§748.1.What is the purpose of this chapter?

The purpose of this chapter is to set forth rules that apply to General Residential Operations and Residential Treatment Centers.

§748.3.Who is responsible for complying with the rules of this chapter?

The permit holder must ensure compliance with the rules in this chapter at all times, with the exception of those rules identified for specific types of services that your operation does not offer. For example, if we grant you a permit to offer emergency care services only, you do not have to comply with rules that apply to treatment services for a child with an emotional disorder, treatment services for a child with mental retardation, or a transitional living program; however, you must comply with all other applicable rules of this chapter.

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 March 1, 2006.

TRD-200601185

For further information, please call: (512) 438-3437

Subchapter B. DEFINITIONS AND SERVICES

40 TAC §748.41, §748.43

§748.41.What do certain pronouns mean in this chapter?

The following words have the following meanings in this chapter:

(1) I, my, you, and your--An applicant or permit holder, unless otherwise stated.

(2) We, us, our, and Licensing--The Licensing Division of the Department of Family and Protective Services (DFPS).

§748.43.What do certain words and terms mean in this chapter?

The words and terms used in this chapter have the meanings assigned to them under §745.21 of this title (relating to What do the following words and terms mean when used in this chapter?), unless another meaning is assigned in this section or unless the context clearly indicates otherwise. The following words and terms have the following meanings unless the context clearly indicates otherwise:

(1) Accredited college or university--An institution of higher education accredited by the Texas Higher Education Coordinating Board or an accrediting agency recognized by the Texas Higher Education Coordinating Board.

(2) Activity space--An area or room used for child activities.

(3) Adaptive functioning--Refers to how effectively a person copes with common life demands and how well the person meets standards of personal independence expected of someone in his particular age group, sociocultural background, and community setting.

(4) Adult--A person 18 years old or older.

(5) Caregiver--A person counted in the child/caregiver ratio, whose duties include the direct care, supervision, guidance, and protection of a child. This does not include a contract service provider who:

(A) Provides a specific type of service to your operation for a limited number of hours per week or month; or

(B) Works with one particular child.

(6) Certified lifeguard--A person who has been trained in rescue techniques, life saving, and water safety by a qualified instructor from a recognized organization that awards a certificate upon successful completion of the training. A certified lifeguard ensures the safety of persons by preventing and responding to water related emergencies.

(7) Child/caregiver ratio--The maximum number of children for whom one caregiver can be responsible.

(8) Child in care--A child or a young adult who is currently admitted as a resident of a general residential operation or residential treatment center, regardless of whether the child is temporarily away from the operation, as in the case of a child at school or at work. Unless a child has been discharged from the operation, he is considered a child in care.

(9) Child passenger safety seat system--An infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.

(10) Counseling--A procedure used by professionals from various disciplines in guiding individuals, families, groups, and communities by such activities as delineating alternatives, helping to articulate goals, processing feelings and options, and providing needed information. This definition does not include career counseling.

(11) Days--Calendar days, unless otherwise stated.

(12) De-escalation--Strategies used to defuse a volatile situation, to assist a child to regain behavioral control, and to avoid a physical restraint or other behavioral intervention.

(13) Department--The Department of Family and Protective Services (DFPS).

(14) Diligent effort--The reasonable diligence and skill that must be exercised by a qualified professional in a particular specialty, which must be commensurate with the duty to be performed and the individual circumstances of the case and qualifications and skills of other parties involved.

(15) Discipline--Guidance that is constructive or educational in nature and appropriate to the child's age, development, situation, and severity of the behavior.

(16) Disinfecting solution--A disinfecting solution may be:

(A) A self-made solution, prepared as follows:

(i) One tablespoon of regular strength liquid household chlorine bleach to each gallon of water used for disinfecting such items as toys, eating utensils, and nonporous surfaces (such as tile, metal, and hard plastics); or

(ii) One-fourth cup of regular strength liquid household chlorine bleach to each gallon of water used for disinfecting surfaces such as bathrooms, crib rails, diaper-changing tables, and porous surfaces, such as wood, rubber or soft plastics; or

(B) A commercial product that meets the Environmental Protection Agency's (EPA's) standards for "hospital grade" germicides (solutions that kill germs) that you must use according to label directions.

(17) Emergency Behavior Intervention--Interventions used in an emergency situation, including personal restraints, mechanical restraints, emergency medication, and seclusion.

(18) Field trip--A group activity conducted away from the operation.

(19) Food service--The preparation or serving of meals or snacks.

(20) Full-time--At least 30 hours per week.

(21) Garbage--Food or items that when deteriorating cause offensive odors and/or attract rodents, insects, and other pests.

(22) General Residential Operation--A residential child-care operation that provides child care for 13 or more children up to the age of 18 years. The care may include treatment services and/or programmatic services. These operations include formerly titled emergency shelters, operations providing basic child care, operations serving children with mental retardation, and halfway houses.

(23) Group of children--Children assigned to a specific caregiver or caregivers. Generally, the group stays with the assigned caregiver(s) throughout the day and may move to different areas throughout the operation, indoors and out. For example, children who are assigned to specific caregivers occupying a unit or cottage are considered a group.

(24) Health-care professional--A licensed physician, licensed or registered nurse, or other licensed medical personnel providing comprehensive preventive, diagnostic, or therapeutic medical care to the child. This does not include medical doctors or medical personnel where medical care and contraindications to medical care are outside the scope of the licensed practice.

(25) Human services field--A field of study that contains coursework in the social sciences of psychology and social work including some counseling classes focusing on normal and abnormal human development and interpersonal relationship skills from an accredited college or university. Coursework in guidance counseling does not apply.

(26) Immediate danger--A situation where a prudent person would conclude that bodily harm would occur if there were no immediate interventions. Immediate danger includes a serious risk of suicide, serious physical injury, or the probability of bodily harm resulting from a child running away if under 10 years old chronologically or developmentally. Immediate danger does not include:

(A) Harm that might occur over time or at a later time; or

(B) Verbal threats or verbal attacks.

(27) Infant--A child from birth through 17 months.

(28) Livestock--An animal raised for human consumption or an equine animal.

(29) Living quarters--A structure or part of a structure where a group of children reside, such as a building, house, cottage, or unit.

(30) Non-ambulatory--A child that is only able to move from place to place with assistance, such as a walker, crutches, a wheelchair, or prosthetic leg.

(31) Non-mobile--A child that is not able to move from place to place, even with assistance.

(32) Operation--General residential operations and residential treatment centers.

(33) Person legally authorized to give consent--The person legally authorized to give consent by the Texas Family Code or a person authorized by the court.

(34) Physical force--Pressure applied to a child's body that reduces or eliminates the child's ability to move freely.

(35) PRN--A standing order or prescription that applies "pro re nata" or "as needed according to circumstances."

(36) Regularly--On a recurring, scheduled basis.

(37) Residential Treatment Center (RTC)--A residential child-care operation that exclusively provides care and treatment services for emotional disorders for 13 or more children up to the age of 18 years.

(38) Sanitize--A four-step process that must be followed in the subsequent order:

(A) Washing with water and soap;

(B) Rinsing with clear water;

(C) Soaking in or spraying on a disinfecting solution for at least 10 minutes. Rinsing with cool water only those items that a child is likely to place in his mouth; and

(D) Allowing the surface or article to air-dry.

(39) School-age child--A child five years old or older who will attend school in August or September of that year.

(40) Seat belt--A lap belt and any shoulder strap included as original equipment on or added to a motor vehicle.

(41) Service plan--A plan that identifies a child's basic and specific needs and how those needs will be met.

(42) State or local fire marshal--A fire official designated by the city, county, or state government.

(43) State or local sanitation official--A sanitation official designated by the city, county, or state government that is trained in sanitary science to perform duties relating to education and inspections in environmental sanitation.

(44) 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, the risk of minor bruising, or similar forms of minor bodily harm that will resolve healthily without professional medical attention.

(45) Toddler--A child from 18 months through 35 months.

(46) Treatment director--The person responsible for the overall treatment program providing treatment services.

(47) Universal precautions--An approach to infection control where all human blood and certain human body fluids are treated as if known to be infectious for HIV, HBV, and other blood-borne pathogens.

(48) Volunteer--A person who provides services to an operation without monetary compensation.

(49) Water activities--Activities related to the use of splashing pools, wading pools, swimming pools, or other bodies of water.

(50) Young adult--An adult whose chronological age is between 18 and 22 years, who is currently in a residential child-care operation, and who continues to need child-care services.

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 March 1, 2006.

TRD-200601186

For further information, please call: (512) 438-3437

2. SERVICES

40 TAC §§748.61, 748.63, 748.65, 748.67, 748.69, 748.71, 748.73, 748.75

§748.61.What types of services does Licensing regulate?

We regulate the following types of services:

(1) Child-Care Services--Services that meet a child's basic need for shelter, nutrition, clothing, nurture, socialization and interpersonal skills, care for personal health and hygiene, supervision, education, and service planning;

(2) Treatment Services--In addition to child-care services, a specialized type of child-care services designed to treat and/or support children with:

(A) Emotional Disorders, such as mood disorders, psychotic disorders, or dissociative disorders, and who demonstrate three or more of the following:

(i) A Global Assessment Functioning of 50 or below;

(ii) A current DSM diagnosis;

(iii) Major self-injurious actions, including recent suicide attempts;

(iv) Difficulties that present a significant risk of harm to self or others, including frequent or unpredictable physical aggression; or

(v) A primary diagnosis of substance abuse or dependency and severe impairment because of the substance abuse;

(B) Mental Retardation, who have an intellectual functioning of 70 or below and are characterized by prominent, significant deficits and pervasive impairment in one or more of the following areas:

(i) Conceptual, social, and practical adaptive skills to include daily living and self care;

(ii) Communication, cognition, or expressions of affect;

(iii) Self-care activities or participation in social activities;

(iv) Responding appropriately to an emergency; or

(v) Multiple physical disabilities, including sensory impairments;

(C) Pervasive Developmental Disorder, which is a category of disorders (e.g. Autistic Disorder or Rett's Disorder) characterized by prominent, severe deficits and pervasive impairment in one or more of the following areas of development:

(i) Conceptual, social, and practical adaptive skills to include daily living and self care;

(ii) Communication, cognition, or expressions of affect;

(iii) Self-care activities or participation in social activities;

(iv) Responding appropriately to an emergency; and

(v) Multiple physical abilities including sensory impairments; or

(D) Primary Medical Needs, who cannot live without mechanical supports or the services of others because of non-temporary, life-threatening conditions, including the:

(i) Inability to maintain an open airway without assistance. This does not include the use of inhalers for asthma;

(ii) Inability to be fed except through a feeding tube, gastric tube, or a parenteral route;

(iii) Use of sterile techniques or specialized procedures to promote healing, prevent infection, prevent cross-infection or contamination, or prevent tissue breakdown; or

(iv) Multiple physical disabilities including sensory impairments; and

(3) Additional Programmatic Services, which include:

(A) Emergency Care Services--A specialized type of child-care services designed and offered to provide short-term child care to children who, upon admission, are in an emergency as defined in §748.1203(b) of this title (relating to What children may I admit?) and for whom an appropriate placement cannot be obtained or cannot be determined without further assessment;

(B) Transitional Living Program--A residential services program designed to serve children 16 years old or older for whom the service or treatment goal is basic life skills development toward independent living. A transitional living program includes basic life skills training and the opportunity for children to practice those skills. A transitional living program is not an independent living program;

(C) Assessment Services--Services to provide an initial evaluation of the appropriate placement for a child to ensure that appropriate information is obtained in order to facilitate service planning; and

(D) Therapeutic Camp Services--A camping program to augment an operation's treatment services with an experiential curriculum exclusively for a child with an emotional disorder who has difficulty functioning in his home, school, or community. Therapeutic camp services are only available to children 13 years old and older.

§748.63.Can I provide each type of service that Licensing regulates?

You may provide each type of service that we regulate under the following conditions:

(1) On your permit, we list the type of service that you have been approved to provide; and

(2) Your operational policies and procedures ensure:

(A) Children are admitted appropriately;

(B) The needs of all children in care are met;

(D) Children are protected from one another, if appropriate; and

(E) You meet the applicable rules of this chapter.

§748.65.What children are eligible to participate in a transitional living program?

For a child to be eligible to participate in a transitional living program, the child must:

(1) Be 14 years old or older; and

(2) Not be receiving therapeutic camp services.

§748.67.What are the requirements for a transitional living program?

A transitional living program must have a training program for children that develops competency in the following areas:

(1) Health, general safety, and fire safety practices;

(2) Money management;

(3) Transportation skills; and

(4) Child health and safety, child development, and parenting skills, if the child is a parent of a child living with him.

§748.69.What is an "independent living program"?

An "independent living program" is a program that provides case management services to a child who lives independently, without supervision and child/caregiver ratio, and the constant presence of an on-site caregiver.

§748.71.May I have an independent living program?

You may not have an independent living program at your operation.

§748.73.What is "respite child-care"?

Respite child-care is a planned alternative 24-hour care that an operation provides for a child as part of the regulated child care.

§748.75.May I use or provide respite care services?

Only general residential operations that offer emergency care services may provide respite care services. Other operations may not provide respite care services, and no operation may use respite care services. The purpose of respite care services is to provide relief to a child's biological or foster parent, not an employee. Respite for an employee is provided through time off, vacations, holidays, and sick leave.

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 March 1, 2006.

TRD-200601187

For further information, please call: (512) 438-3437

Subchapter C. ORGANIZATION AND ADMINISTRATION

1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §§748.101, 748.103, 748.105, 748.107, 748.109, 748.111

§748.101.What are my responsibilities as the permit holder before I begin operating?

Before you begin operating, you are responsible for:

(1) Ensuring that your operation is legally established to operate within Texas and is complying with all applicable statutes;

(2) Submitting documentation to us that proves the legal basis of your operation;

(3) Establishing the governing body of the operation;

(4) Submitting documentation to us on the ownership of the operation. This includes names, addresses, titles, and telephone numbers for the following persons:

(A) For corporations, the officers and/or the executive committee of the governing body;

(B) For jointly or individually owned operations, the partners or owners; or

(5) Having a governing body that is responsible for, and has authority over, the policies and activities of the operation;

(6) Having policies that clearly state the responsibilities of the governing body; and

(7) Developing operational policies and procedures that comply with or exceed the rules specified in this chapter, Chapter 42 of the Human Resources Code, Chapter 745 of this title (relating to Licensing), and other applicable laws.

§748.103.What are my operational responsibilities as the permit holder?

When you begin operating, you must:

(1) Designate a full-time child-care administrator who meets the minimum qualifications of §748.531 of this title (relating to What qualifications must a child-care administrator meet?);

(2) Operate according to the written policies and procedures adopted by the governing body;

(3) Maintain true, current, accurate, and complete records at your operation for us to review;

(4) Ensure that all required documentation is current, accurate, and complete;

(5) Allow us to inspect your operation during its hours of operation;

(6) Display your permit at the operation;

(7) Observe the conditions of your permit;

(8) Not offer unrelated types of services that conflict or interfere with the best interests of a child in care, a caregiver's responsibilities, or operation space. If you offer more than one type of service, you must determine and document that no conflict exists;

(9) Maintain liability insurance as required by the Human Resources Code, §42.049;

(10) Comply with Chapters 42 and 43 of the Human Resources Code and the rules of this chapter, and all other applicable laws and rules of the Texas Administrative Code;

(11) Prior to implementing any changes, inform us of any changes to the plan you developed under §748.101 of this title (relating to "What are my responsibilities as the permit holder before I begin operating?");

(12) Prepare the annual budget and controlling expenditures to ensure the needs of the children are met; and

(13) Ensure that no member of the governing body, member of the executive committee, management staff, or employee is listed as a prohibited controlling person.

§748.105.What responsibilities do I have for personnel policies and procedures?

(1) Develop a written organizational chart showing the administrative, professional, and staffing structures and lines of authority;

(2) Develop written job descriptions, including minimum qualifications and job responsibilities for each position;

(3) Develop written policies on the training requirements for employees;

(4) Ensure that personnel policies comply with personnel requirements outlined in Subchapter F of Chapter 745 of this title (relating to Background Checks);

(5) Report or ensure your employees report suspected abuse, neglect, or exploitation as required by the Texas Family Code, §261.401;

(6) Ensure that all employees and consulting, contracting, and volunteer professionals who work with a child and others with access to information about a child are informed in writing of their responsibility to maintain child confidentiality; and

(7) Either adopt the model drug testing policy or have a written drug testing policy that meets or exceeds the criteria in the model policy provided in §745.4151 of this title (relating to What drug testing policy must my residential child-care operation have?).

§748.107.What must my conflict of interest policies include?

Your conflict of interest policies must include a code of conduct on the relationship between employees, contract service providers, children in placement, and children's families, including entering into independent financial relationships or transactions with an employee.

§748.109.May I exceed my operation capacity?

No, the number of children in your care must not exceed the capacity stated on your permit. For the purpose of determining whether you exceed your capacity, the number of children in your care includes a caregiver's own children who are at the operation, and any children receiving respite care services at the operation providing emergency care services.

§748.111.May I provide child day care services?

You may provide child day care services under the following conditions:

(1) You don't provide treatment services to children with emotional disorders;

(2) You care for and supervise children who receive day care services separately from the children receiving residential services; and

(3) You have separate administrative employees and caregivers for each program.

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 March 1, 2006.

TRD-200601188

For further information, please call: (512) 438-3437

2. GOVERNING BODY

40 TAC §748.131, §748.133

§748.131.What are the specific responsibilities of the governing body?

The governing body is responsible for:

(1) Ensuring the operation remains fiscally sound;

(2) Overseeing and ensuring the management of the operation's services and programs in compliance with your policies;

(3) Approving and having authority over the operational policies and activities which must comply with rules of this chapter;

(4) Complying with the law, including Chapters 42 and 43 of the Human Resources Code, the applicable rules of this chapter, and other applicable rules in the Texas Administrative Code;

(5) Ensuring that persons employed by or working at the operation, family members, paid consultants, or others who benefit financially from the operation, such as subcontractors or vendors, do not comprise a majority of the voting members of the governing body:

(A) Operations that are granted a permit by us before January 1, 2007, have two years to comply with this paragraph; and

(B) Operations that are granted a permit by us after January 1, 2007, have two years from the date the operation is licensed by us to comply with this paragraph; and

(6) Carrying out governing body responsibilities assigned in the policies and procedures.

§748.133.After a permit has been issued, what subsequent information regarding my governing body must I provide to Licensing, and when must I provide it?

You must provide to us in writing any change in:

Figure: 40 TAC §748.133

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 March 1, 2006.

TRD-200601189

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. GENERAL FISCAL REQUIREMENTS

40 TAC §748.161, §748.163

§748.161.What are my fiscal requirements?

(1) Submit documentation of a 12-month budget of income and expenses to us with the application for a new permit;

(2) Submit documentation of reserve funds or available credit at least equal to operating costs for the first three months of operation to us with the application for a new permit;

(3) Have predictable funds sufficient for the first year of operation;

(4) Demonstrate at all times that you have or will have sufficient funds to provide appropriate services for all children in care; and

(5) Account for a child's money separately from the funds of the operation. No child's personal earnings, allowances, or gifts may be used to pay for the child's room and board, unless such a use is a part of the child's service plan and the child's parent approves it in writing. You must give the child's money to the child, parent, or next placement upon discharge.

§748.163.How often must I have a professional audit?

You must have a professional audit completed annually and make it available for our review.

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 March 1, 2006.

TRD-200601190

For further information, please call: (512) 438-3437

4. REQUIRED POSTINGS

40 TAC §748.191

The new section is proposed 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; and 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.

§748.191.What items must I post at my operation?

The items listed below must be posted in a prominent and publicly accessible place where employees, children, parents, and others may easily view them at all times:

(1) Your permit;

(2) The Licensing notice Keeping Children Safe ;

(3) Emergency and evacuation relocation plans posted in each building and living quarters used by children;

(4) The schedule for daily, routine activities for children in care;

(5) The following telephone numbers and information within reach of each telephone. If the operation uses cordless or cellular phones, these same numbers must be posted in the office area in each building or living quarters of the operation or on the phone handset:

(A) 911 or, if 911 is not available in your area, the numbers for:

(i) Emergency medical services;

(ii) Law enforcement; and

(iii) Fire department;

(B) Poison control;

(D) The operation's name, address, and telephone number.

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 March 1, 2006.

TRD-200601191

For further information, please call: (512) 438-3437

5. POLLICIES AND PROCEDURES

40 TAC §§748.231, 748.233, 748.235, 748.237, 748.239

§748.231.What are the general requirements for my operation's policies?

(a) The requirements for policies only apply to the operation's policies that are required or governed by this chapter.

(b) The policies must be written and they must indicate the approval of the governing body, date of approval, and effective date.

(d) The governing body must approve the policies.

(e) All employees must be aware of and follow your policies and procedures. A copy of your policies and procedures must be maintained at the operation and available for employees' review.

(f) All policies must be available for review by our staff and your clients, upon request.

(g) You must report any significant change to the policies to us at least seven days before implementing the change.

(h) You must maintain copies of all current and previous policies for at least two years.

§748.233.What are the requirements for my admission policies?

(a) Your admission policies must:

(1) Have a program statement that describes the program's goals, the services provided, and the population of children served by the program;

(2) Describe the specific characteristics of children the program will serve, such as the age range, gender, and needs of children served; and

(3) Indicate whether you will admit children on an emergency basis.

(b) If you provide treatment services, you must have admission policies describing the emotional disorders, mental retardation, pervasive developmental disorders, or primary medical needs that your program is designed to treat.

§748.235.What child-care policies must I develop?

You must develop policies that describe:

(1) Visitation rights between the child and family members and the child and friends;

(2) The child's rights to correspond by mail with family members and friends, including any policies regarding mail restrictions and receipt of electronic mail;

(3) The child's rights to correspond by telephone with family members and friends;

(4) The child's rights to receive and give gifts to family, friends, employees, or other children in care, including any restrictions on gifts;

(5) Personal possessions a child is or is not allowed to have;

(6) Emergency behavior intervention techniques;

(7) Discipline policies, including techniques and methods for ensuring the appropriateness of discipline techniques used with a child. These policies and procedures must:

(A) Guide employees in methods used for discipline of a child;

(B) Include measures for positive responses to appropriate behavior;

(D) Emphasize the importance of nurturing behavior, stimulation, and promptly meeting the child's needs;

(8) Any religious program or activity that you offer and whether you require participation by children, if applicable;

(9) Transitional living policies, if you offer such a program;

(10) The plans for meeting the educational needs of each child, including your educational program and required participation by children, if applicable;

(11) When trips with caregivers away from the operation are allowed and what protocols will be used;

(12) Program expectations and rules for children;

(13) Child grievance procedures;

(14) The type and frequency of reports to parents;

(15) Procedures for routine and emergency diagnosis and treatment of medical and dental problems;

(16) Routine health care relating to pregnancy and childbirth, if you admit and/or care for a pregnant child; and

(17) Your plan for providing health-care services to a child with primary medical needs.

§748.237.What emergency behavior intervention policies must I develop?

At a minimum, you must develop written emergency behavior intervention policies to implement the requirements in Subchapter N of this chapter (relating to Emergency Behavior Intervention). The policies must include the following:

(1) A complete description of emergency behavior interventions that you permit caregivers to use;

(2) The specific techniques that caregivers can use;

(3) The qualifications for caregivers who assume the responsibility for emergency behavior intervention implementation, including required experience and training, and an evaluation component for determining when a specific caregiver meets the requirements of a caregiver qualified in emergency behavior intervention. You must have an on-going program to evaluate caregivers qualified in emergency behavior intervention and the use of emergency behavior interventions, including risks associated with the use of prone or supine restraints, including positional, compression, or restraint asphyxia;

(4) Your requirements for and restrictions on the use of permitted emergency behavior interventions;

(5) How you will meet the following requirements:

(A) Post the emergency behavior interventions that you allow in a place where the children and clients can view them, or at admission, provide the children and clients with a personal copy of the operation's emergency behavior intervention policies;

(B) During admission, explain and document the following to a child in a manner that the child can understand:

(i) Who can use emergency behavior intervention;

(ii) The actions a caregiver must first attempt to defuse the situation and avoid the use of emergency behavior intervention;

(iii) The situations in which emergency behavior intervention may be used;

(iv) The types of emergency behavior intervention you authorize;

(v) When the use of emergency behavior intervention must cease;

(vi) What action the child must exhibit to be released from emergency behavior intervention;

(vii) The way to report an inappropriate emergency behavior intervention;

(viii) The way to provide voluntary comments on any emergency behavior intervention; and

(ix) The process for making comments on any emergency behavior intervention, such as comments regarding the incident that led to the emergency behavior intervention, the manner in which a caregiver intervened, and the manner in which the child was the subject or to which he was a witness. You may create a standardized form that is easily accessible or give children the permission to submit comments on regular paper; and

(C) At admission, requirements for obtaining each child's input on preferred de-escalation techniques that caregivers can use to assist the child in the de-escalation process, and revisit this information with the child and caregivers during each post emergency behavior intervention discussion;

(6) Requirements that caregivers must attempt less restrictive and less intrusive emergency behavior interventions as preventive measures and de-escalating interventions to avoid the need for the use of emergency behavior intervention;

(7) Training for emergency behavior intervention. The policy must include a description of the emergency behavior intervention training curriculum that meets the requirements in the rules of this chapter, the amount and type of training required for different levels of caregivers (if applicable), training content, and how the training will be delivered; and

(8) Prohibitions for discharging or otherwise retaliating against:

(A) An employee, client, resident, or other person for filing a complaint, presenting a grievance, or otherwise providing in good faith information relating to the misuse of emergency behavior intervention at the operation; or

(B) A client or resident 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 emergency behavior intervention at the operation.

§748.239.What policies must I develop if I use volunteers?

If you use volunteers, you must develop policies that:

(1) Include volunteer job descriptions and/or responsibilities;

(2) Address volunteer qualifications, screening and selection procedures, and orientation and training programs; and

(3) Address supervision of volunteers.

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 March 1, 2006.

TRD-200601192

For further information, please call: (512) 438-3437

Subchapter D. REPORTS AND RECORD KEEPING

1. SERIOUS INCIDENT REPORTS

40 TAC §§748.301, 748.303, 748.305, 748.307, 748.309, 748.311, 748.313, 748.315

The new sections implement HRC, §42.042 and Texas Family Code, §261.410.

§748.301.What is a serious incident?

A serious incident is a non-routine occurrence that has or may have dangerous or significant consequences on the care, supervision, and/or treatment of a child.

§748.303.When must I report and document a serious incident involving a child in my care?

(a) You must report and document the following types of serious incidents. The reports must be made to the following entities, and the reporting and documenting must be within the specified time frames:

Figure: 40 TAC §748.303(a)

(b) If there is a serious incident involving an adult resident, you do not have to report the incident to Licensing, but you must document the incident. You do have to report the incident to law enforcement, as outlined in the chart above. You also have to report the incident to the parents, if the adult resident is not capable of making decisions about his own care.

§748.305.What constitutes a suicide attempt by a child?

A suicide attempt includes a child's attempt to take his own life using means or methods for causing his death, including a means or method that the child believes is capable of causing his death.

§748.307.When must I report a serious incident involving my operation, an employee, a professional level service provider, or a volunteer?

You must report and document the following types of serious incidents to the following entities within the specified time frame:

Figure: 40 TAC §748.307

§748.309.How do I report a serious incident to Licensing?

(a) Serious incidents that are required to be reported in writing must be forwarded to your Licensing representative (See §748.307 (3), (4), (5), and (10) of this title (relating to When must I report a serious incident involving my operation, an employee, a professional level service provider, or a volunteer?)); and

(b) All other serious incident reports must be made to the Child Abuse Hotline.

§748.311.How must I document a serious incident?

A serious incident must be documented in a written report that includes the following information:

(1) The name of the operation, physical address, and telephone number;

(2) The time and date of the incident;

(3) The name, age, gender, and date of admission of the child or children involved;

(4) The names of all adults involved and their role in relation to the child(ren);

(5) The names or other means of identifying witnesses to the incident, if any;

(6) The nature of the incident;

(7) The circumstances surrounding the incident;

(8) Interventions made during and after the incident, such as medical interventions, contacts made, and other follow-up actions;

(9) The treating licensed health-care professional's name, findings, and treatment, if any; and

(10) The resolution of the incident.

§748.313.What additional documentation must I include with a written serious incident report?

You must include the following additional documentation with a written serious incident report, as applicable:

Figure: 40 TAC §748.313

§748.315.Where must I keep incident reports?

(a) You must keep the incident reports at a place in the operation where they are easily accessible to caregivers and to us for review.

(b) You must permit Licensing to make a copy of incident reports, as requested.

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 March 1, 2006.

TRD-200601193

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

2. OPERATION RECORDS

40 TAC §748.341

§748.341.If I keep electronic records, what procedures must I have for those records?

(a) If you keep electronic records, you must develop procedures that address what must be in the external paper file and what can be in the electronic file.

(b) You must limit access to your electronic files to:

(1) Persons within your operation authorized to see specific information; and

(2) Others outside of your operation authorized by law to have access to specific information.

(1) Computer security systems, including confidentiality, passwords, and employee procedures to ensure security of the system;

(2) Requirements for routine back up of data; and

(3) Anti-virus protection systems.

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 March 1, 2006.

TRD-200601194

For further information, please call: (512) 438-3437

3. PERSONNEL RECORDS

40 TAC §748.361, §748.363

§748.361.Where must I maintain personnel records?

(a) You must maintain active personnel records at the operation.

(b) You must maintain archived personnel records at the operation and/or in a designated location, as long as they are available for our review within 24 hours.

(d) Your system for maintaining all personnel records must be uniform throughout the operation.

(e) You must maintain a master list of active and archived personnel records and their location in the main office of the operation.

§748.363.What information must the personnel record of an employee include?

For each employee or caregiver, the personnel record must include:

(1) Documentation showing the date of employment;

(2) Documentation showing how the person meets the minimum age and qualifications for the position;

(3) A current job description;

(4) Evidence of any valid professional licensures, certifications, or registrations the person must have to meet qualifications for the position, such as a current renewal card or a letter from the credentialing entity verifying that the person has met the required renewal criteria;

(5) A copy of a health card or licensed health-care professional's statement verifying the person is free of active tuberculosis, if required by the regional Department of State Health Services TB program or local health authority, before having contact with children in care (see Division 3 of Subchapter J of this chapter (relating to Communicable Diseases));

(6) A notarized Licensing Affidavit for Applicants for Employment form as specified in Human Resources Code, §42.059;

(7) A statement signed and dated by the employee or caregiver that he has read a copy of the:

(A) Operational policies; and

(B) Personnel policies;

(8) A statement signed and dated by the employee or caregiver indicating that he must immediately report any suspected incident of child abuse, neglect, or exploitation to the Child Abuse Hotline and to the operation's administrator or administrator's designee;

(9) Proof of request for background checks;

(10) A copy of the valid driver's license for each person who transports a child;

(11) A record of training and training hours;

(12) Any documentation of the person's tenure with the operation; and

(13) The date and reason for the person's separation, if applicable.

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 March 1, 2006.

TRD-200601196

For further information, please call: (512) 438-3437

4. CHILD RECORDS

40 TAC §§748.391, 748.393, 748.395, 748.397, 748.399, 748.401

§748.391.What is an active child record?

An active child record consists of the child's most recent 12 months of service.

§748.393.How must I maintain an active child record?

(a) You must keep active child records at the operation where the child is receiving services.

(b) On an on-going basis, you must ensure that each child's record:

(1) Includes the child's full name and another method of identifying the child, such as a client number;

(2) Includes documentation of known allergies on the exterior of the child's record or in another place where the information is clearly visible to persons with access to the record;

(3) Includes the date of each data entry and the signature of the employee who makes the data entry;

(4) Is kept accurate and current;

(5) Is locked and kept in a safe location; and

(6) Is kept confidential as required by law.

§748.395.How current must a child's record be?

For a child's record to be current, you must document casework services in the child's record no later than 30 days after the occurrence or event unless otherwise specified in this chapter. Casework services include, but are not limited to, medical and dental services, therapist notes and reports, and progress notes.

§748.397.Who must consent to the release of a child's record?

Unless you are releasing the record to the parents or to us, you may not release any portion of a child's record to any agency, organization, or individual without the written consent of the person legally authorized to consent to the release.

§748.399.Must I make records available for Licensing to review?

(a) You must make all active records available for our immediate review and reproduction.

(b) We must have reasonable access to your storage and file areas in order to monitor your record keeping.

§748.401.How must I maintain a child's record that is not active?

These records must be available for our review within 24 hours. Otherwise, the records may be archived electronically or kept anywhere and in any manner, as long as they are safe from damage or destruction.

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 March 1, 2006.

TRD-200601197

For further information, please call: (512) 438-3437

5. RECORD RETENTION

40 TAC §§748.431, 748.433, 748.435

§748.431.How long must I maintain personnel records?

(a) You must maintain annual training records for current personnel for the last full training year and current training year.

(b) With the exception of subsection (a) of this section, you must maintain personnel records for a year after an employee's last day of employment or until any investigation involving the employee is resolved, whichever is longer.

§748.433.How long must I maintain child records?

You must maintain a child's complete record from admittance to discharge for two years from the date of discharge, or until the resolution of any investigation of a serious incident that occurred while the child was in care at your operation, whichever is longer.

§748.435.What procedures must I have for protecting records?

You must have procedures for protecting electronic and paper records from loss and unauthorized access.

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 March 1, 2006.

TRD-200601198

For further information, please call: (512) 438-3437

Subchapter E. PERSONNEL

40 TAC §§748.501, 748.503, 748.505, 748.507, 748.509, 748.511

§748.501.What must my written professional staffing plan include?

Your written professional staffing plan must:

(1) Demonstrate that the number, qualifications, and responsibilities of professional positions, including the child-care administrator, are appropriate for the size and scope of your services and that workloads are reasonable enough to meet the needs of the children in care;

(2) Describe in detail the qualifications, duties, responsibilities, and authority of professional positions. For each position, the plan must show whether employment is on a full-time, part-time, or continuing consultative basis. For part-time and consulting positions, the plan must specify the number of hours and/or frequency of services;

(3) Document your ability to have enough caregivers, including caregivers throughout the night, to supervise children 24 hours a day;

(4) Document your staffing patterns, including your child/caregiver ratios, hours of coverage, and plans for providing backup caregivers in emergencies; and

(5) Describe how employees are assigned responsibilities for providing services.

§748.503.Does education received outside of the United States count toward educational qualifications?

Yes, however you must provide supporting information indicating that the education is equivalent to the minimum educational qualifications for the position for which the person is applying. Documents written in a foreign language must be translated into English.

§748.505.What minimum qualifications must all employees meet?

(a) An employee's behavior or health status must not present a danger to children in care.

(b) Each employee who is regularly or frequently present while children are in care must:

(1) Meet the requirements in Subchapter F of Chapter 745 of this title (relating to Background Checks);

(2) Have a current record of a tuberculosis examination showing the employee is free of contagious TB, if required by the regional Department of State Health Services or local health authority. If the result is positive, the operation must follow through with all recommendations for further testing. All public health precautions and treatment must be documented and carried out in accordance with public health authority recommendations;

(3) Be physically, mentally, and emotionally capable of performing assigned tasks and have the skills necessary to perform assigned tasks; and

(4) Complete a notarized Licensing Affidavit for Applicants for Employment form, as specified in Human Resources Code, §42.059.

§748.507.What general responsibilities do all employees have?

Regardless of whether the employee is counted in the child/caregiver ratio, each employee must:

(1) Demonstrate competency, prudent judgment, and self-control in the presence of children and when performing assigned responsibilities;

(2) Report suspected abuse, neglect, and exploitation to the Child Abuse Hotline and to the designated staff or administrator; and

(3) Know and comply with applicable rules of this chapter, Chapter 42 of the Human Resources Code, Chapter 745 of this title (relating to Licensing), and any other applicable laws.

§748.509.What are the requirements for tuberculosis testing?

Before having contact with children in care, all caregivers, employees, volunteers, contract service providers, and student interns must be tested for tuberculosis according to the recommendations of a local health authority, or if you do not have a local health authority, the regional Department of State Health Services.

§748.511.How do I document the recommendations of a local health authority or the regional Department of State Health Services for tuberculosis testing?

You must have on file a letter from your local health authority or the regional Department of State Health Services stating its recommendations for tuberculosis testing for the area(s) where your operation is located.

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 March 1, 2006.

TRD-200601199

For further information, please call: (512) 438-3437

2. CHILD-CARE ADMINISTRATOR

40 TAC §§748.531, 748.533, 748.535, 748.537, 748.539

§748.531.What qualifications must a child-care administrator meet?

A child-care administrator must:

(1) Meet the qualifications established by the operation's governing body;

(2) Be a Licensed Child-Care Administrator according to Chapter 43 of the Human Resources Code and Subchapter N of Chapter 745 of this title (relating to Administrator's Licensing); and

(3) Be a full-time employee of the operation.

§748.533.Can a child-care administrator be an administrator for more than one general residential operation, residential treatment center, or child-placing agency?

(a) Except as provided in subsection (b) of this section, a child-care administrator can be an administrator for two operations, including a child-placing agency, if:

(1) The operation(s) and/or the child-placing agency are in good standing with Licensing;

(2) The size and scope of the operation(s) and/or child-placing agency are manageable by one person, which is clarified in the written professional staffing plan;

(3) The child-placing agency, if applicable, is not managing more than 20 foster homes; and

(4) The operations, if applicable, are contiguous.

(b) An operation that provides emergency care services must designate an employee in the staffing plan that is solely responsible for administering those services. This employee must have the experience and background to be able to perform the child-care administrator responsibilities. See §748.535 of this title (relating to What responsibilities must the child-care administrator designated to be responsible for the on-site administration of the operation have?).

(c) An operation that provides assessment services may designate their child-care administrator or another employee as the person responsible for administering those services. The person designated must:

(1) Be a Licensed Child-Care Administrator;

(2) Have a master's degree in social work or a human services field from an accredited college or university and at least two years of supervised child-placing experience. The degree must include:

(A) A minimum of nine credit hours in graduate level courses that focus on family and individual function and interaction; and

(B) At least 350 hours of formal, supervised field placement or practicum with a social service or human services agency; or

(3) Have a master's degree in a human services field and at least three years of supervised child-placing experience.

§748.535.What responsibilities must the child-care administrator designated to be responsible for the on-site administration of the operation have?

The child-care administrator must:

(1) Have daily supervision and on-site administrative responsibility for the overall operation.

(2) Be responsible for or assign responsibility for:

(A) Overseeing staffing patterns to ensure the supervision and the provision of child-care services that meet the needs of children in care;

(B) Ensuring the provision of planned but flexible program activities designed to meet the developmental needs of children;

(D) Assigning tasks to caregivers that do not conflict or interfere with caregiver responsibilities;

(E) Administering and managing the operation according to the policies adopted by the governing body;

(F) Ensuring that the operation complies with applicable rules of this chapter, Chapter 42 of the Human Resources Code, Chapter 745 of this title (relating to Licensing), and other applicable laws;

(G) Ensuring a child in care does not act as a caregiver; and

(H) Ensuring persons whose behavior or health status presents a danger to children are not allowed at the operation.

§748.537.What must the system for ensuring that an employee is available to handle emergencies include?

(a) A person designated to handle emergencies must be on call and accessible to your caregivers.

(b) You must inform all caregivers and us of the system and how to contact the person on call in case of an emergency.

§748.539.Who must have overall administrative responsibility when the child-care administrator is absent on a frequent and/or extended basis?

(a) The child-care administrator must designate an employee to be responsible for the overall administration of the operation while the administrator is absent on a frequent and/or extended basis.

(b) The designee must be a Licensed Child-Care Administrator as required in Chapter 43 of the Human Resources Code.

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 March 1, 2006.

TRD-200601200

For further information, please call: (512) 438-3437

3. PROFESSIONAL LEVEL SERVICE PROVIDERS

40 TAC §§748.561, 748.563, 748.565, 748.567, 748.569, 748.571, 748.573, 748.575

§748.561.What professional level service activities must a professional level service provider perform at my operation?

A professional level service provider must perform the following functions:

(1) Completing an admission assessment or any other evaluation of a child for placement;

(2) Developing, reviewing, and updating of service plans for a child in care;

(3) Completing a discharge or transfer summary for a child;

(4) Approving any restrictions that will be imposed on a child for more than seven days that have not been reviewed and approved by the treatment director or service planning team, and any monthly re-evaluations of restrictions that continue for more than 30 days;

(5) Approving any restrictions to communication and visitation with the child's family that are imposed on a child, but have not been reviewed and approved by the treatment director or service planning team, including monthly re-evaluations of restrictions that continue for more than 30 days; and

(6) Approving any restrictions to a particular room or building for more than 24 hours that are imposed on a child, but have not been reviewed and approved by the treatment director or service planning team.

§748.563.What professional qualifications must a professional level service provider have in order to perform professional level service activities?

(a) If you provide treatment services to 25 or more children with emotional disorders, or if more than 30% of the children in your care receive treatment services for emotional disorders, then a professional level service provider must have the following qualifications:

Figure: 40 TAC §748.563(a)

(b) To perform services for any other children, a professional level service provider must have the following qualifications:

Figure: 40 TAC §748.563(b)

(c) A person who is a professional level service provider at your operation on or before the effective date of these rules may have the following qualifications in lieu of those set forth in subsection (b) of this section.

Figure: 40 TAC §748.563(c)

§748.565.How must a professional level service provider document approval of professional level service functions?

A professional level service provider must sign and date the following documents to indicate review and approval or disapproval:

(1) Admission assessments or any other evaluation of a child for placement;

(2) Initial service plans, updates, and reviews;

(3) Discharge or transfer summaries;

(4) Any restrictions that will be imposed on a child for more than seven days that have not been reviewed and approved by the treatment director or service planning team;

(5) Any restrictions to communication and visitation with the child's family that are imposed on a child, but have not been reviewed and approved by the treatment director or service planning team; and

(6) Any restrictions to a particular room or building for more than 24 hours that are imposed on a child, but have not been reviewed and approved by the treatment director or service planning team.

§748.567.What are the requirements for the caseloads of a professional level service provider?

There is not a maximum caseload for a professional level service provider; however, you must ensure manageable caseloads that allow professional level service providers to meet the needs of children on their caseload.

§748.569.Must I have health care professionals on staff or on contract if I provide services to children with primary medical needs?

If you provide services to support children with primary medical needs:

(1) You must have a licensed registered nurse on staff or on contract to respond to emergencies, questions, or other medical issues. A registered nurse must work during the day at the operation. A registered nurse in this position may be relieved on days off by a licensed registered nurse or a licensed vocational nurse.

(2) You must arrange for:

(A) 24-hour availability of nursing, medical, and psychiatric services;

(B) Licensed nursing services, including 24-hour nursing direction or supervision;

(D) Routine adjustments or replacement of medical equipment; and

(E) As needed, caregiver supervision of children during the provision of medical and dental services.

(3) You must ensure that a physician on staff or on contract recommends and approves services at each initial diagnosis and at each review.

§748.571.What are the responsibilities of a registered nurse at an operation that provides services to a child with primary medical needs?

