Subchapter M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS

The Health and Human Services Commission proposes, 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, concerning immunizations, vision and hearing screening, self-instructional training, meals and/or snacks, annual sanitation inspection, diaper changing, first-aid kits, and annual inspection for gas leaks; the repeal of §746.4005, concerning syrup of ipecac; and new §746.5017, concerning children swimming in a body of water other than a swimming pool, in its Minimum Standards for Child-Care Centers chapter.

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 revised rule will help centers, as well as DFPS Licensing staff, correctly classify training formats.

The purpose of 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 proposed 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.

Cindy Brown, Chief Financial Officer of DFPS, 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. Brown 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 the health, safety, and well being of children will be protected. There will be no effect on large, small, or micro-businesses because the proposed changes do not impose new requirements on any business, and do not require the purchase of any new equipment or any increased staff time in order to comply. 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 Michele Adams at (512) 438-3262 in DFPS's Child Care Licensing Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-317, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043, Government Code.

Subchapter C. RECORD KEEPING

The Health and Human Services Commission proposes, 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, concerning purpose and definitions, immunizations, self-instructional training, meals and/or snacks, and first-aid kits; the repeal of §747.3805, concerning syrup of ipecac; and new §747.4817, concerning children swimming in a body of water other than a swimming pool, in its Minimum Standards for Child-Care Homes chapter.

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 proposed changes to the existing rules will clarity the oversight and essentially grandfather these operations as licensed child-care homes. These proposed 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 proposed 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 revised 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.

Cindy Brown, Chief Financial Officer of DFPS, 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. Brown 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 the health, safety, and well being of children will be protected. There will be no effect on large, small, or micro-businesses because the proposed changes do not impose new requirements on any business and does not require the purchase of any new equipment or any increased staff time in order to comply. 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 Luis Palacois at (512) 438-2946 in DFPS's Child Care Licensing Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-317, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043, Government Code.

Subchapter A. PURPOSE AND DEFINITIONS