vision and hearing screening" and replace with "visual acuity and sweep check results."

(3) In addition, it was noted that subsection (b) does not accurately track the TAC.

As a result, DFPS is adding subsection (b)(3), which states "an affidavit stating that the vision or hearing screening conflicts with the tenets or practices of a church or religious denomination of which the affiant is an adherent or member."

Comments concerning §746.1325: One commenter recommended experiential and applied activities be defined.

Response: "Experiential" and "applied" have the same meaning as that assigned by Webster's Dictionary. DFPS is adopting this section without change.

Comments concerning §746.3309: DFPS received five comments. One commenter agreed with the proposed change. Two commenters stated "baked goods" is too narrow of a definition; it does not include sandwiches, snacks, fruit or non-sweet foods. One of the same commenter's recommended parents be allowed to bring in any food or drink that does not contain a known allergy for a child in the class. A fourth commenter recommended food provided by a parent be individually wrapped or pre-packaged. A fifth commenter disagreed with changing the rule and stated many parents are accustomed to not bringing food and now do other things to celebrate such as reading a favorite book to the class.

Response: As a result of comments, DFPS is adopting the section with the following revised language in subsection (d): "You must ensure meals and snacks provided by a parent and shared with other children meet the needs of children who require special diets."

Comments concerning §746.3503: One commenter recommended disposable gloves be required for all diaper changes.

Response: Caregivers currently have the option to use disposable gloves when changing diapers; however, using disposable gloves does not prevent or reduce the spread of germs, unless proper hand washing steps are followed after the gloves are discarded. DFPS is adopting this section without change.

Comments concerning §746.3505: DFPS received three comments. One commenter expressed concern that the rule change would not prevent the spread of germs. One commenter recommended the non-absorbent paper liner be required only for children ages 0-12 months, and a paper towel liner be allowed for older children. One commenter agreed with the proposed change.

Response: Germs can be spread during any diapering procedure, regardless of the age of the child. Paper towels do not prevent germs, associated with diapering, from contacting the changing surface as non-absorbent paper liners would. However, paper towels can be used if the surface is fully sanitized between each use. DFPS is adopting this section without change.

Comments concerning §746.4003: Two commenters agreed with the recommended rule change.

Comments concerning §746.5017: DFPS received four comments. Two commenters that offer swimming/wading activities in creeks/lakes expressed concern that these activities would be prohibited. One of the two commenters recommended requiring a lifeguard certified in waterfront safety, rather than prohibiting the activity altogether. One commenter questioned whether water activities at water parks connected to a lake or river would still be allowed. One commenter agreed with the proposed rule change.

Response: Operations that currently offer swimming/wading activities in natural bodies of water as a part of a summer program will have the opportunity to request a variance or waiver of the minimum standard, allowing Licensing to look at the risk factors in each individual situation. This is also true for programs using a water park connected to a lake or river. DFPS is adopting this section without change.

Subchapter C. RECORD KEEPING

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§747.107, 747.111, 747.113, 747.201, 747.207, 747.613, 747.615, 747.617, 747.621, 747.623, 747.633, 747.1323, 747.3109, and 747.3803; the repeal of §747.3805; and new §747.4817, in its Minimum Standards for Child-Care Homes chapter. The amendments to §747.623 and §747.633 are adopted with changes to the proposed text published in the March 4, 2005, issue of the Texas Register (30 TexReg 1268). The amendments to §§747.107, 747.111, 747.113, 747.201, 747.207, 747.613, 747.615, 747.617, 747.621, 747.1323, 747.3109, and 747.3803; the repeal of §747.3805; and new §747.4817 are adopted without changes to the proposed text and will not be republished.

The purpose of the amendments to §§747.107, 747.111, 747.113, and 747.201 concerns the one-time opportunity to choose to operate as a licensed child-care home or licensed child-care center. The minimum standard rules do not currently support this choice in all cases. A variety of group day care homes, choosing to operate as a licensed child-care home, did not fit neatly into the minimum standard rules that became effective September 1, 2003. These include, but are not limited to, a corporation owning a group day care home, a group day care home operating in a public school, and a governing body owning more than one group day care home. The changes will clarify the oversight and essentially grandfather these operations as licensed child-care homes. These changes also eliminate the need to process a variance for each of these rules, thus reducing the associated paperwork for both the permit holder, as well as DFPS Licensing staff.

The amendment to §747.207 cross-references Chapter 745, Licensing, and eliminates conflicting requirements.

The amendments to §§747.613, 747.615, 747.617, 747.621, and 747.623 change the name of the Texas Department of Health to the Texas Department of State Health Services (DSHS). In addition, current DFPS rules conflict with new rules recently adopted by the DSHS, so DFPS is cross-referencing DSHS rules to ensure the DFPS minimum standards do not conflict with DSHS rules. The purpose of the amendment to §747.633 is to cross-reference the Department of State Health Services rules for Vision and Hearing requirements in the Texas Administrative Code. This will eliminate any conflicts in interpretation and will ensure that the child-care community and Licensing staff utilize the most current rules regarding vision and hearing screening requirements.

