Part 19.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Chapter 720.
24-HOUR CARE LICENSING
Subchapter O. GENERAL POLICIES AND PROCEDURES
40 TAC §§720.1003, 720.1007, 720.1012
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), amendments to §§720.1003,
720.1007, and 720.1012, in its 24-Hour Care Licensing chapter. The amendment
to §720.1003 is adopted with changes to the proposed text published in
the November 11, 2005, issue of the
Texas Register
(30 TexReg 7394). The amendments to §720.1007 and §720.1012
are adopted without changes to the proposed text and will not be republished.
The justification for the amendments is to revise policies concerning the
use of restraint and seclusion in certain facilities, as required by Senate
Bill 325 of the 79th Legislature, Regular Session.
The amendment to §720.1003 adds a requirement that the behavior intervention
policies of the facility must be shared with the parent or managing conservator
at the time of admission and prohibits a child-care facility and/or child-placing
agency from discharging or retaliating against (1) a person who presents information
relating to the misuse of restraint or seclusion at the facility; or (2) a
client or resident of the facility because someone on behalf of this person
presents information relating to the misuse of restraint or seclusion at the
facility.
The amendment to §720.1007: (1) permits a prone or supine hold to
only be used as a transitional hold; (2) clarifies the appropriate action
to take when a child indicates that he cannot breathe; (3) prohibits personal
restraints that put pressure on a child's torso, obstruct a child's breathing,
and interfere with a child's ability to communicate; (4) specifies when a
person qualified in behavior intervention can use a prone or supine hold;
(5) clarifies the maximum time limits for other personal restraints; and (6)
adds that documentation of personal restraint must include when a prone or
supine restraint is used.
The amendment to §720.1012 adds that the risks associated with the
use of prone or supine holds must be included as a pre-service training component.
The amendments will function by enhancing the protection of children and
improving the quality of care of children.
During the public comment period, DFPS received comments from Advocacy,
Inc. and Homes 4 Good Child-Placing Agency. A summary of the comments and
responses follows:
Comment concerning §720.1003(g): One commenter was strongly opposed
to having behavior interventions posted in foster family homes. Reviewing
the information with the child and providing a copy to the child, managing
conservator, and family, as well as these individuals signing that the information
is received and reviewed is adequate. Posting the information feels like an
institutional requirement and does not provide children with a sense of normality.
Response: DFPS agrees with the commenter, and is adopting this section
with a change to allow an option to post behavior interventions or provide
a copy of the behavior intervention policies. The rule will say "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 the child's parent or managing conservator with a personal
copy of the facility's behavior intervention policies."
Comments concerning §720.1007(c)(3)(A)(iii): (1) One commenter stated
that if the risk of prone restraint is as great as indicated, she does not
see what facility size has to do with assuring the safety of the children
in care. The commenter recognizes that smaller facilities may have limited
numbers of staff either to supervise the other clients or to observe the restraint,
but this would seem to make this situation even more problematic by allowing
facilities with a capacity of 50 or fewer children to be exempt from meeting
the requirement for an observer.
Response: Senate Bill 325 of the 79th Legislature, Regular Session, exempts
"small facilities" from meeting the requirements for having an observer during
the implementation of a prone or supine hold of a child. "Small facilities"
was not defined in statute and was defined by DFPS as facilities with a capacity
of 50 or fewer children. DFPS is not incorporating this comment.
(2) One commenter stated that the legislative intent was to define small
facilities as 16 beds or less, rather than facilities with a capacity of 50
or fewer children as proposed by DFPS.
Response: Senate Bill 325 did not define "small facilities" exempt from
meeting the requirements for an observer. To define small facilities as having
16 beds or less would be a substantive change to the proposed rule, and would
require the rule to be republished for public comment. Staff agree to do further
research on defining "small facilities" and the potential impact to all child-care
operations; however, at this time, DFPS is not incorporating this comment
into this rule.
The amendments are adopted under Human Resources Code (HRC) §40.0505
and Government Code §531.0055, which provide that the Health and Human
Services Executive Commissioner shall adopt rules for the operation and provision
of services by the health and human services agencies, including the Department
of Family and Protective Services; HRC §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the Executive Commissioner and the Commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC §42.042, which authorizes DFPS to promulgate minimum standards.
The amendments implement the Health and Safety Code, Chapter 322, as amended
and added by Senate Bill 6, 79th Legislature, Regular Session.
§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 through
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 must notify the Department of Family and Protective
Services of any changes to these policies and procedures before implementation
of the changes.
(f)
The child-care facility and/or child-placing agency must
follow its written behavior intervention policies and procedures.
(g)
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 the child's parent
or managing conservator with a personal copy of the facility's behavior intervention
policies.
(h)
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.
(i)
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.
(j)
A child-care facility and/or child-placing agency may not
discharge or otherwise retaliate against:
(1)
An employee, client, resident, or other person because
the employee, client, resident, or other person files a complaint, presents
a grievance, or otherwise provides in good faith information relating to the
misuse of restraint or seclusion at the facility; or
(2)
A client or resident of the facility because someone on
behalf of the client or resident files a complaint, presents a grievance,
or otherwise provides in good faith information relating to the misuse of
restraint or seclusion at the facility.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 26, 2006.