The responsibilities of a registered nurse include:

(1) Performing a medical assessment of the child to include the child's medical needs and selection of placement;

(2) Leading the service planning process for the child's care and serving as a resource for caregivers;

(3) Directing the medical training of caregivers, such as gastric tube care;

(4) Reviewing medical records;

(5) Contacting other professionals, as needed, for the child's care;

(6) On-site visits for medical assessments and child record reviews, including compliance with written physician orders;

(7) Monitoring the implementation of the child's service plan; and

(8) Documenting outcomes for interventions used in the child's care.

§748.573.What are the requirements for other nursing personnel for an operation who provides services to a child with primary medical needs?

Your nursing personnel must:

(1) Be awake and available at the operation on a 24-hour basis;

(2) Be under the direction of a registered nurse who is licensed to practice in Texas; and

(3) Include a licensed vocational nurse or registered nurse.

§748.575.In what circumstances may a physician or registered nurse delegate nursing tasks to unlicensed nursing personnel?

The physician or registered nurse may delegate nursing tasks to an unlicensed person only if:

(1) The physician or registered nurse delegating the task is directly responsible for the nursing care given to the child;

(2) The operation employing or contracting with the caregiver or other unlicensed nursing personnel develops and follows a protocol, with input from a registered nurse, for the instruction and training of unlicensed personnel performing nursing tasks. The protocol must address:

(A) An established mechanism for identifying those individuals to whom nursing tasks may be designated;

(B) The manner in which the instruction addresses the complexity of the delegated task;

(D) The mechanism for re-evaluation of the competency;

(3) The training protocol recognizes that the final decision as to what nursing tasks can be safely delegated in any specific situation is within the specific scope of the physician's or registered nurse's professional judgment; and

(4) A licensed physician or registered nurse must instruct an employee, caregiver, or other unlicensed personnel in performing nursing tasks.

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 March 1, 2006.

TRD-200601201

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

4. TREATMENT DIRECTOR

40 TAC §§748.601, 748.603, 748.605, 748.607

§748.601.Must I have a treatment director?

You must have a treatment director if you provide treatment services to 25 or more children, or to more than 30% of the children in your care. Your treatment director must be a full-time employee of your operation.

§748.603.What are the responsibilities of a treatment director?

(a) The treatment director:

(1) Is responsible for the overall treatment program, including clinical responsibility for the management of your operation's therapeutic interventions; and

(2) Provides direction and overall management of your treatment program.

(b) When assigning responsibilities to your treatment director, you must ensure that the treatment director can oversee the treatment of all children receiving treatment services.

§748.605.What qualifications must a treatment director have?

(a) A treatment director that provides or oversees treatment services for children with mental retardation or children with pervasive developmental disorders must be:

(1) Licensed as a psychiatrist, psychologist, professional counselor, clinical social worker, marriage and family therapist, or registered nurse; or

(2) Certified by the Texas Education Agency as an education diagnostician, have a master's degree in special education or a human services field, and have three years of experience working with children with mental retardation or a pervasive developmental disorder.

(b) A treatment director that provides or oversees treatment services for children with primary medical needs must be a physician or a licensed registered nurse.

(1) Be a psychiatrist or psychologist;

(2) Have a master's degree in a human services field from an accredited college or university and three years of experience providing treatment services for children with an emotional disorder, including one year in a residential setting; or

(3) Be a licensed master social worker, a licensed clinical social worker, a licensed professional counselor, or a licensed marriage and family therapist, and have three years of experience providing treatment services for children with an emotional disorder, including one year in a residential setting.

§748.607.If I provide more than one type of treatment service, can I have one treatment director?

Yes, you can have one treatment director if he meets the required qualifications for the most prevalent treatment services your operation offers.

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 March 1, 2006.

TRD-200601202

For further information, please call: (512) 438-3437

5. CAREGIVERS

40 TAC §§748.681, 748.683, 748.685

§748.681.What minimum qualifications must a caregiver meet?

Each employee must meet the following qualifications before you can count him in the child/caregiver ratio:

(1) Be at least:

(A) 18 years old if all the children in the group the caregiver serves are under 13 years old; or

(B) 21 years old if at least one child in the group the caregiver serves is 13 years old or older;

(2) Have one of the following from a program recognized by the Texas Education Agency (TEA) or a public educational entity outside of Texas:

(A) High school diploma; or

(B) High school equivalency, such as a General Educational Development (GED); and

(3) Be able to read, write, and communicate with co-workers, medical personnel, and other persons necessary to care for the child's needs.

§748.683.What are the general requirements for supervising caregivers?

You must provide oversight of caregivers, including volunteers to:

(1) Protect children's health, safety, and well-being; and

(2) Ensure that assigned duties are performed adequately.

§748.685.What responsibilities does a caregiver have when supervising a child or children?

(a) The caregiver is responsible for:

(1) Child care services for each assigned child;

(2) Being aware of and accountable for each child's on-going activity;

(3) Directing each child's activities or actions;

(4) Providing the level of supervision necessary to ensure each child's safety and well being, including auditory and visual awareness of each child's on-going activity as appropriate; and

(5) Being able to intervene when necessary to ensure each child's safety.

(b) In deciding how closely to supervise a child, the caregiver must take into account:

(1) The child's age;

(2) The child's individual differences and abilities;

(3) The indoor and outdoor layout of the operation;

(4) Surrounding circumstances, hazards, and risks; and

(5) The child's physical, mental, emotional, and social needs.

(1) Know which children they are responsible for;

(2) Not perform tasks that conflict or interfere with caregiver responsibilities and clearly impede the caregiver's ability to supervise and interact with the children;

(3) Be aware of the children's habits, interests, and any special needs;

(4) Maintain a safe and contained environment;

(5) Cultivate developmentally appropriate independence in children through planned but flexible program activities;

(6) Positively reinforce children's efforts and accomplishments;

(7) Ensure continuity of care for children by sharing with incoming caregivers information about each child's activities during the previous shift and any verbal or written information or instructions given by the parent or other professionals; and

(8) Implement and follow the children's service plans.

(d) Caregivers that supervise a child receiving treatment services for an emotional disorder must maintain daily progress notes for the child. Caregivers must sign and date each progress note at the time the progress note is completed.

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 March 1, 2006.

TRD-200601203

For further information, please call: (512) 438-3437

6. CONTRACT STAFF, VOLUNTEERS, AND STUDENT INTERNS

40 TAC §§748.721, 748.723, 748.725, 748.727, 748.729, 748.731

§748.721.What are the requirements for a volunteer?

(a) You must maintain a personnel record for each volunteer, which includes a student intern.

(b) The personnel record must include a statement signed and dated by the volunteer indicating he must immediately report any suspected incident of abuse, neglect, or exploitation to the Child Abuse Hotline and the operation's administrator or administrator's designee.

(c) If the volunteer provides short-term services through an agency or an organization, you must determine that the organization or agency's policies meet the intent of these rules before the volunteer can have contact with children.

§748.723.What are the additional requirements for a volunteer to be able to perform employee functions?

(a) A volunteer who performs any function must meet the same requirements as an employee who performs that function if regulated under this chapter.

(b) You must maintain records documenting how these requirements are met.

§748.725.Is a family or organization that invites a child in care for an overnight or weekend a "volunteer"?

(a) When a family or organization takes a child who is in care for an overnight or weekend visit, this is not a volunteer activity.

(b) In order for a family or organization to take a child out of care for more than 48 hours, you must get written approval from the parent.

§748.727.Is a "sponsoring family" program a volunteer program?

A sponsoring family program is not considered a volunteer program; however, in order for a sponsoring family to keep the child who is in your care for more than 48 hours, you must get written approval from the parent. You may obtain approval at the time of the child's admission.

§748.729.What must I do when a child in care visits a volunteer or sponsoring family for a day or overnight?

(a) If a child has a day or overnight visit with a volunteer or sponsoring family, you must ensure that:

(1) The child is properly supervised, properly fed and hydrated, and provided with safe housing accommodations, if applicable.

(2) The child's health, safety, and well-being are protected.

(3) Prior to the visit, the person responsible for the child during the visit has information for emergency medical care, such as permission for emergency medical care, telephone numbers for the child's licensed physician(s), and medication and treatment information.

(4) Unless the volunteer is court-appointed, the volunteer must not remove the child from the operation for more than 48 hours without prior written approval of the child's parent.

(b) When a child who is not in your care invites a child who is in your care for an overnight or weekend visit, this is not a volunteer activity. You must get prior written approval from the parent to continue a visit for more than 48 hours.

§748.731.Can I use "volunteers" referred for community service through the courts as an alternative to incarceration or as a condition of probation?

No, you may not use these persons in any operation activities. This prohibition applies even if the activities do not involve contact with children in care.

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 March 1, 2006.

TRD-200601204

For further information, please call: (512) 438-3437

Subchapter F. TRAINING AND PROFESSIONAL DEVELOPMENT

40 TAC §748.801

§748.801.What do certain words mean in this subchapter?

These words have the following meanings in this subchapter:

(1) CEU--Continuing education unit.

(2) CPR--Cardiopulmonary resuscitation.

(3) Hours--Clock hours.

(4) Instructor led training--Training that is characterized by the communication and interaction that takes place between the student and the instructor and must include an opportunity for the student to timely interact with the instructor to obtain clarifications and information beyond the scope of the training materials, including answering questions, providing feedback on skills practice, providing guidance or information on additional resources, and proactively interacting with students. Examples of this type of training include classroom training, on-line distance learning, video-conferencing, or other group learning experiences.

(5) Self instructional training--Training that is designed to be used by one individual working alone at his own pace to complete lessons or modules. Examples of this type of training include computer based training, written materials, or video training.

(6) Staff member working with children--Child care administrators, professional level service providers, treatment directors, case managers, and caregivers.

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 March 1, 2006.

TRD-200601205

For further information, please call: (512) 438-3437

2. ORIENTATION

40 TAC §748.831, §748.833

§748.831.What is the orientation requirement for employees?

(a) Prior to beginning job duties or having contact with children in care, each employee must have orientation that includes:

(1) An overview of the relevant and applicable rules of this chapter;

(2) Your philosophy, organizational structure, policies, and a description of the services and programs you offer; and

(3) The needs and characteristics of children that you serve.

(b) You must document the completion of the orientation in the appropriate personnel record.

§748.833.Must I provide orientation to an employee who has previously worked as an employee?

(a) You do not have to provide orientation to an employee who has worked as an employee at your operation during the past 12 months. However, if you assign this employee to be the only caregiver for a group of children, then before you may assign the employee you must:

(1) Discuss with the employee any changes in your services or programs that have occurred since the previous employment; and

(2) Ensure the employee has received training during the past 12 months from your operation on preventing, identifying, treating, and reporting child abuse, neglect, and exploitation.

(b) You must document this discussion and previous training in the caregiver's personnel record.

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 March 1, 2006.

TRD-200601206

For further information, please call: (512) 438-3437

3. PRE-SERVICE EXPERIENCE AND TRAINING

40 TAC §§748.861, 748.863, 748.865, 748.867, 748.869

§748.861.What are the pre-service experience requirements for a caregiver?

(a) If less than 25 children and less than 30% of your total population of children in care are receiving treatment services, then there are no pre-service experience requirements.

(b) If 25 or more children or 30% or more of your total population of children in care are receiving treatment services, then a caregiver must have 40 hours of supervised child-care experience in an operation that provides the same treatment services. If the 40-hour experience requirement is not met, before you may assign the person as the only caregiver responsible for a group of children, the caregiver must have at least 40 total hours of supervised child-care experience from your operation and/or another operation that provides the same treatment services. Until the caregiver completes the supervised experience, an experienced caregiver must be physically available to supervise the caregiver at all times. The supervised child-care experience must be documented in the appropriate personnel record.

§748.863.What types and how many hours of pre-service training are required for a staff member working with children?

(a) A caregiver must have the following training before being assigned as the only caregiver responsible for a group of children:

(1) Eight hours of general pre-service training related to the needs of the population served by your operation and the different roles of caregivers; and

(2) 16 additional hours of pre-service training regarding emergency behavior intervention.

(b) Other staff members working with children must have 16 hours of pre-service training regarding emergency behavior intervention before beginning job duties.

§748.865.Can time spent in orientation training count towards pre-service training?

No, the orientation training must be separate from the pre-service training requirement.

§748.867.Must I provide pre-service training to a staff member working with children who has previously worked in an operation?

(a) A caregiver is exempt from the eight hours of general pre-service training if he has been employed as a caregiver in a general residential operation or residential treatment center during the past 12 months.

(b) A staff member working with children does not have to complete the 16 hours of pre-service training regarding emergency behavior intervention if he:

(1) Has been employed in a general residential operation or residential treatment center during the past 12 months;

(2) Has received training during the past 12 months in the types of emergency behavior intervention used at your operation; and

(3) Can demonstrate knowledge and competency of the training material both in writing and in physical techniques.

§748.869.What are the instructor requirements for providing pre-service training?

(a) A qualified instructor must deliver the pre-service training.

(b) The training must be instructor led.

(c) A licensed physician, a registered nurse, or a pharmacist must provide training in administering psychotropic medication. The trainer must assess each participant after the training to ensure that the participant has learned the course content.

(d) To provide training in emergency behavior intervention the:

(1) Instructor must be certified in a recognized method of emergency behavior intervention, or be able to document knowledge of:

(A) The emergency behavior intervention;

(B) The course material;

(D) Training evaluation or assessment methods and techniques; and

(2) Training must be competency-based and require participants to demonstrate skill and competency at the end of the training.

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 March 1, 2006.

TRD-200601207

For further information, please call: (512) 438-3437

4. GENERAL PRE-SERVICE TRAINING

40 TAC §§748.881, 748.883, 748.885

§748.881.What curriculum components must be included in the general pre-service training?

The general pre-service training curriculum must include the following components:

(1) Topics appropriate to the needs of children for whom the caregiver will be providing care, such as developmental stages of children, fostering children's self-esteem, constructive guidance and discipline of children, and age-appropriate activities for the children;

(2) Measures to prevent, identify, treat, and report suspected occurrences of child abuse (including sexual abuse), neglect, and exploitation;

(3) Strategies and techniques for monitoring and working with these children;

(4) Procedures to follow in emergencies, including fire, tornado, toxic fumes, volatile persons, and severe injury or illness of a child or adult;

(5) Preventing the spread of communicable diseases; and

(6) The location and use of fire extinguishers and first-aid equipment.

§748.883.If your operation cares for children younger than two years old, what additional curriculum components must be included in the general pre-service training?

If your operation cares for children younger than two years old, the general pre-service training curriculum must also include the following components:

(1) Recognizing and preventing shaken baby syndrome;

(2) Preventing sudden infant death syndrome; and

(3) Understanding early childhood brain development.

§748.885.For caregivers that administer psychotropic medication, what additional curriculum components must be included in the general pre-service training?

Before a caregiver is permitted to administer psychotropic medication, the caregiver must be trained on administering the medication. The training curriculum must include the following components:

(1) Identification of psychotropic medications;

(2) Basic pharmacology (the actions and side effects of, and possible adverse reactions to, various psychotropic medications);

(3) Techniques and methods of administering medications;

(4) Who is legally authorized to provide consent for the psychotropic medication; and

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 March 1, 2006.

TRD-200601208

For further information, please call: (512) 438-3437

5. PRE-SERVICE TRAINING REGARDING EMERGENCY BEHAVIOR INTERVENTION

40 TAC §748.901, §748.903

§748.901.If I do not allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?

If you do not allow the use of emergency behavior intervention, your pre-service training curriculum regarding emergency behavior intervention must focus on early identification of potential problem behaviors and strategies and techniques of less restrictive interventions, including the following components:

(1) Developing and maintaining an environment that supports positive and constructive behaviors;

(2) The causes of behaviors potentially harmful to children, including aspects of the environment;

(3) Early signs of behaviors that may become dangerous to the child or others;

(4) Strategies and techniques the child can use to avoid harmful behaviors;

(5) Teaching children to use the strategies and techniques of your operation's de-escalation protocols to avoid harmful behavior, and supporting the children's efforts to progress into a state of self-control;

(6) Less restrictive strategies caregivers can use to intervene in potentially harmful behaviors;

(7) Less restrictive strategies caregivers can use to work with oppositional children; and

(8) The risks associated with the use of prone or supine restraints, including positional, compression, or restraint asphyxia.

§748.903.If I allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?

(a) If you allow the use of emergency behavior intervention, at least 12 of the 16 hours of the pre-service training curriculum regarding emergency behavior intervention must focus on early identification of potential problem behaviors and strategies and techniques of less restrictive interventions, including the components listed in §748.901 of this title (relating to If I do not allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?).

(b) The training does not have to address the use of any emergency behavior intervention that your policies do not allow.

(c) The other four hours of the pre-service training curriculum regarding emergency behavior intervention must include the following components:

(1) Different roles and responsibilities of caregivers qualified in emergency behavior intervention versus employees or volunteers who are not qualified in emergency behavior intervention;

(2) Escape and evasion techniques to prevent harm to the child and caregiver without requiring the use of an emergency behavior intervention;

(3) Safe implementation of the restraints and/or seclusion techniques and procedures that are appropriate for the age and weight of children served and permitted by the rules in this chapter and your policies and procedures;

(4) The physiological impact of emergency behavior intervention;

(5) The psychological impact of emergency behavior intervention, such as flashbacks from prior abuse;

(6) How to adequately monitor the child during the administration of an emergency behavior intervention to prevent injury or death;

(7) Monitoring physical signs of distress and obtaining medical assistance;

(8) Health risks for children associated with the use of specific techniques and procedures;

(9) Drawings, photographs, or videos of each personal or mechanical restraint permitted by your policy. For mechanical restraints, this must include the manufacturer's complete specifications for each device permitted, an explanation of modifications to the manufacturer's specifications, and a copy of the approval of the modification from a licensed psychiatrist; and

(10) Strategies for re-integration of children into the environment after the use of emergency behavior intervention, including the debriefing of caregivers and 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 March 1, 2006.

TRD-200601209

For further information, please call: (512) 438-3437

6. ANNUAL TRAINING

40 TAC §§748.931, 748.933, 748.935, 748.937, 748.939, 748.941, 748.943, 748.945, 748.947, 748.949

§748.931.What are the annual training requirements for a caregiver?

(a) If less than 25 children and less than 30% of your total population of children in care are receiving treatment services, then the caregiver must have 34 hours of annual training.

(b) If 25 or more children or 30% or more of your total population of children in care are receiving treatment services, then the caregiver must have 54 hours of annual training.

(c) Of the relevant 34 or 54 hours of the annual training requirements, every three months a caregiver must complete at least two clock hours of training specifically related to the emergency behavior intervention techniques that you allow. The caregiver must have this training within 90 days from the date that he last received such training.

§748.933.What are the annual training requirements for staff working with children who are not caregivers?

(a) Staff working with children who are not caregivers and who hold a relevant professional license must receive the annual training necessary to maintain that license. As long as the person receives at least 15 hours of annual training, the person is not required to have any additional hours of annual training.

(b) Staff working with children who are not caregivers and who do not hold a relevant professional license must earn at least 30 hours of annual training. At least 15 of these hours must pertain to the role and responsibility of the person's position.

§748.935.When must a caregiver complete the annual training?

(a) Each caregiver must complete the annual training:

(1) Within 12 months from the date of his employment; and

(2) During each subsequent 12-month period.

(b) For a staff member, you have the option of prorating the person's annual training requirements from the date of employment to the end of the calendar year and then beginning a new 12-month period on January 1st.

(c) If a caregiver earns more than the minimum number of training hours required during a particular year, the caregiver can carry over to the next year a maximum of 10 training hours.

§748.937.What types of hours or instruction can be used to complete the annual training requirements?

(a) Annual training may include hours or CEUs earned through:

(1) Workshops or courses offered by local school districts, colleges or universities, or Licensing;

(2) Conferences or seminars;

(3) Self-instructional training, excluding training on emergency behavior intervention, first-aid, and CPR;

(4) Planned learning opportunities provided by child-care associations or Licensing; or

(5) Planned learning opportunities provided by a professional contract service provider, child-care administrator, professional level service provider, treatment director, or caregiver who meets minimum qualifications in the rules of this chapter.

(b) For annual training hours, you may count:

(1) The hours of annual training that a person received at another general residential operation or residential treatment center, if the person:

(A) Received the training within the time period you are using to calculate the person's annual training; and

(B) Provides documentation of the training;

(2) Annual emergency behavior intervention training;

(3) First-aid and CPR training;

(4) CEUs while maintaining a professional license;

(5) The hours attending college or a professional credentialing or registry program, if the:

(A) Training concerns a topic that is appropriate to the needs of the children that the operation serves, or is directly related to job duties; and

(B) Documentation requirements of §748.949 of this title (relating to What documentation must I maintain for annual training?) are met;

(6) The hours of pre-service training that the person earns in addition to the required pre-service hours. For example, if you complete 24 hours of pre-service emergency behavior intervention training, you may count eight of these hours toward annual training requirements;

(7) Half of the hours spent developing initial training curriculum that is relevant to the population of children served. No additional credit hours for training curriculum development are permitted for repeated training sessions; and

(8) One-fourth of the hours spent updating and making revisions to training curriculum that is relevant to the population of children served.

(1) Orientation training;

(2) Pre-service training;

(3) The hours involved in case staffings and conferences with the supervisor; or

(4) The hours presenting training to others.

(d) No more than one-third of the required annual training hours may come from self-instructional training.

§748.939.Does Licensing approve training resources or trainers for annual training hours?

No. We do not approve or endorse training resources or trainers for training hours. You must, however, ensure the employees receive reliable training relevant to the population of children served, which includes:

(1) Specifically stated learning objectives;

(2) A curriculum, which includes experiential or applied activities;

(3) An evaluation/assessment tool to determine whether the person has obtained the information necessary to meet the stated objectives; and

(4) A certificate, letter, or a signed and dated statement of successful completion from the training source.

§748.941.What are the instructor requirements for providing annual training?

The annual training instructors must meet the same requirements in §748.869 of this title (relating to What are the instructor requirements for providing pre-service training?).

§748.943.What areas or topics are appropriate for annual training?

Annual training must be in areas appropriate to the needs of children for whom the operation or employee will be providing care, which include:

(1) Developmental stages of children;

(2) Constructive guidance and discipline of children;

(3) Fostering children's self-esteem;

(4) Positive interaction with children;

(5) Strategies and techniques for working with the population of children served;

(6) Supervision and safety practices in the care of children; and

(7) Preventing the spread of communicable diseases.

§748.945.For caregivers that administer psychotropic medication, what annual training is required?

If you permit a caregiver to administer psychotropic medication, his annual training must meet the requirements in §748.885 of this title (relating to For caregivers that administer psychotropic medication, what additional curriculum components must be included in the general pre-service training?).

§748.947.What must annual training regarding emergency behavior intervention include?

(a) The annual training regarding emergency behavior intervention must reinforce basic principles covered in pre-service training, see §748.901 of this title (relating to If I do not allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?) and §748.903 of this title (relating to If I allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?), and develop and refine the employee's skills.

(b) You may determine the content of the training based on your evaluation of your emergency behavior interventions.

(c) The training may repeat pre-service training components, including training in the proper use and implementation of emergency behavior intervention.

§748.949.What documentation must I maintain for annual training?

(a) You must keep documentation verifying completion of annual training in the appropriate personnel record. The documentation may be a certificate, letter, or a signed and dated statement of successful completion from the training source.

(b) The documentation must include the following information:

(1) The participant's name;

(2) Date of the training;

(3) Title or subject of the training;

(4) The trainer's name and qualifications, or the source of the training for self-instructional training; and

(5) Length of the training in hours.

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 March 1, 2006.

TRD-200601210

For further information, please call: (512) 438-3437

7. FIRST-AID AND CPR CERTIFICATION

40 TAC §§748.981, 748.983, 748.985, 748.987, 748.989

§748.981.Who must have first-aid and CPR certification?

(a) Each caregiver must:

(1) Have a current certification in first-aid, and CPR with training in rescue breathing and choking appropriate for children that you serve; and

(2) Be able to immediately respond to emergencies.

(b) At all times, at least one caregiver counted in child/caregiver ratio must:

(1) Have current certification in CPR; and

(2) Be able to immediately respond to emergencies.

(c) Any new caregiver not currently certified in first-aid and/or CPR must be trained and certified within 90 days of employment.

§748.983.When must a caregiver renew first-aid and CPR certification?

(a) Each caregiver must complete any new first-aid training as required to maintain a current certification.

(b) The caregiver in the child-care ratio, who must have a current certification in CPR, must also complete any new CPR training as required to maintain a current certification.

§748.985.Who can provide first-aid and CPR certification?

(a) The following may provide first-aid and CPR certification:

(1) The American Red Cross, American Heart Association, or a training program that has been approved by the local Emergency Medical Services Authority, or is offered through a local hospital; or

(2) A person with a current certification to provide the training.

(b) A caregiver may not obtain first-aid or CPR certification through self-instructional training.

§748.987.What must the first-aid and CPR training include?

(a) First-aid training and re-certification must consist of a curriculum that includes both written and hands-on skill-based instruction, practice (for CPR, the practice is through the use of a CPR mannequin), and testing.

(b) CPR training and recertification must include CPR for children and adults. For operations that care for infants and/or admit children with infants, the training must also include CPR for infants.

§748.989.What documentation must I maintain for first-aid and CPR certification?

(a) You must document the completion of each training requirement in the appropriate personnel records. The documentation may be a certificate, letter, or a signed and dated statement of successful completion from the training source. A photocopy of the original first-aid and/or CPR certificate or letter may be maintained in the personnel record, as long as the employee can provide an original document upon request by Licensing.

(b) The documentation must include the following information:

(1) The participant's name;

(2) Date of the training;

(3) Title or subject of the training;

(4) The trainer's name and qualifications, or the source of the training for self-instructional training;

(5) The expiration date of the certification as determined by the organization providing the certification; and

(6) Length of the training in hours.

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 March 1, 2006.

TRD-200601211

For further information, please call: (512) 438-3437

Subchapter G. CHILD/CAREGIVER RATIOS

40 TAC §§748.1001, 748.1003, 748.1005, 748.1007, 748.1009, 748.1011, 748.1013, 748.1015, 748.1017, 748.1019, 748.1021, 748.1023

§748.1001.What is the child/caregiver ratio?

The child/caregiver ratio is the maximum number of children for whom one caregiver can be responsible.

§748.1003.For purposes of the child/caregiver ratio, how many children can a single caregiver care for during the children's waking hours?

The number of children that a single caregiver can care for during waking hours depends on how many children at your operation are receiving treatment services and the ages of the children in the group, as noted in the following chart:

Figure: 40 TAC §748.1003

§748.1005.Can child/caregiver ratios be averaged on an operation-wide basis?

No. Child/caregiver ratios apply only to the group of children that is actually being cared for by the caregiver. There must be enough caregivers to meet the child/caregiver ratio for any group of children who are located in the same physical setting. Ratios cannot be averaged with other caregivers in your operation that are caring for other children or working in an administrative capacity.

§748.1007.For purposes of the child/caregiver ratio, how many children can a single caregiver care for during the children's sleeping hours?

The number of children that a single caregiver can care for during sleeping hours depends on whether the caregiver stays awake or sleeps during sleeping hours, how many children at your operation are receiving treatment services, and the ages of the children in the group, as noted in the following chart:

Figure: 40 TAC §748.1007

§748.1009.How many caregivers must I employ?

(a) You must employ an adequate number of qualified caregivers to meet the needs of children, taking into account each child's age, medical, physical, and mental condition and other factors that affect the amount of supervision the child requires, including enough caregivers to meet:

(1) Child/caregiver ratios; and

(2) All of their responsibilities required in §748.685 of this title (relating to What responsibilities does a caregiver have when supervising a child or children?).

(b) If you provide treatment services, your professional staffing plan must identify your:

(1) Ability to have enough caregivers, including caregivers who are awake throughout the night to supervise children 24 hours a day, including frequent one-to-one monitoring whenever necessary to meet the needs of a particular child; and

(2) Staffing patterns, including your child/caregiver ratios, hours of coverage, and plans for providing backup caregivers in emergencies.

§748.1011.What employees can be counted as a caregiver in the child/caregiver ratio?

The child/caregiver ratio only includes qualified caregivers who are working directly with a child or group of children.

§748.1013.How does a caregiver care for a child needing constant supervision during sleeping hours?

(a) A caregiver must always be awake when caring for a child needing constant supervision, such as a medically fragile child or a child that is an immediate danger to himself or others.

(b) To facilitate continuous care for a child, the caregiver may move a child to a location where the caregiver can directly and continuously supervise a child until there is no longer an immediate danger to himself or others. The caregiver must provide comfortable sleeping arrangements for the child.

§748.1015.How does the child/caregiver ratio apply if I provide care for both children in care and children of caregivers, or for both children and adult residents?

(a) The child/caregiver ratio applies to the children of caregivers who are present with children in care.

(b) For both children and adult residents, you must maintain the ratio as outlined in §748.1935 of this title (relating to How does the child/caregiver ratio apply if I provide care to both children and adults?).

§748.1017.How does the child/caregiver ratio apply to activities that occur away from my operation?

(a) The child/caregiver ratio applies to activities sponsored or conducted by the operation, including field trips, higher risk recreational activities, and appointments that occur away from the operation.

(b) You must have additional caregivers to meet the special needs of children when there are activities away from your operation, for example a non-ambulatory child.

§748.1019.What are the supervision requirements for a transitional living program?

A caregiver counted in the child/caregiver ratio who is responsible for supervising children of the same gender in a transitional living program must:

(1) Reside in or within close physical proximity of the children's living quarters;

(2) Be onsite at the operation during times when children are awake, but the caregiver is not physically present with the children;

(3) Be physically available to the children at all times;

(4) Be capable of responding quickly in an emergency; and

(5) Be capable of monitoring the comings and goings of the children in the program.

§748.1021.When does a child who is in a transitional living program not need supervision?

(a) You must evaluate each child in a transitional living program to determine whether the child needs supervision. The evaluation must:

(1) Include a written plan defining the periods of time the child may be left unsupervised;

(2) Include a written plan for addressing behavioral problems that a child may have while in the transitional living program; and

(3) Identify how the child may contact the caregivers when caregivers are not physically present with the child, such as being available to the child by telephone or other means of contact.

(b) The child's service planning team must approve the evaluation.

(c) You must document the evaluation of the child and the approval in the child's record. You must review and update the evaluation during the child's service planning meetings.

§748.1023.Is my operation permitted to have a transitional living program with living quarters, a cottage, or a house with both male and female residents?

You must not have living quarters, a cottage, or a house with both male and female residents, unless caregivers are always present when children are at the living quarters, cottage, or house of the transitional living program.

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 March 1, 2006.

TRD-200601212

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

Subchapter H. CHILD RIGHTS

40 TAC §§748.1101, 748.1103, 748.1105, 748.1107, 748.1109, 748.1111, 748.1113, 748.1115, 748.1117, 748.1119

§748.1101.What rights does a child in care have?

(a) A child's rights are cumulative of any other rights granted by law or other Licensing rules.

(b) You must adhere to the child's rights, including:

(1) The right to appropriate care and treatment in the least restrictive setting available that can meet the child's needs;

(2) The right to be free from discrimination on the basis of gender, race, religion, national origin, or sexual orientation;

(3) The right to have physical, emotional, developmental, educational, social, and religious needs met;

(4) The right to be free of abuse, neglect, and exploitation as defined in Texas Family Code, §261.401;

(5) The right to be free from any harsh, cruel, unusual, unnecessary, demeaning, or humiliating punishment, which includes:

(A) Shaking the child;

(B) Subjecting the child to corporal punishment;

(D) Any unproductive work that serves no purpose except to demean the child, such as moving rocks from one pile to another or digging a hole and then filling it in;

(E) Denying the child food, sleep, toileting facilities, mail, or family visits as punishment;

(F) Subjecting the child to remarks that belittle or ridicule the child or the child's family; and

(G) Threatening the child with the loss of placement or shelter as punishment;

(6) The right to discipline that is appropriate to the child's age and developmental level;

(7) The right to have restrictions or disciplinary consequences explained when the measures are imposed;

(8) The right to a humane environment, including any treatment environment that provides reasonable protection from harm and appropriate privacy for personal needs;

(9) The right to receive educational services appropriate to the child's age and developmental level;

(10) The right to training in personal care, hygiene, and grooming;

(11) The right to reasonable opportunities to participate in community functions, including recreational and social activities such as Little League teams, Girl Scouts and Boy Scouts, and extracurricular school activities outside of the operation, if appropriate;

(12) The right to have adequate personal clothing, which must be suitable to the child's age and size and comparable to the clothing of other children in the community;

(13) The right to have personal possessions at the child's placement and to acquire additional possessions within reasonable limits;

(14) The right to be provided with adequate protective clothing against natural elements such as rain, snow, wind, cold, sun, and insects;

(15) The right to maintain regular contact with family members unless the child's best interest, appropriate professionals, or court necessitates restrictions;

(16) The right to send and receive uncensored mail, to have telephone conversations, and to receive visitors, unless the child's best interest, appropriate professionals, or court order necessitates restrictions;

(17) The right to hire independent mental health-care professionals, medical professionals, and attorneys at the child's own expense;

(18) The right to be compensated for any work done for the operation as part of the child's service plan or vocational training, with the exception of assigned routine duties that relate to the child's living environment, such as cleaning his room or other assigned chores;

(19) The right to have personal earnings, allowances, possessions, and gifts as the child's personal property;

(20) The right to be able to communicate in a language or any other means that is understandable to the child at admission or within a reasonable time after an emergency admission of a child, if applicable, such as having a plan for an interpreter, having at least one person at the operation at all times who can communicate with the child in the child's own language, or other means to communicate with the child in the child's own language;

(21) The right to confidential care and treatment;

(22) The right to consent to any publicity or fund raising activity for the operation, including the use of his photograph;

(23) The right not to receive unnecessary or excessive medication;

(24) The right to have a comprehensive service plan that addresses the child's needs, including transitional and discharge planning;

(25) The right to participate in the development and review of the child's service plan within the limits of the child's comprehension and ability to manage the information;

(26) The right to receive emotional, mental health, or chemical dependency treatment separate from adults (other than young adults) who are receiving services;

(27) The right to receive appropriate treatment for physical problems that affect the child's treatment or safety; and

(28) The right to report abuse, neglect, exploitation, or violation of personal rights without fear of punishment, interference, coercion, or retaliation.

§748.1103.How must I inform a child and the child's parents of their rights?

(a) Within 24 hours after you accept a child into your operation, you must review the child's rights with the child and a child's parent, unless the parent's consent is not required. You must also provide the child and a child's parent with a written copy of the child's rights.

(b) Child rights must be written in:

(1) Simple, non-technical terms; and

(2) English, unless the person does not understand English. The child's rights must be written in the person's primary language, if possible.

(c) If the person you are informing has a visual or auditory impairment, you must explain the child's rights in a manner that is understandable to the person.

(d) The person you are informing of the child's rights must sign a statement indicating that the person has read and understands these rights. You must put the signed copy in the child's record.

(e) You must provide the child with an additional copy or explanation of the child's rights within 72 hours upon his request.

§748.1105.What provisions must I make for a child's personal care?

You must provide the child with:

(1) Opportunities to select his clothing; and

(2) Appropriate equipment and supplies for personal care, hygiene, and grooming.

§748.1107.What right does a child have regarding contact with his parent(s)?

(a) You must allow contact between a child and his parent(s) whose parental rights have not been terminated according to:

(1) Your policies; and

(2) The provisions of a court order or any visitation agreements.

(b) You must document in the child's service plan:

(1) Plans for contact between the child and a parent; and

(2) Any decision to limit contact with a parent.

(c) Before the service planning team, treatment director, or professional level service provider can temporarily restrict ongoing contacts or communication between the child and a parent, you must:

(1) Explain the reasons for the restrictions to the child and the child's parent; and

(d) Restrictions that continue for more than 30 days must be re-evaluated monthly by a professional level service provider, who also must:

(1) Explain the reasons for the continued restrictions to the child and the child's parents; and

(e) If you limit communications or visits with a parent for practical reasons, such as geographical distance or expense, you must discuss the limits with the child and the child's parents. You must document the limits in the child's record.

§748.1109.What right does a child have regarding contact with siblings?

(a) A child must have a reasonable opportunity for sibling visits and contacts in an effort to preserve sibling relationships.

(b) You must address plans for sibling visits and contacts in the child's service plan.

(c) When contact is restricted or not allowed, you must include justification in the service plan and service plan reviews and updates.

(d) If barriers to visits exist, such as unavoidable geographic distance and expense issues, the operation must make provisions for sibling contact through letters, telephone calls, or some other means.

§748.1111.What right to privacy does a child have in his communications with others?

(a) Except as determined by the child's service planning team, treatment director, professional level service provider, or managing conservator, you may not:

(1) Open or read the child's incoming or outgoing mail, including electronic mail; or

(2) Monitor the child's telephone calls.

(b) You must document in the child's record:

(1) Any reason for restricting the child's mail or telephone calls; and

(2) A list of the mail or telephone calls that you restrict.

(d) Restrictions that continue for more than 30 days must be re-evaluated monthly by a professional level service provider, who also must:

(1) Explain the reasons for the continued restrictions to the child; and

§748.1113.Under what circumstances may I conduct a search?

(a) A child's possessions must be free of unreasonable searches and removal of personal items.

(b) You may search a child, his possessions, or his room only when you have reasonable suspicion:

(1) Of the presence of any contraband;

(2) That the child made suicidal threats or threatened to hurt himself or others; or

(3) That the child was involved in theft.

(c) Only a caregiver of the same gender as the child may conduct a search that involves the removal of clothing, other than outer clothing, such as coats, jackets, hats, gloves, shoes, or socks.

(d) If a search involves the removal of clothing (other than outer clothing), a second caregiver must witness the search.

(e) The caregiver must ensure that other children do not witness a search that involves the removal of clothing, other than outer clothing.

§748.1115.May a caregiver conduct a body cavity search of a child in care?

With the exception of a child's mouth, a caregiver may not conduct a body cavity search of a child in care.

§748.1117.What must I document regarding a search?

You must document the following in the child's record when you conduct a search:

(1) The date of the search;

(2) The name of the child and any other children involved;

(3) Reason for the search;

(4) A description of what you searched;

(5) The clothing removed, if applicable;

(6) The name of the caregivers conducting the search;

(7) The name of the witness, if applicable;

(8) The results of the search; and

(9) The resolution of the issue with the child or children involved.

§748.1119.What techniques am I prohibited from using on a child?

You may not use any of the following techniques on a child:

(1) Chemical restraints. For more information on emergency behavior intervention, see Subchapter N of this chapter (relating to Emergency Behavior Intervention);

(2) Aversive conditioning, which includes, but is not limited to, any technique designed to or likely to cause a child physical pain, the application of startling stimuli, and the release of noxious stimuli or toxic sprays, mists, or substances in proximity to the child's face;

(3) Pressure points;

(4) Rebirthing therapy;

(5) Hug and/or holding therapy; and

(6) Tazor or stun guns.

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 March 1, 2006.

TRD-200601213

For further information, please call: (512) 438-3437

Subchapter I. SERVICE MANAGEMENT

1. ADMISSION

40 TAC §§748.1201, 748.1203, 748.1205, 748.1207, 748.1209, 748.1211, 748.1213, 748.1215, 748.1217, 748.1219, 748.1221, 748.1223, 748.1225, 748.1227

§748.1201.May children receiving different types of service live in the same living quarters?

(a) Except as provided by subsection (b) of this section, children receiving different types of service may reside in the same living quarters as long as:

(1) A professional level service provider completes an assessment of the living quarters for each child that you place in the living quarters; and

(2) In each assessment, the professional level service provider ensures that:

(A) There is no conflict of care with the best interests of any of the children placed in the living quarters;

(B) Placing the child with different service or treatment needs in the living quarters will not adversely impact the other children in the living quarters;

(C) The number of children in the living quarters is appropriate at all times based on the needs of all children in the living quarters;

(D) Caregivers can appropriately supervise all children in the living quarters at all times; and

(E) You can meet the needs of all children in the living quarters.

(b) Children admitted for emergency care services must have separate living quarters, such as a separate wing of an operation, or a separate cottage. Children admitted for emergency care services must not be combined with children in non-emergency care for routine and daily activities.

§748.1203.What children may I admit?

(a) You may only admit children who meet your admission policy guidelines and whose needs you can meet. If you adopt a change in your admission policies that requires a change in the conditions of your permit, you must apply for an amended permit with us. You can only accept:

(1) The maximum number of children specified on your permit;

(2) Children whose age and gender are specified on your permit; and

(3) Children needing the types of services that are specified on your permit.

(b) You may provide emergency care services only during an emergency constituting an immediate danger to the physical health or safety of the child or the child's offspring.An emergency does not include the need for placement solely because a child has exhausted his stay at a previous operation. You must document information regarding the immediate danger in the child's record upon admission.

(c) You may admit a child with an emotional disorder for treatment services or emergency care services whose behavior and/or history indicates an immediate danger to himself or others, as long as:

(1) Your physical setting at your operation permits your caregivers to observe the child directly and continuously; and

(2) Medical care and psychiatric consultation from a health-care professional is available 24 hours a day, which must be documented. The health-care professional does not have to be an employee of the operation.

(d) Each placement must meet the child's physical, medical, recreational, educational, and emotional needs as identified in the child's admission assessment.

§748.1205.What must I document in the child's record at admission?

(a) You must document the following in the child's record at admission:

(1) The child's name, gender, race, religion, date of birth, and birthplace;

(2) Court orders establishing who is the managing conservator for the child, if applicable;

(3) The name, address, and telephone number of the managing conservator, the primary caregivers for the child, and any other individual who has the legal authority to consent to the child's medical care;

(4) The date and time of admission;

(5) Medication the child is taking;

(6) The child's immunization record;

(7) Allergies, such as food, medication, sting, and skin allergies;

(8) Identification of the child's treatment needs, if applicable, and any additional treatment services or programmatic services the child is receiving; and

(9) A copy of the placement agreement, if applicable.

(b) If you admit a child for emergency care services, you must document the information in subsection (a) of this section within 72 hours after you admit the child. If any information is not available within that time frame, you must document in the child's record diligent efforts made to obtain the information.

(c) For emergency admissions, as opposed to a child receiving emergency care services, you must meet the requirements in Division 2 of this subchapter (relating to Emergency Admission).

§748.1207.What is a placement agreement?

A placement agreement is your agreement with a child's parent that defines your roles and responsibilities and authorizes you to obtain or provide services for the child. The placement agreement must include:

(1) Authorization permitting you to care for the child;

(2) A medical consent form signed by a person legally authorized by the Texas Family Code to provide consent; and

(3) The reason for placement and anticipated length of time in care.

§748.1209.What orientation must I provide a child at admission?

(a) You must provide orientation to each newly admitted child who is not an infant or a toddler. You must gear orientation to the intellectual level of the child.

(b) For a child functioning at a school age level, orientation must include information about your policies on the following:

(1) Visitation, including family visitation and overnight visitation;

(2) Mail;

(3) Telephone calls;

(4) Gifts;

(5) Personal possessions, including any limits placed on the possessions the child may or may not have;

(6) Emergency behavior intervention, including your policies and practices on the use of personal restraint;

(7) Discipline;

(8) The religious program and practices;

(9) The educational program;

(10) Trips away from the operation;

(11) Program expectations and rules; and

(12) Grievance procedures.

(c) For a child functioning above toddler age and below school age, orientation must include as many of the items in subsection (b) of this section as possible.

(d) You must document in the child's record when the orientation occurred, any items that the orientation did not include, and the reason that the orientation did not include that item.