The amendment to §747.1323 clarifies the difference between self-instructional and instructor-led training. Typically, caregivers derive greater benefit from instructor-led training, due to the interaction with the trainer and others in the group, thus the current rules limit the amount of annual training that can be obtained through self-instructional methods. However, changes in technology have expanded the training resources available to the child-care community, including computer-based training modules, which may be either self-instructional or instructor-led. The rule will help centers, as well as DFPS Licensing staff, correctly classify training formats.

The purpose of the amendment to §747.3109 is to clarify that baked goods provided by parents for celebrations can be shared with other children. This is the result of a concern raised by parents and permit holders that the current rule limits a parent's opportunity to provide baked goods prepared outside of the child-care operation for not only their child, but all children in a group for birthdays or other type celebrations.

The amendment to §747.3803 and the repeal of §747.3805 update the rules to be consistent with recent recommendations concerning syrup of ipecac. The American Academy of Pediatrics recently reported on the adverse effects of administering syrup of ipecac in the event of poisoning. Research has shown that the syrup can cause serious harm if not administered correctly. In many communities, syrup of ipecac is no longer available for purchase over the counter.

New §747.4817 addresses children swimming in a body of water other than a swimming pool. The current rules do not clearly prohibit swimming in bodies of water other than swimming or wading pools, such as rivers, lakes, or ponds. The new rule clearly states this. Unlike properly maintained swimming pools and wading pools, caregivers cannot clearly see the bottom of a lake, river, pond, or creek to know when a child may be in distress in the water, a child is missing, or has drowned. In addition, bodies of water such as rivers, creeks, and coastal waters lack physical boundaries, which limit the area a child may swim in, may have an undercurrent that can quickly carry a child outside of a designated swimming area, and the water has not been treated chemically to protect children's health.

The sections will function by protecting the health, safety, and well being of children.

During the public comment period, DFPS received comments from the Allied Professional Home Child-Care Association, 6 child-care providers, and the Department of State Health Services (DSHS). A summary of the comments and responses follows:

Comments concerning §747.107: A petition containing 50 signatures was received from a child-care association. The petition requested the rule not be changed, therefore making it unnecessary to change §747.111, §747.113, and §747.201. The petition stated that the proposed rule changes the definition of who they are and where they provide care and it would take away the ability to provide care in the home for registered and licensed child-care homes.

Response: The rule clarifies an existing rule and is not a change for home-based operations. Impact is limited to those operations licensed as a group day care home prior to September 1, 2003, that are not operating in the permit holder's residence (approximately 62 statewide). The rule eliminates the need to process variances for each of these operations, thus reducing the associated paperwork for both the permit holder, as well as DFPS Licensing staff. Current rules require all licensed and registered homes provide care in the caregiver's residence. DFPS is adopting the section without change.

Comments concerning §747.613: One commenter agreed with the proposed rule change.

Comments concerning §747.615: One commenter agreed with the proposed rule change.

Comments concerning §747.617: One commenter agreed with the proposed rule change.

Comments concerning §747.621: One commenter agreed with the proposed rule change.

Comments concerning §747.623: DFPS received four comments. All commenters expressed concern about current immunization records complying with the proposed changes. All stated it would be impossible for parents to obtain a stamp or signature of a physician for prior immunizations. One commenter agreed with the proposed deletion of the hand-written copies.

Response: The rule deletes the option for provider's to make a handwritten copy; therefore, these are the only immunization records that will be impacted by the rule change. Providers will have the opportunity to update these records prior to the effective date of the rule. Procedurally, Licensing may also offer technical assistance rather than noting a deficiency to allow additional time for caregivers to comply. Sample forms will be updated after adoption of the final rule. Verification of vaccines with a signature or rubber stamp is not a new requirement; however, in response to commenters' concerns, staff is adopting subsection (b)(4) with a change to now read "the signature or stamp of a physician or other health care professional validating the record." This change is in line with DSHS requirements for documentation and will allow the majority of immunization records that are already on file at operations to comply.

Comments concerning §747.633: One commenter recommended changes to the rule to be consistent with the Texas Administrative Code (TAC). Response: DFPS is adopting the rule with the following changes:

(1) In subsection (a), add "and grades" at the end of the sentence.

(2) In subsection (b)(1), delete "vision and hearing screening" and replace with "visual acuity and sweep check results."

(3) In addition, it was noted that subsection (b) does not accurately track the TAC. As a result, DFPS is adding subsection (b)(3), which states "an affidavit stating that the vision or hearing screening conflicts with the tenets or practices of a church or religious denomination of which the affiant is an adherent or member."

Subchapter A. PURPOSE AND DEFINITIONS