TRD-200600415
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 438-3437
The Health and Human Services Commission adopts, on behalf of the
Department of Family and Protective Services (DFPS), amendments to §§745.37,
745.129, and 745.8407; and new §§745.4201, 745.4203, 745.4205, 745.8421,
and 745.8423, without changes to the proposed text as published in the November
11, 2005, issue of the
Texas Register
(30
TexReg 7396).
The justification for the amendments and new sections is to implement legislation
passed by the 79th Legislature, Regular Session, 2005.
The amendment to §745.37 adds the word "regular" to the definition
of registered child-care home to clarify that the care must be regular for
a child day care home to be subject to regulation. Also, the minimum age for
admission into a therapeutic camp is updated to 13 to correspond with §720.553.
The amendment to §745.129, paragraph (4) is a new exemption created
as a result of the Child Protective Services Relative and Other Designated
Caregiver Program.
New §§745.4201, 745.4203, and 745.4205 address operations taking
a child into care from law enforcement. Section 745.4201 states that only
licensed emergency shelters, and licensed child-placing agencies authorized
by Licensing may take possession of a child from law enforcement. Section
745.4203 states the child-placing agency must be authorized by DFPS to take
possession of a child from law enforcement. Section 745.4205 states the child-care
operation must immediately notify DFPS when taking possession of a child,
with the help of law enforcement complete a form with the appropriate information,
and provide the completed form to the investigator who responds to the call.
The amendment to §745.8407 allows DFPS to conduct random sampling
to monitor agency foster homes and foster group homes.
New §745.8421 limits the number of anonymous complaints investigated
by DFPS, and new §745.8423 states DFPS will not post the results of anonymous
complaints that have no factual basis on DFPS's website.
The amendments and new sections will function by enhancing the protection
of children and improving the quality of care of children.
During the public comment period, DFPS received comments from five individuals.
A summary of the comments and responses follows:
Comment concerning §745.37: One commenter asked if Licensing had a
definition of "regular" as it applies to a registered child-care home. The
commenter also asked if taking care of two children on different days of the
week, rather than every day, is considered regular.
Response: The definition of "regular care" for registered child-care homes
is defined in the Human Resources Code, §42.002(17). It states that,
"regular care means care that is provided at least four hours a day, three
or more days a week, for more than nine consecutive weeks." When reviewing
a home to determine if the home is subject to registration, regular care must
be provided for four or more children, excluding children who are related
to the caregiver, ages birth through 13 years. The children do not have to
be present at the same time. DFPS is adopting this section without change.
Comment concerning §745.8407: No comments were received regarding
the proposed rule change. However, one commenter was concerned that listed
homes are not routinely inspected and suggested these homes become licensed
instead.
Response: No changes were proposed regarding listed homes. DFPS does not
have statutory authority to require these homes be registered or licensed,
or to inspect listed homes unless there is a complaint of abuse or neglect.
DFPS is adopting this section without change.
Comments concerning §745.8421: Two commenters agreed with the proposed
rule change.
Response: DFPS is adopting this section without change.
Comment concerning §745.8423: One commenter agreed with the proposed
rule change and believes the change will reduce the number of bogus complaints
received.
Response: DFPS is adopting this section without change.
Subchapter B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE
40 TAC §745.37
The amendment is adopted under Human Resources Code (HRC) §40.0505
and Government Code §531.0055, which provide that the Health and Human
Services Executive Commissioner shall adopt rules for the operation and provision
of services by the health and human services agencies, including the Department
of Family and Protective Services; HRC §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the Executive Commissioner and the Commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC §42.042, which authorizes DFPS to promulgate minimum standards.
The amendment implements the HRC §42.002.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 26, 2006.
TRD-200600416
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 438-3437
2.
EXEMPTIONS FROM REGULATION
40 TAC §745.129
The amendment is adopted under Human Resources Code (HRC) §40.0505
and Government Code §531.0055, which provide that the Health and Human
Services Executive Commissioner shall adopt rules for the operation and provision
of services by the health and human services agencies, including the Department
of Family and Protective Services; HRC §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the Executive Commissioner and the Commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC §42.042, which authorizes DFPS to promulgate minimum standards.
The amendment implements the Family Code, Chapter 264, as amended by §1.62
of Senate Bill 6, 79th Legislature, Regular Session.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 26, 2006.
TRD-200600417
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 438-3437
7.
TAKING POSSESSION OF A CHILD THROUGH LAW ENFORCEMENT OR A JUVENILE PROBATION OFFICER
40 TAC §§745.4201, 745.4203, 745.4205
The new sections are adopted under Human Resources Code (HRC) §40.0505
and Government Code §531.0055, which provide that the Health and Human
Services Executive Commissioner shall adopt rules for the operation and provision
of services by the health and human services agencies, including the Department
of Family and Protective Services; HRC §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the Executive Commissioner and the Commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC §42.042, which authorizes DFPS to promulgate minimum standards.