§748.1211.What information must I share with the parent at the time of placement?

(a) The parent must be able to determine whether your program and/or practices are appropriate for the child and can meet the child's needs.

(b) At admission, you must review and provide written materials to the parent placing the child that explain:

(1) Information about the policies that you would present a child during orientation;

(2) Your policies regarding the:

(A) Use of volunteers or sponsoring families; and

(B) Type and frequency of notifications made to parents; and

(3) The parent's right to:

(A) Refuse to consent to the child's participation in research programs;

(B) Give written consent before you involve the child in any publicity and/or fund raising activity for the operation; and

§748.1213.What information must I provide caregivers when I admit a child?

(a) You must provide caregivers responsible for the child's care with information about the child's immediate needs by the date you admit the child for care.

(b) You must inform appropriate caregivers of any special needs, such as medical or dietary needs or conditions.

§748.1215.When must I complete the admission assessment?

(a) You must complete the admission assessment when you admit the child for care. For an emergency admission assessment, see §748.1269 of this title (relating to For an emergency admission, when must I complete all of the requirements of an admission assessment?).

(b) If the treatment or service needs of any children in the living quarters changes, the professional level service provider must complete a new assessment of each child in the living quarters.

§748.1217.What information must an admission assessment include?

(a) An admission assessment must provide an initial evaluation of the appropriate placement for a child, ensure that you obtain the information necessary for you to facilitate service planning, and must include the following information:

(1) The child's legal status;

(2) A description of the circumstances that led to the child's referral for substitute care;

(3) The child's social history, including information about past and existing relationships and the quality of the relationships among the child and the child's birth parents, siblings, and extended family members;

(4) A description of the child's home environment and family functioning;

(5) A description of the child's behavior, including appropriate and maladaptive behavior;

(6) The child's skills and special interests;

(7) Any history of physical, sexual, or emotional abuse or neglect;

(8) Medical, health, and dental history, including:

(A) Current health status;

(B) Birth history;

(D) Available results of any medical and dental examinations;

(9) The child's mental health and substance abuse history, including available results of any psychological or psychiatric examination;

(10) The child's developmental history and current level of functioning;

(11) The child's school history, including current educational level, the names of previous schools attended and the dates the schools were attended, grades earned, special achievements, and any school problems;

(12) The child's history of any other placements outside the child's home, including the admission and discharge dates and reasons for placement;

(13) The child's criminal history, if applicable;

(14) Documentation indicating efforts made to obtain any of the identifying information in paragraphs (1)-(13) of this subsection, if any information is not obtainable;

(15) The services you plan to provide to the child;

(16) Immediate and long-range goals of placement;

(17) The parent's expectations for placement, duration of the placement, and family involvement;

(18) The child's understanding of the placement;

(19) Recommendations for any further assessment services and testing;

(21) A determination of whether you can meet the needs of the child based on an evaluation of the child's special strengths and needs in the following areas:

(A) Physical, including medical and dental health;

(B) Family relationships and family functioning, including parenting if applicable;

(D) Educational; and

(E) Emotional/psychological; and

(22) A rationale for the appropriateness of the admission.

(b) You must request in writing materials from the child's current or most recent placement, such as the admission assessment, professional assessments, and the discharge summary. You must consider information from these materials when you complete your admission assessment if they are made available to you.

(c) This rule does not apply to children receiving emergency care services. See §748.4231 of this title (relating to What information must an admission assessment include for a child needing emergency care services?).

§748.1219.What are the additional admission requirements when I admit a child for treatment services?

When you admit a child for treatment services, you must do the following, as applicable:

Figure: 40 TAC §748.1219

§748.1221.What must I do if I cannot obtain the required information for an admission assessment?

(a) You must make diligent efforts to obtain all required information.

(b) If you and the child's managing conservator determine attempting to get information at the time of placement would not be in the child's best interests, you may postpone attempting to acquire the information.

(1) Particular piece of information is unavailable; or

(2) Delay in obtaining a piece of information is necessary, including efforts made to obtain the information.

§748.1223.What are the medical requirements when I admit a child into care?

(a) You must ensure that the child has a medical examination by a health-care professional within 30 days after the date of admission, unless you have documentation that the child has had a medical examination within the past year.

(b) If you admit a child with primary medical needs, you must provide the child with a medical examination by a health-care professional within seven days before or three days after the date of admission.

(c) If a child admitted shows symptoms of abuse or illness, a health-care professional must examine the child immediately.

(d) The report and findings of any medical examination must be signed and dated by the health-care professional who performed the examination and must be documented in the child's record.

§748.1225.What are the dental requirements when I admit a child into care?

(a) If the child is younger than three years old and a physician recommends a dental examination, then you must ensure that a dentist examines the child.

(b) A child three years old or older must have a dental appointment scheduled with a dentist within 30 days after the date of admission, and the examination must occur within 90 days after the date of admission. A dental examination is not required if you have documentation that the child has had a dental examination within the past year.

(c) The report and findings of the dental examination must be signed and dated by the dentist and must be documented in the child's record.

§748.1227.What must I document when I re-admit a child for care?

For re-admission, you must complete the admission documentation as if the child was never in your care; or for children that were discharged from your operation within the last 12 months, you may update the previous admission documentation.

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 March 1, 2006.

TRD-200601214

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

2. EMERGENCY ADMISSION

40 TAC §§748.1261, 748.1263, 748.1265, 748.1267, 748.1269, 748.1271

§748.1261.For which of my programs may I accept emergency admissions?

Neither a transitional living program nor a therapeutic camp program may accept emergency admissions. All other programs may accept emergency admissions.

§748.1263.What constitutes an emergency admission to my operation?

You may admit a child on an emergency basis if the child:

(1) Is being removed from a situation involving alleged abuse or neglect;

(2) Is an alleged perpetrator of abuse and cannot be served in the child's current placement due to his perpetrating behaviors;

(3) Displays behavior that is an immediate danger to himself or others and cannot function or be served in his current setting;

(4) Is abandoned and the child's identity cannot be immediately determined after exercising reasonable diligence. Efforts made to obtain information on the child's identity must be documented in the child's record;

(5) Is removed from his home or placement, and there is an immediate need to find a residence for the child; or

(6) Is released to your authorized emergency care program by a law enforcement or juvenile probation officer.

§748.1265.May I take possession of a child through a law enforcement or juvenile probation officer?

If you are permitted by Licensing to provide emergency care services, then you may take possession of a child through a law enforcement or juvenile probation officer.

§748.1267.What actions must I take when I admit a child through a law enforcement or juvenile probation officer?

When you take possession of a child through a law enforcement or juvenile probation officer, you must:

(1) With the assistance of the officer who released the child to you, complete an Admission of a Release of a Child from a Law Enforcement or Juvenile Probation Officer Form;

(2) Fax the completed form to DFPS; and

(3) Immediately notify us that you have taken possession of the child.

§748.1269.For an emergency admission, when must I complete all of the requirements for an admission assessment?

(a) For an emergency admission, you must complete all of the requirements (see Division 1 of this subchapter (relating to Admission)) for an admission assessment within 40 days from the date of the child's admission.

(b) In an emergency admission of a child receiving treatment services, the child must not continue in care for more than 30 days after the date of admission, unless the child has received the psychological, psychiatric, psychometric, or physician's evaluation that is required by §748.1219 of this title (relating to What are the additional admission requirements when I admit a child for treatment services?), and the evaluation indicates manifestations of the disorder requiring treatment services. All evaluations must be signed, dated, and documented in the child's record.

§748.1271.At the time of an emergency admission, what information must I document in the record of the child I admit?

At the time of the emergency admission:

(1) You must document in the child's record a brief description of the circumstances necessitating the emergency admission; and

(2) For the purpose of providing treatment services, you must also obtain and document the following in the child's record:

(A) A brief description of the child's history;

(B) The child's current behavior; and

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 March 1, 2006.

TRD-200601215

For further information, please call: (512) 438-3437

3. EDUCATIONAL SERVICES

40 TAC §§748.1301, 748.1303, 748.1305

§748.1301.What responsibilities do I have for the education of a child in care?

(a) You must arrange an appropriate education for each child, including:

(1) Ensuring a school-age child has the training and education in the least restrictive setting necessary to meet the child's needs and abilities;

(2) Ensuring the child in care attends an educational facility or program approved or accredited by the Texas Education Agency; and

(3) Advocating that a school-age child receives the educational instruction to which he is entitled under provisions of federal and state law and regulations.

(b) For children receiving treatment services you must designate a liaison between the agency and the child's school.

§748.1303.What responsibilities do I have for a child's individual educational needs?

(1) Review report cards and other information received from teachers or school authorities with the child and provide necessary information to caregivers;

(2) Counsel and assist the child regarding adequate classroom performance;

(3) Permit, encourage, and make reasonable efforts to involve the child in extracurricular activities to the extent of the child's interests and abilities and in accordance with the child's service plan;

(4) Provide a quiet, well-lighted space for the child to study and allow regular times for homework and study;

(5) Know what emergency behavior interventions are permitted and being used with the child;

(6) Request ARD, IEP, ITP meetings if concerned with the child's educational program or if the child does not appear to be making progress; and

(7) Attend ARD, IEP, ITP meetings, and other school staffings and conferences to represent the child's educational best interests, including the child being evaluated for and provided with services needed to benefit from educational services, and positive behavior supports designed to decrease the need for negative disciplinary techniques or interventions.

§748.1305.If I have an educational program, what information must I provide to a child's parent about that program?

If you have an educational program, you must include the following information in the discussion and in the written material you give to parents when you admit the child:

(1) The name of any educational program operated on the premises of your operation;

(2) Whether the program is accredited;

(3) Whether the Texas Education Agency has approved the program;

(4) Whether the educational course work is transferable to public schools; and

(5) The credentials of the teachers, if the teachers are not approved and regulated by the Texas Education Agency.

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 March 1, 2006.

TRD-200601216

For further information, please call: (512) 438-3437

4. SERVICE PLANS

40 TAC §§748.1331, 748.1333, 748.1335, 748.1337, 748.1339, 748.1341, 748.1343, 748.1345, 748.1347, 748.1349, 748.1351

§748.1331.What are the requirements for a preliminary service plan?

(a) You must complete a preliminary service plan that addresses the immediate needs of a child receiving services within 72 hours of the child's admission.

(b) In addition, for a child receiving treatment services the preliminary service plan must include:

(1) A description of the child's immediate treatment and care needs;

(2) A description of the child's immediate educational, medical, and dental needs, including possible side effects of medications or treatment prescribed to the child;

(3) A description of how you will meet the child's needs, including follow-up actions of possible side effects of medication or treatment provided to the child;

(4) The identification of any issues or concerns the child may have that could escalate a child's behavior. Identification of a child's issues or concerns must serve to avoid the use of unnecessary emergency behavior interventions with the child. Child concerns may include issues with food, eye contact, physical touch, personal property, or certain topics; and

(5) A designation of who will be responsible for meeting each of the child's needs.

(d) You must document the plan in the child's record.

(e) You must inform each professional level service provider and caregiver working with a child about the child's preliminary service plan.

(f) You must implement and follow the preliminary service plan.

§748.1333.Who must be involved in developing the preliminary service plan for children receiving treatment services?

The treatment director or a professional level service provider must develop, sign, and date the preliminary service plan for children receiving treatment services.

§748.1335.When must I complete an initial service plan?

You must complete the initial service plan within 40 days after you admit the child.

§748.1337.What must a child's initial service plan include?

(a) You must base the child's initial service plan on the child's needs identified in the child's admission assessment. The service planning team may prioritize the child's service planning goals and objectives based on the child's admission assessment. However, any required service plan components not initially addressed must have a scheduled date for review and development and a justification for the delay in addressing the needs.

(b) The child's initial service plan must be documented and include those items that a preliminary plan must include (see §748.1331 of this title (relating to What are the requirements for a preliminary service plan?)), and the items noted below for each specific type of service that you provide the child:

Figure: 40 TAC §748.1337(b)

§748.1339.Who must be involved in developing an initial service plan?

(a) A service planning team must develop the service plan. The team must consist of:

(1) A current caregiver; and

(2) Any professional level service provider who provides direct services to the child.

(b) If you are providing treatment services to the child, the team must also consist of two of the following professions, which may or may not include additional members:

(1) A licensed professional counselor;

(2) A psychologist;

(3) A psychiatrist or physician;

(4) A licensed registered nurse;

(5) A licensed masters level social worker;

(6) A licensed or registered occupational therapist; or

(7) Any other person in a related discipline or profession that is licensed or regulated in accordance with state law.

§748.1341.When must I inform the child's parent(s) of an initial service plan meeting?

(a) You must give the child's parent(s) at least two weeks advance notice of the meeting.

(b) The child's record must include the notice, the mailed copy or summary, and any responses from the parents.

§748.1343.Must a professional level service provider or a professional who must participate in a child's service plan be an employee of my operation?

No. You may employ or contract with a professional level service provider or any other professional who participates in a child's service plan.

§748.1345.What roles do professional level service providers have in service planning?

The roles of professional level service providers in service planning include:

Figure: 40 TAC §748.1345

§748.1347.What must I document regarding a professional level service provider's participation in the development of an initial service plan?

(a) You must document the professional level service provider's:

(1) Name;

(2) Date of participation; and

(3) Comments and input.

(b) The professional level service provider must sign and date the document. If the provider disagrees with any portion of the plan, the provider must document the issue(s) of contention before signing it.

§748.1349.With whom do I share the initial service plan?

(a) You must give a copy or summary of the initial service plan to the:

(1) Child, when appropriate; and

(2) Child's parents.

(b) If you do not share the service plan or summary with the child, you must document in the child's record your justification for not sharing the plan.

§748.1351.When must I implement a service plan?

You must implement and follow an initial service plan as soon as all of the service planning team members have reviewed and signed the plan, but no later than 10 days after the date of the service-planning meeting.

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 March 1, 2006.

TRD-200601217

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

5. SERVICE PLAN REVIEWS AND UPDATES

40 TAC §§748.1381, 748.1383, 748.1385, 748.1387, 748.1389

§748.1381.How often must I review and update a service plan?

Except for when the child's placement within your operation changes because of a change in the child's needs, you must review and update the service plan as follows:

Figure: 40 TAC §748.1381

§748.1383.How does a child's transfer within my operation affect the timing of the review of a child's service plan?

(a) You must review a child's service plan whenever the child's placement within your operation changes because of a change in the child's needs.

(b) If the child's placement in your operation changes for another reason:

(1) The child's service planning team must approve the decision not to review the plan; and

(2) You must document the decision not to review the plan.

§748.1385.How do I review and update a service plan?

To review and update a service plan, you must:

(1) Evaluate the child's progress and the effectiveness of strategies and techniques used toward meeting identified needs, including educational progress reports;

(2) Identify any new needs and strategies or techniques to meet these needs, including instructions to appropriate employees;

(3) Document any achieved or changed objectives;

(4) If the review shows no progress towards meeting the identified needs of the child, document reasons for continued placement;

(5) Evaluate the possible effectiveness and side effects in the use of psychotropic medications prescribed for the child, any change in psychotropic medications during the period since the last review, and the behaviors and reactions of the child observed by caregivers, professional level service providers, and parents, if applicable;

(6) Document visitation and contacts between the child and the child's parents, the child and the child's siblings, and the child and the child's extended family;

(7) Update the estimated length-of-stay and discharge plans, if changed;

(8) Determine for children receiving treatment services for emotional disorders, pervasive developmental disorders, or primary medical needs whether to:

(A) Continue the placement;

(B) Continue the placement as child-care services;

(D) Refer the child to an inpatient hospital;

(9) Document in the child's record the review and update of the plan;

(10) Evaluate the use and effectiveness of emergency behavior intervention techniques if used during the child's progress reporting period. If applicable, this evaluation must focus on:

(A) The frequency, patterns, and effectiveness of types of emergency behavior interventions;

(B) Strategies to reduce the need for emergency behavior interventions overall; and

(C) Specific strategies to reduce the need for use of personal and mechanical restraints, emergency medication, and/or seclusion, where applicable; and

(11) Document the names of the persons participating in the review and update.

§748.1387.Are the participation, implementation, and documentation requirements for a service plan review and update the same as for an initial service plan?

Yes, the same requirements found in Division 4 of this subchapter (relating to Service Plans) apply to a service plan review and update.

§748.1389.How often must I re-evaluate the intellectual functioning of a child receiving treatment services for mental retardation?

(a) Each child's intellectual functioning must be re-evaluated at least annually by a psychologist qualified to provide psychological testing until the child is 10 years old and every two years thereafter; or

(b) A psychologist must determine the frequency for a specific child's intellectual functioning to be re-evaluated. This determination, including justification for the time frame, must be documented in the child's record annually by the service planning team.

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 March 1, 2006.

TRD-200601218

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

6. DISCHARGE AND TRANSFER PLANNING

40 TAC §§748.1431, 748.1433, 748.1435, 748.1437, 748.1439, 748.1441, 748.1443, 748.1445

§748.1431.What does a "transfer" of a child in care mean?

A transfer of a child in care refers to a child in care who is moved from one of your programs to another of your programs operated under the same permit.

§748.1433.Who must plan a child's non-emergency discharge or transfer?

(a) You must involve the following persons in planning the child's non-emergency discharge or transfer:

(1) At least one of the child's regular caregivers;

(2) Any professional level service provider involved in service planning;

(3) The child; and

(4) The child's parent(s), if agreeable.

(b) If you are unable to plan the transfer or discharge with the persons as required in subsection (a) of this section, you must document in the child's record the reason why. For example, an emergency transfer or discharge was necessary or the child met the requirements to consent for emergency care services and decided not to include his parents in planning for the child's transfer or discharge.

(c) If a child in your care is not receiving treatment services, you must inform him of his non-emergency discharge or transfer at least four days prior to the date of the discharge or transfer, unless your administrator has clear justification for not giving him such notice. Your administrator, who determines the justification for the child not having the advance notice of the discharge or transfer, must put the justification in writing and sign and date it. The justification must be in the child's record.

(d) If a child in your care is receiving treatment services, you must inform him of his non-emergency discharge or transfer at least four days prior to the date of the discharge or transfer, unless your treatment director, three members of the child's service planning team, or the child's psychiatrist or psychologist has justification for not giving him such notice. Whoever determines the justification for the child not having the advance notice of the discharge or transfer must put the justification in writing and sign and date it. The justification must be in the child's record.

§748.1435.How do I discharge or transfer a child who is an immediate danger to himself or others?

An employee of your operation must accompany the child to the receiving operation, agency, or person unless the child's parent or law enforcement transports the child.

§748.1437.What must I document in the child's record at the time of a planned discharge or transfer?

(a) Your documentation of a planned discharge or transfer is called a "discharge or transfer summary" and must include:

(1) A discharge or transfer summary showing services provided to the child, accomplishments, assessment of remaining needs, and recommendations about the services to meet those needs;

(2) The date and circumstances of the discharge or transfer;

(3) Discharge or transfer medications and/or prescriptions for medications;

(4) Support resources for the child, including telephone numbers and addresses;

(5) Aftercare plans and recommendations, including medical, psychiatric, psychological, dental, educational, and social appointments;

(6) Date and time the child was informed of his discharge or transfer; and

(7) For discharges, the name, address, and relationship of the person to whom you discharge the child, unless the child legally consents to his discharge. If the child legally consents to his discharge and does not want to involve the child's parent(s), you must document this in the child's record.

(b) The documentation requirements can be met by providing the original or copies of the child's record containing the information in subsection (a) of this section to the receiving program before or at the time of the child's transfer. However, the date the information was provided, and the name of the person(s) who provided and received the information must also be documented in the child's record.

§748.1439.When I discharge a child to another operation or child-placing agency, what information must I provide them?

(a) On or before the child's discharge, you must attempt to obtain legal consent to release the discharge summary according to subsections (b) and (c) of this section. If consent is not obtained, your attempt to obtain consent must be documented in the child's record.

(b) If legal consent is granted when you discharge a child to another operation, you must provide the following information in writing to that operation:

(1) The child's background information, including progress notes for the past 60 days, if applicable;

(2) Any unresolved incidents or investigations involving the child, if applicable;

(3) Assessments and/or evaluations that you have performed for the child, including the child's admission assessment, diagnostic assessment, educational assessment, neurological assessment, and psychiatric or psychological evaluation;

(4) The child's service plans while in your care for the past 12 months;

(5) A list of medications the child is taking, the dosage, frequency, and reason the medication was prescribed; and

(6) Any treatment for a physical condition that is in progress and requires continuing or follow-up medical care.

(c) Within 30 days from the date of the child's discharge, you must provide the receiving operation with the child's discharge summary if legal consent is granted.

§748.1441.To whom do I provide a copy of the discharge summary when I discharge a child to his home?

You must send a copy of the discharge summary to the child's parent within 30 days after you discharge the child.

§748.1443.What constitutes an emergency transfer or discharge?

An emergency transfer or discharge occurs when:

(1) The parent withdraws a child unexpectedly from care, including withdrawals with less than 10 days notice;

(2) There is a medical emergency requiring inpatient care;

(3) The child is absent from your operation and cannot be located; or

(4) There is an immediate danger to the child or others and the child remains in the operation or program.

§748.1445.What must I document in the child's record at the time of an emergency discharge or transfer?

At the time of an emergency discharge or transfer, you must document the following in the child's record:

(1) The circumstances necessitating the emergency transfer or discharge;

(2) The date of transfer or discharge; and

(3) The name, address, and relationship of the person to whom you transfer or discharge the child, where applicable.

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 March 1, 2006.

TRD-200601219

For further information, please call: (512) 438-3437

7. RELEASE OF CHILD

40 TAC §748.1481

§748.1481.To whom may I release a child?

(a) Except in an emergency, you must only release a child to the child's parent, a person designated by the parent, or law enforcement authorities.

(b) You must instruct all employees and service providers to follow your policies for:

(1) Releasing a child;

(2) Verifying the identity of a person authorized to pick up a child but whom the caregiver does not know;

(3) Recording the identity of the person in a log or other designated location; and

(4) Retaining the identifying information at the operation until the child returns.

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 March 1, 2006.

TRD-200601220

For further information, please call: (512) 438-3437

Subchapter J. CHILD CARE

1. DENTAL CARE

40 TAC §§748.1501, 748.1503, 748.1505

§748.1501.What general dental requirements must my operation meet?

(a) A child in your care must receive dental care:

(1) Initially, according to the requirements in §748.1225 of this title (relating to What are the dental requirements when I admit a child into care?);

(2) At as early an age as necessary;

(3) As needed for relief of pain and infections; and

(4) As needed for ongoing maintenance of dental health.

(b) The child's record must include a written record of each dental examination specifying the:

(1) Date of the examination;

(2) Procedures completed;

(3) Follow-up treatment recommended and any appointments scheduled;

(4) The child's refusal to accept medical treatment, if applicable; and

(5) A copy of the results of the dental examination that is signed and dated by the health-care professional who performed the examination.

§748.1503.Who must determine the need and frequency of ongoing maintenance of dental health for a child?

A licensed dentist must determine the need and frequency of ongoing maintenance of dental health. You must comply with dentist recommendations for examinations and treatment for each child.

§748.1505.Who must perform dental examinations and provide dental treatment?

A health-care professional licensed in the state of Texas to practice dentistry must provide dental care.

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 March 1, 2006.

TRD-200601222

For further information, please call: (512) 438-3437

2. MEDICAL CARE

40 TAC §§748.1531, 748.1533, 748.1535, 748.1537, 748.1539, 748.1541, 748.1543, 748.1545, 748.1547, 748.1549, 748.1551

The new sections implement HRC, §42.042 and §42.043.

§748.1531.What general medical requirements must my operation meet?

(a) A child in your care must receive medical care:

(1) Initially, according to the requirements in §748.1223 of this title (relating to What are the medical requirements when I admit a child into care?);

(2) As needed for injury, illness, and pain; and

(3) As needed for ongoing maintenance of medical health.

(b) The child's record must include a written record of each medical examination specifying:

(1) The date of the examination;

(2) The procedures completed;

(3) The follow-up treatment recommended and any appointments scheduled;

(4) The child's refusal to accept medical treatment, if applicable;

(5) The results of the medical examination that is signed and dated by the health-care professional who performed the examination; and

(6) If the medical examination is a result of an injury or medical incident, the documentation of the circumstances surrounding the incident, including the date and time of the incident.

§748.1533.Who determines the need and frequency for ongoing maintenance of medical care and treatment for a child?

A health-care professional determines the need and frequency for ongoing maintenance of medical care and treatment for a child.

§748.1535.Who must perform medical examinations and provide medical treatment for a child?

A health-care professional licensed in the state of Texas to practice medicine in his discipline must perform medical examinations and provide medical treatment for a child.

§748.1537.What information must I provide caregivers about a child's medical needs?

You must inform the child's caregivers of any special medical needs that the child has.

§748.1539.What immunizations must a child in my care have?

(a) Each child that you admit must meet and continue to meet the applicable immunization requirements specified by §42.043 of the Human Resources Code and the Department of State Health Services.

(b) You must maintain current immunizations records for each child in your care.

(1) Be completed by the date of admission; or

(2) Begin within 30 days after the date of admission.

§748.1541.What are the exemptions from immunization requirements?

Exemptions for immunization requirements must meet criteria specified by:

(1) §42.043 of the Human Resources Code; or

(2) The Department of State Health Services rules in 25 TAC §97.62 (relating to Exclusions from Compliance).

§748.1543.What documentation is acceptable for an immunization record?

(a) An immunization record must include:

(1) The child's name and birth date;

(2) The number of doses and vaccine type;

(3) The month, day, and year the child received each vaccination; and

(4) A signature or rubber stamp signature from the health-care professional who administered the vaccine.

(b) Documentation of an immunization record on file at your operation may be:

(1) The original record;

(2) A photocopy;

(3) An official immunization record generated from a state or local health authority, such as a registry; or

(4) A record received from school officials, including a record from another state.

§748.1545.Must children in my care have a vision and hearing screening?

(a) You must ensure that each child you admit is screened for possible vision and hearing problems that meet the requirements of the Special Senses and Communication Disorders Act, Health and Safety Code, Chapter 36. If problems are detected, the child must have a professional vision and hearing examination.

(b) For each child required to be screened, you must keep one of the following in each child's record:

(1) The individual vision and hearing screening results;

(2) A signed statement from the child's parent that the child's screening records are current and on file at the program or school the child attends away from the operation. The statement must be dated and include the name, address, and telephone number of the program or school; or

(3) An affidavit from the child's parent stating that the vision or hearing screening and/or examination conflicts with the tenets or practices of a church or religious denomination of the parents.

§748.1547.What must I do if a child in my care is identified as needing a diagnostic vision or hearing examination?

(1) Schedule the child for a professional examination and needed health services;

(2) Ensure the professional and medical recommendations are carried out; and

(3) Convey the information concerning the child's visual and/or hearing difficulty to the educational and operation caregivers, so the recommended adjustments can be made in programs.

§748.1549.What special equipment must I provide for a child with a physical disability?

§748.1551.How often must the physician review a child with primary medical needs?

(a) A licensed physician must review a child's primary medical needs at least every 90 days and whenever a medical or related problem occurs.

(b) The review must address:

(1) Whether the child can continue to be cared for appropriately in the operation; and

(2) Any new or changed orders regarding the items outlined in §748.1219(3)(B) of this title (relating to What are the additional admission requirements when I admit a child for treatment services?).

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 March 1, 2006.

TRD-200601223

For further information, please call: (512) 438-3437

3. COMMUNICABLE DISEASES

40 TAC §§748.1581, 748.1583, 748.1585

§748.1581.What health precautions must I take if someone in my operation has a communicable disease?

(a) You must notify the Department of State Health Services (DSHS) after you become aware that a child in your care or an employee, student intern, or volunteer has contracted a communicable disease that the law requires you to report to the DSHS as specified in 25 TAC 97, Subchapter A (relating to Control of Communicable Diseases).

(b) If a child has symptoms of a communicable disease that is reportable to the Department of State Health Services, you must:

(1) Follow the treating physician's orders, which may include separating the child from other children in care;

(2) Notify the child's parent;

(3) Consult a health-care professional about the child's treatment; and

(4) Sanitize all items used by the sick child before another person uses one of them.

(c) If a health-care professional diagnoses a child with a communicable disease that may be spread through casual contact, a health-care professional must authorize the child's participation in routine activity at your operation. The authorization must:

(1) Be written and in the child's record;

(2) Include a statement that the child will not pose a serious threat to the health of the other children; and

(3) Include any specific instructions and precautions to be taken for the protection of the children.

(d) If an employee, student intern, or volunteer has a communicable disease that may be spread through casual contact, you must obtain written authorization from a health-care professional for the person to work with the children and be present at the operation. The written authorization must include a statement that the adult will not pose a serious threat to the health of the children.

(e) You must follow any written instructions and precautions specified by a health-care professional.

§748.1583.Who must have a tuberculosis (TB) examination?

(a) Requirements for tuberculosis screening and testing vary across the state. If you are unsure of the requirements for your area, contact the TB manager at the Department of State Health Services (DSHS) regional office nearest you.

(b) If your regional DSHS office or local health authority requires tuberculosis testing for children in your operation, then you must have a licensed health-care professional's statement verifying that each child in your care is free of active tuberculosis.

§748.1585.What must I do if someone in my operation has a positive tuberculosis test result?

When testing is required and the result is positive, you must:

(1) Follow through with all recommendations for further testing; and

(2) Carry out and document all public health precautions and treatment in accordance with the requirements of the regional Department of State Health Services or local health authority.

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 March 1, 2006.

TRD-200601224

For further information, please call: (512) 438-3437

4. PROTECTIVE DEVICES

40 TAC §§748.1611, 748.1613, 748.1615, 748.1617

§748.1611.What is a protective device?

(a) A protective device is a restraint device that:

(1) Protects a person from involuntary self-injurious behavior or permits wounds to heal; and

(2) Does not prohibit a person's mobility.

(b) Examples of a protective device are helmets, elbow guards, mittens, bedrails, and wheelchair seat belts.

(c) If used appropriately, devices intended to encourage mobility or minimally restrain a young child for safety purposes, such as wheelchairs, car seats, high chairs, strollers, and child leashes manufactured and sold specifically to harness a young child for safety purposes, are not protective devices.

§748.1613.What does "involuntary self-injurious behavior" mean when used in this division?

Involuntary self-injurious behavior means a person's physical movements that are automatic and not subject to control of the person's will that may inflict injury to the person.

§748.1615.May I use protective devices?

(a) You may use protective devices if:

(2) A licensed physician orders their use for a specific child. The orders must indicate the circumstances under which the protective device is permitted.

(b) You may use bedrails that extend, from the head, half the length of the bed for assistance with mobility. However, you may not use bed rails that extend the entire length of the bed except when a physician authorizes it for a child with primary medical needs.

(4) A convenience for caregivers or other persons; or

(5) A substitute for effective treatment or habilitation.

(d) You must document the use of protective devices in the child's record, service plan, and service plan reviews. The service planning team must discuss and document clinical justification for continued use of protective devices in the child's service plan review.

§748.1617.Who may use PRN orders with respect to protective devices?

A licensed physician ordering protective devices may use PRN orders. The physician must review PRN orders for protective devices at least every 90 days.

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 March 1, 2006.

TRD-200601225

For further information, please call: (512) 438-3437

5. SUPPORTIVE DEVICES

40 TAC §§748.1631, 748.1633, 748.1635

§748.1631.What is a supportive device?

(a) A supportive device is a restraint device used:

(1) To support a person's posture;

(2) To assist a person who cannot obtain and/or maintain normal physical functioning to improve his mobility and independent functioning; or

(3) As an adjunct to proper care and treatment, for example physical therapy.

(b) The purpose of a supportive device is not to restrict movement.

§748.1633.May I use supportive devices?

(a) You may use supportive devices if:

(2) A licensed physician orders their use for a specific child. The orders must indicate the circumstances under which the supportive device is permitted.

(b) You may not use a supportive device as a substitute for appropriate nursing care.

(d) You may not use supportive devices as:

(3) Means to get a child to comply;

(4) A convenience for caregivers or other persons; or

(5) A substitute for effective treatment or habilitation.

(e) If a device is not specifically for assisting with sleep or safety during sleep, you must remove the device during rest periods.

(f) You must document the use of supportive devices in the child's record, service plan, and service plan reviews. The service planning team must discuss and document clinical justification for continued use of supportive devices in the child's service plan review.

§748.1635.Who may use PRN orders with respect to supportive devices?

A licensed physician ordering supportive devices may use PRN orders. The physician must review PRN orders for supportive devices at least every 90 days.

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 March 1, 2006.

TRD-200601226

For further information, please call: (512) 438-3437

6. TOBACCO USE

40 TAC §748.1661

§748.1661.What policies must I enforce regarding tobacco products?

(a) A child may not use or possess tobacco products.

(b) An adult may not use tobacco products in the children's living quarters or inside any building on your premises.

(1) At a safe distance from the children's living quarters; and

(2) Outside the presence of children.

(d) No one may use tobacco products in motor vehicles when transporting children.

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 March 1, 2006.

TRD-200601227

For further information, please call: (512) 438-3437

7. NUTRITION AND HYDRATION

40 TAC §§748.1691, 748.1693, 748.1695, 748.1697, 748.1699, 748.1701, 748.1703, 748.1705, 748.1707, 748.1709

§748.1691.How often must I feed children in care?

(a) You must feed an infant whenever the infant is hungry.

(b) For a toddler or school-age child:

(1) You must provide the child with three meals and at least one snack a day; and

(2) No more than 14 hours may pass between the last meal or snack of the day and the serving of the first meal of the following day.

§748.1693.What type of food and water must I provide children?

(a) You must provide a child with food that is:

(1) Of adequate variety, quality, and in sufficient quantity to supply the nutrients needed for proper growth and development according to the United States Department of Agriculture guidelines; and

(2) Appropriate for the child's age and activity level.

(b) You must not serve nutrient concentrates and supplements such as protein powders, liquid protein, vitamins, minerals, and other nonfood substances to a child without written instructions from a licensed health-care professional.

(c) You must ensure drinking water is always available to each child and is served in a safe and sanitary manner. Children must be well hydrated and must be encouraged to drink water during physical activity and in warm weather.

§748.1695.What are the specific requirements for feeding an infant?

(a) You must feed the infant:

(1) On demand following the infant's lead on when to feed, how long to feed, and how much to feed; and

(2) Based on the recommendation of the infant's licensed physician, who must approve you giving the infant any milk other than fortified formula.

(b) You must hold the infant while feeding him if the infant is:

(1) Birth through six months old; or

(2) Unable to sit unassisted in a high chair or other seating equipment during feeding.

(d) If you care for more than one infant, you must:

(1) Label each bottle and training cup with the child's first name and initial of last name;

(2) Not permit the infant to share bottles or training cups; and

(3) Sanitize high chair trays before each use.

§748.1697.What are the specific requirements for feeding toddlers and older children?

(a) A toddler or older child must eat meals in the dining areas.

(b) You must serve food in a way that encourages a child's self-help and development. This requirement also applies to non-mobile children.

§748.1699.What must I do if a child refuses to or cannot eat a meal or snack that I offer?

(a) You must offer a child a meal or snack according to this division, but you may not force the child to eat. You are not required to offer other food to a child who:

(1) Refuses a meal or snack; or

(2) Chooses not to be present when a meal or snack is scheduled.

(b) You must discuss recurring eating problems with the child's parent.

(c) If a meal or snack is not appropriate to meet a child's individual needs, for example food allergies or religious reasons, then you must offer the child an appropriate nutritional substitute.

§748.1701.What must I do if a child requires a therapeutic or special diet?

(a) To serve a therapeutic or special diet to a child, you must have written approval in the child's record from a licensed physician or a registered or licensed dietitian.

(b) If a child requires a therapeutic or special diet, you must give the following people information regarding the diet:

(1) All employees who prepare and serve food; and

(2) The child's caregivers.

§748.1703.What are the requirements for daily menus?

(a) You must maintain daily menus showing all meals and snacks that you prepare and serve.

(b) You must document food substitutions on the menu. Food substitutions must be of comparable food value.

§748.1705.What are the nutrition requirements for a child with primary medical needs?

(a) You must feed a child with primary medical needs according to his medical and developmental needs.

(b) A licensed physician must prescribe tube feeding. A dietitian must plan the diet that the physician prescribes.

§748.1707.What are the requirements for tube-feeding formula?

(a) A registered or licensed dietitian, or a registered nurse must ensure the caregiver responsible for formula preparation is adequately trained.

(b) Tube feeding formulas must supply the recommended dietary allowance for each child.

(1) Prepare the formula no more than 24-hours before feeding; and

(2) Store it in bacteriologically safe, sanitized, and covered containers unless the tube-feeding formula is prepared immediately before administration.

(d) Tube-feeding formulas must be maintained at less than 40 degrees Fahrenheit.

§748.1709.What are the requirements for using a nasogastric tube to feed a child?

(a) Only a licensed nurse may insert a nasogastric tube according to a physician's written orders.

(b) You must document each insertion in the child's record. The documentation for each insertion must include the:

(1) Signature of the nurse who inserted the tube; and

(2) Date of the insertion.

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 March 1, 2006.

TRD-200601228

For further information, please call: (512) 438-3437

8. ADDITIONAL REQUIREMENTS FOR INFANT CARE

40 TAC §§748.1741, 748.1743, 748.1745, 748.1747, 748.1749, 748.1751, 748.1753, 748.1755, 748.1757, 748.1759, 748.1761, 748.1763, 748.1765

§748.1741.What do certain words mean in this division?

These words have the following meaning in this division:

(1) Baby bungee jumper--A bucket seat that is suspended from a doorway by an elastic bungee cord that allows an infant to bounce while sitting in the seat.

(2) Baby walker--A baby walker allows an infant to sit inside the walker equipped with rollers or wheels and move across the floor.

(3) Bouncer seat--A stationary seat designed to provide gentle rocking or bouncing motion by an infant's movement, or by battery-operated movement. This type of equipment is designed for an infant's use from birth until the child can sit up unassisted.

§748.1743.What are the basic care requirements for an infant?

(a) Each infant must receive individual attention, including playing, talking, cuddling, and holding.

(b) When an infant is upset, a caregiver must hold and comfort the infant.

(d) An infant's caregiver must ensure that the environment is safe. For example, the caregiver must free the area of objects that may choke or harm the infant, take measures to prevent electric shock, free the area of furniture that is in disrepair or unstable, and allow no unsupervised access to water to prevent the risk of drowning.

(e) An infant's caregiver must never leave the infant unsupervised. A sleeping infant is considered supervised if the caregiver uses a video camera or audio monitoring device to monitor the child and is close enough to the child to intervene as needed.

§748.1745.What steps must a caregiver follow when changing a child's diaper?

A caregiver must:

(1) Promptly change soiled or wet diapers or clothing;

(2) Thoroughly cleanse children with individual cloths or disposable towels;

(3) Use a clean, individual cloth or disposable towel to dry the child;

(4) Ensure that the child is dry before placing a new diaper on the child; and

(5) Keep all diaper-changing supplies out of children's reach.

§748.1747.What must I do to prevent the spread of germs when diapering children?

To prevent the spread of germs when diapering a child, you must:

(1) Wash your hands with soap and running water before and after diapering a child;

(2) Cover a container used for soiled diapers or keep it in a sanitary manner, such as placing soiled diapers in individual sealed bags;

(3) Discard a disposable towel after use; and

(4) Launder any cloth before reusing it.

§748.1749.What furnishings and equipment must I have in my infant care area?

Your infant care area must at a minimum include the following furnishings and equipment:

(1) An individual crib for each infant; and

(2) A sufficient number of toys to keep each child engaged in activities.

§748.1751.What specific safety requirements must my cribs meet?

(a) All cribs must have:

(1) A firm, flat mattress that snugly fits the sides of the crib. The mattress must not be supplemented with additional foam material or pads;

(2) Sheets that fit snugly and do not present an entanglement hazard;

(3) A mattress that is waterproof or washable;

(4) Secure mattress support hangers, and no loose hardware or improperly installed or damaged parts;

(5) A maximum of 2 3/8 inches between crib slats or poles;

(6) No corner posts over 1/16 inch above the end panels;

(7) No cutout areas in the headboard or footboard that would entrap a child's head or body; and

(8) Drop rails, if present, which fasten securely and cannot be opened by a child.

(b) You must sanitize each crib before a different child uses it and when soiled.

(d) You may not have stackable cribs.

§748.1753.Are mesh cribs or port-a-cribs allowed?

You may use a full-size, portable, or mesh-side crib if:

(1) You follow the manufacturer's instructions;

(2) The crib has:

(A) A minimum height of 22 inches from the top of the railing to the mattress support at its lowest level;

(B) Mesh openings that are 1/4 inch or less;

(D) Folded sides that securely latch in place when raised; and

(3) You never leave a child in a mesh-sided crib with a side folded down.

§748.1755.What equipment must have safety straps before I can use it with an infant?

If you use a high chair, swing, stroller, infant carrier, rocker, bouncer seat, or a similar type of equipment for an infant:

(1) It must be equipped with safety straps; and

(2) The safety straps must be fastened whenever the infant is using the equipment.

§748.1757.What types of equipment are not allowed for use with infants?

(a) You may not use any of the following types of equipment with infants:

(1) Baby walkers;

(2) Baby bungee jumpers;

(3) Accordion safety gates;

(4) Toys that are small enough to swallow or choke a child; and

(5) Bean bags, waterbeds, and foam pads for use as sleeping equipment.

(b) You may not use soft bedding, such as stuffed toys, quilts, pillows, bumper pads, and comforters in a crib for an infant six months old or younger.

§748.1759.What activities must I provide for infants?

You must provide the following activities for an infant:

(1) Multiple opportunities each day to explore in a safe and clean area that is outside the crib or other confining equipment;

(2) Opportunities for visual, auditory, and sensory stimulation;

(3) Opportunities for small- and large-muscle development; and

(4) A supervised nap period that allows the infant to maintain the child's own pattern of sleeping and waking.

§748.1761.How long may an infant remain in a crib after awakening?

An infant may remain in the crib or other confining equipment for up to 30 minutes after awakening, as long as the infant is content and responsive.

§748.1763.Are infants required to sleep on their backs?

Yes. You must place an infant not yet able to turn over on his own in a face-up sleeping position.

§748.1765.If an infant has difficulty falling asleep, may the infant's head or crib be covered?

No. An infant must not have his head, face, or crib covered at any time by an item such as a blanket, linen, or clothing.

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 March 1, 2006.

TRD-200601229

For further information, please call: (512) 438-3437

9. ADDITIONAL REQUIREMENTS FOR TODDLER CARE

40 TAC §§748.1791, 748.1793, 748.1795

§748.1791.What are the basic care requirements for a toddler?

(a) Each toddler must receive individual attention, including playing, talking, and cuddling.

(b) A toddler's caregiver must ensure that the environment is safe. For example, the caregiver must free the area of objects that may choke or harm the infant, take measures to prevent electric shock, free the area of furniture that is in disrepair or unstable, and allow no unsupervised access to water to prevent the risk of drowning.

(c) A toddler's caregiver must never leave the toddler unsupervised. A sleeping toddler is considered supervised if the caregiver uses a video camera or audio monitoring device to monitor the child and is close enough to the child to intervene as needed.

§748.1793.What furnishings and equipment must I provide for toddlers?

Furnishings and equipment for toddlers must at a minimum include the following:

(1) Age-appropriate seating, tables, and nap and sleep equipment. Toddlers may use cribs or beds, as appropriate;

(3) Containers or low shelving, so items that can be safely used without direct supervision are accessible to children.

§748.1795.What activities must I provide for toddlers?

You must provide the following activities for a toddler:

(1) Daily opportunities for outdoor play, when weather permits;

(2) Opportunities for thinking skills and sensory development;

(3) Opportunities for small and large-muscle development;

(4) Opportunities for language development;

(5) Opportunities for social/emotional development;

(6) Opportunities to develop self-help skills such as toileting, hand washing, and feeding; and

(7) Supervised naptimes. You must provide a supervised sleep or rest period after the noon meal for all toddlers.

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 March 1, 2006.

TRD-200601230

For further information, please call: (512) 438-3437

10. ADDITIONAL REQUIREMENTS FOR PREGNANT CHILDREN

40 TAC §§748.1821, 748.1823, 748.1825

§748.1821.What information must I provide a pregnant child regarding her pregnancy?

(1) Ensure information, training, and counseling is available regarding health aspects of pregnancy, preparation for child birth, and recovery from child birth;

(2) Ensure the pregnant child receives nutritional counseling and guidance that meets generally accepted standards, including nutrition during pregnancy, lactation, and foods to avoid;

(3) Inform the child of her right to be free from pressure to get an abortion, relinquish her child for adoption, or to parent her child; and

(4) Document in the child's record the information and counseling that you provide.

§748.1823.Is the use of emergency behavior intervention of a pregnant child permitted in my operation?

If your policies allow for the use of personal restraints on a pregnant child:

(1) The health-care professional attending to the child's pregnancy must document whether any type of emergency behavior intervention that your policies allow is inadvisable; and

(2) You may not use any emergency behavior intervention that the child's health-care professional attending to her pregnancy finds inadvisable.

§748.1825.If my policies permit the admission of adolescent parents with their child(ren), who is responsible for the care of the adolescent's child(ren)?

If your policies permit the admission of adolescent parents with their child(ren):

(1) An adolescent parent must provide most of the care for her child;

(2) Caregivers must be available to the adolescent parent as a resource and support; and

(3) When you care for an adolescent's child in the adolescent parent's absence, you are responsible for that child as if the child is in your care.

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 March 1, 2006.

TRD-200601231

For further information, please call: (512) 438-3437

Subchapter K. OPERATIONS THAT PROVIDE CARE FOR CHILDREN AND ADULTS

1. SCOPE

40 TAC §748.1901

§748.1901.What operations do the rules in this subchapter apply to?

The rules in this subchapter apply to operations that provide care for both children and adults.

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 March 1, 2006.

TRD-200601232

For further information, please call: (512) 438-3437

2. GENERAL REQUIREMENTS

40 TAC §§748.1931, 748.1933, 748.1935, 748.1937, 748.1939, 748.1941, 748.1943, 748.1945

§748.1931.After a child in my care turns 18 years old, may the person remain in my care?

(a) A young adult may remain in your care in order to:

(1) Transition to independence;

(2) Complete the school year;

(3) Complete your program; or

(4) Stay with a minor sibling.

(b) A young adult who turns 18 in your care may remain in your care indefinitely if the person:

(1) Continues to need the same level of care; and

(2) Is unlikely to physically and/or intellectually progress over time.

§748.1933.May I admit a young adult into care if the young adult is moving from another residential child-care operation?

Yes, you may admit a young adult into your operation from another residential child-care operation if the reason for admittance is consistent with a condition listed in §748.1931 of this title (relating to After a child in my care turns 18 years old, may the person remain in my care?).

§748.1935.How does the child/caregiver ratio apply if I provide care to both children and adults?

(a) If you provide care to both children and adults, you may maintain the required child/caregiver ratio by:

(1) Counting all residents in your care as children and maintaining the appropriate ratio; or

(2) Assigning caregivers to work exclusively with the children in care.

(b) The child/caregiver ratio for minor and adult residents applies to operation-sponsored activities or appointments, regardless of where they occur.

§748.1937.May an adult resident share a bedroom with a child resident?

(a) An adult resident may share a bedroom with a child resident if:

(1) The service planning team determines there are no risks to either of them after assessing the following:

(A) Their behaviors;

(B) Their compatibility with each other;

(D) Any past history of sexual trauma or sexually inappropriate behavior; and

(E) Appropriateness; and

(2) Their age difference is less than two years.

(b) The assessment and approval by the service planning team must be documented and dated in the child's record.

§748.1939.How much general living space and floor space in a bedroom must I provide for children and young adults who are in my care?

For adult residents, you must meet the space requirements listed in §748.3351 of this title (relating to What are the requirements for general living space?) and §748.3357 of this title (relating to What are the requirements for floor space in a bedroom used by a child?).

§748.1941.What must I do if an adult resident is responsible for his own medication?

If an adult resident is responsible for his own medication, you must:

(1) Establish written safeguards to prevent children in care from having access to the medications; and

(2) Implement the safeguards.

§748.1943.Must adult residents have a tuberculosis (TB) examination?

Yes. You must meet the requirements listed in §748.509 of this title (relating to What are the requirements for tuberculosis testing?) and §748.511 of this title (relating to How do I document the recommendations of a local health authority or the regional Department of State Health Services for tuberculosis testing?).

§748.1945.What must I do if an adult resident has a positive tuberculosis test result?

You must meet the requirements listed in §748.1585 of this title (relating to What must I do if someone in my operation has a positive tuberculosis test result?).

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 March 1, 2006.

TRD-200601233

For further information, please call: (512) 438-3437

Subchapter L. MEDICATION

1. ADMINISTRATION OF MEDICATION

40 TAC §§748.2001, 748.2003, 748.2005, 748.2007, 748.2009

§748.2001.What consent must I obtain to administer medications?

(a) You must obtain a general written consent to administer routine, preventive, and emergency medications.

(b) You must obtain the written, signed, and dated consent from the person legally authorized to give medical consent before administering the medication.

§748.2003.What medication requirements must my operation meet?

(a) To the best of your knowledge, you must inform the person legally authorized to give medical consent of the benefits, risks, and side effects of all medication and treatment procedures used and the medical consequences of refusing them, and/or provide the name and telephone number of the prescribing health-care professional for more information.

(b) You must:

(1) Be informed about possible side effects of medications administered to the child;

(2) Ensure a person trained in and authorized to administer medication administers medication to a child in care unless the child is on a self-medication program;

(3) Administer medications according to the instructions on the label or according to a prescribing health-care professional's subsequent signed orders (See §748.2005 of this title (relating to May I accept verbal instructions on the administration of medication?));

(4) Administer each child's medication immediately after preparation;

(5) Ensure the child has taken the medication as prescribed;

(6) Maintain any documentation provided by the health-care professional on the administration of current medication;

(7) Not physically force a child to take prescription medication;

(8) Ensure that your employees do not provide any medication or treatment to a child except on written orders of a health-care professional;

(9) Not borrow or administer medication to a child that is prescribed to another person;

(10) Store medication in the original container as received from the pharmacy or health-care professional unless you have an additional container with the same pharmacist's label and instructions; and

(11) Not administer prescription medication to more than one child from the same container. Only the child for whom the prescription medication was prescribed may use the medication.

§748.2005.May I accept verbal instructions on the administration of medication?

Assuming you have obtained written consent according to §748.2001 of this title (relating to What consent must I obtain to administer medications?), a licensed health-care professional may provide verbal instructions on the administration of medication. However, the health-care professional must write and sign orders within 72 hours of the verbal order.

§748.2007.What is over-the-counter medication?

Over-the-counter medication is a drug that does not require a prescription from a health-care professional for purchase. A written prescription for an over-the-counter drug does not make the drug a prescription drug. However, a prescribed over-the-counter drug must be administered and documented per the physician prescription.

§748.2009.What are the requirements for administering over-the-counter medication and non-prescription vitamins?

(a) You must follow the label and ensure the over-the-counter medication is not contraindicated with any other medication prescribed to the child or the child's medical conditions.

(b) You may give an over-the-counter medication or non-prescription vitamins to more than one child from one container.

(c) Documentation of approved over-the-counter medication and non-prescription vitamins for each child must be maintained in the medication record that must be incorporated into the child's record.

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 March 1, 2006.

TRD-200601234

For further information, please call: (512) 438-3437

2. SELF-ADMINISTRATION OF MEDICATION

40 TAC §748.2051, §748.2053

§748.2051.What are the requirements for a self-medication program?

For a child to be on a self-medication program:

(1) The child's health-care professional must give written authorization for the child to be on the program;

(2) The child's service plan must include the self-medication program and any requirements for caregiver supervision; and

(3) You must notify the parent and the person legally authorized to give medical consent that the child is on the program.

§748.2053.Who must record the medication dosage if a child is on a self-medication program?

When a child who is on a self-medication program takes a dosage of the medication, the child may:

(1) Record the dosage if you have a system for reviewing the child's medication each day; or

(2) Report the medication to an appropriate employee or service provider, who must then do the actual recording.

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 March 1, 2006.

TRD-200601235

For further information, please call: (512) 438-3437

3. MEDICATION STORAGE AND DESTRUCTION

40 TAC §748.2101, §748.2103

§748.2101.What medication storage requirements must my operation meet?

(1) Store medication in a locked container that requires a key to unlock it;

(2) Keep medication inaccessible other than to employees responsible for stored medication;

(3) Ensure the medication storage area has a separate locked container where medications "for external use only" are stored separately from other medications;

(4) Store medication covered by Section II of the Texas Controlled Substances Act under double lock in a separate container. For example, a double lock can include a lock on the cabinet or filing cabinet and the door to the room where medications are stored;

(5) Make provisions for securely storing medication that requires refrigeration;

(6) Keep medication storage area(s) clean and orderly;

(7) Remove discontinued medication from the medication area within 90 days of the discontinuance date and properly destroy it;

(8) Remove medication on or before the expiration date and properly destroy it; and

(9) Remove medication of a discharged or deceased child immediately and properly destroy it.

§748.2103.What are the requirements for discontinued or expired medication?

(a) Discontinued or expired medication and medication left at your operation must be inventoried and stored as directed by the administrator.

(b) When you have an accumulation of this medication, the administrator or a designee and another adult who is not a resident must destroy the discontinued or expired medication in accordance with state and federal law.

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 March 1, 2006.

TRD-200601236

For further information, please call: (512) 438-3437

4. MEDICATION RECORDS

40 TAC §748.2151

§748.2151.What records must I maintain for each child receiving medication?

(a) You must maintain a cumulative record of all prescription and nonprescription medication dispensed to the child. You must maintain the medication record during the time that you provide services to the child. This record must include the:

(1) Child's full name;

(2) Prescribing health-care professional's name, if applicable; and

(3) Medication name, strength, and dosage.

(b) Each time the child receives a dosage of the medication, the person who administers the medication must immediately document the:

(1) Date (day, month, and year) and time the medication was administered;

(2) Name and signature of the person who administered the medication; and

(3) Child's refusal to accept medication, if applicable.

(c) For PRN prescriptions or over-the-counter medications, you must document the reasons for administering the medication, including the specific symptoms, condition, and/or injuries of the child that you are treating.

(d) You must keep a running count of each child's prescribed medication. The medication count must match the medication documentation.

(e) The medication records of prescription and nonprescription medication dispensed to the child must be incorporated into the child's record.

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 March 1, 2006.

TRD-200601237

For further information, please call: (512) 438-3437

5. MEDICATION AND LABEL ERRORS

40 TAC §§748.2201, 748.2203, 748.2205

§748.2201.What is a medication error?

A medication error includes, but is not limited to, the following:

(1) A child receives the wrong medication;

(2) A child receives medication prescribed for someone else;

(3) A child receives the wrong dosage of medication;

(4) A child receives medication at the wrong time;

(5) A medication dose is skipped or missed;

(6) A child receives expired medication;

(7) Not following the medication administration instructions, such as giving a child medication on an empty stomach when the medication should be given with food; and

(8) A child receives medication that was not stored as required to maintain the effectiveness of the medication, such as refrigerating or not refrigerating the medication, as required, or exposing the medication to heat or sunlight.

§748.2203.What must I do if I find a medication error?

(a) If you find a medication error regarding a prescribed medication, you must contact a health-care professional immediately, unless the error is the type described in paragraph (4) or (5) of §748.2201 of this title (relating to What is a medication error?), and follow the health-care professional's recommendations.

(b) If you find a medication error regarding an over-the-counter medication, you must take the appropriate and necessary actions as required by the circumstances.

(1) The time and date of the error;

(2) The medication error;

(3) The time and date of the call(s) to the licensed health-care professional, if applicable;

(4) The name and title of the health-care professional contacted, if applicable; and

(5) The health-care professional's medical recommendations for ensuring the child's safety, if applicable.

§748.2205.What must I do if I find a medication label error?

If you find a medication label error, you must:

(1) Report the error to the pharmacist; and

(2) Have the label on the medication container corrected immediately.

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 March 1, 2006.

TRD-200601238

For further information, please call: (512) 438-3437

6. SIDE EFFECTS AND ADVERSE REACTIONS TO MEDICATION

40 TAC §748.2231, §748.2233

§748.2231.What must I do if a child has an adverse reaction to a medication?

If a child has an adverse reaction to a medication, you must:

(1) Immediately report the reaction to a health-care professional;

(2) Follow the health-care professional's recommendations;

(3) Seek further medical care for the child if the child's condition appears to worsen; and

(4) Document in the child's medical record the:

(A) Adverse reactions that the child had to the medication;

(B) Time and date of call(s) to the health-care professional;

(D) Health-care professional's medical recommendations for ensuring the child's safety.

§748.2233.What must I do if a child experiences side effects from any medications?

If a child experiences side effects from any medication, the caregiver must:

(1) Document the observed and reported side effects;

(2) Immediately report any serious side effects to the child's physician; and

(3) Report any other side effect to the prescribing physician within 72 hours.

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 March 1, 2006.

TRD-200601239

For further information, please call: (512) 438-3437

7. USE OF PSYCHOTROPIC MEDICATION

40 TAC §§748.2251, 748.2253, 748.2255, 748.2257, 748.2259, 748.2261

§748.2251.What additional consent must I obtain to administer psychotropic medication?

(a) You must obtain consent from a person legally authorized to give medical consent before administering a new prescription for a psychotropic medication to a child. The consent must be specific regarding the psychotropic medication to be administered.

(b) The written consent must be signed and dated.

§748.2253.If my operation employs or contracts with a health-care professional who prescribes psychotropic medications to a child in care, what information must I provide the person legally authorized to give consent before requesting his consent for the child to be placed on psychotropic medication?

(a) Before requesting the person's written consent to give the child psychotropic medication, the prescribing health-care professional must give the following in writing or document a discussion with the person or a combination of both:

(1) The child's diagnosis;

(2) The nature of the child's mental illness or condition;

(3) An explanation of the purpose of the medication;

(4) A description of the benefits expected;

(5) A description of any accompanying discomforts and risks, including those which could result from long-term use of the medication, and possible side effects, including side effects that are known to frequently occur in persons, side effects to which the child may be predisposed, and the nature and possible occurrence of irreversible symptoms;

(6) A statement of whether the medication is habituating in nature;

(7) Alternative interventions to the use of psychotropic medication that have been attempted and that have been unsuccessful;

(8) Other alternative treatments or procedures to the use of the psychotropic medication;

(9) Risks and benefits of the alternative treatments or procedures;

(10) Risks and benefits of not receiving or undergoing a treatment or procedure;

(11) An explanation that the person legally authorized to give medical consent may ask questions about the child's response to the medication, and may review your daily records on request; and

(12) An explanation that the person legally authorized to give medical consent may withdraw consent and request the medication be discontinued at any time.

(b) The health-care professional must offer to answer any questions the person legally authorized to give consent has about the medication.

(c) The person must sign a consent form that acknowledges that you have provided all of the information set forth in subsection (a) of this section. A copy of this signed consent form must be filed in the child's record.

§748.2255.If my operation does not employ or contract with a health-care professional who prescribes psychotropic medications to a child in care, what information must I provide the person legally authorized to give medical consent prior to the health-care professional prescribing psychotropic medications to a child in care?

If you are requesting consent and the person legally authorized to give consent is not privy to this information, you must:

(1) Before requesting the person's written consent to give the child psychotropic medication, provide information in writing or document a discussion with the person regarding:

(A) The nature of the child's mental illness or condition;

(B) A general explanation of the purpose of the medication;

(D) An explanation that the person may ask questions about the child's response to the medication; and

(E) An explanation that the person may withdraw medical consent and request the medication be discontinued at any time.

(2) Offer to answer any questions the person legally authorized to give medical consent has about the medication and/or provide the name and telephone number of the prescribing health-care professional for further information.

(3) Obtain a signed consent form from the person legally authorized to give medical consent that acknowledges that you have provided all of the information set forth in paragraph (1) of this section. A copy of this signed consent form must be filed in the child's record.

§748.2257.What are the requirements if a physician orders administration of a psychotropic medication to a child in an emergency?

(a) If a physician has made a determination that there is an emergency according to §266.009 of the Family Code and the emergency requires the administration of a psychotropic medication, then you must follow the physician's orders and do not have to obtain consent prior to the administration of the medication.

(b) Within 72 hours after you have administered the medication, you must notify the parent and the person legally authorized to give medical consent.

§748.2259.What information must I document about a child's use of psychotropic medication?

(a) You must maintain a daily record of the child's use of such medication according to the requirements in §748.2151 of this title (relating to What records must I maintain for each child receiving medication?).

(b) You must document in the child's medication record a description of the child's response to the medication and an assessment of its effectiveness at least quarterly.

(c) You must provide the information in subsection (b) of this section to the prescribing health-care professional or the child's current health-care professional to use in evaluating the appropriateness of continuing the medication. You must document the health-care professional's evaluation and review in the child's record.

§748.2261.If my operation employs or contracts with a health-care professional who prescribes psychotropic medications to a child in care, what are the requirements for evaluating whether a child should continue taking a psychotropic medication?

(a) If a child takes psychotropic medications, the prescribing health-care professional must evaluate and document in the child's medication record a description of the child's response to the medication and an assessment of its effectiveness and the appropriateness of continuing the medication at least quarterly. The written evaluation must include any reasons for discontinuing the medication.

(b) If the health-care professional decides that he can evaluate the appropriateness of continuing the medication without seeing the child, you do not have to schedule an appointment for the evaluation.

(c) The health-care professional must consider the target symptoms and treatment goals in evaluating the child's use of psychotropic medications.

(d) The health-care professional must document whether the child needs to continue taking the medication. You must document the health-care professional's decision in the child's record.

(e) If the health-care professional does not substantiate the effectiveness of a specific psychotropic medication within 90 days, the health-care professional must provide a written rationale for continuing the medication for an additional period. The continuation of the medication may not exceed an additional 90 days (for a total of 180 days) if effectiveness is not substantiated by the health-care professional. A copy of the written rationale must be documented in the child's record.

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 March 1, 2006.

TRD-200601240

For further information, please call: (512) 438-3437

Subchapter M. DISCIPLINE AND PUNISHMENT

40 TAC §§748.2301, 748.2303, 748.2305, 748.2307, 748.2309, 748.2311

§748.2301.What are the requirements for disciplinary measures?

(a) Only a caregiver known to and knowledgeable of a child may discipline the child.

(b) Each disciplinary measure must:

(1) Be consistent with your policies and procedures;

(2) Not be physically or emotionally damaging to the child;

(3) Be individualized to meet each child's needs;

(4) Be appropriate to the child's level of understanding, age, and developmental level; and

(5) Be appropriate to the incident and severity of the behavior demonstrated.

(c) Each disciplinary measure must be tailored to teach the child acceptable behavior and self-control. The caregiver must explain the reason for the disciplinary measure when the caregiver imposes the measure.

§748.2303.May I use corporal punishment for children in care?

(a) You may not use or threaten to use corporal punishment with any child in care.

(b) Corporal punishment is the infliction of physical pain on any part of a child's body as a means of controlling or managing the child's behavior. It includes:

(1) Hitting or spanking a child with a hand or instrument; or

(2) Forcing or requiring the child to do any of the following as a method of managing or controlling behavior:

(A) Perform any form of physical exercise, such as running laps or doing sit ups or push ups;

(B) Hold a physical position, such as kneeling or squatting; or

§748.2305.What is "unproductive work"?

(a) "Unproductive work" is work that serves no purpose except to demean the child. Examples include moving rocks or logs from one pile to another or digging a hole and then filling it in. Unproductive work is never an appropriate behavior management tool.

(b) "Unproductive work" does not include work that corrects damage that the child's behavior caused. For example, you may require a child who defaces a fence or wall to repaint it. This example includes a logical consequence and is an acceptable behavior management tool.

§748.2307.What other methods of punishment are prohibited?

In addition to corporal punishment, prohibited discipline techniques include:

(1) Any harsh, cruel, unusual, unnecessary, demeaning, or humiliating discipline or punishment;

(2) Denial of mail or visits with their families as discipline or punishment;

(3) Threatening with the loss of placement as discipline or punishment;

(4) Using sarcastic or cruel humor, and verbal abuse;

(5) Standing in a corner or maintaining an uncomfortable physical position, such as kneeling, or holding his arms out;

(6) Pinching, pulling hair, or biting a child;

(7) Putting anything in or on a child's mouth, such as soap or tape;

(8) Humiliating, shaming, ridiculing, rejecting, or yelling at a child;

(9) Subjecting a child to harsh, abusive, or profane language;

(10) Placing a child in a dark room, bathroom, or closet;

(11) Requiring a child to remain silent or inactive for inappropriately long periods of time for the child's age;

(12) Confining a child to a highchair, box, or other similar furniture or equipment as discipline or punishment;

(13) Denying basic child rights as discipline or punishment;

(14) Withholding food that meets the child's nutritional requirements; and

(15) Using or threatening to use emergency behavior intervention as discipline or punishment.

§748.2309.To what extent may I restrict a child's activities as a behavior management tool?

(a) Within limits, a caregiver may restrict a child's activities as a behavior management tool.

(b) Restrictions of activities, other than school or chores, which will be imposed on a child for more than seven days, must have prior approval by the treatment director, service planning team, or professional level service provider.

(c) Restrictions to communication and visitation with family that will be imposed on a child must have prior approval by the treatment director, service planning team, or professional level service provider.

(d) Restrictions to a particular room or building that will be imposed on a child for more than 24 hours must have prior approval by the treatment director, service planning team, or professional level service provider.

(e) You must inform the child and parent about any restrictions that you place on the child.

(f) Documentation of all approvals, justification for the restriction, and informing the child and parents must be in the child's record.

§748.2311.May a child or adult in care discipline or punish another person in care?

No. A person in care must not discipline or punish another person in care.

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 March 1, 2006.

TRD-200601241

For further information, please call: (512) 438-3437

Subchapter N. EMERGENCY BEHAVIOR INTERVENTION

40 TAC §748.2401

§748.2401.What do certain words mean in this subchapter?

These words have the following meaning in this subchapter:

(1) Chemical restraint--A type of emergency behavior intervention that uses chemicals or pharmaceuticals through topical application, oral administration, injection, or other means to immobilize or sedate a child as a mechanism of control. The use of medications that have a secondary effect of immobilizing or sedating a child, but are prescribed by a treating health-care professional and administered solely for medical or dental reasons, is not chemical restraint and is not regulated as such under this chapter.

(2) De-escalation--See §748.43(12) of this title (relating to What do certain words and terms mean in this chapter?).

(3) Emergency behavior intervention--See §748.43(17) of this title.

(4) Emergency medication--A type of emergency behavior intervention that uses chemicals or pharmaceuticals through topical application, oral administration, injection, or other means to modify a child's behavior. The use of medications that have a secondary effect of modifying a child's behavior, but are prescribed by a treating health-care professional and administered solely for medical or dental reasons (e.g. benadryl for an allergic reaction or medication to control seizures), is not emergency medication and is not regulated as such under this chapter.

(5) Emergency situation--A situation in which attempted preventative de-escalatory or redirection techniques have not effectively reduced the potential for injury and it is immediately necessary to intervene to prevent:

(A) Imminent probable death or substantial bodily harm to the child because the child attempts or continually threatens to commit suicide or substantial bodily harm; or

(B) Imminent physical harm to another because of the child's overt acts, including attempting to harm others. These situations may include aggressive acts by the child, including serious incidents of shoving or grabbing others over their objections. These situations do not include verbal threats or verbal attacks.

(6) Mechanical restraint--A type of emergency behavior intervention that uses the application of a device to restrict the free movement of all or part of a child's body in order to control physical activity.

(7) Personal restraint--A type of emergency behavior intervention that uses the application of physical force without the use of any device to restrict the free movement of all or part of a child's body in order to control physical activity. Personal restraint includes escorting, which is when a caregiver uses physical force to move or direct a child who physically resists moving with the caregiver to another location.

(8) PRN--See §748.43(35) of this title.

(9) Prone restraint--Placing a child in a chest down restraint hold.

(10) Quiet time--A type of behavior modification where a child voluntarily enters and remains in a designated area for a certain period of time.

(11) Seclusion--A type of emergency behavior intervention that places 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, but involves a caregiver placing his body between the child and the exit from that area (e.g. standing in the doorway of a room), is not seclusion because the child is not alone.

(12) Short personal restraint--A personal restraint that does not last longer than one minute before the child is released.

(13) Supine restraint--Placing a child in a chest up restraint hold.

(14) Time out--A type of behavior modification where a child is restricted to a designated area, including his room, for a certain period of time, but the child is not physically prevented from leaving by a locked or barricaded entryway.

(15) Transitional hold--The use of a temporary restraint technique that lasts no longer than one minute as part of the continuation of a longer personal or mechanical restraint.

(16) Triggered review--A review of a specific child's placement, treatment plan, and orders or recommendations for intervention, because a certain number of interventions have been made within a specified period of time (e.g. three seclusions within a seven-day 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 March 1, 2006.

TRD-200601242

For further information, please call: (512) 438-3437

2. TYPES OF EMERGENCY BEHAVIOR INTERVENTION THAT MAY BE ADMINISTERED

40 TAC §§748.2451, 748.2453, 748.2455, 748.2457, 748.2459, 748.2461, 748.2463

§748.2451.What types of emergency behavior intervention may I administer?

(a) If permitted in your policies and you meet the requirements of this subchapter, you may administer the following types of emergency behavior intervention to a child in your care:

(1) Short personal restraint;

(2) Personal restraint;

(3) Emergency medication;

(4) Seclusion:

(A) Only for children with emotional disorders or pervasive developmental disorders; and only if you provide treatment services to 25 or more children with emotional disorders or pervasive developmental disorders, or if more than 30% of the children in your care receive treatment services for emotional disorders or pervasive development disorders. Seclusion is not permitted for children receiving therapeutic camp services; or

(B) Only if you provide emergency care services to the child and only while waiting for the arrival of law enforcement or emergency medical services; and

(5) Mechanical restraint, only if you have a Residential Treatment Center permit.

(b) You may never administer chemical restraints.

(c) Protective and supportive devices are not considered emergency behavior interventions. For information on protective and supportive devices, see Divisions 4 and 5 of Subchapter J of this chapter (relating to Child Care.)

§748.2453.Who may administer emergency behavior intervention?

Only a caregiver qualified in emergency behavior intervention may administer any form of emergency behavior intervention, except for the short personal restraint of a child five years old or younger.

§748.2455.What actions must a caregiver take before using a permitted type of emergency behavior intervention?

Before using a permitted type of emergency behavior intervention, the caregiver must:

(1) Attempt less restrictive behavior interventions that prove to be ineffective at defusing the situation; and

(2) Determine that the basis for the emergency behavior intervention is:

(A) An emergency situation;

(B) A need for a personal restraint to administer intra-muscular medication or other medical treatments prescribed by a licensed physician, such as administering insulin to a child with diabetes; or

(C) A need for a personal restraint in a general residential operation where a child is significantly damaging property, such as breaking car windows or putting holes into walls. If this is the basis of the personal restraint, only a transitional hold may be used and only to prevent the damage.

§748.2457.What requirements must I meet in the use of less restrictive behavior interventions?

(a) Caregivers must follow your policies and procedures for attempting less restrictive interventions.

(b) Less restrictive measures include quiet time and time out.

§748.2459.What is the appropriate use for a short personal restraint?

Generally, a short personal restraint is used in emergency situations and other urgent situations, such as:

(1) To intervene when a child under five years old (chronological or developmental age) demonstrates disruptive behavior, if other efforts to de-escalate the child's behavior have failed; or

(2) When a child over five years old demonstrates behavior disruptive to the environment or milieu, such as disrobing in public, provoking others that creates a safety risk, or to intervene to prevent a child from physically fighting.

§748.2461.What precautions must a caregiver take when implementing a short personal restraint?

(a) When a caregiver implements a short personal restraint, the caregiver must:

(1) Minimize the risk of physical discomfort, harm, or pain to the child; and

(2) Use the minimal amount of reasonable and necessary physical force.

(b) A caregiver may not use any of the following techniques:

(1) A prone or supine restraint;

(2) Restraints that impair the child's breathing by putting pressure on the child's torso, including leaning a child forward during a seated restraint and basket holds;

(3) Restraints that obstruct the airways of the child or impair the breathing of the child, including procedures that place anything in, on, or over the child's mouth, nose, or neck, or impede the child's lungs from expanding;

(4) Restraints that obstruct the caregiver's view of the child's face;

(5) Restraints that interfere with the child's ability to communicate or vocalize distress; or

(6) Restraints that twist or place the child's limb(s) behind the child's back.

§748.2463.Are there any purposes for which emergency behavior intervention cannot be used?

Emergency behavior intervention may never be used as:

(4) A convenience for caregivers or other persons; or

(5) A substitute for effective treatment or habilitation.

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 March 1, 2006.

TRD-200601243

For further information, please call: (512) 438-3437

3. ORDERS

40 TAC §§748.2501, 748.2503, 748.2505, 748.2507

§748.2501.Are written orders required to administer emergency behavior intervention, and if so, who can write them?

According to the following chart, written orders by certain professionals are required to administer certain emergency behavior intervention:

Figure: 40 TAC §748.2501

§748.2503.Must the written order be in a child's record before a caregiver can use an emergency behavior intervention on a child?

Yes, any type of written order that is required, must be in the child's record before a caregiver can use emergency behavior intervention on that child, except for seclusion when it is necessary to prevent the child from endangering himself or others. In this seclusion situation, a licensed psychiatrist, psychologist, or physician must provide a verbal order within one hour after a caregiver initiates the seclusion. The caregiver must document this order, and the professional who provides the verbal order must provide a written version of the order within 72 hours after issuing the order. The written copy must include the time, date, and the professional's signature.

§748.2505.What information must a written order include?

(a) All written orders must include the following:

(1) A statement that the particular type of emergency behavior intervention may only be used in an emergency situation;

(2) Designation of the specific intervention and procedure or technique that is authorized;

(3) Any specific measures for ensuring the child's health, safety, and well being, and the privacy of the setting that safeguards the child's personal dignity;

(4) A complete description of the behaviors and circumstances under which the intervention may be used;

(5) Instructions for observation or heightened observation of the child during the intervention;

(6) The behaviors that indicate the child is ready to be released from the intervention;

(7) The maximum length of time the child may be restrained or secluded regardless of behaviors exhibited;

(8) The prescribing professional's consideration of any potential medical and/or psychiatric contraindications for the specific child, such as a history of physical or sexual abuse or victimization involving the type of intervention; and

(9) Clinical justification for the intervention.

(b) For personal restraint, the written order must also include:

(1) The number of times a child may be restrained in a seven-day period; and

(2) If the orders allow more than three restraints within a seven-day period, a plan for reducing the need for intervention.

(d) For mechanical restraint, the written order must also include the specific device or devices authorized.

§748.2507.Under what conditions are PRN orders permitted for a specific child?

PRN orders for certain emergency behavior interventions are permitted under the following conditions:

Figure: 40 TAC §748.2507

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 March 1, 2006.

TRD-200601244

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

4. RESPONSIBILITIES DURING ADMINISTRATION OF ANY TYPE OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §748.2551, §748.2553

§748.2551.What responsibilities does a caregiver have when implementing a type of emergency behavior intervention?

(a) The use of emergency behavior intervention must be an appropriate response to the behavior demonstrated, and de-escalation must have failed.

(b) The caregiver must act to protect the child's safety and consider:

(1) The characteristics of the immediate physical environment;

(2) The permitted types of emergency behavior intervention; and

(3) The potential risk of harm in using emergency behavior intervention versus the risk of not using emergency behavior intervention.

(1) Initiate an emergency behavior intervention in a way that minimizes the risk of physical discomfort, harm, or pain to the child; and

(2) Use the minimal amount of reasonable and necessary physical force to implement the intervention.

(d) The caregiver must make every effort to protect the child's:

(1) Privacy, including shielding the child from onlookers; and

(2) Personal dignity and well-being, including ensuring that the child's body is appropriately covered.

(e) As soon as possible after starting any type of emergency behavior intervention, the caregiver must:

(1) Explain to the child the behaviors the child must exhibit to be released or have the intervention reduced, if applicable; and

(2) Permit the child to suggest actions the caregivers can take to help the child de-escalate.

(f) If the child does not appear to understand what he must do to be released from the emergency behavior intervention, the caregiver must attempt to re-explain it every 15 minutes until the child understands or is released from the intervention.

§748.2553.When must a caregiver release a child from an emergency behavior intervention?

A child must be released as follows:

Figure: 40 TAC §748.2553

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 March 1, 2006.

TRD-200601245

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

5. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF A PERSONAL RESTRAINT

40 TAC §§748.2601, 748.2603, 748.2605

§748.2601.Who must monitor a personal restraint?

(a) During any personal restraint, a caregiver qualified in emergency behavior intervention must monitor the child's breathing and other signs of physical distress and take appropriate action to ensure adequate respiration, circulation, and overall well-being.

(b) The caregiver monitoring the child should not be the same caregiver that is restraining the child.

§748.2603.What is the appropriate action for a caregiver to take to ensure the child's adequate respiration, circulation, and overall well-being?

Appropriate action includes responding prudently to a potentially life-threatening situation, for example, releasing a child when a child is unresponsive or indicates he cannot breathe and immediately seeking medical assistance from a health-care professional.

§748.2605.What personal restraint, including short personal restraint, techniques are prohibited?

(a) The following personal restraint, including short personal restraint techniques are prohibited:

(1) Restraints that impair the child's breathing by putting pressure on the child's torso, including restraints that obstruct the child's lungs from expanding such as leaning a child forward during a seated restraint, or basket holds;

(2) Restraints that obstruct the child's airway, including procedures that place anything in, on, or over the child's mouth, nose, or neck;

(3) Restraints that obstruct a caregiver's ability to view the child's face;

(4) Restraints that interfere with the child's ability to communicate or vocalize distress; or

(5) Restraints that twist or place the child's limb(s) behind the child's back.

(b) Prone and supine restraints except:

(1) As a transitional hold that lasts no longer than one minute;

(2) As a last resort when other less restrictive interventions have proven to be ineffective; and

(3) When an observer meeting the following qualifications ensures the child's breathing is not impaired:

(A) Trained to identify risks associated with positional, compression, or restraint asphyxia;

(B) Trained to identify risks associated with prone and supine holds; and

(C) Not involved in the restraint. General residential operations and residential treatment centers with a capacity of 16 or fewer children are exempt from meeting this requirement.

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 March 1, 2006.

TRD-200601246

For further information, please call: (512) 438-3437

6. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF SECLUSION

40 TAC §748.2651, §748.2653

§748.2651.What are the additional responsibilities for implementing seclusion?

(a) Caregivers must continuously observe the child placed in seclusion. This observation can take place through a window or a one-way mirror. The use of a video camera to continuously observe a child in seclusion is not permitted.

(b) There must be a protected, private, and observable environment or room that safeguards the child's personal dignity and well-being that must:

(1) Have 40 square-feet of floor space and a ceiling height of at least eight feet;

(2) Be free of safety hazards;

(3) Be adequately ventilated during warm weather and adequately heated during cold weather;

(4) Be appropriately lighted; and

(5) Have a mat and bedding, unless the prescribing professional writes orders to the contrary.

§748.2653.What must occur for a caregiver to remove the mat or bedding without a written order?

(a) If a caregiver cannot obtain a written order to remove the mat or bedding, the caregiver must obtain and document a licensed psychiatrist's, psychologist's, or physician's verbal order with the rationale for the removal no later than one hour following the intervention.

(b) The verbal order must include an evaluation by the psychiatrist, psychologist, or physician assessing whether seclusion is the most appropriate intervention for the child given the situation.

(c) The professional who provides the verbal order must provide a written version of the order within 72 hours of issuing the order. The written copy must include the time, date, and the professional's signature.

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 March 1, 2006.

TRD-200601247

For further information, please call: (512) 438-3437

7. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF A MECHANICAL RESTRAINT

40 TAC §§748.2701, 748.2703, 748.2705

§748.2701.What are the additional responsibilities for implementing a mechanical restraint?

(a) Only commercially available devices specifically designed for the safe and comfortable restraint of humans may be used as mechanical restraints.

(b) 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.

(c) There must be a protected, private, and observable environment or room that safeguards the child's personal dignity and well-being.

(d) Caregivers must continuously observe the child placed in mechanical restraint ensuring the child has adequate respiration, circulation, and overall well-being. This observation can take place through a window or a one-way mirror. The use of a video camera to continuously observe a child in mechanical restraint is not permitted. In addition to continual observation, a caregiver must check for circulation, skin color, and respiration at least every 15 minutes.

§748.2703.May my residential treatment center use altered mechanical restraint devices when restraining a child?

Yes; however, any alteration of commercially available mechanical restraint devices must be reviewed and approved by a licensed psychiatrist who must:

(1) Base his approval on the individual child's special physical needs; and

(2) Take into consideration any potential medical contraindications, including psychiatric contraindications, such as the child's history of sexual abuse or previous use of mechanical restraints.

§748.2705.What mechanical and other restraint devices are prohibited?

(a) Devices with metal wrist or ankle cuffs, such as handcuffs or shackles;

(b) Devices with rubber bands, rope, or cord;

(d) Long ties, such as leashes;

(e) Bed sheets or blankets;

(f) Veil beds; and

(g) Beds that have bedrails for the entire length of the bed, except for a child receiving primary medical needs and authorized by a physician.

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 March 1, 2006.

TRD-200601248

For further information, please call: (512) 438-3437

8. SUCCESSIVE USE AND COMBINATIONS OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §§748.2751, 748.2753, 748.2755, 748.2757

§748.2751.May a caregiver successively use emergency behavior interventions on a child?

(a) A caregiver may successively use emergency behavior interventions on a child only if:

(2) Permitted by rules of this subchapter for both types of emergency behavior intervention; and

(3) The following written orders are met:

(A) If the successive intervention is seclusion immediately following a personal restraint or mechanical restraint: the written order for the seclusion meets the requirements in Division 3 of this subchapter (relating to Orders) and permits and provides clinical justification for the use of the seclusion successive to a personal restraint or a mechanical restraint;

(B) If the successive intervention is a mechanical restraint immediately following a personal restraint or seclusion: the written order for the mechanical restraint meets the requirements in Division 3 of this subchapter and permits and provides clinical justification for the use of the mechanical restraint successive to a personal restraint or a seclusion;

(C) If the successive intervention is a personal restraint immediately following a seclusion or a mechanical restraint: The professional ordering the seclusion or mechanical restraint must approve of and provide clinical justification for the successive use of the personal restraint in a written order; and

(D) If the successive intervention is personal restraint immediately following another personal restraint: the time spent in the personal restraints is cumulative and may not exceed the maximum length of time permitted.

(b) A caregiver must allow the child:

(1) Bathroom privileges at least once every two hours;

(2) An opportunity to drink water at least once every two hours;

(3) Regularly prescribed medications unless otherwise ordered by the licensed physician;

(4) Regularly scheduled meals and snacks served in a safe and appropriate manner; and

(5) An environment that is adequately ventilated during warm weather, adequately heated during cold weather, appropriately lighted, and free of safety hazards.

§748.2753.May a caregiver simultaneously use emergency medication in combination with another emergency behavior intervention?

(a) A caregiver may simultaneously use emergency medication in combination with personal restraint or seclusion only if:

(2) Permitted by the rules of this subchapter for both types of emergency behavior intervention; and

(3) Written orders specifically allow the combination.

(b) The written orders must include clinical justification for the combination of emergency medication with personal restraint or seclusion that goes beyond the justification for the use of a single emergency behavior intervention. Clinical justification for the combination must be provided by:

(1) The licensed physician ordering the emergency medication for the combination of emergency medication and seclusion; or

(2) Both the licensed physician ordering the emergency medication and the professional ordering the personal restraint, if they are different people.

§748.2755.May a caregiver simultaneously implement mechanical restraint in combination with emergency medication?

(a) A caregiver may simultaneously implement mechanical restraint in combination with emergency medication only if:

(2) Permitted by the rules of this subchapter for both types of emergency behavior intervention; and

(3) Written orders specifically allow the combination.

(b) The written orders must include clinical justification for the combination of mechanical restraint with emergency medication that goes beyond the justification for the use of a single emergency behavior intervention. Clinical justification for the combination of mechanical restraint and emergency medication must be coordinated and provided by the licensed psychiatrist ordering the medical restraint and the licensed physician ordering the emergency medication, if they are different people.

§748.2757.May a caregiver simultaneously implement mechanical restraint in combination with seclusion?

No, mechanical restraint and seclusion may not be simultaneously implemented.

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 March 1, 2006.

TRD-200601249

For further information, please call: (512) 438-3437

9. TIME RESTRICTIONS FOR EMERGENCY BEHAVIOR INTERVENTION

40 TAC §§748.2801, 748.2803, 748.2805, 748.2807

§748.2801.What is the maximum length of time that an emergency behavior intervention can be administered to a child?

The maximum length of time that certain emergency behavior interventions can be administered to a child is as follows:

Figure: 40 TAC §748.2801

§748.2803.How long may a caregiver seclude or mechanically restrain a child who has been released within the same 12-hour time period?

If a child is released from seclusion or a mechanical restraint and then secluded or mechanically restrained again within the same 12-hour period, the time spent in seclusion or mechanical restraint is cumulative and may not exceed the maximum length of time permitted.

§748.2805.Can a caregiver exceed the maximum length of time that an emergency behavior intervention can be administered to a child?

A caregiver may exceed the maximum length of time for certain emergency behavior interventions as follows:

Figure: 40 TAC §748.2805

§748.2807.May continuation orders be obtained verbally to exceed the maximum length of time that seclusion or mechanical restraint can be administered to a child?

(a) Yes, if:

(1) The caregiver does a face-to-face evaluation of the child;

(2) Verbal authorization is obtained before the end of the maximum length of time for seclusion;

(3) The caregiver documents the verbal continuation orders; and

(4) The professional who provides the verbal order provides a written version of the order within 72 hours of issuing the order. The written copy must include the time, date, and the professional's signature.

(b) If the seclusion and mechanical restraint continues beyond the maximum length of time, then the caregiver must allow the child:

(1) Bathroom privileges at least once every two hours;

(2) An opportunity to drink water at least once every two hours;

(3) Regularly prescribed medications, unless otherwise ordered by the licensed physician;

(4) Regularly scheduled meals and snacks served in a safe and appropriate manner; and

(5) An environment that is adequately ventilated during warm weather, adequately heated during cold weather, appropriately lighted, and free of safety hazards.