The new sections implement the Family Code, §262.1041, as added by
House Bill 798 and Senate Bill 6, 79th Legislature, Regular Session.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 26, 2006.
TRD-200600418
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 438-3437
1.
OVERVIEW OF INSPECTIONS AND INVESTIGATIONS
40 TAC §§745.8407, 745.8421, 745.8423
The amendment and new sections are adopted under Human Resources
Code (HRC) §40.0505 and Government Code §531.0055, which provide
that the Health and Human Services Executive Commissioner shall adopt rules
for the operation and provision of services by the health and human services
agencies, including the Department of Family and Protective Services; HRC §40.021,
which provides that the Family and Protective Services Council shall study
and make recommendations to the Executive Commissioner and the Commissioner
regarding rules governing the delivery of services to persons who are served
or regulated by the department; and HRC §42.042, which authorizes DFPS
to promulgate minimum standards.
The amendment and new sections implement the Human Resources Code, §42.042
and §42.044, as amended by House Bill 877 and §1.96 of Senate Bill
6, 79th Legislature, Regular Session.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 26, 2006.
TRD-200600419
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 438-3437
Subchapter B. ADMINISTRATION AND COMMUNICATION
3.
REQUIRED POSTINGS
40 TAC §746.401
The Health and Human Services Commission adopts, on behalf
of the Department of Family and Protective Services (DFPS), an amendment to §746.401,
with changes to the proposed text published in the November 11, 2005, issue
of the
Texas Register
(30 TexReg 7399).
The justification for the amendment is to require child-care centers to
post a list of current employees, as required by Senate Bill 565, 79th Legislature,
Regular Session.
The amendment will function by enhancing the protection of children and
improving the quality of care of children.
During the public comment period, DFPS received comments from six individuals.
One commenter was not clear how posting a list of employee's names enhances
the protection of children or quality of care. The same commenter felt posting
the first and last name makes the home address and phone number of the employee
more readily accessible to parents and others and is an infringement on the
privacy of the teacher. A second commenter expressed concern that employee
information would be accessible to persons other than parents. Two commenters
stated the required posting is a violation of the employees' privacy. Two
commenters questioned the specific size of the paper and whether it would
exclude the use of a picture frame or dry erase board. Two of the commenters
suggested the list be provided upon request rather than posted. Posting a
list of all current employees, and developing rules on the size and contents
of the posting are requirements of Human Resources Code, §42.0551. Including
the first and last name clearly identifies each employee. In response to commenters'
concerns regarding the size of the posting, DFPS is revising paragraph (9)
to say the list must be "at least 8 1/2 inches by 11 inches in size, printed
legibly."
The amendment is adopted under Human Resources Code (HRC) §40.0505
and Government Code §531.0055, which provide that the Health and Human
Services Executive Commissioner shall adopt rules for the operation and provision
of services by the health and human services agencies, including the Department
of Family and Protective Services; HRC §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the Executive Commissioner and the Commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC §42.042, which authorizes DFPS to promulgate minimum standards.
The amendment implements the HRC, §42.0551, as amended by Senate Bill
565, 79th Legislature, Regular Session.
§746.401.What items must I post at my child-care center at all times?
You must post the following items:
(1)
The child-care center's license;
(2)
The letter or form from the most recent Licensing inspection
or investigation;
(3)
The Licensing notice
Keeping Children
Safe
;
(4)
Emergency and evacuation relocation plans;
(5)
The activity plan for each group of children in the child-care
center;
(6)
The daily menu, including all snacks and meals served by
the child-care center;
(7)
Licensing
Notice of Availability
for Review
of:
(A)
The most recent fire inspection report;
(B)
The most recent sanitation inspection report;
(C)
The most recent gas inspection report, if applicable; and
(D)
The Licensing minimum standards applicable for child-care
centers;
(8)
Telephone numbers specified in §746.405 of this title
(relating to What telephone numbers must I post and where must I post them?);
(9)
A list entitled "Current Employees." The list must be at
least 8 1/2 inches by 11 inches in size, printed legibly, and must include
each employee's first and last name; and
(10)
Any other Licensing notices with specific instructions
to post the notice.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 26, 2006.
TRD-200600420
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: March 1, 2006
Proposal publication date: November 11, 2005
For further information, please call: (512) 438-3437
Subchapter B. ADMINISTRATION AND COMMUNICATION
Chapter 745.
LICENSING
Subchapter C. OPERATIONS THAT ARE EXEMPT FROM REGULATION
Subchapter H. RESIDENTIAL CHILD-CARE MINIMUM STANDARDS
Subchapter K. INSPECTIONS AND INVESTIGATIONS
Chapter 746.
MINIMUM STANDARDS FOR CHILD-CARE CENTERS
Chapter 747.
MINIMUM STANDARDS FOR CHILD-CARE HOMES