(c) If the mechanical restraint continues beyond the maximum length of time, then the caregiver must also allow the child an opportunity for range-of-motion exercises for at least five minutes of each hour a child is in restraint.

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 March 1, 2006.

TRD-200601250

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

10. GENERAL CAREGIVER RESPONSIBILITIES, INCLUDING DOCUMENTATION, AFTER THE ADMINISTRATION OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §§748.2851, 748.2853, 748.2855

§748.2851.What follow-up actions must caregivers take after the child's behavior no longer constitutes an emergency situation?

(a) The caregivers must take appropriate actions to help the child return to routine activities. The follow-up actions of the caregivers must include:

(1) Providing the child with an appropriate transition and offering the child an opportunity to return to regular activities;

(2) Observing the child for at least 15 minutes; and

(3) Providing the child with an opportunity to discuss the situation that led to the need for emergency behavior intervention and the caregiver's reaction to that situation. The discussion must be held in private as soon as possible and no later than 48 hours after the child's use of an emergency medication or release from any emergency behavior intervention.

(b) Caregivers involved in the emergency behavior intervention must conduct a post-emergency behavior intervention discussion with the child. The goal of the discussion is to allow the child and caregiver to discuss:

(1) The child's behavior and the circumstances that constituted the need for an emergency behavior intervention;

(2) The strategies attempted before the use of the emergency behavior intervention and the child's reaction to those strategies;

(3) The emergency behavior intervention itself and the child's reaction to the emergency behavior intervention;

(4) How caregivers can assist the child in regaining self-control in the future to avoid the administration of an emergency behavior intervention; and

(5) What the child can do to regain self-control in the future to avoid the administration of an emergency behavior intervention.

(1) Debrief with each other concerning the incident as soon as possible after the situation has stabilized; and

(2) Make every effort to debrief with children in care who witness the incident.

(d) The supervisor(s) of the caregivers involved in the emergency behavior intervention must review and document the use of the emergency behavior intervention within 72 hours of the intervention.

(e) The caregivers do not have to return the child to previous activities or place the child in current activities that the group is participating in if the caregivers deem the child's participation is not in the best interests of the child or the other children in the group. However, caregivers must engage the child in an alternative routine activity.

(f) This rule does not apply to the following types of emergency behavior intervention:

(1) Short personal restraint; and

(2) Seclusion, if the child is receiving emergency care services.

§748.2853.What must the caregiver document after discussing his use of an emergency behavior intervention with a child?

(a) The date and time the caregiver offered the discussion;

(b) The child's reaction to the opportunity for discussion;

(d) The content of the discussion, if applicable.

§748.2855.When must a caregiver document the use of an emergency behavior intervention, and what must the documentation include?

(a) As soon as possible, but no later than 24 hours after the initiation of the intervention, the caregiver must document in the child's record the following information:

(1) The child's name;

(2) The basis for the emergency behavior intervention;

(3) A description and assessment of the circumstances and specific behaviors that caused the basis for the emergency behavior intervention;

(4) The de-escalation attempted before the use of the emergency behavior intervention and the child's reaction to those strategies;

(5) The specific emergency behavior intervention administered;

(6) The date and time the intervention was administered;

(7) The length of time the child was restrained or secluded;

(8) The name of the caregiver(s) that participated in the incident that led to the intervention, and who administered the intervention;

(9) The name of the person(s) who observed the child;

(10) The duration of the emergency behavior intervention;

(11) All attempts to explain to the child what behaviors were necessary for release from the intervention;

(12) The child's condition following the use of the medication or release from the intervention, including any injury the child sustained as a result of the intervention or any adverse effects caused by the use of the intervention;

(13) The actions the caregiver(s) took to facilitate the child's return to normal activities following the end of the intervention; and

(14) Supervisors of caregivers involved in emergency behavior intervention of a child must document their review of the use of the intervention within 72 hours of the incident.

(b) If personal restraint is used, documentation must also include the specific restraint techniques used, including a prone or supine restraint used as a transitional hold.

(c) If emergency medication is used, documentation must also include the specific medication used and the dosage administered to the child.

(d) If mechanical restraint is used, documentation must also include:

(1) The specific restraint device used; and

(2) Continuous observation and regular respiration and circulation checks and times the checks were conducted.

(e) This rule does not apply to short personal restraints.

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 March 1, 2006.

TRD-200601251

For further information, please call: (512) 438-3437

11. TRIGGERED REVIEWS

40 TAC §§748.2901, 748.2903, 748.2905, 748.2907, 748.2909

§748.2901.What circumstances trigger a review of the use of emergency behavior intervention for a specific child?

The following circumstances trigger a review for certain emergency behavior interventions:

Figure: 40 TAC §748.2901

§748.2903.When must a triggered review occur?

(a) A triggered review must occur as soon as possible, but no later than 30 days after the review is triggered.

(b) The regularly scheduled review of the child's service plan can serve as the triggered review if it meets the requirements in §748.2907 of this title (relating to What must the triggered review include and what must be documented in the child's record?) and takes place no later than 30 days after the review is triggered.

§748.2905.Who must participate in the triggered review?

A full service planning team must participate in the triggered review. Even if the child is not receiving treatment services, the two additional professions required in §748.1339(b) of this title (relating to Who must be involved in developing an initial service plan?) must be involved in the triggered review.

§748.2907.What must the triggered review include and what must be documented in the child's record?

(a) The same items that must be included and documented in an initial service plan, (see §748.1337 of this title (relating to What must a child's initial service plan include?));

(b) A review of the records and orders of the emergency behavior interventions;

(c) A review and documentation of any potential medical or psychiatric reason for not using emergency behavior interventions on the child, including the prescribing professional's consideration of any potential medical and/or psychiatric contraindications for the specific child, such as a history of physical or sexual abuse or victimization involving the type of intervention;

(d) An examination of alternatives to manage the child's behavior and to assist the child in managing his own behavior; and

(e) A written plan for reducing the need for emergency behavior intervention.

§748.2909.What if there are four triggered reviews within a 90-day period?

If there are four triggered reviews within a 90-day period:

(1) A licensed psychiatrist, psychologist, clinical social worker, professional counselor, or marriage and family therapist must examine the child; and

(2) The licensed professional must make service plan recommendations regarding the use of emergency behavior interventions. You must document these recommendations in the child's record.

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 March 1, 2006.

TRD-200601252

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

12. OVERALL OPERATION EVALUATION

40 TAC §748.2951, §748.2953

§748.2951.What is an overall operation evaluation?

(a) The overall operation evaluation is an annual review regarding:

(1) The use and effectiveness of emergency behavior interventions at your operation; and

(2) Your emergency behavior intervention policies and procedures, including the training policy and curriculum.

(b) The objectives of the evaluation are to:

(1) Develop and maintain an environment or milieu that supports positive and constructive behaviors of children in care;

(2) Use any type of emergency behavior intervention safely, appropriately, and effectively; and

(3) Eliminate or reduce physical injuries and any other negative side effects on the child's behavior or emotional development resulting from the emergency behavior interventions.

(1) The frequency, patterns, and effectiveness of the types of emergency behavior intervention techniques that are used for all children in your operation;

(2) Strategies to reduce the need for emergency behavior interventions for all children in your operation; and

(3) Specific strategies to reduce the need for use of specific types of emergency behavior intervention techniques for all children in your operation.

(d) The results of each overall operation evaluation must be made available to us for review.

§748.2953.What data must be collected?

(a) Quarterly, you must collect, document, and review aggregate numbers of emergency behavior interventions by type of intervention.

(b) This information must be reported to us quarterly.

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 March 1, 2006.

TRD-200601253

For further information, please call: (512) 438-3437

Subchapter O. SAFETY AND EMERGENCY PRACTICES

1. SANITATION AND HEALTH PRACTICES

40 TAC §§748.3001, 748.3003, 748.3005, 748.3007, 748.3009, 748.3011, 748.3013, 748.3015, 748.3017, 748.3019, 748.3021

§748.3001.When must I have an annual sanitation inspection?

(a) A state or local sanitation official must conduct a sanitation inspection of your operation:

(1) Before we issue you an initial permit; and

(2) At least once every 12 months from the date of the last sanitation inspection.

(b) Each inspection must meet regulations set by the Department of State Health Services or local health department ordinances.

§748.3003.How must I document that a sanitation inspection has been completed?

You must keep the most recent sanitation inspection report, letter, or checklist at your operation to verify the inspection date and findings. The report must include the name and telephone number of the inspector.

§748.3005.Must I make all corrections specified in the sanitation inspection report?

You must correct deficiencies and comply with corrections, restrictions, or conditions that the inspector specifies in the sanitation report, letter, or checklist.

§748.3007.What must I sanitize?

You must sanitize any item or surface that comes into contact with bodily fluids and has the possibility for cross contamination.

§748.3009.How should items be sanitized?

Items may be sanitized by:

(1) Completing the four-step process outlined in the definition in §748.43(38) of this title (relating to What do certain words and terms mean in this chapter?);

(2) Washing the items for five or more minutes in a dishwasher or washing machine that uses hot water of a temperature of at least 160 degrees Fahrenheit;

(3) Washing in a three-compartment sink or three containers. The sinks and/or containers must be large enough to completely immerse the items for soaking, rinsing, and disinfecting; or

(4) Following the requirements of any alternative methods that have been approved by the Department of State Health Services for your operation.

§748.3011.When must employees and children wash their hands?

(a) Employees must practice appropriate hand washing with soap and running water to prevent cross contamination.

(b) Caregivers must instruct children on appropriate hand washing to prevent cross contamination.

§748.3013.What are the parameters for sinks used for food service or food preparation?

All sinks that you use for food service or food preparation must be supplied with hot and cold running water under pressure.

§748.3015.How must caregivers handle bodily fluids that require universal precautions?

(a) Bodily fluids that require universal precautions include blood, vomit, or other bodily fluids that may contain blood.

(b) When handling these bodily fluids, caregivers must:

(1) Use disposable, nonporous gloves;

(2) Discard the gloves in a sanitary manner immediately after one use;

(3) Wash hands with soap and running water after using and disposing of the gloves;

(4) Dispose these bodily fluids in accordance with local regulations. Where local disposal regulations do not exist, the Department of State Health Services must be consulted regarding the appropriate disposal procedures and their recommendations must be followed; and

(5) Dispose disposable syringes, needles, and other sharp items used by persons for injections or for medical or other procedures in a hard plastic, leak and puncture-resistant container immediately after use, and keep them inaccessible to children.

§748.3017.Are animals allowed at my operation?

(a) Yes; if:

(1) You keep the operation and premises free of stray animals. If you choose to have animals on the premises, you must ensure the animals do not create health problems or a health risk for children, such as allergic reactions or the spread of disease through direct or indirect means.

(2) You do not allow children to play with stray animals or other animals that could be dangerous.

(3) You have documentation at your operation showing dogs, cats, and ferrets have been vaccinated as required by Texas Health and Safety Code, Chapter 826.

(4) All animals on the premises, including pets and livestock, are treated according to a licensed veterinarian's recommendations to protect the health and safety of children.

(b) For therapeutic camp services, you must house horses and other animals that you maintain at a camp at a reasonable distance from any sleeping, living, eating, or food preparation area.

§748.3019.Must I use a licensed exterminator to treat my operation for insects, rodents, and other pests?

(a) You may treat your operation for pests only if the Structural Pest Control Board has certified you as a noncommercial applicator.

(b) Otherwise, you must use a pest control operator licensed by the Texas Structural Pest Control Board to prevent, control, or eliminate pest infestations at your operation. Refer to the Structural Pest Control Act and related regulation for further information on pest control before treating your operation.

(c) For therapeutic camp services, you must maintain a vector control program to ensure effective control of all insects and rodents in the buildings and on the premises of your permanent camp. If chemical control is needed, then you must comply with subsections (a) and (b) of this section.

§748.3021.How must I protect children from dangerous tools and equipment?

Dangerous tools and equipment, such as hatchets, saws, axes, and hammers must be stored, so they are inaccessible to children. Children may use these tools and equipment with direct caregiver-supervision, if appropriate based on the child's age, maturity, and treatment issues.

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 March 1, 2006.

TRD-200601254

For further information, please call: (512) 438-3437

2. NATURAL GAS AND LIQUEFIED PETROLEUM

40 TAC §§748.3061, 748.3063, 748.3065

§748.3061.When must my operation be inspected for gas leaks?

Your operation must be inspected for gas leaks:

(1) Before we issue your initial permit; and

(2) At least once every 12 months from the date of the last inspection for gas leaks.

§748.3063.Who must conduct a gas leak inspection at my operation?

(a) If your operation uses natural gas, a licensed plumber or a gas company official must conduct the gas leak inspection.

(b) If your operation uses liquefied propane (LP) gas, you must have your LP-gas system inspected for proper installation and leaks by:

(1) A licensed LP-gas servicing company; or

(2) A licensed plumber who is also licensed with the LP-gas section of the Texas Railroad Commission.

§748.3065.What documentation must I maintain regarding gas leak inspections?

(a) A written gas inspection report must show your gas system is free of leaks and must indicate the date of the inspection, as well as the name and telephone number of the inspector.

(b) You must keep the most recent inspection report at your operation to verify the inspection date and findings.

(c) You must comply with all corrections, conditions, or restrictions specified in the gas inspection report within the timeframes specified by the inspector.

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 March 1, 2006.

TRD-200601255

For further information, please call: (512) 438-3437

3. FIRE SAFETY PRACTICES

40 TAC §§748.3101, 748.3103, 748.3105, 748.3107, 748.3109, 748.3111, 748.3113, 748.3115, 748.3117, 748.3119

§748.3101.When must I have a fire inspection?

You must have a fire inspection:

(1) Before we issue your initial permit; and

(2) At least once every 12 months from the date of the last fire inspection.

§748.3103.Who must conduct a fire inspection?

(a) A state or local fire marshal must conduct the inspection.

(b) If an inspection is not available, you must provide documentation of this from a state or local fire marshal or county judge.

§748.3105.What documentation must I maintain regarding a fire inspection?

(a) You must keep the most recent fire-inspection report, letter, or checklist at the operation to verify the inspection date and findings. The report must include the inspector's name and telephone number.

(b) You must comply with the local code and all corrections, restrictions, or conditions specified by the inspector in the fire inspection report, letter, or checklist.

§748.3107.What type of smoke-detection system must I have?

(a) Your operation must have an operable smoke-detection system that is audible throughout the operation. This may be:

(1) An electronic alarm and smoke-detection system; or

(2) Individual electric or battery-operated smoke detectors located according to the fire marshal's recommendations. If no fire marshal is available or able to give recommendations, smoke detectors must be located in the following areas:

(A) In each bedroom, including each room used for sleeping such as when a child requires greater caregiver supervision and is temporarily sleeping in a room other than a bedroom;

(B) At the top of the stairs of each level of an operation with multiple levels;

(D) Common rooms and recreation areas.

(b) All smoke detectors must be equipped so each person with a hearing impairment will be alerted in the event of a fire.

(c) New operations granted a permit by us on or after January 1, 2007, must have smoke detectors that get their power from building wiring from a commercial source. Wiring must be permanent. Smoke detectors must:

(1) Be equipped with a battery back-up; and

(2) Emit a signal when the batteries are low.

§748.3109.How must smoke detectors be installed at my operation?

(a) Smoke detectors must be installed and maintained according to the manufacturer's instructions or in compliance with the state or local fire marshal's instructions.

(b) Batteries must be changed annually or sooner, as required to maintain operable smoke detector units.

§748.3111.How often must the smoke detectors at my operation be tested?

(a) The administrator or designee must test all battery-operated smoke detectors monthly by pressing the test button or switch on the unit. The date of the test and the name of the employee who does the testing must be documented and kept at the operation for review.

(b) The monitoring company or the state or local fire marshal must test an electronic smoke alarm system at least annually. You must keep documentation of the inspection at the operation for review. The documentation must indicate the date of the inspection and the inspector's name and telephone number.

§748.3113.Must my operation have a fire-extinguishing system?

(a) Yes. Your operation must have a fire-extinguishing system, which may be a sprinkler system and/or fire extinguishers.

(b) The state or local fire marshal must approve the sprinkler system and/or fire extinguishers in your operation. If an inspection is not available, you must have at least one fire extinguisher in the operation rated ABC (3A:40-B:C) or ABCD.

§748.3115.How often must I inspect and service the fire extinguisher(s)?

You must inspect the fire extinguisher(s) monthly and ensure:

(1) There will be no interference with access to the extinguisher in an emergency, for example, there are no objects blocking access;

(2) Fire extinguishers are accessible for immediate use by employees, caregivers, and volunteers; and

(3) Fire extinguishers are serviced as required by manufacturer's instructions, or as required by the state or local fire marshal.

§748.3117.How often must the state or local fire marshal inspect fire extinguisher(s)?

(a) The state or local fire marshal must inspect your fire extinguishers annually.

(b) You must keep documentation of the inspection at the operation for review. The documentation must indicate the date of the inspection and the inspector's name.

§748.3119.How often must a fire sprinkler system be inspected?

(a) If your operation has a fire sprinkler system, the system monitoring company or the state or local fire marshal must test the fire sprinkler system at least annually.

(b) You must keep the most recent inspection report at the operation for review. The documentation must indicate the date of the inspection and the inspector's name and telephone number.

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 March 1, 2006.

TRD-200601256

For further information, please call: (512) 438-3437

4. HEATING DEVICES

40 TAC §748.3161

§748.3161.What steps must I take to ensure that heating devices do not present hazards to children?

(a) Gas appliances must have metal tubing and connections, be in good repair, and free from leaks.

(b) Space heaters must be enclosed and have the seal of approval of a United States test laboratory or be approved by the state or local fire marshal.

(c) You must safeguard floor and wall furnace grates, steam and hot water pipes, and electric space heaters, so children do not have access to them.

(d) Gas fuel heaters, fireplaces, and wood-burning stoves must be properly vented to the outside.

(e) If you use a fireplace, wood-burning stove, or space heater, you must install a screen or guard with sufficient strength to prevent children from falling into the fire or against the stove or heater.

(f) You must keep fireplaces and wood-burning stoves clean.

(g) You may not use any of the following in your operation:

(1) Stoves, including portable camp stoves, used to heat any part of the operation;

(2) Open flame heaters (heaters where the flame can be easily touched or accessed); or

(3) Liquid fuel heaters.

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 March 1, 2006.

TRD-200601257

For further information, please call: (512) 438-3437

5. CARBON MONOXIDE SAFETY PRACTICES

40 TAC §§748.3191, 748.3193, 748.3195

§748.3191.Must I have a carbon monoxide detector-system?

You must have an operable carbon monoxide detector-system if your operation has gas appliances. This may be:

(1) An electronic carbon monoxide detector-system; or

(2) Individual electric or battery-operated carbon monoxide detectors.

§748.3193.How must carbon monoxide detectors be installed?

(a) You must install carbon monoxide detectors that meet Underwriters Laboratories Inc. requirements (UL-Listed).

(1) You must install carbon monoxide detectors according to manufacturer's specifications for proper location and installation; and

(2) Furniture, draperies, or other items must not cover up detectors.

(b) If you use an electronic carbon monoxide detection-system connected to an alarm/smoke detection system, the system must be installed according to the state or local fire marshal's requirements.

§748.3195.How must I maintain carbon monoxide detectors?

You must maintain electric or battery-operated carbon monoxide detectors in compliance with the manufacturer's instructions.

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 March 1, 2006.

TRD-200601258

For further information, please call: (512) 438-3437

6. EMERGENCY EVACUATION AND RELOCATION

40 TAC §§748.3231, 748.3233, 748.3235, 748.3237, 748.3239

§748.3231.What is an emergency evacuation and relocation plan?

(a) An emergency evacuation and relocation plan is a plan designed to ensure the safety of children during a fire, severe weather conditions, or another type of emergency requiring evacuation or relocation of children in care.

(b) In an emergency, your first responsibility is to move all the children to a designated safe area known to all employees, caregivers, and volunteers. Your plan must also require the person in charge of your operation during the emergency to:

(1) Designate an employee to call the fire department in case of fire or danger of fire, explosion, toxic fumes, or other chemical release. If the danger requires immediate evacuation of the operation, this person must first evacuate the operation and then make the necessary call from another location;

(2) Designate an employee responsible for securing children's emergency numbers, emergency medical authorizations, and medications during the emergency;

(3) Once the person in charge is at the designated safe area, account for all children who were in attendance at the time of the emergency; and

(4) Ensure that no one uses elevators during a fire.

§748.3233.Must I have an emergency evacuation and relocation diagram?

(a) You must have a written emergency evacuation and relocation diagram specifying directions for egress on file at your operation.

(b) The emergency evacuation and relocation diagram must show the following:

(1) A floor plan of your operation;

(2) The designated location outside of the operation where all caregivers and children meet to ensure everyone has exited the operation safely;

(3) The designated location inside the operation where all caregivers and children take shelter from threatening weather; and

(4) At least two exit routes that:

(A) Are located in distant parts of the building and lead to the outside;

(B) Are not blocked in any way, including with furniture or equipment;

(C) Are not through a kitchen or other hazardous area, unless specifically approved in writing by the state or local fire marshal. The written approval must be signed and dated by the state or local fire marshal and maintained at your operation for our review;

(D) Are not a window, unless children and caregivers are physically able to exit through the window to the ground outside safely and quickly;

(E) Are not doors or windows that are locked and require a key to open from the inside, unless specifically approved in writing by the state or local fire marshal. The written approval must be signed and dated by the state or local fire marshal and maintained at your operation for our review;

(F) Do not lead into a pool area; and

(G) If above the ground level, are served by standard stairs and do not require ladders, folding stairs, or trap doors to gain access to the ground floor.

§748.3235.Where must I post the emergency evacuation and relocation diagram?

You must post the emergency evacuation and relocation diagram in a prominent and visible location in all buildings used by an employee, volunteer, or child.

§748.3237.What other safety provisions must I make?

(a) Closet door latches must allow children to open the door from the inside of the closet.

(b) In case of electrical failure, you must have an operable source of emergency lighting that is approved by the state or local fire marshal, or operable battery-powered lighting.

§748.3239.How often must I practice my emergency evacuation and relocation plans?

(a) You must practice an unannounced fire drill at least once every six months from the date of the last fire drill. During each drill:

(1) You must set off a fire alarm or smoke detector;

(2) The participants must use alternate exit routes;

(3) The children must be able to safely exit the building to the designated meeting place within three minutes; and

(4) The participants must not use elevators.

(b) You must practice a severe weather drill at least once every six months from the date of the last severe weather drill.

(d) You must document these drills, including the date of the drill, time of the drill, type of drill, and length of time for the evacuation or relocation to take place.

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 March 1, 2006.

TRD-200601259

For further information, please call: (512) 438-3437

7. FIRST-AID KITS

40 TAC §748.3271, §748.3273

§748.3271.Must I have a first-aid kit at my operation?

Yes. All separate living areas and buildings must have a complete first-aid kit available. A first-aid kit must also be available for all field trips. Each first-aid kit must be:

(1) Clearly labeled;

(2) Kept in a clean and sanitary condition;

(3) In good condition and not have expired medications or supplies;

(4) Easily accessible to all employees;

(5) Stored in a designated location known to all employees; and

(6) Kept out of the reach of children.

§748.3273.What must each first-aid kit contain?

Each first-aid kit must contain at least the following supplies:

(1) A current guide to first aid and emergency care;

(2) Adhesive tape;

(3) Antiseptic solution or wipes;

(4) Cotton balls;

(5) Multi-size adhesive bandages;

(6) Scissors;

(7) Sterile gauze pads;

(8) Thermometer;

(9) Tweezers; and

(10) Waterproof, disposable gloves.

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 March 1, 2006.

TRD-200601260

For further information, please call: (512) 438-3437

Subchapter P. PHYSICAL SITE

1. GROUNDS AND GENERAL REQUIREMENTS

40 TAC §§748.3301, 748.3303, 748.3305, 748.3307, 748.3309, 748.3311, 748.3313, 748.3315, 748.3317

§748.3301.What general physical site requirements must my operation meet?

(a) Buildings, including exterior and interior surfaces (such as walls, floors, and ceilings), must be structurally sound, clean, and in good repair. Paints used at the operation after January 1, 2007, must be lead-free.

(b) Buildings must comply with applicable building, plumbing, electrical, fire, and similar codes.

(d) Walkways must be free of ice, snow, and obstruction.

(e) Outdoor areas must be well drained.

(f) The grounds of the operation must be well maintained and free of hazards.

(g) The grounds of the operation must be free of accumulation of garbage and debris. All garbage must be disposed of in a sanitary manner in accordance with the Texas Commission on Environmental Quality (see 30 TAC Chapter 330, Municipal Solid Waste).

(h) The grounds of the operation must be free of surfaces coated or treated with, or containing, toxic materials that are accessible to children younger than three years old or children who may lick or chew the surface. Such substances include arsenic and creosote used to preserve wood exposed to the outdoor weather, like railroad ties and treated wood.

(i) The building and grounds must be free of rodents and insects.

(j) Equipment must be safe for children and must be kept clean and in good repair.

§748.3303.What parts of my operation must be ventilated?

Living quarters, recreation areas, dining areas, bathrooms, bedrooms, and kitchens must be ventilated by at least one operable window or mechanical ventilation system.

§748.3305.What are the requirements for handrails, railings, and stairway and stairwell landings?

(a) Each ramp, stairway, and steps exceeding two steps must have a well-secured handrail. Stairs must have a minimum width of 36 inches.

(b) Each porch or deck that has over an 18-inch drop must have a well-secured railing.

(c) If a door opens directly to a stairway, the door must be a minimum of 34 inches wide. There must be a landing between the door and the stairs. The landing must be wide enough to allow the door to open and a person to safely step on to the landing while closing the door.

§748.3307.What are the requirements for lighting?

(a) All living quarters must be provided with electric services.

(b) The following must be lighted in order to avoid accidents:

(1) Habitable rooms;

(2) Common use rooms, such as dining rooms, living rooms, laundry rooms, and gymnasiums;

(3) Bathrooms;

(4) Hallways;

(5) Interior stairs;

(6) Outside steps and doorways;

(7) Porches;

(8) Ramps; and

(9) Fire escapes.

§748.3309.What are the requirements for a communication system?

Your operation must have:

(1) An operable telephone with an outside line that is accessible to employees in emergencies. This telephone must have a listed telephone number and not be coin-operated; and

(2) A communication system to allow employees to contact other employees in the operation for assistance in an emergency or as needed.

§748.3311.What are the requirements for using a riding lawn mower or tractor?

You must never permit a child:

(1) Under 14 years old to operate a riding lawn mower or tractor; or

(2) To ride as a passenger on an operating lawn mower or tractor.

§748.3313.May I use water from a private water system?

You may use water from a private water system if you maintain:

(1) The water supply in a safe and sanitary manner; and

(2) Written records indicating the private water supply meets the requirements of the Texas Commission on Environmental Quality.

§748.3315.What are the requirements for running hot water?

A thermostat must control the temperature of hot water accessible to children, so the water temperature is no higher than 120 degrees Fahrenheit.

§748.3317.May I use a septic system for sewage disposal?

You may use a septic system for sewage disposal if the septic system:

(1) Is sanitary; and

(2) Meets the standards of the Texas Commission on Environmental Quality, including any routine inspections required by law.

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 March 1, 2006.

TRD-200601261

For further information, please call: (512) 438-3437

2. INTERIOR SPACE

40 TAC §§748.3351, 748.3353, 748.3355, 748.3357, 748.3359, 748.3361, 748.3363, 748.3365, 748.3367, 748.3369

§748.3351.What are the requirements for general living space?

You must provide:

(1) Us with a sketch of the operation's floor plan showing the dimensions and the purpose of all rooms and specifying where children and caregivers, if applicable, will sleep;

(2) Living space, appropriate furnishings, and bathroom facilities that are safe, clean, and maintained in good repair;

(3) Provisions for personal storage space for each child's clothing and belongings;

(4) At least 40 square feet per child, including adult residents and children of caregivers residing at the operation, of indoor activity space, excluding bedrooms, halls, kitchens, bathrooms, and any other space not regularly available to a child;

(5) Each bedroom with at least one window with outside exposure as a source of natural light, unless you were granted a permit by us prior to January 1, 2007, and your permit is still valid; and

(6) Every bedroom window with curtains, blinds, shades, or other provisions for rest and privacy.

§748.3353.May I use a video camera to supervise a child in the child's bedroom?

(a) Video cameras may be used to supervise infants and toddlers.

(b) Video cameras may not be used to supervise other children, except infants and toddlers, unless the:

(1) Parent, or other person legally authorized to consent, consents to the use of the video camera; and

(2) Child:

(A) Is younger than five years old;

(B) Has primary medical needs; or

(C) Has a service plan that permits the use for purposes of a documented history of sexually offensive behavior. You must document the justification for the video camera in the child's service plan.

§748.3355.May I use an audio monitoring device to supervise a child in the child's bedroom?

(a) Audio monitoring devices may be used to supervise infants and toddlers.

(b) Audio monitoring devices may not be used to supervise other children, except infants and toddlers, unless the:

(1) Parent, or other person legally authorized to consent, consents to the use of the audio monitoring device; and

(2) Child:

(A) Is younger than five years old;

(B) Has primary medical needs; or

(C) Has a service plan that permits the use for purposes of heightened supervision, such as for children who sleepwalk, experience night terrors, or engage in physically aggressive or sexually offensive behavior. You must document the justification for the audio monitoring device in the child's service plan.

§748.3357.What are the requirements for floor space in a bedroom used by a child?

(a) Floor space:

(1) Is space that a child can use for daily activities;

(2) Does not include closets or other alcoves; and

(3) May not be averaged.

(b) You must provide comfortable sleeping arrangements that meet one of the following:

(1) A single occupancy bedroom with at least 80 square feet of floor space; or

(2) A bedroom with at least 60 square feet of space for each occupant and no more than four occupants per bedroom are permitted even if the square footage of the room would accommodate more than four occupants. The four-occupant restriction does not apply to children receiving treatment services for primary medical needs.

(c) If we granted you a permit to provide emergency care services to a child prior to January 1, 2007, then you are exempt from the 60 square feet of bedroom space for each occupant and the maximum bedroom occupancy requirement until:

(1) You move your operation to a new building;

(2) You structurally alter the current building by adding a new room; or

(d) If prior to January 1, 2007, we granted you a permit, then you are exempt from the maximum bedroom occupancy requirement until:

(1) You move your operation to a new building;

(2) You structurally alter the current building by adding a new room; or

§748.3359.What rooms may I not use as bedrooms?

You may not use the following as bedrooms:

(1) Rooms commonly used for other purposes, such as dining rooms, living rooms, hallways, porches or dens, except for a child temporarily requiring close supervision;

(2) Rooms that are passageways to other rooms; or

(3) Basements; however, if prior to January 1, 2007, we granted you a permit, then basements may be used as bedrooms as long as other relevant requirements are met, and until:

(A) You move your operation to a new building;

(B) You structurally alter the current building by adding a new room; or

§748.3361.May a child in care share a bedroom with an adult?

(a) Generally, each child should have his own designated bedroom or share a bedroom with other children.

(b) A child may share a bedroom with an adult caregiver if:

(1) In the best interest of the child;

(2) The child is under three years old and sleeps in the bedroom of the caregiver; and

(3) Approval is documented and dated in the child's service plan by the service planning team.

(c) To determine whether a child should share a bedroom with an adult resident, see §748.1937 of this title (relating to May an adult resident share a bedroom with a child resident?).

(d) This rule does not apply to travel and camping situations.

§748.3363.Can children of the opposite sex share a bedroom?

(a) A child six years old or older may not share a bedroom with a person of the opposite sex. Prior to permitting a child under six years old to share a bedroom with a person of the opposite sex, the service planning team must assess:

(1) What is in the best interest of the child;

(2) The history of these persons for possible sexual abuse and/or sexually inappropriate behavior; and

(3) The appropriateness.

(b) The assessment and approval by the service planning team must be documented and dated in the child's record.

§748.3365.What are the requirements for beds and bedding?

(a) You must provide each child with:

(1) An individual bed or bunk bed, for infants and toddlers a crib is allowable. For crib requirements, see §748.1751 of this title (relating to What specific safety requirements must my cribs meet?);

(2) A clean and comfortable mattress;

(3) A mattress cover or protector if the child is not provided with a mattress that is waterproof or washable;

(4) A pillow and bed linens appropriate for the temperature, including a pillowcase, top sheet, and fitted or bottom sheet;

(5) Extra linens as needed for the child's warmth and comfort, such as a blanket or bedspread; and

(6) Clean bed linens that are changed or laundered if used by a different child and as often as needed for cleanliness and sanitation, but not less than once a week.

(b) If laundry service is not provided, laundry facilities supplied with hot and cold water under pressure must be provided for all children in care to use.

§748.3367.What types of beds are not allowed for a child?

The following types of beds are not allowed:

(1) Triple-deck beds;

(2) Veil beds designed to prohibit a child from leaving the bed, not including beds that have mosquito netting to protect the child from mosquitoes or other insects;

(3) Beds that have bedrails that can entrap a child; or

(4) Any cribs, except for infants and toddlers.

§748.3369.What are the requirements for bunk beds?

(a) A bunk bed must only consist of double-deck beds.

(b) A child who is under six years old, non-ambulatory, or subject to seizures or other medical or physical problems who may require greater caregiver supervision and caregiver access must not use a top bunk bed.

(d) A bunk bed must be equipped with a securely attached ladder capable of supporting the child using the bed and an employee.

(e) A bunk bed that is more than 30 inches above the floor must be equipped with securely attached safety bedrails along the lengths of the bed on each side with a means to allow a child to get in and out of bed. Bunk beds securely attached to a wall may use the wall as one of the required guardrails. The top of safety guardrails must be at least five inches above the top of the mattress. The bed rails and the mattress supports under the mattress must not be an entrapment hazard.

(f) Openings in guardrails or between ladder rungs must not have openings that can entrap a child's body or body part that has penetrated the opening. Openings must measure less than 3 1/2 inches or more than nine inches to prevent a child's body or body part from being entrapped.

(g) A bunk bed must be spaced to provide a walk space on at least one side and one end of each bed.

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 March 1, 2006.

TRD-200601262

For further information, please call: (512) 438-3437

3. TOILET AND BATH FACILITIES

40 TAC §§748.3391, 748.3393, 748.3395, 748.3397, 748.3399

§748.3391.What are the general requirements for bathroom facilities?

(a) All bathrooms must be maintained in good repair and kept clean at all times.

(b) You must provide bathrooms located on the same floor as the child's bedroom. The child must not have to exit the building to access the bathroom.

(c) To provide privacy, you must ensure a child does not have to cross an activity room, dining room, living room, or similar type room to access a bathroom from the child's bedroom. If prior to January 1, 2007, we granted you a permit, you are exempt from this requirement until:

(1) You move your operation to a new location;

(2) You structurally alter the current building by adding a new room; or

(d) Each bathroom or room with a lock must be able to be unlocked from the outside during an emergency.

§748.3393.What are the requirements for a toilet that a child uses?

(a) Your operation must dispose of wastewater into a community sanitary sewage system, or an approved septic system in accordance with the Texas Commission on Environmental Quality, including any routine inspections required by law.

(b) You must provide:

(1) At least one toilet for every eight children. All toilets must provide individual privacy, including doors to individual toilet stalls; and

(2) Separate toilet facilities for males and females.

(1) Distinctly marked for each gender; and

(2) Separated by a solid wall from floor to ceiling.

(d) Toilets must be equipped with toilet paper at all times.

(e) Toilet facilities must meet the handicap accessibility standards according to the American with Disabilities Act, if applicable.

(f) Urinals may be substituted for the toilets for the males on a ratio of one urinal or 24 inches of trough-type urinal for one toilet, not to exceed one-third of the required toilets. Urinals must have privacy walls on three sides that must be constructed of nonabsorbent materials.

§748.3395.What are the requirements for hand-washing sinks that a child uses?

(a) You must maintain all hand-washing sinks in good repair and keep them clean at all times.

(b) You must provide:

(1) At least one hand-washing sink for every eight children;

(2) A hand-washing sink that is adjacent to toilet facilities;

(3) Hand-washing sinks with hot and cold running water; and

(4) Hand-washing sinks equipped with soap and a personal towel, single-use disposable towels, or hot air hand dryers.

§748.3397.What are the requirements for bathing facilities?

(a) All bath and shower areas must provide for individual privacy. This includes doors or nonabsorbent shower curtains to individual bathtubs and showers stalls.

(b) You must provide:

(1) At least one bathtub or shower for every eight females and one for every eight males; and

(2) Separate shower and bath facilities for each gender, where applicable.

(1) Distinctly marked for each gender; and

(2) Separated by a solid wall from the floor to ceiling.

(d) Each shower and bathtub must be equipped with:

(1) Hot and cold running water; and

(2) Sufficient hot water to meet the demands of the children.

(e) Bathroom facilities must meet the handicap accessibility standards according to the American with Disabilities Act, if applicable.

(f) If prior to January 1, 2007, we granted you a permit, then you do not have to comply with these requirements until:

(1) You move your operation to a new location;

(2) You structurally alter the current bathroom facilities; or

§748.3399.May I use a video camera or audio monitoring device to supervise a child while the child is in a bathroom?

No. You may not use a video camera or audio monitoring device to supervise a child while the child is in a bathroom.

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 March 1, 2006.

TRD-200601263

For further information, please call: (512) 438-3437

4. POISONS

40 TAC §748.3421

§748.3421.What are the requirements for protecting children from poisonous or flammable material?

You must ensure that poisonous or flammable materials are:

(1) Stored in their original, labeled containers;

(2) Kept separate from medication, food, food preparation surfaces, and dining surfaces;

(3) Inaccessible to children, unless caregivers have evaluated a child as capable and likely to use such items responsibly; and

(4) Cleaned up immediately when spilled.

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 March 1, 2006.

TRD-200601264

For further information, please call: (512) 438-3437

5. FOOD PREPARATION, STORAGE, AND EQUIPMENT

40 TAC §748.3441, §748.3443

§748.3441.What general requirements apply to food service and preparation?

(a) All food and drinks must be of safe quality and must be stored, prepared, distributed, and served under sanitary and safe conditions.

(b) You must sanitize food service equipment, dishware, and utensils after each use. All eating and cookware must be properly stored.

(c) You must keep furniture, equipment, food contact surfaces, and other areas where food is prepared, eaten, or stored clean and in good repair.

(d) If your operation lacks adequate facilities for sanitizing dishes and utensils, you must only use disposable, single-use items.

(e) You must discard single-service napkins, bibs, dishware, containers, and utensils after each use.

(f) You must wash re-useable napkins and bibs after each use.

(g) You must wash re-useable tablecloths when soiled.

(h) Persons who handle food and/or eating utensils for the group must:

(1) Maintain personal cleanliness;

(2) Keep hands clean at all times;

(3) Wash his hands with soap and water thoroughly after each visit to the toilet; and

(4) Be free of infections commonly transmitted through the handling of food or drink and free of communicable diseases.

(i) Food packages must be in good condition and protect the integrity of the contents, so food is not exposed to adulteration or potential contaminants. You must discard cans that are dented, leaking, bulging, or rusted.

(j) When you serve an infant or toddler:

(1) If the child is capable of sitting up, you must serve food on plates, napkins, or other sanitary holders, such as a high chair tray; and

(2) You must not serve foods that present a risk of choking.

(k) When you prepare a meal at the operation, the food preparation area must be in a separate space from the eating, play, and bathroom areas.

(l) Fruits and vegetables must be properly washed before use.

(m) Food must be thawed in the refrigerator, in cold water in a leak-proof bag, or in the microwave.

(n) Food must be protected from contamination.

(o) You must keep raw meat, poultry, fish, and their juices away from other food. After cutting raw meat, you must wash your hands, the cutting board, the knife, and the countertops with hot, soapy water. You must sanitize cutting boards by using a solution of one-teaspoon chlorine bleach in one quart of water.

(p) You must maintain hot food at 140 degrees Fahrenheit or above.

(q) You must refrigerate perishable food:

(1) Within one hour after use when the temperature is above 90 degrees Fahrenheit; or

(2) Otherwise, within two hours.

(r) Uneaten food from a person's plate must not be served again or used in the preparation of other dishes.

(s) You must not permit animals to be in the area of food storage, food preparation, and dining.

§748.3443.What are the requirements for storing food?

(a) All food items must be:

(1) Covered and stored off the floor;

(2) Stored on clean surfaces;

(3) Protected from contamination;

(4) Stored in a container that is protected from insects and rodents;

(5) Refrigerated immediately after use and after meals, if the food requires refrigeration; and

(6) Covered when stored in the refrigerator.

(b) You must have a thermometer in refrigerators and freezers and store:

(1) Refrigerated food at 40 degrees Fahrenheit or below; and

(2) Frozen food at 0 degrees Fahrenheit or below.

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 March 1, 2006.

TRD-200601265

For further information, please call: (512) 438-3437

6. PLAY EQUIPMENT AND SAFETY REQUIREMENTS

40 TAC §§748.3471, 748.3473, 748.3475, 748.3477, 748.3479, 748.3481

§748.3471.What are the minimum safety requirements for outdoor equipment?

You must ensure that outdoor equipment and supplies used both at and away from the operation are safe for the children as follows:

(1) The outdoor activity space must be arranged, so caregivers can adequately supervise children at all times.

(2) The design, scale, and location of the equipment must be appropriate for the body size and ability of the children using the equipment.

(3) Equipment must not have openings that can entrap a child's body or body part that has penetrated the opening.

(4) Equipment must not have protrusions or openings that can entangle something around a child's neck or a child's clothing.

(5) Equipment must be securely anchored according to manufacturer's specifications to prevent collapsing, tipping, sliding, moving, or overturning.

(6) All anchoring devices must be placed below the level of the playing surface to prevent tripping or injury resulting from a fall.

(7) Equipment must not have exposed pinch, crush, or shear points on or underneath it.

(8) You must not install climbing equipment or swings over asphalt or concrete, unless the asphalt or concrete is covered with properly installed unitary surfacing materials as specified in this subchapter.

(9) Outdoor platforms more than 20 inches in height for children five years old and younger, and more than 30 inches in height for school-age children, must be equipped with guardrails that surround the elevated surface, except for entrances and exits, and that prevent children from crawling over or through the guardrail.

(10) The height of the highest play surface or platform cannot be more than eight feet.

(11) Stairs and steps on outdoor climbing equipment, regardless of height, must have well-secured handrails on both sides of stairs and steps that the children can reach. Rung ladders do not require handrails.

(12) Bounce houses are permitted if used by no more than one child at a time.

§748.3473.How high must platform guardrails be?

Guardrails and protective barriers must be at least:

(1) 29 inches high for pre-kindergarten or younger children; and

(2) 38 inches high for school-age children.

§748.3475.What special maintenance procedures must I follow for my playground?

(a) Your administrator or designee must inspect the playground daily to ensure no hazards are present. Your administrator or designee must inspect the equipment and surfacing material for:

(1) Normal wear and tear;

(2) Broken or missing parts;

(3) Debris or foreign objects;

(4) Drainage problems; or

(5) Other hazards, such as tripping hazards, like exposed concrete footings, tree stumps, and rocks.

(b) Your administrator or designee must:

(1) Ensure that hazards or defects identified during the inspection are removed or repaired promptly; and

(2) Arrange for protection of the children or prohibit use of the equipment until the hazards or defects can be removed or repaired.

§748.3477.What are the specific safety requirements for swings?

(a) All swing seats must be constructed of durable, lightweight, rubber or plastic material.

(b) Edges of all swing seats must be smooth or rounded and have no protrusions.

(c) Swings must not be attached to a composite play structure (a playscape or structure containing equipment for a variety of activities).

(d) Only children under four years old may use a bucket swing, and only if an adult is present to lift and secure the child into the swing. The distance between the protective surfacing and the bottom of a bucket swing must be at least 24 inches to minimize the likelihood of unsupervised young children climbing into the swing.

(e) Tire swings must:

(1) Not be made from heavy truck tires, or tires with exposed steel-belted radials;

(2) Not be suspended from a composite play structure (a playscape or structure containing equipment for a variety of activities) or with other swings in the same swing bay;

(3) Have drainage holes drilled in the underside of the tire and maintained to facilitate water drainage; and

(4) Have a minimum clearance between the seating surface of a tire swing and the uprights of the supporting structure of 30 inches or more when the tire is in a position closest to the support structure.

§748.3479.May I have indoor equipment such as climbing equipment or platforms?

You may have indoor climbing equipment if you comply with the following safety standards:

(1) Floor surfaces under indoor climbing equipment and platforms over 20 inches in height must have a unitary surface that will effectively cushion the fall of a child. The surface must be installed in the use zone and maintained according to the manufacturer's directions. Carpeting alone, even if it is installed over thick padding, is not an acceptable surface under indoor climbing equipment.

(2) Stairs and steps on indoor climbing equipment, regardless of height, must have well-secured handrails on both sides of stairs and steps that the children can reach. Rung ladders do not require handrails.

(3) Platforms, including stairs and steps, over 20 inches in height must be equipped with protective barriers that prevent young children from crawling over or falling through the barrier, or becoming entrapped.

§748.3481.If my operation was previously granted a permit by Licensing, will I be given additional time to comply with the requirements of this division?

If we granted you a permit prior to January 1, 2007, then you have five years from January 1, 2007, to comply with the requirements specified in this division. However, during this five-year period, you must ensure that the outdoor equipment is safe, sturdy, and in good repair.

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 March 1, 2006.

TRD-200601266

For further information, please call: (512) 438-3437

7. PLAYGROUND USE ZONES

40 TAC §§748.3521, 748.3523, 748.3525, 748.3527, 748.3529, 748.3531, 748.3533, 748.3535

§748.3521.What does the term "use zone" mean?

(a) The use zone is the surface area under and around a piece of playground equipment and platforms onto which a child falling from or exiting from the equipment would be expected to land.

(b) Other than the equipment itself, the use zone must be free of obstacles that a child could run into or fall on top of and be injured.

§748.3523.How do I measure the use zone for stationary equipment?

(a) The use zone for stationary equipment, excluding slides, must extend a minimum of six feet in all directions from the perimeter of the equipment.

(b) Use zones for stationary equipment must not overlap the use zones of any other equipment.

§748.3525.How do I measure the use zone for slides?

(a) The use zone in front of the access and to the sides of a slide must extend a minimum of six feet from the perimeter of the equipment.

(b) The use zone in front of the exit of a slide must extend a minimum of six feet.

§748.3527.How do I measure the use zone for to-fro swings?

(a) The use zone to the front and back of to-fro swings (single-axis swings) must extend twice the height of the suspending bar to the protective surfacing below.

(b) The use zone to the front and back of the to-fro swing must not overlap the use zone of any other equipment.

(c) The use zone around the sides of the to-fro swing structure (frame which supports the swings) must be at least six feet and may overlap the use zone of an adjacent swing structure.

§748.3529.How do I measure the use zone for tire swings?

(a) The use zone for tire swings or other multi-axis swings must extend in all directions for a distance equal to the height of the suspending bar to the top of the sitting surface of the tire, plus six feet.

(b) The use zone on the sides of the tire swing support structure must be at least six feet and may overlap the use zone on the sides of an adjacent swing support structure.

§748.3531.How do I measure the use zone for bucket swings?

(a) The use zone to the front and rear of the bucket swing must extend twice the height from the swing beam to the top of the swing-sitting surface.

(b) The use zone specified in subsection (a) of this section must not overlap any other use zone.

(c) The use zone on the sides of the bucket swing structure must be at least six feet and may overlap the use zone on the sides of an adjacent swing support structure.

§748.3533.How do I measure the use zone for rotating or rocking equipment or for track rides?

(a) The use zone for rotating or rocking equipment on which the child sits must be at least six feet from the perimeter when not in use.

(b) The use zone for rotating or rocking equipment or track rides on which the child stands or rides must be at least seven feet from the perimeter of the equipment when not in use.

§748.3535.If my operation was previously granted a permit by Licensing, will I be given additional time to comply with the requirements of this division?

If we granted you a permit prior to January 1, 2007, then you have five years from January 1, 2007, to comply with the requirements specified in this division.

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 March 1, 2006.

TRD-200601267

For further information, please call: (512) 438-3437

8. PROTECTIVE SURFACING

40 TAC §§748.3561, 748.3563, 748.3565, 748.3567

§748.3561.Where must I install protective surfacing?

You must install protective surfacing in use zones identified in Division 7 of this subchapter (relating to Playground Use Zones).

§748.3563.What are the requirements of protective surfacing for use zones?

(a) There must be loose-fill surfacing material or unitary surfacing material in the use zones for all climbing, rocking, rotating, bouncing, or moving equipment, slides, and swings. Loose-fill surfacing materials include loose particles such as sand, pea gravel, shredded wood products, and shredded rubber.

(b) You must not install loose-fill surfacing materials over concrete or asphalt.

(c) If you use loose-fill surfacing materials, you must install nine inches or more of uncompressed loose-fill material in the use zones.

(d) You must ensure nine inches of the loose-fill materials are maintained at all times.

(e) You must mark all equipment support posts to indicate the depth at which the loose-fill surfacing material must be maintained.

(f) If you use unitary materials, they must be installed and maintained according to manufacturer's specifications. Unitary surfacing materials are manufactured materials including rubber tiles, mats, or poured-in-place materials cured to form a unitary shock-absorbing surface.

(g) Unitary materials may be installed over concrete or asphalt only if recommended by the manufacturer.

§748.3565.What documentation must I keep at the operation if I use unitary surfacing materials?

(a) If you use unitary surfacing materials, you must have test data from the manufacturer showing:

(1) The impact rating of the material (the maximum height of equipment that may be installed over the surfacing material); and

(2) Installation and maintenance requirements.

(b) This documentation must be at the operation and available for review by Licensing staff upon request.

§748.3567.If my operation was previously granted a permit by Licensing, will I be given additional time to comply with the requirements of this division?

If we granted you a permit prior to January 1, 2007, then you have five years from January 1, 2007, to comply with the requirements specified in this division.

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 March 1, 2006.

TRD-200601268

For further information, please call: (512) 438-3437

9. SWIMMING POOLS, WADING/SPLASHING POOLS, AND HOT TUBS

40 TAC §§748.3601, 748.3603, 748.3605, 748.3607

§748.3601.What are the requirements for swimming pools that a child uses?

If a swimming pool with more than two feet of water is used in an activity sponsored by you, then the swimming pool, either at or away from your operation, must meet the following criteria:

(1) At least two life-saving devices must be available, such as a reach pole, backboard, buoy, or a safety throw bag with a brightly colored buoyant rope or throw line;

(2) One additional life-saving device must be available for each 2,000 square feet of water surface, so a pool of 2,000 square feet would require three life saving devices;

(3) Drain grates, vacuum outlets, and skimmer covers must be in place, in good repair, and unable to be removed without using tools;

(4) Pool chemicals and pumps must be inaccessible to all children;

(5) Machinery rooms must be locked when any child is present;

(6) All parts of the swimming pool must be clearly visible;

(7) The bottom of the pool must be visible at all times;

(8) Pool covers must be completely removed prior to pool use and must not present an entrapment hazard;

(9) All indoor/outdoor areas within 50 feet of the pool must be free of furniture and equipment that a child could use to scale a fence or barrier or release a lock; and

(10) Swimming area rules and emergency procedures must be posted at the swimming area and explained to the children.

§748.3603.What are the additional requirements for a swimming pool located at my operation?

(a) The swimming pool must be built and maintained according to the standards of the Department of State Health Services and any other applicable state or local regulations.

(b) An adult must be present who is able to immediately turn off the pump and filtering system when any child is in a pool.

(c) If the pool is aboveground, it must meet all pool safety requirements specified in this subchapter and have a barrier that prevents a child's unauthorized access to the pool.

(d) Outdoor swimming pools must be enclosed with a six-foot fence or wall that prevents children's access to the pool. It must be constructed, so the fence or wall does not obscure the pool from view.

(e) Doors, operable windows, or gates of living quarters must not be part of the pool enclosure for outdoor swimming pools.

(f) Fence gates leading to the outdoor pool area must have self-closing and self-latching hardware located at least 60 inches from the ground and must be locked when the pool is not in use. An indoor swimming pool must be secured at all times to prevent children's access to the pool when a lifeguard is not on duty.

(g) Fence gates must open outward away from the pool and must not be propped open.

(h) The space between the ground and the bottom of the fence must not exceed four inches.

(i) When a fence is made of horizontal and vertical slats, the horizontal slats must be located on the swimming pool side of the fence.

(j) Doors from the operation leading to the pool area must have a lock that can only be opened by an adult.

(k) The doors and fence gates leading to or through the pool area must not be designated as fire and emergency evacuation exits.

(l) If you have a pool on the premises of your operation and we granted you a permit before January 1, 2007, then you have five years from January 1, 2007, to comply with the specific requirements of this rule. However, during this five-year period, you must ensure:

(1) Children do not have unsupervised access to the pool; and

(2) There is an adult present who is able to immediately turn off the pump and filtering system when children are swimming.

§748.3605.What are the safety requirements for wading/splashing pools at my operation?

(a) Wading/splashing pools (two feet of water or less) at your operation must be:

(1) Stored out of children's reach, when not in use;

(2) Drained at least daily and sanitized; and

(3) Stored, so they do not hold water.

(b) A portable wading pool must not be placed on concrete or asphalt.

§748.3607.What are the requirements for a hot tub?

A hot tub must be covered with a locking cover when not in use.

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 March 1, 2006.

TRD-200601269

For further information, please call: (512) 438-3437

Subchapter Q. RECREATION ACTIVITIES

40 TAC §§748.3701, 748.3703, 748.3705, 748.3707, 748.3709, 748.3711, 748.3713, 748.3715, 748.3717, 748.3719

§748.3701.What are my responsibilities for providing opportunities for recreational activities and physical fitness?

(a) You must provide daily indoor and outdoor recreational and other activities appropriate to the needs, interests, and abilities of the children, so every child may participate.

(b) You must have a written plan for ensuring that a range of indoor and outdoor recreational and leisure opportunities are provided for children in care. Such opportunities must be based on individual interests, with personal and treatment needs being considered.

(c) Except for a child who has written medical orders to the contrary, your programs for non-ambulatory children must include:

(1) Physical fitness development that prescribes a variety of body positions; and

(2) Changes in environment.

(d) Each child must have individual free time as appropriate to the child's age and abilities.

(e) You must provide the follow types of recreational activities based on each individual child's needs:

Figure: 40 TAC §748.3701(e)

§748.3703.What are the requirements for recreational areas and equipment?

You must provide indoor and outdoor recreational areas and equipment for stimulating children in appropriate recreational activities. The activities must be in sufficient variety and quantity, so every child may participate and have some choice of activities.

§748.3705.What are higher risk recreational activities?

Higher risk recreational activities are activities that present a greater potential of injury to the child and involve special technical skill, equipment, or safety regulations for participation, including using all-terrain vehicles, swimming and water activities, watercraft activities, riding horses, wilderness hiking and camping excursions, trampoline use, and using weapons, firearms, explosive materials, and projectiles.

§748.3707.Does Licensing regulate higher risk recreational activities?

Licensing only regulates activities that are sponsored or conducted by the operation, including higher risk recreational activities.

§748.3709.What are the requirements when children participate in a higher risk recreational activity?

You must meet the following requirements when children participate in a higher risk recreational activity:

(1) There must be a person that is responsible for and supervises the higher risk recreational activity;

(2) When the person supervising the higher risk recreational activity is an employee of the operation, the supervising employee must:

(A) Determine each participant's experience and skill level; and

(B) Take this information into account in supervising and assigning equipment or animals to children;

(3) Continue to meet the child/caregiver ratios and appropriately supervise the children at all times. If the person supervising the higher risk recreational activity is not a caregiver with the operation, then that person cannot be counted in the child/caregiver ratio. For additional requirements for child/caregiver ratios for swimming activities, see Division 2 of this subchapter (relating to Swimming Activities); and

(4) You must provide children with equipment that is appropriate to the activity, properly sized and adjusted where applicable, and in good condition.

§748.3711.Who must supervise a higher risk recreational activity?

(a) The higher risk recreational activity must be supervised by a person:

(1) Knowledgeable about safety precautions for the type of higher risk recreational activity being performed; and

(2) Who has the appropriate experience, training, and/or certification in the activity.

(b) If the person supervising a higher risk recreational activity is an employee of the operation, you must document these qualifications in the employee's personnel record.

§748.3713.What duties are required for a person supervising higher risk recreational activities?

A person supervising higher risk recreational activities must:

(1) Be present at the site of the activity whenever the activity is being carried out;

(2) Facilitate training or experience for other persons working in the activity to prepare them for foreseeable risks that may include:

(A) Sunstroke, sunburn, dehydration, hypothermia, frostbite, and snow blindness, as appropriate to the type of activity and weather conditions; and

(B) Dangerous plants, animals, situations, or other hazards that may be associated with the higher risk activities or locations;

(3) Assign duties to other persons working in the activity;

(4) Ensure there is a person at the site of the activity that has a current first-aid and CPR certificate when the activity is in progress;

(5) Ensure that all necessary equipment is complete, in good repair, and safe to use;

(6) Ensure there is a first-aid kit located at the site of the activity that contains equipment:

(A) Relevant to the type of injuries that might be sustained in the specific activity; and

(B) Adequate for the number of participants, the terrain, and the length of the activity;

(7) Obtain an up-to-date report on weather and travel conditions from an official source before a trip or activity that is outdoors;

(8) Ensure that environmental hazards are not severe enough to cause danger to participants;

(9) Develop a written plan for action in case of natural disasters relevant to the terrain and activity, including lost participants, injuries, and illnesses;

(10) Consider each participant's age, physical condition, and experience, as well as the season and weather trends;

(11) Ensure that any risk factors involved in a higher risk activity are explained to the child as part of the orientation to the activity. The child must then have the opportunity to decline his participation in that specific activity. In the case of an activity with extreme risks, the parent must be advised and have the opportunity to refuse his child's participation; and

(12) Must instruct children on the safety precautions and proper use of relevant items or animals. This must be done before access to the item or animal is allowed.

§748.3715.Where must the written plan for action be kept?

A copy of the plan for action must:

(1) Be easily accessible;

(2) Accompany the supervisor or caregiver of the activity; and

(3) Be on file at a designated location in your operation.

§748.3717.What instruction must a caregiver have regarding the plan for action?

Prior to departing for a higher risk recreational activity, the person qualified to supervise the activity must instruct the caregivers participating in the activity regarding the implementation of the plan of action.

§748.3719.May children in care use all-terrain vehicles?

(a) A child in care may not ride on or operate a three-wheel all-terrain vehicle.

(b) Only a child 16 years or older may ride on or operate a four-wheel all-terrain vehicle.

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 March 1, 2006.

TRD-200601270

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

2. SWIMMING ACTIVITIES

40 TAC §§748.3751, 748.3753, 748.3755, 748.3757, 748.3759, 748.3761, 748.3763, 748.3765, 748.3767

§748.3751.Must a certified lifeguard be on duty during an activity involving a body of water?

(a) A certified lifeguard must supervise children at all times during an activity involving a body of water two feet deep or more.

(b) You do not need to provide a lifeguard when:

(1) You are using a public pool for which you are not responsible; and

(2) The pool provides a qualified lifeguard.

§748.3753.What must a certified lifeguard's training consist of?

A certified lifeguard's training must:

(1) Be provided through a recognized organization;

(2) Be taught by a certified instructor; and

(3) Award a valid lifeguard certificate or its equivalent documenting successful completion of the training. The certificate does not have to use the term "lifeguard," but you must be able to document that the certificate represents the type of training required in supervision, rescue techniques, life saving, and water safety.

§748.3755.Where must a certified lifeguard be positioned when supervising children who are swimming?

The lifeguard must be located in a position to observe all swimmers and to respond to emergencies.

§748.3757.What are the child/adult ratios for swimming activities?

(a) The maximum number of children one adult can supervise during swimming activities is based on the age of the youngest child in the group and is specified in the following chart:

Figure: 40 TAC §748.3757(a)

(b) In addition to meeting the required swimming child/adult ratio listed in subsection (a) of this section, if four or more children are engaged in swimming activities, then there must be at least two adults to supervise the children.

(c) When a child who is subject to seizures is engaged in swimming activities, you must assign one adult to that one child. This adult must be in addition to the lifeguard on duty and the swimming area. You do not have to meet this requirement if a licensed physician writes orders in which the physician determines that the child:

(1) Is at low risk of seizures and that special precautions are not needed; or

(2) Only needs to wear an approved life jacket while swimming and additional special precautions are not needed.

§748.3759.May I count the certified lifeguard in the swimming child/adult ratio?

(a) You must not count the certified lifeguard in the swimming child/adult ratio when people other than the children from your operation are swimming.

(b) If only children from your operation are swimming, you may count the certified lifeguard in the swimming child/adult ratio. However, the lifeguard must never be left alone with any of the children unless the lifeguard is also a qualified caregiver for your operation.

§748.3761.Must persons who are counted in the swimming child/adult ratio know how to swim and carry out a water rescue?

In addition to the lifeguard, you must have at least one person counted in the swimming child/adult ratio who is able to swim, carry out a water rescue, and prepared to do so in an emergency.

§748.3763.May I include volunteers or employees who do not meet minimum qualifications for caregivers in the swimming child/adult ratio?

Children in your care must never supervise water activities. To meet the swimming child/adult ratio for water activities, you may include adult volunteers and employees of the operation who do not meet the minimum qualifications for caregivers, providing you:

(1) Maintain enough caregivers to meet the ratios required in Subchapter G of this title (relating to Child/Caregiver Ratios); and

(2) Ensure compliance with all other rules of this chapter, including rules relating to supervision and discipline.

§748.3765.What are the requirements for a child's access to a body of water?

(a) You must use prudent judgment and ensure children in your care are protected from unsupervised access to a body of water such as a swimming pool, hot tub, pond, river, lake, or creek.

(b) Prior to any activity regarding a body of water, you must explain the dangers of the body of water and the rules governing the activity to the children in a manner that each child can understand.

(1) The supervising adult must clearly designate the swimming areas;

(2) You must meet the swimming child/adult ratios; and

(3) You must have life-saving equipment present at all times that is sufficient to reach and rescue the child, such as a safety throw bag with a brightly colored 50-foot buoyant rope or a rescue boat equipped with a reach pole and a buoy.

§748.3767.May I use a stock tank as a pool for a swimming activity?

No. You may not use a stock tank used by livestock for a swimming activity.

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 March 1, 2006.

TRD-200601271

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. WATERCRAFT ACTIVITIES

40 TAC §§748.3801, 748.3803, 748.3805, 748.3807

§748.3801.What watercraft activities do the rules of this division apply to?

The rules of this division apply to water activities involving boats, canoes, kayaks, sailboats, rafts, jet skis, and inflatable tubes.

§748.3803.What are the requirements for watercraft activities?

(a) A non-swimmer must:

(1) Wear a life vest; and

(2) With the exception of inflatable tubes, not be in a watercraft without an adult.

(b) At least two adults must be at the shoreline and/or on the water any time children are on the water during watercraft activities.

§748.3805.What considerations must the watercraft activity supervisor take into account prior to the implementation of the activity?

The supervisor of the watercraft activity must:

(1) Assess the skill and swimming ability of each child prior to the activity;

(2) Accompany children on any trip;

(3) Determine if an adult must be in the boat with the child or children; and

(4) Take into account hazards, such as the size of the body of water, the skill and swimming ability of the children, the air temperature, the conditions of the water, and the temperature of the water when determining:

(A) Whether to permit children to participate in a watercraft activity;

(B) The experience and number of adults necessary; and

§748.3807.What are the requirements for watercraft equipment?

(a) The watercraft and all equipment must be kept in good repair at all times.

(b) You must meet the watercraft requirements of Texas Parks and Wildlife, if applicable.

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 March 1, 2006.

TRD-200601272

For further information, please call: (512) 438-3437

4. WILDERNESS HIKING AND CAMPING EXCURSIONS

40 TAC §§748.3841, 748.3843, 748.3845, 748.3847, 748.3849, 748.3851, 748.3853, 748.3855, 748.3857, 748.3859, 748.3861

§748.3841.What are the requirements for hiking or camping excursions?

When you participate in a hiking or camping activity in an area unfamiliar to the participating adults, and the hiking activity lasts more than two hours:

(1) The person qualified to supervise the hiking or camping excursion must consider the following when selecting the area for hiking or camping:

(A) Evacuation;

(B) Communication; and

(2) The person qualified to supervise the hiking or camping excursion must have some verifiable experience leading a group in hiking or camping at the elevation, terrain, and climate where the activity is to take place.

(3) Before participation, the caregivers and children must receive instruction on:

(A) The fundamental safety procedures for the area where the hiking or camping will occur;

(B) Procedures to follow if the participant gets lost;

(D) Potential high-risk areas where the hiking or camping will occur; and

(E) Fire risks.

(4) The emergency medical care consent forms must be readily accessible to the caregivers accompanying them.

(5) Caregivers participating in the hiking or camping activity must regularly monitor and care for the health and safety of children.

(6) If the excursion will be on private land, you must have an agreement with the person responsible for that land.

§748.3843.What are the requirements for monitoring children's safety and health during hiking or camping excursions?

Caregivers participating in the hiking or camping activity must ensure that:

(1) Each child participating in the hiking or camping activity has the clothing, equipment, and provisions necessary to protect the child from the environment, including insect repellant and sunscreen;

(2) A child does not carry a load of more than 30% of the child's body weight;

(3) Hiking does not exceed the physical capabilities of the weakest member of the group. If a participating child cannot or will not hike, the group must not continue unless other provisions have been made to care for the child;

(4) In temperatures above 80 degrees Fahrenheit:

(A) Children are offered a minimum of three quarts of drinking water per day;

(B) Electrolyte replacement is available to children at all times; and

(5) Potable water is available at each campsite. Caregivers must verify water cache location information before the group leaves camp each day, if applicable.

§748.3845.What type of itinerary must I have for hiking, camping excursions, or field trips?

(a) For hiking, camping excursions, or field trips that last for over two hours, you must have a day-to-day itinerary prepared prior to departure, including the:

(1) Date and time of departure;

(2) Destination;

(3) Travel route; and

(4) Anticipated date and time of return.

(b) For hiking, camping excursions, or field trips that last overnight, each point of the itinerary must also identify:

(1) Sources of emergency care, such as hospitals, police, and forest service offices; and

(2) Methods of communicating with sources of emergency care.

(1) Follow the itinerary as closely as possible; and

(2) Notify the operation of any change, when possible.

§748.3847.Where must the itinerary be kept?

(a) You must keep a copy of the itinerary on file at the operation.

(b) If the excursion is on land governed by the national or state forest service, then you must also provide the service's office with a copy of the itinerary.

§748.3849.What are the requirements for shelter during an overnight excursion?

(a) During an overnight excursion, you must provide each child with:

(1) Adequate shelter, such as a tent, tarp, or cabin; and

(2) Reasonable insulation from cold and dampness by such things as a rain fly, ground cloth, and an insulated pad under bedrolls or sleeping bags.

(b) Open air sleeping is allowable if:

(1) The weather permits;

(2) The child consents; and

(3) You provide a ground cloth and an insulated pad under bedrolls or sleeping bags.

§748.3851.What are the requirements for bed equipment used during an overnight excursion?

You must provide each child with:

(1) An individual bed, bedroll, or sleeping bag;

(2) Extra linens as needed for the child's warmth and comfort, such as a blanket;

(3) Clean bed linens that are changed as often as needed for cleanliness and sanitation, but not less than once a week, if applicable; and

(4) Provisions for proper laundering of bedrolls and sleeping bags between trips or between uses by different individuals.

§748.3853.What are the specific requirements for storing food during a hiking or camping excursion?

(a) You may only use foods capable of being maintained in a wholesome condition with the available equipment.

(b) You must refrigerate perishable food when possible.

(d) You must drain ice chests to prevent accumulation of water from melted ice.

(e) You may not store meat and other highly perishable foods for more than 24 hours.

(f) You must discard any contaminated foods.

§748.3855.How must I wash food utensils and equipment when camping?

(a) A common drinking cup, container, or utensil must be washed with uncontaminated hot water and detergent before another person uses it.

(b) You must not use a dish, container, or utensil that is chipped, cracked, broken, damaged, or constructed so as to prevent proper cleaning and sanitizing.

(d) You must store eating utensils:

(1) Separately from foods or other materials or substances; and

(2) In clean, dry containers.

§748.3857.What parameters must I follow for drinking water during a hiking or camping excursion?

(a) Drinking water used during a hiking or camping excursion must come from a source known to be safe or must be rendered safe.

(b) An adequate supply of water, under pressure where possible, must be provided at the cooking area for hand washing, dishwashing, food preparation, and drinking.

§748.3859.How must I maintain equipment or chemicals used for disinfecting water?

You must maintain products according to the manufacturer's directions. If applicable, a product must not have expired.

§748.3861.What are the requirements for toilet facilities during overnight camping excursions?

(a) If the campsite is not provided with pit privies or other portable toilets, there must be separate designated areas for each gender for toilet use.

(b) Toilet paper must be available at all times, as needed.

(1) 20 feet from any stream, lake, well, spring, or other water supply; and

(2) 75 feet from the camp, tent, sleeping, or housing arrangement.

(d) Soap and water for hand washing must be located within 20 feet of the toilet areas.

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 March 1, 2006.

TRD-200601273

For further information, please call: (512) 438-3437

5. TRAMPOLINE USE

40 TAC §748.3891, §748.3893

§748.3891.May I use a trampoline?

(a) You may use a trampoline for individual use if it is less than four feet in diameter and no higher than 12 inches above a properly installed and maintained protective surface as defined in §748.3563 of this title (relating to What are the requirements of protective surfacing for use zones?).

(b) You may use a trampoline as gym equipment as provided in §748.3893 of this title (relating to What are the requirements for using a trampoline as gym equipment?).

§748.3893.What are the requirements for using a trampoline as gym equipment?

You may use a trampoline for supervised training programs, such as gymnastics, diving, and other competitive sports if you meet the following requirements:

(1) You must prohibit the use of the trampoline when there is no trampoline supervisor present;

(2) The trampoline supervisor must have formal training and experience in the use of the trampoline and knowledge of trampoline safety and spotting techniques;

(3) When the trampoline is in use, personal spotters must be present, ready to intervene, and posted on four sides of each trampoline;

(4) You must prohibit any child younger than six years old from using the trampoline, even in supervised training programs;

(5) A safety pad must cover all portions of the steel frame and springs;

(6) The surface around the trampoline must have an impact absorbing surface material;

(7) Only one child at a time may use a trampoline, regardless of the size of the trampoline;

(8) Children must not be allowed to jump off the trampoline. If the trampoline is above ground, children must dismount the trampoline by sitting on the edge and sliding off;

(9) The trampoline must be secured and inaccessible when not in use;

(10) The condition of the trampoline must be checked for tears, rust, and detachments at least monthly and repaired prior to its next use; and

(11) The child using a trampoline must be at the center of the mat and must not attempt to do maneuvers beyond the child's capability or training.

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 March 1, 2006.

TRD-200601274

For further information, please call: (512) 438-3437

6. WEAPONS, FIREARMS, EXPLOSIVE MATERIALS, AND PROJECTILES

40 TAC §§748.3931, 748.3933, 748.3935, 748.3937

§748.3931.Are weapons, firearms, explosive materials, and projectiles permitted at my operation?

Generally, weapons, firearms, explosive materials, and projectiles (such as darts or arrows), are permitted, however, there are some specific restrictions:

(1) Handguns are not permitted at an operation or during any type of activity;

(2) A child receiving treatment services or emergency care services is not permitted to use weapons, firearms, explosive materials, or projectiles, or toys that explode or shoot (such as fireworks or BB guns);

(3) If you allow weapons, firearms, explosive materials, projectiles, or toys that explode or shoot, you must develop policies identifying specific precautions to ensure children do not have unsupervised access to them, including locked storage and separate locked storage for the weapons and ammunition;

(4) You must determine it is appropriate for a child receiving only child-care services to use the weapons, firearms, explosive materials, projectiles, or toys that explode or shoot; and

(5) No child may use a weapon, firearm, explosive material, projectile, or toy that explodes or shoots, unless the child is directly supervised by a caregiver.

§748.3933.What factors must I consider when determining whether weapons, firearms, explosive materials, or projectiles are stored adequately?

When determining if these items are stored adequately, you must consider the age, history, emotional maturity, and background of the children in your care.

§748.3935.May a caregiver transport a child in a vehicle where weapons, firearms, explosive materials, or projectiles are present?

A caregiver may not transport a child in a vehicle where a handgun is present. Otherwise, a caregiver may transport a child in a vehicle where weapons, firearms, explosive materials, or projectiles are present if:

(1) The child is only receiving child-care services;

(2) All firearms are not loaded; and

(3) The weapons, firearms, explosive materials, or projectiles are inaccessible to the child.

§748.3937.What are the requirements for recreational archery?

(a) The archery range must be free from hazards and well marked. There must be a clear path to the target that is not obstructed by such things as rocks, trees, or branches. There must not be any traffic, archery trail, or other activities in the direction of the flight of the arrow.

(b) You must maintain equipment in safe condition. You must inspect bows and arrows for fractures, splinters, or cracks before each use. You must not use damaged bows and arrows.

(d) Arrows must be issued only at the firing line. Arrows may be nocked to bow string only after:

(1) Shooters are on the firing line; and

(2) The signal to shoot has been given.

(e) Shooters must have a definite target before arrows are released.

(f) All persons must stay behind the firing line until the signal to retrieve arrows is given by a supervising caregiver. All arrows must be retrieved at the same time.

(g) If you have field archery, you must establish and post a procedure that provides for the safety of the archers, including:

(1) Issuance of arrows at the check-in point of the archery trail;

(2) Check in of archer at the beginning of the archery trail; and

(3) Check out when archer has completed the trail.

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 March 1, 2006.

TRD-200601275

For further information, please call: (512) 438-3437

Subchapter R. TRANSPORTATION

40 TAC §§748.4001, 748.4003, 748.4005, 748.4007, 748.4009, 748.4011, 748.4013

§748.4001.What types of transportation does Licensing regulate?

(a) We regulate any transportation that you provide for trips away from and to your operation.

(b) You must ensure the safety of all children during any transportation that you provide.

§748.4003.What requirements must I meet when transporting a child away from the operation?

Anytime you transport a child away from the operation, you must comply with each of the following requirements:

(1) Each driver must:

(A) Be at least 21 years old. For an exception for children in care, see §748.4005 of this title (relating to May a child in care transport other children in care?);

(B) Be covered by automobile insurance; and

(C) Have a current driver's license allowing the driver to operate the type of vehicle that is used to transport children.

(2) You must not transport more people than the capacity of the vehicle.

(3) The vehicle must travel at a safe speed consistent with the speed limit, terrain, and weather conditions.

(4) For requirements regarding firearms and transportation, see §748.3935 of this title (relating to May a caregiver transport a child in a vehicle where weapons, firearms, explosive materials, or projectiles are present?).

§748.4005.May a child in care transport other children in care?

Yes, a child in care may transport other children in care if the child:

(1) Has a valid drivers license;

(2) Is covered by automobile insurance; and

(3) Is given permission by the service planning team to drive and transport other children in care.

§748.4007.What specific information and equipment must be in a vehicle I use to transport children during overnight trips away from the operation?

The following information and items must be accessible and in each vehicle you use to transport children during overnight trips:

(1) A list of the children being transported, which you must check in order to account for the presence of all participating children;

(2) Emergency medical transport and treatment authorization forms for each child being transported;

(3) A list of medications each child is currently taking, the dosage, and the frequency;

(4) Your operation's name and telephone number, and the administrator's or permit holder's name;

(5) Parent's names and telephone numbers and emergency telephone numbers for each child being transported;

(6) A fire extinguisher approved by the local or state fire marshal, secured in the passenger compartment and accessible to the adult occupants;

(7) A first-aid kit; and

(8) An operable flashlight.

§748.4009.What plan must I have for handling transportation emergencies?

(a) You must ensure the driver and caregivers have clear instructions in handling emergency breakdowns and accidents, including vehicle evacuation procedures, supervision of the children, and contacting emergency help.

(b) The administrator or designee in charge of the operation must know what action to take in responding to a transportation emergency call.

(c) Emergency transportation must be available at all times. It may be provided by the operation or pre-arranged with community services.

§748.4011.What safety precautions must I take when loading and unloading a child from the vehicle?

You must take the following precautions when loading and unloading a child from any vehicle used for transportation, including a bus with a gross vehicular weight rating (GVWR) of 10,000 pounds or more:

(1) You must account for all children exiting the vehicle before leaving the vehicle unattended.

(2) You must not allow a child under eight years old to cross a street to enter a vehicle or after exiting a vehicle, unless an adult accompanies the child.

(3) You must never leave a child under eight years old unattended in a vehicle.

§748.4013.What is required when my operation takes children on out-of-state overnight trips?

(a) If your operation takes children on out-of-state overnight trips, you must develop:

(1) A written itinerary and safety plan for each trip;

(2) Necessary equipment and provisions to meet participants' needs on the trip; and

(3) A letter of information to be sent to parents at least two weeks before the planned departure date.

(b) You must obtain the written permission from each child's parent for each out-of-state trip or must obtain a general written permission from each child's parent for any out-of-state trip in which the child will participate.

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 March 1, 2006.

TRD-200601276

For further information, please call: (512) 438-3437

2. SAFETY RESTRAINTS

40 TAC §§748.4041, 748.4043, 748.4045, 748.4047

§748.4041.What safety restraint system must I use when I transport children?

(a) For all vehicles other than a bus with a GVWR of 10,000 pounds or more, you must secure each child in an infant safety seat system, child booster seat, or a seat belt, as appropriate to the child's age, height, and weight according to manufacturer's instructions before starting the vehicle, and during all times the vehicle is in motion.

(b) All child passenger safety seat systems must meet federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration, and must be properly secured in the vehicle according to manufacturer's instructions.

(d) The following safety restraint devices for a child must be used when the vehicle is on and when transporting children:

Figure: 40 TAC §748.4041(d)

§748.4043.Do the seat belt requirements prohibit transporting children in the bed of a pick-up truck or other parts of the vehicle on the grounds of the operation or public roads?

Yes. Children must be inside the vehicle when transported. The back of a pick-up truck is not considered inside the vehicle. Children must never be transported in the bed of a pick-up truck, while standing on runners, or while on the hood or trunk of any vehicle.

§748.4045.May I place more than one person in each seat belt or safety seat system?

No. Only one person may use each safety belt or safety seat system.

§748.4047.Must caregivers, adults, and/or the driver wear a seat belt?

Yes, for all vehicles other than a bus with GVWR of 10,000 pounds or more, the driver and all other adult passengers in a vehicle transporting children must be properly restrained by seat belts before starting the vehicle and at all times the vehicle is in motion.

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 March 1, 2006.

TRD-200601277

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. VEHICLE AND VEHICLE MAINTENANCE

40 TAC §748.4081, §748.4083

§748.4081.What type of vehicle may I use to transport children?

(a) We do not regulate the type of vehicle you may use to transport children.

(b) You must make special provisions if you transport nonambulatory children. When necessary, this may include locks for wheel chairs and hydraulic lifts.

§748.4083.What vehicle maintenance requirements must I maintain for a vehicle used for transporting children?

(a) You must maintain a vehicle in a safe operating condition at all times.

(b) Each vehicle you use must be registered and have a current inspection sticker for the state in which it is registered.

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 March 1, 2006.

TRD-200601278

For further information, please call: (512) 438-3437

4. TRANSPORTATION RECORDS

40 TAC §748.4111

§748.4111.What transportation records must I maintain?

(a) You must maintain on file at your operation the name of each driver who transports children and a copy of a valid driver's license for that person.

(b) You must also maintain the following:

(1) Insurance verification in the vehicle; or

(2) If your transportation services are provided by a private person, a firm under contract, or by another arrangement, you must maintain on file a copy of the person's or firm's insurance coverage.

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 March 1, 2006.

TRD-200601279

For further information, please call: (512) 438-3437

Subchapter S. ADDITIONAL REQUIREMENTS FOR OPERATIONS THAT PROVIDE EMERGENCY CARE SERVICES

1. SERVICE MANAGEMENT

40 TAC §§748.4201, 748.4203, 748.4205, 748.4207, 748.4209, 748.4211, 748.4213

§748.4201.What must I do when I admit a child who cannot consent to emergency care services?

(a) If you admit a child for emergency care services who does not meet the requirements to consent to emergency care services, you must try to contact the child's parent(s) within 24 hours, if you know their identity and how to contact them.

(b) If you cannot contact the parent(s), you must notify the appropriate public agency (Child Protective Services, Juvenile Probation, or police department) of the child's presence.

(c) Your operation must document in the child's record efforts to contact the child's parent(s) and contacts with public agencies.

§748.4203.What are the additional medical requirements when I admit a child to receive emergency care services?

Each child receiving emergency care services must receive a health screening or EPSDT examination within 72 hours after admission:

(1) A health-care professional must provide the screening examination. The health-care professional does not have to be your employee.

(2) With the exception of EPSDT examinations, the person who does the examination must sign and date the results of the screening examination. You must document the results of the examination in the child's record.

(3) If a child has been in a residential child-care operation and has had a health screening in the last 12 months, the child does not have to have another health screening unless there is reason to believe the child is ill or has been abused.

(4) If the child is coming from a medical setting, you may accept a statement from a licensed health-care professional in place of the examination.

§748.4205.What is the maximum amount of time a child receiving emergency care services may stay in care without a placement extension?

A child receiving emergency care services may stay in care without a placement extension for a maximum of 15 days.

§748.4207.What is the maximum amount of time a child receiving emergency care services may stay in care with a placement extension?

(a) If there is an appropriate reason for continuing the care, a child:

(1) Younger than five years old may continue the placement for emergency care services for up to a total of 30 days in care; and

(2) Five years old or older may continue the placement for emergency care services for up to a total of 90 days in care.

(b) If a child of any age has a parent under 18 years old admitted in the operation or has a sibling five years old or older admitted in the operation, the child may continue placement for emergency care services for the length of time the parent or sibling is receiving emergency care services if:

(1) Deemed in the best interests of the child by the service planning team; and

(2) Only for a maximum of 90 days.

§748.4209.What are the documentation requirements for a placement extension?

(a) The child's service planning team must document the reason for the extension in the child's record.

(b) If the parent responsible for the child has begun presenting the child's information to different operations, agencies, or foster homes based on what the parent believes the child's needs are and where the child's needs can best be met, you must document in the child's record the following verbal information that you receive from the parent:

(1) The reason(s) why a placement cannot be completed timely; and

(2) The date a placement is expected to be completed.

(1) The child has qualified for financial assistance under Chapter 31, Human Resources Code, and is on the waiting list for housing assistance; or

(2) The child meets the requirements to consent to emergency care and consents to the continuation of services to the child or the child's offspring.

(d) You must document your efforts to contact the parent and obtain the rationale for the continuation of care, including the dates you made those efforts.

§748.4211.When must I document the appropriate reason for continuing emergency care services?

(a) You must document the reason for continuing emergency care services in the child's record by the 16th day that the child is in care.

(b) You must include documentation of additional continuations in the child's record every 30 days thereafter, if applicable.

§748.4213.What are the requirements for a written discharge plan?

(a) If the child receives emergency care services for more than 15 days, you must have a written discharge plan for the child from the person responsible for the child.

(b) You must place the written plan in the child's record on or before the child's 16th day in care at your operation.

(c) You must obtain written documentation from the person responsible for the child that the preliminary plan is reviewed and updated at least weekly.

(d) The preliminary plan and weekly reviews must be available for our review.

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 March 1, 2006.

TRD-200601280

For further information, please call: (512) 438-3437

2. ADMISSION ASSESSMENT

40 TAC §748.4231

§748.4231.What information must an admission assessment include for a child needing emergency care services?

(a) An admission assessment must provide an initial evaluation of the appropriate placement of the child and must include:

(1) The child's immediate needs;

(2) The name of the referral source;

(3) The date and time of placement;

(4) The reason for emergency placement;

(5) A description of the child's condition as observed by the intake worker;

(6) The child's understanding of the need for emergency care services; and

(7) The child's feelings about the crisis situation and operation care.

(b) You must also obtain the following information as soon as possible after admission:

(1) The child's identity, date of birth, and any additional information needed to determine the child's ability to consent to emergency care services for the child or the child's offspring. To consent to services, the child must be:

(A) The parent of a child;

(B) Pregnant; or

(i) Residing separate and apart from the child's parent, regardless of whether the parent consents to the admission and duration; and

(ii) Managing his own financial affairs, regardless of the source of income; or

(2) Name, address, and telephone number of the child's parents, if available. This information is not required if the child meets the requirements to consent to emergency care services;

(3) Medications the child is taking; and

(4) Allergies to medication or food.

(1) You must make diligent efforts to obtain all required information.

(2) If attempting to get information at the time of placement would not be in the child's best interests, you may postpone attempting to acquire the information.

(3) In the child's admission assessment, you must document why a:

(A) Particular piece of information is unavailable; or

(B) Delay in obtaining a piece of information is necessary, including efforts made to obtain the information.

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 March 1, 2006.

TRD-200601281

For further information, please call: (512) 438-3437

3. RESPITE CARE SERVICES

40 TAC §§748.4261, 748.4263, 748.4265, 748.4267, 748.4269

§748.4261.May I provide respite care services?

(a) Respite care services are not subject to regulation under this subchapter, if the:

(1) Care does not exceed 40 days per year as outlined in §745.117(6) of this title (relating to Which programs of limited duration are exempt from Licensing regulation?); and

(2) Respite care services are completely separate from the emergency care services. You must provide the respite services in a completely separate physical space using different caregivers from the caregivers for the emergency care services.

(b) An operation that only provides emergency care services to children may provide respite care services, if you:

(1) Meet all applicable requirements for all children in care, including children admitted only for respite care. This includes compliance with capacity limits, child/caregiver ratios, and supervision rules; and

(2) Ensure that your respite care services do not present a conflict of care for any child receiving emergency care services.

§748.4263.Whom must I notify when I accept a child for respite care?

You must notify the child's parent before accepting the child for respite care.

§748.4265.What information regarding a child must I receive prior to providing respite care services to that child?

To ensure continuity of care, you must obtain the following information:

(1) Specific needs of a child, including:

(A) All psychiatric or medical treatment currently being provided;

(B) Medication regimen and medication instructions;

(D) Any expectations of the respite caregiver;

(2) Non-routine events taking place in the life of the child;

(3) Emergency contact information, including the:

(A) Child's physician(s);

(B) Child's parent; and

(4) The child's history that may affect the operation's ability to provide care for the child, including:

(A) Background of abuse and/or neglect;

(B) Sexually aggressive and physically abusive behavior;

(D) Maiming or killing animals;

(E) Suicidal ideations and attempts; and

(F) Run-away behaviors.

§748.4267.What is the maximum amount of time a child receiving respite services may stay in care?

(a) A child may be in respite care for 14 consecutive days or 40 total days annually.

(b) If a child needs respite care for more than 14 consecutive days, this is considered a new placement and will not be respite care.

(c) There must be at least a 10-day period between the completion of one occurrence of respite care and the beginning of the next occurrence.

(d) Respite care must not be used if it could be detrimental to the child.

§748.4269.What may I do when I provide respite care services to a child to whom I have already provided respite care?

When you admit into your respite program a child to whom you have already provided respite care, you may update the existing admission assessment information rather than completing a new assessment.

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 March 1, 2006.

TRD-200601282

For further information, please call: (512) 438-3437

Subchapter T. ADDITIONAL REQUIREMENTS FOR OPERATIONS THAT PROVIDE ASSESSMENT SERVICES

1. REGULATION

40 TAC §748.4301

The new section implements HRC, §42.042 and §42.0425.

§748.4301.Does Licensing regulate all assessment services?

(a) No. This subchapter only regulates general residential operations and residential treatment centers that also provide assessment services.

(b) Services provided by other individuals, agencies, and organizations are not subject to regulation under this subchapter.

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 March 1, 2006.

TRD-200601283

For further information, please call: (512) 438-3437

2. ADMISSION

40 TAC §748.4331

The new section implements HRC, §42.042 and §42.0425.

§748.4331.What are the requirements for approving a child's admission into my assessment program?

(a) The person responsible for the assessment services program must review and approve in writing the determination that your program will be able to provide or obtain all assessment services the child appears to need at intake.

(b) The review, determination, and approval must be:

(1) In writing, signed, and dated from the person responsible for the assessment services program; and

(2) Completed prior to the admission of the child into your assessment services program.

(c) The determination on the appropriateness of the program to meet the child's assessment needs must be filed in the child's assessment services record if the child is admitted into your assessment services program.

(d) You must document in the child's record whether you are:

(1) Only providing assessment services to the child; or

(2) Also providing other services, such as emergency care services.

(e) You must document the date of the child's admission into your assessment program in the child's record.

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 March 1, 2006.

TRD-200601284

For further information, please call: (512) 438-3437

3. ASSESSMENT PLAN

40 TAC §§748.4361, 748.4363, 748.4365, 748.4367, 748.4369, 748.4371

The new sections implement HRC, §42.042 and §42.0425.

§748.4361.When must I complete the child's individual assessment plan?

(a) You must complete the child's individual assessment plan within 10 days from the date of the child's admission into the program.

(b) You must document the plan in the child's record.

§748.4363.When does admission into the assessment services program begin?

Admission into the assessment services program begins when:

(1) The parent makes the decision to place the child into the assessment services program; and

(2) You decide to accept the child for these services.

§748.4365.What must an individual assessment plan include?

An individual assessment plan must include:

(1) Time frames for providing all assessment services;

(2) Recommendations for the child's care during the assessment process;

(3) Any treatment to be provided during the assessment period; and

(4) Current data from the caregiver's evaluation of the child's behavior and level of functioning.

§748.4367.May the common application serve as the assessment plan?

No. The common application may not serve as the plan for how your assessment services program is going to meet the child's needs.

§748.4369.How must my assessment services program collect information from a child's caregivers?

(a) Your assessment services program must systematically collect information from caregivers throughout the child's participation in the assessment services program. This information includes the caregivers' observations and opinions of the child.

(b) You must document this information in the child's assessment services record. Your documentation must include your consideration of the caregivers' observations and opinions.

§748.4371.When is the assessment plan complete?

(a) The assessment plan is complete when it contains the necessary information and the signed approval of the person responsible for the assessment services program or a designated employee who meets the qualifications of a person responsible for the assessment program.

(b) The parent must review and be provided a copy of the assessment plan.

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 March 1, 2006.

TRD-200601285

For further information, please call: (512) 438-3437

4. ASSESSMENT REPORT

40 TAC §§748.4391, 748.4393, 748.4395, 748.4397

The new sections implement HRC, §42.042 and §42.0425.

§748.4391.What is an assessment report?

(a) The assessment report that is the result of the assessment services is a narrative report that pulls together data from:

(1) Professional evaluation reports on the child; and

(2) The program's assessment on how the child is managing in the program.

(b) The report includes:

(1) Recommendations made in other professional evaluations; and

(2) Recommendations based on the program's experiences with and assessment of the child.

§748.4393.When must I complete the assessment report?

(a) The admission assessment must be conducted rapidly, consistent with good practice, in order to allow for a permanent placement as soon as possible.

(b) You must complete the assessment report within:

(1) 30 days after you admit the child, if the child is younger than five years old; or

(2) 45 days after you admit the child, if the child is five years old or older.

(c) With the approval of the child's parent, you may extend the time frame for completing the report for an additional 15 days. You must document the need for the extension of time in the child's record.

(d) You must complete the assessment report before a planned discharge of the child from the assessment services program. However, additional assessment services may be conducted subsequent to placement if a quick placement is in the best interest of the child.

(e) You must provide a copy of the assessment report to the child's parent as soon as the report is complete.

§748.4395.What must be included in the written assessment report?

In addition to the requirements set forth in §748.1217 of this title (relating to What information must an admission assessment include?), a written assessment report must include:

(1) Copies and results of the determination of the child's basic health and social and developmental assessment, including:

(A) The child's basic health status, as determined under the supervision of a licensed physician;

(B) The child's basic social and developmental needs, as determined under the supervision of the person responsible for the assessment services program or a designated employee who meets the qualifications for a person responsible for the assessment program;

(D) An assessment of the child's immediate and extended family in terms of an ongoing relationship with the child;

(2) Copies and results of all evaluations and testing;

(3) A summary of the primary caregivers' evaluations of the child's behavior and level of functioning;

(4) An assessment of the results and summary in terms of appropriate short- and long-term planning for the child;

(5) Recommendations for placement; and

§748.4397.Who must review and approve an assessment report?

(a) The following people must review the assessment report:

(1) The person responsible for the assessment program or a designated employee who meets the qualifications of a person responsible for the assessment program;

(2) The child's primary caregiver; and

(3) The child's parent.

(b) The person responsible for the assessment program, or the designated qualified employee, must approve and sign the report.

(c) You must file the original, approved and signed assessment report, including any addendums to the report, in the child's assessment services record.

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 March 1, 2006.

TRD-200601286

For further information, please call: (512) 438-3437

Subchapter U. ADDITIONAL REQUIREMENTS FOR OPERATIONS THAT PROVIDE THERAPEUTIC CAMP SERVICES

40 TAC §748.4401, §748.4403

The new sections implement HRC, §42.042 and §42.0425.

§748.4401.What do certain words mean in this subchapter?

These words have the following meanings in this subchapter:

(1) Permanent camp--The permanent structure at which the basic needs for camp operation, such as water supply and septic systems, and permanent toilet and/or cooking facilities, are provided.

(2) Permanent structure--Man-made permanent or semi-permanent structures in which groups of people live, eat, sleep, or assemble, such as dining halls, dormitories, cabins, or other structures which are not constructed to be readily movable.

(3) Primitive camp--A portion of the permanent campsite premises or another site at which the basic needs for camp operation, such as water supply systems, and permanent toilet and/or cooking facilities or other permanent structures, are not provided and in which a child stays no longer than 14 days before returning to the permanent camp.

§748.4403.What children are eligible to participate in a therapeutic camp program?

(a) For a child to be eligible to participate in a therapeutic campy program, the child must:

(1) Be 13 years old or older;

(2) Be in need of treatment services to support an emotional disorder; and

(3) Have difficulty functioning in his home, school, or community.

(b) Individuals that are not eligible to participate in a therapeutic camp program include:

(1) An adult;

(2) A child under 13 years old;

(3) A child who receives basic child-care services, including a child in a transitional living services program;

(4) A child who is pregnant. If a child becomes pregnant while in care, you must arrange for the child's immediate discharge or transfer from your therapeutic camp program;

(5) An adolescent parent with his or her child;

(6) A child with primary medical needs or other medical conditions that cannot be easily provided to the child at the permanent campsite or during primitive camping excursions;

(7) A child diagnosed with a Pervasive Developmental Disorders such as Autistic Disorder, Asperger's Disorder and Rett's Disorder;

(8) A child diagnosed with Mental Retardation;

(9) A child for an emergency admission; and

(10) A child for child day care services.

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 March 1, 2006.

TRD-200601287

For further information, please call: (512) 438-3437

2. ACTIVITIES REQUIRING SPOTTING OR BELAYING

40 TAC §748.4431

The new section implements HRC, §42.042 and §42.0425.

§748.4431.What are the requirements for an adventure/challenge program that requires spotting or belaying?

You must ensure that:

(1) An employee with at least six weeks experience in supervising a similar type of activity supervises an adventure/challenge program that requires spotting or belaying;

(2) Prior to assuming duty as a spotter and belayer, a person receives instruction in the proper procedures;

(3) A spotter or belayer is directly supervised until the person demonstrates competency;

(4) There is a method for controlling access to the equipment and the activity area in order to prevent unauthorized or unsupervised use by a child;

(5) Safety checks are performed on all equipment and ropes prior to each use;

(6) Each child has a safety orientation before engaging in the activity; and

(7) Each child wears appropriate personal protective equipment during an activity.

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 March 1, 2006.

TRD-200601288

For further information, please call: (512) 438-3437

3. PRIMITIVE CAMPING EXCURSIONS

40 TAC §§748.4461, 748.4463, 748.4465, 748.4467, 748.4469, 748.4471, 748.4473

The new sections implement HRC, §42.042 and §42.0425.

§748.4461.What is considered a primitive camping excursion?

A primitive camping excursion lasts no more than 14 days, after which children on the camping excursion must return to the permanent camp.

§748.4463.How long must children remain at the operation's permanent camp between primitive camping excursions?

(a) If your therapeutic camp program only allows children to stay at the camp for less than 90 days, then children must remain at the permanent camp at least two days between primitive camping excursions and activities.

(b) If your therapeutic camp program allows children to stay at the camp for 90 days or more, then children must remain at the permanent camp at least 21 days between primitive camping excursions and activities.

§748.4465.What child/caregiver ratios apply to a primitive camping excursion?

(a) In addition to meeting the child/caregiver ratio requirements in Subchapter G of this chapter (relating to Child/Caregiver Ratios), you must have at least two caregivers during any primitive camping excursion.

(b) In a mixed gender group, there must be a caregiver for each gender at all times.

§748.4467.What are the requirements for toilet facilities for a primitive camping excursion?

(a) You may use pit privies and portable toilets in remote camping areas. You must ensure that the pit privies and portable toilets are:

(1) Maintained in good repair and kept clean at all times;

(2) Constructed and maintained according to manufacturer designs and standards set forth by the Department of State Health Services, General Sanitation Division;

(3) Maintained to prevent access by flies and animals to the contents contained within, to prevent fly breeding, and to prevent contamination of any water supply;

(4) Equipped with toilet paper at all times; and

(5) Serviced for the disposal of human excreta that meet regulations set forth by the Texas Commission on Environmental Quality.

(b) If the camp site is not provided with pit privies or other portable toilets, you must:

(1) Comply with the requirements of §748.3861 of this title (relating to What are the requirements for toilet facilities during overnight camping excursions?); and

(2) Have a readily available supply of clean earth backfill or other disposal methods that meet regulations set forth by the Texas Commission on Environmental Quality for the disposal of human excreta in these areas.

§748.4469.What are the requirements for sanitizing hands at a primitive campsite?

(a) Children and employees must sanitize their hands.

(b) At least one of the following methods for sanitizing hands must be available at the campsite:

(1) Bathrooms equipped with running water must always have soap available for use within 20 feet of the toilet areas;

(2) A hand-washing sink using a portable water supply must have a sanitary catch system approved by your local health department and must always have an alcohol-based hand sanitizer available for use:

(A) You must follow label directions when using alcohol-based hand sanitizers; and

(B) Children must not have access to soiled water; or

(3) Privies and portable toilet facilities not equipped with running water must always have at least a waterless alcohol-based hand sanitizer available for use adjacent to toilet facilities. You must follow label directions when using alcohol-based hand sanitizers.

§748.4471.What personal hygiene provisions must I provide to a child who participates in a wilderness camping excursion?

You must provide:

(1) Personal hygiene supplies that are biodegradable;

(2) Means for a child to bathe or clean his body at least twice weekly; and

(3) Females with body or hand sanitizing wipes or similar products for feminine hygiene purposes.

§748.4473.What are the requirements for laundry provisions on a wilderness camping excursion?

You must provide the children:

(1) Who are on a camping excursion a way to launder clothes at least weekly; or

(2) With clean clothes at least weekly.

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 March 1, 2006.

TRD-200601289

For further information, please call: (512) 438-3437

Chapter 749. CHILD-PLACING AGENCIES

The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), new Chapter 749, Child-Placing Agencies, consisting of Subchapter A, Purpose and Scope, §749.1, §749.3; Subchapter B, Definitions and Services, Division 1, Definitions, §749.41, §749.43; Division 2, Services, §§749.61, 749.63, 749.65, 749.67, 749.69, 749.71; Subchapter C, Organization and Administration, Division 1, Permit Holder Responsibilities, §§749.101, 749.103, 749.105, 749.107; Division 2, Governing Body, §749.131, §749.133; Division 3, General Fiscal Requirements, §§749.161, 749.163, 749.165; Division 4, Fiscal Requirements for Adoption Agencies, §§749.191, 749.193, 749.195, 749.197, 749.199; Division 5, Financial Assistance to Birth Mothers, §§749.231, 749.233, 749.235, 749.237, 749.239, 749.241, 749.243, 749.245; Division 6, Fiscal Accountability/Pass-Through Expenses, §749.271, §749.273; Division 7, Branch Offices, §749.301, §749.303; Division 8, Agency Policies, §§749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359; Division 9, Clients and Appeals, §§749.421, 749.423, 749.425; Subchapter D, Reports and Record Keeping, Division 1, Serious Incident Reports, §§749.501, 749.503, 749.505, 749.507, 749.509, 749.511, 749.513, 749.515; Division 2, General Requirements for All Records, §§749.531, 749.533, 749.535, 749.537; Division 3, Personnel Records, §§749.551, 749.553, 749.555; Division 4, Client Records, §§749.571, 749.573, 749.575, 749.577, 749.579, 749.581, 749.583, 749.585, 749.587; Subchapter E, Agency Staff and Caregivers, Division 1, General Requirements, §§749.601, 749.603, 749.605, 749.607, 749.609, 749.611; Division 2, Child-Placing Agency Administrator, §§749.631, 749.633, 749.635, 749.637; Division 3, Child Placement Staff, §§749.661, 749.663, 749.665, 749.667, 749.669, 749.671, 749.673, 749.675, 749.677, 749.679; Division 4, Treatment Director, §§749.721, 749.723, 749.725, 749.727; Division 5, Treatment Services Provided by Nursing Professionals, §749.741, §749.743; Division 6, Contract Staff, Volunteers, and Student Interns, §§749.761, 749.763, 749.765, 749.767, 749.769, 749.771; Subchapter F, Training and Professional Development; Division 1, Definitions, §749.801; Division 2, Orientation, §749.831, §749.833; Division 3, Pre-Service Experience and Training, §§749.861, 749.863, 749.865, 749.867, 749.869; Division 4, General Pre-Service Training, §§749.881, 749.883, 749.885; Division 5, Pre-Service Training Regarding Emergency Behavior Intervention, §749.901, §749.903; Division 6, Annual Training, §§749.931, 749.933, 749.935, 749.937, 749.939, 749.941, 749.943, 749.945, 749.947, 749.949; Division 7, First-Aid and CPR Certification, §§749.981, 749.983, 749.985, 749.987, 749.989; Subchapter G, Children's Rights, §§749.1001, 749.1003, 749.1005, 749.1007, 749.1009, 749.1011, 749.1013, 749.1015, 749.1017, 749.1019, 749.1021; Subchapter H, Foster Care Services: Admission and Placement, Division 1, Admissions, §§749.1101, 749.1103, 749.1105, 749.1107, 749.1109, 749.1111, 749.1113, 749.1115; Division 2, Admission Assessment, §§749.1131, 749.1133, 749.1135, 749.1137; Division 3, Required Admission Information, §§749.1151, 749.1153, 749.1155; Division 4, Emergency Admission, §§749.1181, 749.1183, 749.1185, 749.1187, 749.1189; Division 5, Foster Care Placement, §§749.1251, 749.1253, 749.1255; Division 6, Subsequent Placement, §749.1281; Subchapter I, Foster Care Services: Service Planning, Discharge, Division 1, Service Plans, §§749.1301, 749.1303, 749.1305, 749.1307, 749.1309, 749.1311, 749.1313, 749.1315, 749.1317, 749.1319, 749.1321, 749.1323; Division 2, Service Plan Review and Updates, §§749.1331, 749.1333, 749.1335, 749.1337, 749.1339; Division 3, Discharge and Transfer Planning, §§749.1361, 749.1363, 749.1365, 749.1367, 749.1369, 749.1371, 749.1373, 749.1375, 749.1377, 749.1379; Subchapter J, Foster Care Services: Medical and Dental, Division 1, Medical and Dental Care, §§749.1401, 749.1403, 749.1405, 749.1407, 749.1409, 749.1411, 749.1413, 749.1415, 749.1417, 749.1419, 749.1421, 749.1423, 749.1425, 749.1427, 749.1429, 749.1431, 749.1433, 749.1435; Division 2, Administration of Medication, §§749.1461, 749.1463, 749.1465. 749.1467, 749.1469; Division 3, Self-Administration of Medication, §749.1501, §749.1503; Division 4, Medication Storage and Destruction, §749.1521, §749.1523; Division 5, Medication Records, §§749.1541, 749.1543, 749.1545, Division 6, Medication and Label Errors, §§749.1561, 749.1563, 749.1565; Division 7, Side Effects and Adverse Reactions to Medications, §749.1581, §749.1583; Division 8, Use of Psychotropic Medication, §§749.1601, 749.1603, 749.1605, 749.1607, 749.1609, 749.1611; Division 9, Protective Devices, §§749.1641, 749.1643, 749.1645, 749.1647; Division 10, Supportive Devices, §§749.1671, 749.1673, 749.1675; Subchapter K, Foster Care Services: Daily Care, Problem Management, Division 1, Additional Requirements for Infant Care, §§749.1801, 749.1803, 749.1805, 749.1807, 749.1809, 749.1811, 749.1813, 749.1815, 749.1817, 749.1819; Division 2, Additional Requirements for Toddler Care, §749.1841; Division 3, Additional Requirements for Pregnant Children, §§749.1861, 749.1863, 749.1865; Division 4, Educational Services, §§749.1891, 749.1893, 749.1895; Division 5, Recreational Services, §§749.1921, 749.1923, 749.1925, 749.1927; Division 6, Discipline and Punishment, §§749.1951, 749.1953, 749.1955, 749.1957, 749.1959, 749.1961; Subchapter L, Foster Care Services: Emergency Behavior Intervention, Division 1, Definitions, §749.2001; Division 2, Types of Emergency Behavior Intervention That May Be Administered, §§749.2051, 749.2053, 749.2055, 749.2057, 749.2059, 749.2061, 749.2063; Division 3, Orders, §§749.2101, 749.2103, 749.2105, 749.2107; Division 4, Responsibilities During Administration of Any Type of Emergency Behavior Intervention, §749.2151, §749.2153; Division 5, Additional Responsibilities During Administration of a Personal Restraint, §§749.2201, 749.2203, 749.2205; Division 6, Combinations of Emergency Behavior Intervention, §749.2231, §749.2233; Division 7, Time Restrictions for Emergency Behavior Intervention, §749.2281, §749.2283; Division 8, General Responsibilities, Including Documentation, After the Administration of Emergency Behavior Intervention, §§749.2301, 749.2303, 749.2305; Division 9, Triggered Reviews, §§749.2331, 749.2333, 749.2335, 749.2337, 749.2339; Division 10, Overall Agency Evaluation, §749.2381, §749.2383; Subchapter M, Foster Homes: Screenings and Verifications, Division 1, General Requirements, §§749.2401, 749.2403, 749.2405; Division 2, Foster Home Screenings, §§749.2441, 749.2443, 749.2445, 749.2447, 749.2449, 749.2451; Division 3, Verification of Foster Homes, §§749.2471, 749.2473, 749.2475, 749.2477, 749.2479, 749.2481, 749.2483, 749.2485, 749.2487, 749.2489, 749.2491, 749.2493; Division 4, Temporary Verification, §§749.2521, 749.2523, 749.2525; Division 5, Capacity and Child/Caregiver Ratio, §§749.2551, 749.2553, 749.2555, 749.2557, 749.2559, 749.2561, 749.2563, 749.2565, 749.2567; Division 6, Supervision, §§749.2591, 749.2593, 749.2595, 749.2597, 749.2599; Division 7, Respite Child-Care Services, §§749.2621, 749.2623, 749.2625, 749.2627, 749.2629, 749.2631, 749.2633, 749.2635; Division 8, Agency-Foster Family Relationships, §§749.2651, 749.2653, 749.2655; Subchapter N, Foster Homes: Management and Evaluation, §§749.2801, 749.2803, 749.2805, 749.2807, 749.2809, 749.2811, 749.2813, 749.2815, 749.2817, 749.2819, 749. 2821, 749.2823, 749.2825; Subchapter O, Foster Homes: Health and Safety Requirements, Environment, Space and Equipment, Division 1, Health and Safety, §§749.2901, 749.2903, 749.2905, 749.2907, 749.2909, 749.2911, 749.2913, 749.2915, 749.2917; Division 2, Tobacco Use, §749.2931; Division 3, Weapons, Firearms, Explosive Materials, and Projectiles, §§749.2961, 749.2963, 749.2965, 749.2967; Division 4, Space and Equipment, §§749.3021, 749.3023, 749.3025, 749.3027, 749.3029, 749.3031, 749.3033, 749.3035, 749.3037, 749.3039, 749.3041; Division 5, Nutrition and Food Preparation, §§749.3061, 749.3063, 749.3065, 749.3067, 749.3069, 749.3071, 749.3073, 749.3075, 749.3077, 749.3079, 749.3081; Division 6, Transportation, §§749.3101, 749.3103, 749.3105, 749.3107, 749.3109, 749.3111; Division 7, Swimming Pools, Bodies of Water, Safety, §§749.3131, 749.3133, 749.3135, 749.3137, 749.3139, 749.3141, 749.3143, 749.3145, 749.3147, 749.3149; Subchapter P, Foster-Adoptive Homes and Legal Risk Placements, Division 1, Verification of Foster-Adoptive Homes, §749.3201, §749.3203; Division 2, Legal Risk Placements, §749.3221; Subchapter Q, Adoption Services: Children, Division 1, Consent, §749.3301; Division 2, Adoption Service Plan, §§749.3321, 749.3323, 749.3325, 749.3327; Division 3, Preparation for Adoption, §§749.3341, 749.3343, 749.3345, 749.3347, 749.3349, 749.3351, 749.3353; Division 4, Placement Requirements, §749.3371, §749.3373; Division 5, Required Information, §§749.3391, 749.3393, 749.3395; Division 6, Post-Placement Supervision, §§749.3421, 749.3423, 749.3425, 749.3427, 749.3429, 749.3431; Division 7, Post-Adoption Services, §§749.3461, 749.3463, 749.3465; Subchapter R, Adoption Services: Birth Parents, Division 1, Birth Parent Preparation, §749.3501, §749.3503; Division 2, Termination of Parental Rights, §749.3521, §749.3523; Division 3, Post Adoption Services, §749.3571, §749.3573; Subchapter S, Adoption Services: Adoptive Parents, Division 1, Adoptive Applicant Preparation, §749.3601; Division 2, Pre-Adoptive Home Screening, §§749.3621, 749.3623, 749.3625, 749.3627, 749.3629, 749.3631, 749.3633; Division 3, Basic Care and Safety Requirements, §749.3661, §749.3663; Division 4, Pre-Placement Requirements, §749.3691, §749.3693; Division 5, Pre-Adoption Consummation Activities, §§749.3721, 749.3723, 749.3725, 749.3727, 749.3729; Division 6, Counseling Services, §749.3741; Division 7, Subsequent Adoptions, §749.3761; Subchapter T, Additional Requirements for Child-Placing Agencies That Provide Assessment Services, Division 1, Regulation, §749.3801; Division 2, Admission, §749.3831; Division 3, Assessment Plan, §§749.3861, 749.3863, 749.3865, 749.3867, 749.3869, 749.3871; Division 4, Assessment Report, §§749.3891, 749.3893, 749.3895, and 749.3897.

The existing minimum standards for child-placing agencies in Chapter 720 are outdated. The standards have not been revised since 1985. The current standards are divided according to the type of home where care is provided, e.g. therapeutic foster home, habilitative foster home, etc. The proposed rules will consolidate the minimum standards for all these homes into a cohesive set of rules that are designed to focus on the needs of the children in care. Many of the proposed changes are due to this consolidation.

In order to update the minimum standards, information has been obtained from providers and provider associations, Child Protective Services, and Licensing staff. Updates have also been made based on the review of available research and literature relating to the child development field, best practices in child placement, and health and safety practices recommended by experts such as the Consumer Product Safety Commission, American Academy of Pediatrics, and the Texas Department of State Health Services.

The proposed rules will also facilitate an understanding of the law and Licensing requirements and are written using "plain language" techniques with a question and answer format. Rules that are easy to read and understand will result in higher rates of compliance.

A summary of some of the significant changes found in Chapter 749 follows:

Subchapter A, Purpose and Scope - This subchapter describes the applicability of the chapter, which applies to child-placing agencies and their verified foster homes.

Subchapter B, Definitions and Services - This subchapter defines foster family home and foster group home as the primary residence of the foster parents, which effectively prohibits staffed foster homes. However, there is a grandfather clause for current homes. This subchapter also describes the services that agencies may offer. Generally, agencies may be licensed to provide any type of service regulated by DFPS and must have operational policies and procedures to ensure children are admitted and served appropriately. This subchapter defines the types of services DFPS regulates as child-care services, treatment services, and programmatic services. Treatment services are designed to treat and or support children with emotional disorders, mental retardation, pervasive developmental disorders, or primary medical needs. Programmatic services include transitional living services and assessment services. Agencies must request and receive approval on the license to provide treatment and programmatic services.

Subchapter C, Organization and Administration - All agency records must be true, accurate, current, and complete. Each agency must have a drug testing policy per Senate Bill 6, 79th Legislature, Regular Session, 2005; an annual professional audit; and a conflict of interest policy. Persons with a conflict of interest (family members, paid consultants, etc.) cannot serve as a member of the agency's governing body. There are also new requirements related to the operation of branch offices and to the handling of pass through expenses (birth mother expenses paid by the agency are passed through to the matched adoptive parents).

Subchapter D, Reports and Record Keeping - This subchapter includes requirements for increased serious incident reporting, including specific time frames for notifying Licensing, a child's parent, and/or law enforcement; content and retention of agency, child, and personnel records, including open, archived, and closed records; and, defines timeliness of documentation in a child, personnel, or foster parent record is within 30 days of the event or occurrence.

Subchapter E, Agency Staff and Caregivers - This subchapter requires a written professional staffing plan; a licensed registered nurse on staff if the agency serves children with primary medical needs; a treatment director for an agency that provides treatment services to a significant portion of the children in care, including minimum qualifications for this position according to the type of service being provided; specific responsibilities of a caregiver when supervising children; and restrictions and requirements for volunteers.

Subchapter F, Training and Professional Development - This subchapter includes content and hourly requirements for employee and caregiver/foster parent orientation, pre-service training, annual training, and CPR and first-aid certification. The pre-service and annual training requirements include training on emergency behavior intervention, psychotropic medications, and for those caring for infants and toddlers, information on recognizing and preventing shaken baby syndrome, preventing sudden infant death syndrome, and early childhood brain development.

Subchapter G, Children's Rights - Specific child rights are listed, including the right to have services provided in a language, or any other means, that is understandable to the child; the right to be free from discrimination; the right to confidential care and treatment; and the right not to receive unnecessary or excessive medication. This subchapter also includes specific requirements regarding the search of a child or a child's property, and for informing a child of his rights.

Subchapter H, Foster Care Services: Admission and Placement - This subchapter allows a child to remain in care until age 22, or indefinitely based on the child's circumstances; lists the admission assessment requirements; lists the medical and dental requirements at admission; allows certain emergency admissions, including emergency placements from law enforcement or Juvenile Probation to authorized agencies; and discusses the requirements for pre-placement visits and subsequent placements in foster homes.

Subchapter I, Foster Care Services: Service Planning, Discharge - This subchapter adds requirements for a preliminary service plan within 72 hours of admission for each child; adds specific requirements for the content of children's service plans based on age and special needs; requires each initial service plan to be completed within 40 days of admission; requires that a child be informed of his/her planned discharge at least four days in advance unless child-placing staff document clinical justification for not providing advance notice; and increases requirements for discharge planning and documentation.

Subchapter J, Foster Care Services: Medical and Dental - This subchapter explains the medical and dental requirements for a child in care; requirements for communicable diseases; requirements for TB testing; immunization requirements; requires children to have a vision and hearing screening; describes the parameters for administering, storing, and destroying medication; increases documentation requirements regarding children's prescription medications; increases the requirements on providing information to parents regarding the use of psychotropic medications; and explains when protective and supportive devices may be used.

Subchapter K, Foster Care Services: Daily Care, Problem Management - This subchapter includes new requirements regarding infants, including feeding, furnishings/equipment, safety, and supervision; children in care who are pregnant or parenting; the agency's involvement with a child's education, including attending conferences specific to the child and advocating for the child's needs; and children's recreational needs. Other requirements address prohibited types of punishment, such as pinching and biting, putting anything in or on a child's mouth, placing a child in a dark space, and requiring a child to remain silent or inactive for inappropriately long periods of time.

Subchapter L, Emergency Behavior Intervention - This subchapter requires agency staff to review each use of emergency behavior intervention within 72 hours of the incident; prohibits prone personal restraints, except as transitional holds that last no longer than one minute; prohibits any personal restraints that twist or place the child's limb(s) behind the child's back; and increases requirements for regularly scheduled evaluations of emergency behavior interventions, both for individual children and for the agency as a whole.

Subchapter M, Foster Homes: Screenings and Verifications - As of January 1, 2012, a separate license will be required for each service area larger than 40 contiguous counties. An agency will need additional licenses for each area in which it chooses to provide services. Foster parents and caregivers must be 21 years old or older if children placed in the home are 13 years old or older. Married foster parents must have been married at least two years prior to verification as foster parents. All children in the foster home must be counted in the home's capacity, including biological children and children placed for respite care. Child/caregiver ratios are decreased, particularly for young children and children receiving treatment services. Other requirements provide increased specificity regarding supervising children in care, use of babysitters, and respite care, including who may provide respite care, time frame restrictions, and required documentation.

Subchapter N, Foster Homes: Management and Evaluation - This subchapter includes requirements for supervisory contacts with foster parents; correcting deficiencies in individual foster homes; and placing homes on inactive status.

Subchapter O, Foster Homes: Health and Safety Requirements, Environment, Space and Equipment - Foster homes must have fire and health inspections; adults at a foster home can only use tobacco products outside, and use of tobacco products in a vehicle while transporting children in care is prohibited; there are requirements and limitations for weapons in foster homes; a maximum of four children may share a bedroom, excluding children with primary medical needs; foster parents must offer children in care the same food choices that the rest of the family is eating; and there are requirements for swimming pools and going swimming. With the agency's approval, foster parents are allowed to teach a child to drive.

Subchapter P, Foster-Adoptive Homes and Legal Risk Placements - An applicant can be verified as a foster home and an adoptive home at the same time, and the foster home and adoptive home screening can be combined as long as all requirements for each are met.

Subchapter Q, Adoption Services: Children - This subchapter includes requirements related to preparing a child for adoption, including minimum qualification requirements for child-placing staff carrying out this responsibility, and requirements for pre-placement visits, including ensuring that the length and number of visits is based on the age and developmental needs of the child.

Subchapter R, Adoption Services: Birth Parents - This subchapter requires birth parents who voluntarily relinquish their parental rights to complete a medical history form furnished by DFPS; increases agency staff contacts with birth parents, including after the birth of the child; and requires documentation of all contacts with birth parents, including review and approval by child placement management staff before accepting a relinquishment from a parent.

Subchapter S, Adoption Services: Adoptive Parents - This subchapter lists the requirements related to a pre-adoptive home screening, including at least one visit to the adoptive home when all household members are present.

Subchapter T, Requirements for Child-Placing Agencies That Provide Assessment Services - This subchapter clarifies that DFPS only regulates child-placing agencies that also provide assessment services. Requirements include a determination that must be made regarding admission, and an assessment plan and report must be completed within 30 or 45 days of admission, depending on the age of the child.

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 significant fiscal implications for state or local government as a result of enforcing or administering the sections. Even though DFPS operates 11 certified child-placing agencies, only foster and adoption development (FAD) staff are considered to be performing regulated child-placing activities. DFPS is currently meeting the proposed revised rules for reports and record keeping, therefore, no additional staff are needed. However, FAD staff will need to meet the required first aid and CPR certifications, but it is anticipated that this cost is insignificant and will be absorbed with existing resources.

For each of the first five years that the proposed rules are in effect, Ms. Brown has determined there may be an impact to large, small, and micro-businesses that must comply with these rules, namely child-placing agencies and their verified foster homes. This impact may result in increased cost of services for agencies and foster homes that do not already meet the proposed minimum standards and these increased costs could be passed on to customers, clients, or funding sources.

To assist with evaluating the potential costs, the fiscal impact is stated in terms of cost per $100 of revenues. It is important to note that, based on survey information, many agencies already meet many of the standards being proposed. Other standards will require only a one-time investment, and will not necessarily result in higher recurring costs. Some agencies will be grandfathered in for some standards, or will be given additional time to comply. In addition, child-placing agencies have some flexibility in the way they structure their operation so as to minimize the impact on their costs of operation.

At the same time the fiscal impact survey was released in August, a draft of the rules was placed on the DFPS agency website. The purpose of putting the draft on the website was to help those completing the fiscal impact survey understand the proposed changes, so they could furnish appropriate well-informed cost data.

Licensing staff, working with other DFPS staff from the Operations Division and the Financial Services Office, developed the survey. The questions were a mix of multiple choice and open-ended responses. Open-ended questions were used when requesting demographics or information, such as cost estimates and/or specific actions that would be taken as a result of a particular proposed rule. The survey included assumptions about which rules would be absorbed in the regular costs incurred by the operations and which rules would have a potential fiscal impact. Survey questions were not developed for every rule because some rules did not have an identifiable fiscal impact, or the impact was deemed insignificant.

Child-placing Agencies - 37 surveys completed; response rate of 17.7%

Child-placing Agencies, Supplemental Survey - 23 surveys completed; response rate of 11.0%

Providers were limited to one survey response each. The agency name was requested to validate that they were a licensed provider eligible to complete the survey and that no duplicate surveys were received.

For each rule addressed by the survey, an estimate was made of the percent of agencies potentially impacted. The percent potentially impacted was calculated by analyzing the responses to the individual survey questions for various indicators.

Annual revenue was calculated from expenditure data at DFPS as adjusted by certain factors. A completion factor was applied to actual Fiscal Year 2005 DFPS payments to each entity as of August 31, 2005, to annualize the total to a projected 12-month period. This amount was then increased proportionately based on survey reported information of the percentage of DFPS enrollment at each entity in order to project revenues from all other sources related to licensed activities. In instances where there was no DFPS payments or child placements, the entity was asked to furnish their annual budget related to licensed activities. Cost per $100 of revenue was then determined as follows:

Estimated annual revenue / 100 = total number of $100 revenue in a year

As cost estimates were developed for each rule, the estimate was stated by $100 of revenue for each entity potentially impacted. These amounts were then averaged to obtain the overall estimated fiscal impact. If a rule would have only a one-time cost, it was assumed that the cost would be absorbed over the course of a year. If a rule could be implemented over multiple years, it was assumed that the cost would be absorbed over the entire length of the implementation period. Finally, if a cost is recurring, it was calculated for one year at a time.

Current providers will be grandfathered for some rules, as long as their license remains valid. There is no estimated fiscal impact to persons or businesses for those rules because no current provider is required to comply and new providers will be subject to the minimum standards that are in effect at the time the business begins operation.

The following is a summary of the rules analyzed for fiscal impact, including the rule number, a description of the rule that results in the fiscal impact, assumptions and other information specific to the cost calculations, cost type (one-time, recurring, etc.), the estimated cost per $100 of revenue, and the percentage of facilities potentially impacted.

Fiscal Impact for Proposed §749.341: This section contains portions of the current rule, but also requires agencies to develop policies on emergency behavior intervention, including a requirement to obtain, at admission, each child's input on preferred de-escalation techniques that caregivers can use to assist the child in the de-escalation process. This rule was included since asking each child what helps him calm down when he is upset is a logical and necessary part of planning for the care of the child. Required policy also includes that this information be revisited after each emergency behavior intervention. Cost of compliance includes both first year costs to develop the policies and recurring costs of subsequent years as the policies are implemented. Based on survey data, the more significant cost impact is in the first year, which is estimated at an average of $0.15 per $100 of revenue. Recurring cost of subsequent years is estimated at an average of $0.04 per $100 of revenue. An estimated 47% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.349: This section requires an agency to have specific policies related to foster homes that provide treatment services, including an on-going assessment of the caregiver's ability to meet the needs of the child and plans for emergency back-up. Agencies not already meeting the standard must develop and implement specific policies related to foster homes that provide treatment services. Cost of compliance includes both first year costs to develop the policies and recurring costs of subsequent years as the policies are implemented. Based on survey data, the more significant cost impact is in the first year, which is estimated at an average of $0.43 per $100 of revenue. Recurring cost of subsequent years is estimated at an average of $0.19 per $100 of revenue. An estimated 28% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.353: This section requires an agency to have specific policies related to babysitters and respite care in foster homes. There are no current rules regarding respite care. As more agencies are providing respite foster care, it is necessary to strengthen the regulation of this type of care to ensure the safety of the child. Agencies not already meeting the rule must develop and implement specific policies related to babysitters and respite care in foster homes to include amount and type of training for caregivers, number of children and length of time they can be cared for, and procedures for agency review and approval of the child care arrangements. Cost of compliance includes both first year costs to develop the policies, and recurring costs of subsequent years as the policies are implemented. Based on survey data, the more significant cost impact is in the first year, which is estimated at an average of $0.10 per $100 of revenue. Recurring cost of subsequent years is estimated at an average of $0.05 per $100 of revenue. An estimated 75% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.573: This section requires that master records for children and foster and adoptive homes be maintained at the office where the child placement staff that manages the case is located, which could be a branch office. There are no current rules for organization and maintenance of branch offices, however many child-placing agencies have these offices. Cost estimates were based on several possible actions that could be taken to comply with the rule, including acquisition of additional storage space, duplication of records currently retained at a main office or other location, and costs related to staffing. Based on the survey data, there is a one-time average cost estimate, which is $0.79 per $100 of revenue. An estimated 13% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.601: This section requires the agency to have a written professional staffing plan. It is important that agencies identify how staff will be utilized to provide all the required services. This requirement is a current rule for residential child-care operations, and this change will make it consistent for all 24-hour child-care. Survey responses indicated that approximately 90% of the cost would be incurred in the first year as the staffing plans are developed. None of the respondents estimated any savings, or cost reductions that would result from having such a plan. Based on the survey data, the estimated average costs are $0.09 per $100 of revenue in the first year, and $0.01 per $100 of revenue in subsequent years. An estimated 64% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.665: Child placement staff must have significant documented face-to-face contact with a child monthly. However, staff can miss two visits per year, provided a child does not go longer than 60 days without a visit. This means staff must have face-to-face contact with a child at least 10 times a year. The current rule only requires quarterly contact. This change is consistent with CPS policy and comes closer to meeting the nationally recommended standard for monthly contact. Agencies were surveyed to determine whether they were currently making less than the required number of visits, and if they were, the number of additional child placement staff positions needed to meet the requirement. The cost will be recurring and is estimated by applying a standard salary cost of $34,823 to the total number of new positions needed. Based on the survey data, the estimated average cost is $4.29 per $100 of revenue. An estimated 23% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.667 and §749.669: These sections define the responsibilities, including documentation duties, of child placement management staff for approval of certain critical activities, including admission, intake studies, home studies, placement selections, and supervision of less qualified or experienced staff. Current rule requires these activities be approved, but does not speak to the documentation of the approvals. It is important to note that agencies do have flexibility in how these requirements are met using existing staff. Agencies examined the requirements of the rules and estimated the number of additional child placement management staff needed to meet the requirements of this rule and/or identified other costs that would be incurred. The cost will be recurring. The cost of the child placement management staff positions is estimated by applying a standard salary cost of $55,055 to the total number of new positions needed. Based on the survey data, the estimated average cost is of $0.11 per $100 of revenue. An estimated 22% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.721: This section requires an agency to have a treatment director if it provides treatment services to either 30 or more children, or to more than 50% of the children in care, whichever is less. The treatment director must be a full-time employee. Residential child-care operations have the requirement for a treatment director in current standards. This is a new requirement for child-placing agencies, and one that is necessary because of the number of children receiving treatment services that are being placed in foster homes. The threshold number of children was reached after discussions with Licensing staff and providers. Agencies were surveyed to determine how many met the criteria that would require a full-time treatment director, and if they did, whether they currently employ one and whether it was a full-time position. The cost will be recurring. Cost calculations were based on a standard salary of $58,000 for a full-time treatment director. Based on the survey data, the estimated average cost is $0.26 per $100 of revenue. An estimated 5% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.741: If an agency provides services to support children with primary medical needs, it must have a registered nurse on staff or on contract to respond to emergencies, questions, or other medical issues. The nurse must also lead the service planning process and be available to support caregivers. This is a new rule for child-placing agencies; current rule only requires that nasogastric tubes be inserted or removed by a nurse. This rule is necessary since many foster homes are serving children with primary medical needs and this ensures that there is appropriate staff available to meet the child's needs. Agencies that do not have a nurse available for these purposes and who do provide care for children with primary medical needs were asked to provide a cost estimate of obtaining the services of a nurse to meet the requirement of the rule. The cost will be recurring. Costs ranged from $25,000 to $70,000 per agency. The estimated average cost is $2.80 per $100 of revenue. An estimated 14% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.831: This rule stipulates there must be an orientation for caregivers and employees and specifies topics that must be covered in orientation training. Current rules require an orientation for employees on the agency's policies and activities, however this rule is more specific in what that orientation must contain. Agencies were asked to compare the proposed rule to their current orientation training, and estimate the cost of revising their curriculum and providing training that includes all the required elements. Approximately 97% of the total cost estimate is first-year costs of developing and implementing training on new topics, and the rest is recurring costs of continuing the orientation training in subsequent years. The estimated average costs are $0.93 per $100 of revenue in the first year, and $0.03 per $100 of revenue in subsequent years. An estimated 26% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.863 and §749.869(d): These sections require that a new caregiver with no prior training or experience in the use of emergency behavior intervention must complete a minimum of eight hours of pre-service training on this subject. Caregivers of children receiving treatment services must complete 16 hours. Current rule has no clock hour requirement for this pre-service training. The training must be competency based and require participants to demonstrate skill competency at the end of the training. DFPS has investigated a number of restraint-related injuries or deaths. This rule will ensure at least a minimal level of training has been given to caregivers. The cost will be recurring. Agencies not meeting the requirement provided cost estimates of doing so. Costs are affected by many variables, such as number of caregivers requiring training, amount of training currently provided, and qualifications of current instructors. As would be expected, these variables led to a wide range of cost estimates from $0 to approximately $122,000 per agency. Based on the survey data, the estimated average costs are $0.23 per $100 of revenue for agencies providing basic child-care services and $0.45 per $100 revenue for agencies providing treatment services. An estimated 77% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.885 and §749.869(c): These rules require pre-service training to caregivers who administer psychotropic medication. The training must include identification of psychotropic medications, basic pharmacology, techniques and methods of administering the medications, and related agency policies and procedures. The training must be provided prior to allowing the foster parent or caregiver to administer the medication. A pharmacist, licensed physician, or registered nurse must conduct the training. The trainer must assess each participant after the training, to ensure that the participant has learned the course content. While this is a new rule, it encompasses the current contractual requirement for agencies caring for CPS children. Agencies were surveyed to determine those that either do not provide the required training, or those that offer the training but do not use an instructor meeting the qualifications. The cost will be recurring. Cost estimates are calculated by applying an hourly training rate of $71 to the estimated number of hours to be provided. Estimates ranged from $355 to $4,260 per agency. Based on the survey data, the estimated average cost is $0.16 per $100 of revenue. An estimated 21% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.935: This section requires that a person required to have training may obtain no more than one-third of the required annual training hours from self-instructional materials. This includes web-based training that is not instructor-led. It is anticipated that this rule will encourage agencies to offer more training to caregivers and staff and that caregivers and staff will have access to more in-depth training since training in a group setting promotes better learning than through self-instruction. Agencies will still have options in how the training is provided, and the survey indicates that very few agencies are impacted and at a very minimal cost. Current rule requires 75% of training to consist of course work from an accredited educational institution; workshops, seminars, other direct training provided by qualified agencies, organizations, and individuals; in-service training; or self-instruction programs. In-service training and self-instruction programs must include stated learning objectives, curriculum and learning activities, and an evaluation component. Information was obtained regarding the percentage of required annual training hours that are currently being obtained through self-instructional materials. Hours over the one-third limit must be replaced by instructor-led training. This total number of replacement hours is estimated based on the percentages furnished by the agencies responding to the survey. These hours, the number of employees, and a standard hourly cost of training were used to estimate the fiscal impact. The cost will be recurring. The estimated cost per hour of $16 was taken from provider cost reports submitted to DFPS. Cost estimates ranged from $0 to $5,440 per agency. The estimated average cost is $0.01 per $100 of revenue. An estimated 6% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.941: This section is a new rule that requires the annual training for caregivers to be designed to be appropriate for the children they are serving based on the age of the child and the child's needs. Agencies were asked to review their current training objectives and based on their experience providing training, to estimate the fiscal impact of implementing any changes from this rule. The cost will be recurring. Cost estimates ranged from $2,000 to $122,000 per agency. The estimated average cost is $0.93 per $100 of revenue. An estimated 25% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.945: This section requires that annual training on psychotropic medications, including post-training assessment of the participants, must be conducted by a pharmacist, licensed physician, or registered nurse. While this is a new rule, it encompasses the current contractual requirement on agencies caring for CPS children. As more children in placement are prescribed psychotropic medications, it is necessary to ensure caregivers and staff know how to administer these medications and their effects. The cost will be recurring. Agencies were asked to provide an estimate of the fiscal impact of this rule based on the training they currently provide or would provide under the requirements. Some indicated they could handle this within current resources while others estimated costs ranging to a high of $19,000. The estimated average cost is $0.26 per $100 of revenue. An estimated 29% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.981: This is a rule change that creates two fiscal impacts. The first impact is a result of the child-placement staff acting as a caregiver, such as taking a child alone on an appointment or doctor visit, because as a caregiver they must have CPR and first-aid training. Agencies not currently providing required CPR and first-aid training were asked to estimate the cost of doing so. The training could be incorporated into annual training hours already provided for, or be in addition to those hours. Many variables could affect the cost of providing this training, including policies regarding staff acting as caregivers and the size of the agency. The cost will be recurring. Cost estimates ranged from $100 to $5,000 per agency. The estimated average cost is $0.17 per $100 of revenue. An estimated 17% of the agencies are potentially impacted. The second fiscal impact is because this section does not allow caregivers to be the sole caregiver for a group of children unless the caregiver has current certifications for first aid, with rescue breathing and choking, and CPR for infants, children, and adults. A foster parent who is a health professional can use documentation of knowledge and training from their employment in lieu of this training requirement. Current rule requires only that the primary caretaker have CPR and first-aid training. Agencies were asked to provide an estimate of the fiscal impact of this rule based on the policy decisions they anticipate making in order to achieve compliance. Compliance could be achieved in many different ways and the cost would vary accordingly. The cost will be recurring. Cost estimates ranged from $0 to $15,000 per agency. The estimated average cost is $0.35 per $100 of revenue. An estimated 100% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1003: This rule added to the list of child rights the right to have services provided in a language, or any other means, that is understandable to the child. Current rules do not address this as a right, and this rule incorporates the Federal regulation that is part of Title VI of the Civil Rights Act of 1964. A child placed with foster parents who cannot speak the child's language must be provided an interpreter or other means for the foster parents to communicate in the child's own language, or have at least one person at the home at all times who is able to communicate in the child's own language. The cost will be recurring. Agencies not currently meeting this standard were asked to estimate the cost of providing services in the manner required. Although many agencies were already in compliance with this current federal law, this cost was calculated from estimates ranging between $0 and $175,200. The estimated average cost is $0.95 per $100 of revenue. An estimated 29% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1005: This rule requires that an agency inform children and/or parents of the child's rights within 24 hours of acceptance of the child. The rights must be written in simple, non-technical terms in the primary language of the person being informed. If the person being informed of the child's rights has a visual or auditory impairment, the explanation must be provided in a manner that is understandable to that person. Current rules have requirements about what a child's rights should be, but there is no requirement on how these rights should be presented to the child and parent. It is anticipated that this rule will help ensure the child adjusts better to the placement setting if he knows what can be expected. The cost will be recurring. Agencies not currently in compliance with this rule were asked to estimate the cost of providing the required communications. This cost was calculated from estimates ranging between $1,000 and $50,000. The estimated average cost is $0.25 per $100 of revenue. An estimated 27% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1015: This rule requires an adult of the same gender as the child to witness searches of a child over five years old that involves the removal of clothing. This is a new rule and is designed to ensure children are protected from abuse and adds protections for the caregiver in ensuring the search was done appropriately. The cost will be recurring. Agencies not currently in compliance with this rule were asked to estimate the cost of complying with this requirement. Cost estimates ranged from $3,000 to $15,000. The estimated average cost is $1.14 per $100 of revenue. An estimated 6% of the agencies are potentially impacted. It should be noted that agencies have the option of whether to allow these searches, so there could be zero-cost.

Fiscal Impact for Proposed §749.1111: This section requires a child-placing agency to provide orientation for a newly admitted child. For younger children, orientation must be geared to the intellectual level of the child. This is a new rule for child placing agencies, but is a rule for other residential child-care operations. Agencies should be required to ensure that a child is aware at admission of the agency's policies and procedures to help with the child's adjustment to the placement. The cost will be recurring. Agencies not currently in compliance with this rule were asked to estimate the cost of complying. Cost estimates ranged from $0 to $10,000. The estimated average cost is $0.25 per $100 of revenue. An estimated 22% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1301: This section requires the agency to complete a preliminary service plan within 72 hours of the child's admission. This is a current rule for residential treatment centers and is required contractually by CPS for all children in foster care at the specialized level of care. The new rule requires a more detailed plan for children receiving treatment services. All other children would need a preliminary service plan developed within 72 hours that simply addresses their immediate needs--the rule does not specify who must develop this plan. The cost will be recurring. Agencies impacted were asked to furnish information on number of admissions, staff time to prepare plans, and other costs of complying with the requirement for preparing these preliminary service plans within 72 hours of a child's admission. A standard child placement staff salary of $34,823, or $17 per hour, was applied to the estimate of additional staff time needed to comply. Cost estimates ranged from $3,000 to $15,000. The estimated average cost is $1.42 per $100 of revenue. An estimated 39% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1309: This section requires for a child 13 years old or older, the service plan must contain a plan for educating the child on: healthy interpersonal relationships, healthy boundaries, pro-social communication skills, sexually transmitted diseases, and human reproduction. This is a new rule and ensures that children are given necessary information about physical and emotional development. The cost will be recurring. Agencies not already including these topics in the service plans were asked to estimate the cost of meeting this standard. Cost estimates ranged from $0 to $250,000. The estimated average cost is $0.53 per $100 of revenue. An estimated 61% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1333: This section requires if there is a change in placement as a result of a change in the child's needs, the service plan must be reviewed and updated accordingly. If the change in placement is not a result of changes in needs, the service planning team may approve reviewing the plan on the original schedule. The current rule requires each agency to have a policy for service plan reviews that addresses issues of placement disruption and planned subsequent placements in addition to regular reviews. This is also a currently required contractual term for agencies that care for CPS children, so only those agencies that do not care for CPS children would be impacted. The cost will be recurring. Agencies not already in compliance with the rule were asked to provide estimates of how many times a year placements are changed due to a change in the child's needs and how many hours are needed to review the service plan when this occurs. An hourly rate of $15 was applied to the estimate of additional staff time needed to comply with the rule. The estimated average cost is $0.37 per $100 of revenue. An estimated 19% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1335: This section has two potential fiscal impacts. It requires that a review and update of a service plan must include an evaluation of any psychotropic medications prescribed for the child, any change in psychotropic medications since the last review, and the behaviors and reactions of the child observed by caregivers, professional service providers, and parents. There are no current rules regarding a review of the use of psychotropic medications, although there is a requirement to address the medical needs of the child and review how those needs were met. Agencies that contract with CPS are already required to meet this rule, which is likely the reason there are so few agencies impacted. The cost will be recurring. Agencies not already in compliance with the rule were asked to estimate the cost of including an evaluation of psychotropic medications to the review and update of a child's service plan. An annual cost was estimated by applying this per child cost to an estimated number of children per year. The estimated average cost is $1.83 per $100 of revenue. An estimated 9% of the agencies are potentially impacted. This section also requires an evaluation of the use and effectiveness of emergency behavior intervention techniques if used during the child's progress reporting period. The evaluation must focus on the frequency, patterns, and effectiveness of types of emergency behavior interventions; strategies to reduce the need for emergency behavior interventions overall; and specific strategies to reduce the need for use of personal and mechanical restraints, emergency medication, and/or seclusion, where applicable. The cost will be recurring. Agencies not already in compliance were asked the cost of including this in the service plan review. An estimated 9% of the agencies are potentially impacted at a cost of $2.66 per $100 of revenue.

Fiscal Impact for Proposed §749.1339: This section requires that the intellectual functioning of a child diagnosed as mentally retarded must be re-evaluated at least annually by a psychologist until the child is 10 years old and every two years thereafter; or a psychologist must determine the frequency for a specific child's intellectual functioning to be re-evaluated. This determination, including justification for the timeframe, must be documented in the child's record annually by the service planning team. Current rule does not include the option for a psychologist to determine the time frame for a specific child. The rule was added at the request of providers and advocates. The cost will be recurring. Agencies not already in compliance with the rule were asked to estimate the cost of complying with the options in the rule regarding the timeframes for re-evaluations of the intellectual functioning a child diagnosed as mentally retarded. The estimated average cost is $0.05 per $100 of revenue. An estimated 19% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1611: This section requires that if a child takes psychotropic medications, the prescribing physician, or physician monitoring the child's use of the psychotropic medication, must evaluate the appropriateness of continuing the medication on at least a quarterly basis. If a health-care professional does not substantiate the effectiveness of a specific psychotropic medication within 90 days, the health-care professional must provide a written rationale for continuing the medication for an additional period. This additional period must not exceed 90 days if effectiveness is not substantiated. A copy of the written rationale must be documented in the child's record. Current rule requires if mind-altering or behavior-modifying medications are ordered for a child, the appropriateness of continuing the medication must be evaluated by the prescribing physician on at least a quarterly basis. This rule is compatible with the contractual requirements for agencies that contract for the placement of CPS children. The cost will be recurring. Agencies not already in compliance with the rule were asked to provide estimates of the cost of implementing the rule and other information that would enable an analysis to be made. While many agencies were complying with all parts of this rule, others were in partial compliance. The estimated average costs range from $0.23 to $0.98 per $100 of revenue. An estimated 3% to 16% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1645: This section states that bed rails that extend the entire length of the bed are prohibited as a protective device, except for children with primary medical needs if authorized by a physician. This is a new rule designed to ensure bed rails are not used to restrain children, since preventing a child from getting out of bed would be a personal restraint. The cost will be recurring. Agencies not already in compliance with the rule were asked to estimate the cost of implementing a prohibition on bed rails. The exception for children with primary medical needs was a revision to the proposed rule made after the survey was complete. Thus the survey data, which did not consider the impact of that change, indicated an estimated average cost is $0.17 per $100 of revenue with an estimated 9% of the agencies potentially impacted. It seems reasonable to conclude that the changes will reduce the estimated cost and the number of agencies impacted, although no data is available to restate the original estimates.

Fiscal Impact for Proposed §749.1807: This rule stipulates specifications and safety requirements for cribs. The rule incorporates the recommendations of the Consumer Product Safety Commission. This should be a one-time cost to agencies that are not in compliance. Agencies were asked to furnish information on the number of cribs in use and what percentage of those cribs meets all the specifications in the rule. By applying an estimated cost per crib to the number of cribs that would need to be replaced, the estimated fiscal impact can be calculated. The survey data indicates that there are estimated to be 951 cribs in use, and 107 of these do not meet the specifications of the rule. There is an estimated cost of $235 per crib. The estimated average cost is $0.06 per $100 of revenue. An estimated 22% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1809: This section allows the use of mesh-cribs or port-a-cribs that meet stated specifications and safety requirements. The rule incorporates the recommendations of the Consumer Product Safety Commission. This should be a one-time cost to agencies that are not in compliance. Agencies were asked to furnish information on the number of cribs in use and how many of those do not meet all the specifications in the rule. By applying an estimated cost per crib of $235 to the number of cribs that would need to be replaced, the estimated average cost is $0.08 per $100 of revenue. An estimated 6% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1861: This section states an agency must offer nutritional counseling and guidance to a pregnant child and this counseling must be documented in the child's record. This is a new rule that is necessary since teen mothers are often not aware of their own nutritional needs or the nutritional needs of their unborn child. This rule ensures some attempt is made to provide for the health and safety of the mother and child. Agencies have a variety of options in how to ensure this counseling is offered. The cost will be recurring. Agencies were asked to determine if someone on their staff was qualified to provide the appropriate nutritional counseling. In addition, they were asked to choose from a list of other possible actions they could take to ensure the counseling was provided and to provide a cost estimate for their selection. The most significant component of the cost estimate is the cost of transportation, which represents approximately 94% of the total cost estimate. The estimated average cost is $4.71 per $100 of revenue. An estimated 6% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.1959: This section requires if a foster or adoptive parent, in order to manage a child's behavior, restricts the child's activities for more than seven days or restricts a child to a room or building for more than 24 hours, they must review the restrictions with the child placement management staff, treatment director, professional service providers, or service planning team and document this review in the child's record. Current rule requires documentation any time that the child is restricted to the home for more than 24 hours, but does not require the approvals of the appropriate staff or planning team. This change ensures the appropriate agency staff are aware of the restrictions and ensures that activity restrictions do not become punitive or abusive and do not interfere with needed treatment activities. The cost will be recurring. Agencies were asked to identify the people involved in conducting and documenting a review of restrictions on a child and to estimate the number of hours each would spend on this activity. Fiscal impact was calculated by applying estimated salary costs to those hours. The estimated average cost is $0.56 per $100 of revenue. An estimated 24% of the agencies are potentially impacted. Agencies do have the option of whether to allow this type of discipline at all which would be a zero cost.

Fiscal Impact for Proposed §749.2301 and §749.2303: These sections require that caregivers involved in the emergency behavior intervention of a child must debrief with child placement staff concerning the incident immediately or as soon as possible after the situation has stabilized, revisit the child's input on preferred de-escalation techniques, and document the debriefing in the child's record. Caregivers involved in the emergency behavior intervention of a child must make every effort to debrief with the children in care who witness the incident. At each review of a child's service plan, you must evaluate the use, frequency, patterns, and effectiveness of emergency behavior intervention techniques. Current rule requires that after a personal restraint, staff involved must make every attempt to debrief concerning the incident. This new rule provides more specificity in what must be done during a follow-up to any emergency behavior intervention and includes the requirement for caregivers, not just staff, to be involved in the follow-up. It ensures that agency staff are reviewing the application of those interventions in a timely manner and that the interventions are appropriate. It also affords an additional protection for caregivers who may be accused of inappropriate use of restraint or seclusion. The cost will be recurring. Agencies were asked to estimate the cost of implementing the rule in its entirety. The estimated average cost will range from $0.19 to $2.66 per $100 of revenue depending on the extent of current compliance and the number of changes that would be necessary. An estimated 36% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2381 and §749.2383: These sections require as part of an annual overall evaluation, an agency must focus on the frequency, patterns, and effectiveness of specific emergency behavior interventions. It must collect and document aggregate numbers of behavior interventions reported quarterly by type of intervention. Data must be reviewed quarterly and maintained for at least five years for review by Licensing. Current rule for other residential child-care operations require the evaluation, however, the requirement to collect and document aggregate numbers is new for all. This requirement is recommended by all national organizations as good practice for child-care operations and ensures the data is available for agencies to make necessary revisions to policies and trainings. It also provides Licensing with information on a regular basis about the use of emergency behavior interventions that can be used in reviewing how the rules on those interventions are applied by individual operations or agencies. The cost will be recurring. Agencies not already doing so were asked to estimate the cost of collecting data and performing a review of emergency behavior interventions at least quarterly. Individual estimates received ranged from $0 to $27,500. The estimated average cost is $0.10 per $100 of revenue. An estimated 23% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2551: This section states a foster family home may care for no more than six children, including children of the foster family, children receiving respite care, and children for whom the family provides regular day care. All adults and children in care must be counted in the capacity of the home. Current rules regarding home capacity do not address children in respite care, and there has been confusion about how these children should be counted. This rule is in compliance with statute regarding the capacity of foster homes. The cost will be recurring. Agencies not determining capacity of a home in accordance with the rule were asked what actions they would take if they found a capacity problem after implementing the rule and to estimate the cost of those actions. Two responders stated that the provision of respite care was the primary cause of homes exceeding capacity. The estimated average cost is $0.58 per $100 of revenue. An estimated 13% of the agencies are potentially impacted.

Fiscal Impact for Proposed §§749.2559, 749.2561, and 749.2563: This section states a foster group home may care for no more than 12 children, including children of the foster family and children receiving respite care. All adults and children in care must be counted in the capacity of the home. Current rules regarding home capacity do not address children in respite care, and there has been confusion about how these children should be counted. This rule is in compliance with statute regarding the capacity of foster homes. The cost will be recurring. Agencies not determining capacity of a home in accordance with the rule were asked what actions they would take if they found a capacity problem after implementing the rule and to estimate the cost of those actions. The estimated average cost is $0.07 per $100 of revenue. An estimated 7% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2561 and §749.2563: These sections state the child/caregiver ratio in a foster home is based on the age of the youngest child in the home, number of children receiving treatment services, and number of children with primary medical needs. The number of children one caregiver may supervise in a foster family home is six, and in a foster group home it is eight, although either may be less when affected by other criteria. The cost will be recurring. Agencies were asked their current practices regarding ratio requirements. The ratios provided in the survey responses were then compared to the ratios in the proposed rules and the agencies potentially impacted were identified. A cost estimate was calculated based on the number of additional homes needed to accommodate the same number of children while complying with the proposed ratios. Survey data on the cost per home was then used to estimate the impact. The estimated average cost is $0.43 per $100 of revenue. An estimated 56% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2631: This section establishes rules regarding the length and frequency under which a child may be in respite care before it is considered a new placement. This is a new rule; there are no current rules on respite care. It is consistent with current contractual requirements for agencies accepting placement of CPS children. This rule places time limits on the length of a respite care placement for a child in order to ensure the continuity of care for children. The cost will be recurring. Agencies were asked to compare their current respite care policies to the various requirements found in the rule and estimate the cost of incorporating all elements into their policies. Cost estimates ranged from $0 to $100,000. The estimated average cost is $0.14 per $100 of revenue. An estimated 77% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2633: This section establishes rules regarding the length and frequency that a foster home may provide respite care services. This is a new rule; there are no current rules on respite care. It ensures that a foster home does not have any lengthy conflict of care issues with other children in care, or provide excessive respite care. The cost will be recurring. Agencies were asked to compare their current respite care policies to the various requirements and estimate the cost of incorporating all elements into their policies. Cost estimates ranged from $0 to $240,000. The estimated average cost is $0.55 per $100 of revenue. An estimated 71% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2821: This section requires foster parents whose home remains on inactive status for more than a year to complete at least eight hours of pre-service retraining before children can be placed in the home. This is a new rule, however the cost is determined to be very minimal. Currently staff are required to visit the home and document that it is in compliance with all standards prior to placing a child in the home. The cost will be recurring. Agencies were asked to compare their current policies regarding pre-service training for foster parents whose home has been inactive for more than a year and estimate the cost of providing eight hours of retraining before placing children in the home. The estimated average cost is $0.01 per $100 of revenue. An estimated 76% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.2909: This section requires each home to have a working smoke detector in hallways or open areas outside sleeping rooms and on each level of a home with multiple levels. Depending on the size and layout of the home, others could be needed based on manufacturer or fire marshal instructions. This is a new rule and is in compliance with recommendations from fire marshal and manufacturer instruction. The cost will be recurring. Agencies were asked the number of smoke detectors needed to meet the requirement. Applying a standard cost of $12.40 per detector to the number indicated yields the estimate of the fiscal impact. The estimated average cost is $0.07 per $100 of revenue. An estimated 15% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.3071: This section requires agencies to have written approval from a licensed physician or a registered or licensed dietitian to serve a child a therapeutic or special diet. Dietary alternatives must be available for a child who has special health needs. This is a new rule to ensure children receive food that meets daily nutritional needs. The cost will be recurring. Agencies not already in compliance with the entire rule were asked to provide an estimate of the cost of implementing any of the parts that would be necessary to meet each the requirements. Cost estimates ranged from $0 to $12,000. The estimated average cost is $0.06 per $100 of revenue. An estimated 24% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.3133: This section requires a swimming pool to be enclosed by a fence that is at least four feet high. Fence gates leading to the pool area must be self-closing and self-latching and must be locked when the pool is not in use. The current rule, for foster group homes only, requires a fence, locked entrances and exits when the pool is not in use, and locked machinery rooms. Agencies were asked the number of foster homes that have swimming pools requiring fencing or barriers to prevent a child's access and to provide a cost estimate of those modifications. Respondents identified a total of 74 homes that would be affected and estimated the average cost per home at approximately $2,700. These costs are assumed to be first-year costs only as they are not of a recurring nature. The estimated average cost is $1.25 per $100 of revenue. An estimated 32% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.3137: This rule establishes additional child/caregiver ratios for swimming activities. Current rules only require that operations and foster homes meet current caregiver/child ratios. The cost will be recurring. Agencies were asked how they currently manage child/caregiver ratios during swimming activities. If they are taking no steps beyond simply maintaining regular non-swimming ratios, the assumption is that additional caregivers would be needed in order to comply with the rule. The number and cost of additional caregivers is calculated based on the numbers and ages of children in care, an assumption that all are involved in swimming activities for at least three months a year, half the additional caregivers will be part-time or volunteers, and a standard cost of a caregiver's salary which is estimated to be $18,665. Cost estimates ranged from $20,997 to $349,950. The estimated average cost is $4.10 per $100 of revenue. An estimated 34% of the agencies are potentially impacted. Increased use of volunteers beyond that assumed in the analysis would further reduce the cost, and could potentially eliminate it altogether.

Fiscal Impact for Proposed §749.3143: This rule requires that when children are swimming, at least one caregiver counted in the child/caregiver ratio must be able to swim and perform a water rescue. Current rule for foster group homes only requires a certified lifeguard on duty when the home's swimming area is in use. There is no current rule for foster family homes. The cost will be recurring. Agencies were asked to provide an explanation of the steps they would take to ensure compliance with this rule and to estimate the cost of those actions. If the rule represents no change from current practices, they were asked to state that in their response and no fiscal impact was assumed. The survey questions and responses were based on an earlier version of the rule that required all caregivers counted in the ratio to be able to swim. This information indicated an estimated average cost of $0.08 per $100 of revenue and an estimated 57% of the agencies potentially impacted. Although the survey data does not provide sufficient detail to re-calculate the cost impact based on the revised rule requirements of only one person being able to swim and able to perform a water rescue, it seems reasonable to assume that the changes to the rule would result in a reduced cost, and fewer agencies impacted, but no revised estimate of the amounts is available. In any event, agencies could comply with this rule by using all volunteers, which would be a zero cost for the agencies.

Fiscal Impact for Proposed §749.3345: This section states child placement management staff must review and approve the activities and related documentation of preparing a child for adoption prior to the placement of the child in the adoptive home. This is a new rule and is consistent with current CPS policy requirements. The cost will be recurring. Agencies were asked to estimate the costs of implementing the requirements of this rule or to state that either there would be no new costs, or that the rule was not applicable to their operation. Cost estimates ranged from $1,250 to $16,000. The estimated average cost is $0.26 per $100 of revenue. An estimated 10% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.3503: This section requires that once birth parents become clients of an agency, child placement or child placement management staff must have at least two face-to-face contacts with birth parents prior to the relinquishment of parental rights. Contacts must take place over a period of two or more days. At least one interview must be held after the birth of the child. Staff must document all contact with birth parents. Current rule only requires two face-to-face contacts with both birth parents prior to placement, or documentation of due diligence to have the contacts. The cost will be recurring. Agencies were asked estimate the costs of implementing the requirements of this rule or to indicate that there are no new costs resulting from the rule as it is either not applicable to their operation or all the requirements are already in their policy or practice. Cost estimates ranged from $200 to $100,000. The estimated average cost is $0.27 per $100 of revenue. An estimated 35% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.3633: This section requires the pre-adoptive screening be brought up to date within the 30-day period before a child is placed in the home if a child is not placed within six months of completion of the pre-adoptive home screening. For adoptive homes that are not providing foster care, the written update must include a review and any required updating of each category of information required for an adoptive home screening, and documentation of at least one visit to the adoptive home when all household members are present within the 30-day period before a child is placed in the home. The cost will be recurring. Agencies were asked to estimate the costs of implementing the requirements or to indicate that they are either not applicable to their operation or all the requirements are already in their policy or practice. The estimated average cost is $0.15 per $100 of revenue. An estimated 11% of the agencies are potentially impacted.

Fiscal Impact for Proposed §749.3761: This section states if adoptive parents apply to adopt another child, before another placement is made into the adoptive home the pre-adoptive screening must be brought up to date. The update must include such things as conducting at least one individual interview with each applicant, conducting at least one individual interview with each child three years or older living in the home either full or part-time, conducting at least one individual interview with any other person living full or part time with the family, and at least one home visit when all members of the family are present. The current rule applies to all homes and requires a visit to the home within six months prior to adoptive placement. The new rule requires the visit within 30 days prior to placement, but it is only required for homes not providing foster care. This rule ensures that the home information is current when a child is placed in the home. The cost will be recurring. Agencies were asked to compare these requirements to their current policies or practices and provide a cost estimate of implementing any not currently done or to indicate that the requirements are not applicable to their operation. Cost estimates ranged from $400 to $68,832. The estimated average cost is $1.55 per $100 of revenue. An estimated 52% of the agencies are potentially impacted.

Questions about the content of the proposal may be directed to Carol Allen at (512) 438-5339 in DFPS' Licensing Division. Electronic comments may be submitted to rcclstandards@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-330, 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 .

Subchapter A. PURPOSE AND SCOPE

40 TAC §749.1, §749.3

§749.1.What is the purpose of this chapter?

The purpose of this chapter is to set forth the rules that apply to child-placing agencies.

§749.3.Who is responsible for complying with the rules of this chapter?

The permit holder must ensure compliance with all rules of this chapter at all times, with the exception of those rules identified for specific types of services that your agency does not offer. For example, if we grant you a permit to offer adoption services only, you do not have to comply with rules that apply to foster care services; however, you must comply with all other rules of this chapter.

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 February 28, 2006.

TRD-200601045

For further information, please call: (512) 438-3437

Subchapter B. DEFINITIONS AND SERVICES

40 TAC §749.41, §749.43

§749.41.What do certain pronouns mean in this chapter?

The following words have the following meanings in this chapter:

(1) I, my, you, and your--An applicant or permit holder, unless otherwise stated.

(2) We, us, our, and Licensing--The Licensing Division of the Department of Family and Protective Services (DFPS).

§749.43.What do certain words and terms mean in this chapter?

(2) Activity space--An area or room used for child activities.

(4) Adoption record--All information received by the child-placing agency that bears the child's name or pertains to the child, including any information about the birth parents and adoptive parents, is considered to be part of the adoption record. For children in foster care who then are adopted, the adoption record also includes the child's foster care records for the 12 months prior to the adoption.

(5) Adult--A person 18 years old or older.

(6) Caregiver--A caregiver:

(A) Is a person counted in the child/caregiver ratio, including employees, foster parents, contract service providers, and volunteers, whose duties include direct care, supervision, guidance, and protection of a child in care. This includes any person that is solely responsible for a child. For example, a child-placement staff that takes a child on an appointment or doctor's visit is considered a caregiver.

(B) Does not include a contract service provider who:

(i) Provides a specific type of service to your agency for a limited number of hours per week or month; or

(ii) Works with one particular child.

(7) Child/caregiver ratio--The maximum number of children for whom one caregiver can be responsible.

(8) Child in care--A child or a young adult who has been placed by a child-placing agency in a foster or adoptive home, regardless of whether the child is temporarily away from the home, as in the case of a child at school or at work or receiving respite care services. Unless a child has been discharged from the child-placing agency, he is considered a child in care.

(11) Days--Calendar days, unless otherwise stated.

(12) De-escalation--Strategies used to defuse a volatile situation, to assist a child to regain behavioral control, and to avoid a physical restraint or other behavioral intervention.

(13) Department--The Department of Family and Protective Services (DFPS).

(15) Discipline--A form of guidance that is constructive or educational in nature and appropriate to the child's age, development, situation, and severity of the behavior.

(16) Disinfecting solution--A disinfecting solution may be:

(A) A self-made solution, prepared as follows:

(17) Emergency Behavior Intervention--Interventions used in an emergency situation, including personal restraints, mechanical restraints, emergency medication, and seclusion.

(18) Family applicants--All residents, part- or full-time, of a household that are being considered for verification as an agency foster home or approved as an adoptive home.

(19) Food service--The preparation or serving of meals or snacks.

(20) Foster family home--A home that is the primary residence of the foster parent(s) and provides care for six or fewer children, up to the age of 18 years, under the regulation of a child-placing agency.

(21) Foster group home--An operation verified:

(A) After January 1, 2007, that is the primary residence of the foster parent(s) and provides care for seven to 12 children, up to the age of 18 years, under the regulation of a child-placing agency; or

(B) Prior to January 1, 2007, that provides care for seven to 12 children, up to the age of 18 years, under the regulation of a child-placing agency.

(22) Foster home--As referred to in this chapter means both types of homes, foster family homes and foster group homes.

(23) Foster home screening--A written evaluation, prior to the placement of a child in a foster home, of the:

(A) Prospective foster parent(s);

(B) Family of the prospective foster parent(s); and

(24) Foster parent--A person who provides foster care services in the foster home.

(25) Full-time--At least 30 hours per week.

(26) Garbage--Food or items that when deteriorating cause offensive odors and/or attract rodents, insects, and other pests.

(27) Health-care professional--A licensed physician, licensed or registered nurse, or other licensed medical personnel providing comprehensive preventive, diagnostic, or therapeutic medical care to the child. This does not include medical doctors or medical personnel where medical care and contraindications to medical care are outside the scope of the licensed practice.

(28) Human services field--A field of study that contains coursework in the social sciences of psychology and social work including some counseling classes focusing on normal and abnormal human development and interpersonal relationship skills from an accredited college or university. Coursework in guidance counseling does not apply.

(29) Immediate danger--A situation where a prudent person would conclude that bodily harm would occur if there were no immediate interventions. Immediate danger includes a serious risk of suicide, serious physical injury, or the probability of bodily harm resulting from a child running away if under 10 years old chronologically or developmentally. Immediate danger does not include:

(A) Harm that might occur over time or at a later time; or

(B) Verbal threats or verbal attacks.

(30) Infant--A child from birth through 17 months.

(31) Livestock--An animal raised for human consumption or an equine animal.

(32) Living quarters--A structure or part of a structure where a group of children reside, such as a building, house, cottage, or unit.

(33) Long-term placement--A placement intended to last for more than 90 days.

(34) Master record--The compilation of all required records for a specific person or home, such as a master personnel record, master case record for a child, or a master case record for a foster or adoptive home.

(35) Non-ambulatory--A child that is only able to more from place to place with assistance, such as a walker, crutches, a wheelchair, or prosthetic leg.

(36) Non-mobile--A child that is not able to move from place to place, even with assistance.

(37) Person legally authorized to give consent--The person legally authorized to give consent by the Texas Family Code or a person authorized by the court.

(38) Physical force--Pressure applied to a child's body that reduces or eliminates the child's ability to move freely.

(39) Post-adoptive services--Services available through the child-placing agency (direct or on referral) to birth and adoptive parents and the adoptive child after the adoption is consummated. Examples include counseling, maintaining a registry if a central registry is not used, providing pertinent, new medical information to birth or adoptive parents, or providing the adult adoptee a copy of his record upon request.

(40) Post-placement report--A written evaluation of the assessments and interviews, after the adoptive placement of the child, regarding the:

(A) Child;

(B) Prospective adoptive parent(s);

(D) Environment of the prospective adoptive parent(s) and their family; and

(E) Adjustment of all individuals to the placement.

(41) Pre-adoptive home screening--A written evaluation, prior to the placement of a child in an adoptive home, of the:

(A) Prospective adoptive parent(s);

(B) Family of the prospective adoptive parents; and

(C) Environment of the adoptive parents and their family in relation to their ability to meet the needs of a child, and if a child has been identified for adoption, the needs of that particular child.

(42) PRN--A standard order or prescription that applies "pro re nata" or "as needed according to circumstances."

(43) Professional service provider--Refers to:

(A) A child placement management staff or person qualified to assist in child placing activity;

(B) A psychiatrist licensed by the Texas State Board of Medical Examiners;

(D) A master's level social worker or higher licensed by the Texas State Board of Social Work Examiners;

(E) A professional counselor licensed by the Texas State Board of Examiners of Professional Counselors;

(F) A marriage and family therapist licensed by the Texas State Board of Examiners of Marriage and Family Therapists; and

(G) Other professional employees in fields such as drug counseling, nursing, special education, vocational counseling, pastoral counseling, and education who may be included in the professional staffing plan for your agency that provides treatment services if the professional's responsibilities are appropriate to the scope of the agency's program description. These professionals must have the minimum qualifications generally recognized in the professional's area of specialization.

(44) Re-evaluation--Includes an assessment of all factors required for the initial evaluation only for the purpose of determining if any substantive changes have occurred. If substantive changes have occurred, these areas must be fully evaluated.

(45) Regularly--On a recurring, scheduled basis.

(46) Sanitize--A four-step process that must be followed in the subsequent order:

(A) Washing with water and soap;

(B) Rinsing with clear water;

(C) Soaking in or spraying on a disinfecting solution for at least 10 minutes. Rinsing with cool water only those items that a child is likely to place in his mouth; and

(D) Allowing the surface or article to air-dry.

(47) School-age child--A child who is five years old or older and who will attend school in August or September of that year.

(48) Seat belt--A lap belt and any shoulder strap included as original equipment on or added to a motor vehicle.

(49) Service plan--A plan that identifies a child's basic and specific needs and how those needs will be met.

(50) Short-term placement--A placement used for less than 90 days while completing an assessment and/or seeking a long-term placement.

(51) State or local fire marshal--A fire official designated by the city, county, or state government.

(52) State or local sanitation official--A sanitation official designated by the city, county, or state government that is trained in sanitary science to perform duties relating to education and inspections in environmental sanitation.

(53) 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, the risk of minor bruising, or similar forms of minor bodily harm that will resolve healthily without professional medical attention.

(54) Toddler--A child from 18 months through 35 months old.

(55) Treatment director--The person responsible for the overall treatment program providing treatment services.

(56) Universal precautions--An approach to infection control where all human blood and certain human body fluids are treated as if known to be infectious for HIV, HBV, and other blood-borne pathogens.

(57) Volunteer--A person who provides services to an agency without monetary compensation, including a "sponsoring family."

(58) Water activities--Activities related to the use of splashing pools, wading pools, swimming pools, or other bodies of water.

(59) Young adult--An adult whose chronological age is between 18 and 22 years, who is currently in a residential child-care operation, and who continues to need child-care services.

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 February 28, 2006.

TRD-200601046

For further information, please call: (512) 438-3437

2. SERVICES

40 TAC §§749.61, 749.63, 749.65, 749.67, 749.69, 749.71

§749.61.What types of services does Licensing regulate?

We regulate the following types of services:

(2) Treatment Services--In addition to child-care services, a specialized type of child-care services designed to treat and/or support children with:

(A) Emotional Disorders, such as mood disorders, psychotic disorders, or dissociative disorders, and who demonstrate three or more of the following:

(i) A Global Assessment Functioning of 50 or below;

(ii) A current DSM diagnosis;

(iii) Major self-injurious actions, including recent suicide attempts;

(iv) Difficulties that present a significant risk of harm to self or others, including frequent or unpredictable physical aggression; or

(v) A primary diagnosis of substance abuse or dependency and severe impairment because of the substance abuse;

(B) Mental Retardation, who have an intellectual functioning of 70 or below and are characterized by prominent, significant deficits and pervasive impairment in one or more of the following areas:

(i) Conceptual, social, and practical adaptive skills to include daily living and self care;

(ii) Communication, cognition, or expressions of affect;

(iii) Self-care activities or participation in social activities;

(iv) Responding appropriately to an emergency; or

(v) Multiple physical disabilities, including sensory impairments;

(i) Conceptual, social, and practical adaptive skills to include daily living and self care;

(ii) Communication, cognition, or expressions of affect;

(iii) Self-care activities or participation in social activities;

(iv) Responding appropriately to an emergency; and

(v) Multiple physical abilities including sensory impairments; or

(D) Primary Medical Needs, who cannot live without mechanical supports or the services of others because of non-temporary, life-threatening conditions, including the:

(i) Inability to maintain an open airway without assistance. This does not include the use of inhalers for asthma;

(ii) Inability to be fed except through a feeding tube, gastric tube, or a parenteral route;

(iii) Use of sterile techniques or specialized procedures to promote healing, prevent infection, prevent cross-infection or contamination, or prevent tissue breakdown; or

(iv) Multiple physical disabilities including sensory impairments; and

(3) Additional Programmatic Services, which include:

(A) Transitional Living Program--A residential services program designed to serve children 16 years old or older for whom the service or treatment goal is basic life skills development toward independent living. A transitional living program includes basic life skills training and the opportunity for children to practice those skills. A transitional living program is not an independent living program; and

(B) Assessment Services--Services to provide an initial evaluation of the appropriate placement for a child to ensure that appropriate information is obtained in order to facilitate service planning.

§749.63.Can I provide each type of service that Licensing regulates?

You may provide each type of service that we regulate under the following conditions:

(1) On your permit, we list the type of service that you have been approved to provide; and

(2) Your operational policies and procedures ensure:

(A) Children are admitted appropriately;

(B) The needs of all children in care are met;

(D) Children are protected from one another, if appropriate; and

(E) You meet the applicable rules of this chapter.

§749.65.What children are eligible to participate in a transitional living program?

For a child to be eligible to participate in a transitional living program, the child must be 14 years old or older.

§749.67.What are the requirements for a transitional living program?

A transitional living program must have a training program for children that demonstrates competency in the following areas:

(1) Health, general safety, and fire safety practices;

(2) Money management;

(3) Transportation skills; and

(4) Child health and safety, child development, and parenting skills, if the child is a parent of a child living with him.

§749.69.What is an "independent living program"?

§749.71.May I have an independent living program?

Your agency may not provide an independent living program for a child in care.

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 February 28, 2006.

TRD-200601047

For further information, please call: (512) 438-3437

Subchapter C. ORGANIZATION AND ADMINISTRATION

1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §§749.101, 749.103, 749.105, 749.107

§749.101.What are my responsibilities as the permit holder before I begin operating?

Before you begin operating, you are responsible for:

(1) Ensuring that your agency is legally established to operate within Texas and complying with all applicable statutes;

(2) Submitting documentation to us that proves the legal basis of your agency;

(3) Establishing the governing body of the agency;

(4) Submitting documentation to us on the ownership of the agency. This includes names, addresses, titles, and telephone numbers for the following persons:

(A) For corporations, the officers and/or the executive committee of the governing body;

(B) For jointly or individually owned agencies, the partners or owners; or

(5) Having a governing body that is responsible for, and has authority over, the agency's policies and activities;

(6) Having policies that clearly state the responsibilities of the governing body;

(8) Developing and providing us your plan for ensuring that:

(A) We are informed of any changes in:

(i) The location of all agency records, offices and agency homes;

(ii) Agency home verification; and

(iii) Your written professional staffing plan;

(B) Agency homes meet all applicable rules of this chapter prior to verification;

(C) Upon our request, you investigate reports of rules violations in a timely manner and submit reports of your agency's actions and findings to us for our review, follow-up, and closure;

(D) Your child placement management staff conduct or review and sign off on all investigations completed by your agency;

(E) Your child placement management staff submits an investigation report to your agency's Licensing representative within 30 days of the request from Licensing; and

(F) You evaluate the effectiveness of your system for meeting rules of this chapter and describe the process your agency will use to address problems that your evaluation system identifies.

§749.103.What are my operational responsibilities as the permit holder?

When you begin operating, you must:

(1) Designate a full-time child-placing agency administrator who meets minimum qualifications of §749.631 of this title (relating to What qualifications must a child-placing agency administrator meet?);

(2) Operate according to the written policies and procedures adopted by the governing body;

(3) Maintain current, accurate, and complete master records;

(4) Ensure that all required documentation is true, current, accurate, and complete;

(5) Allow us to inspect your child-placing agency during its hours of operation;

(6) Allow us to inspect or monitor one of your foster homes at any time;

(7) Conduct ongoing evaluations of verified foster homes, including documentation of unmet rules of this chapter and correction of all deficiencies;

(8) Display your permit at your agency and a copy at any branch office;

(9) Observe the conditions of your permit;

(10) Not offer unrelated types of services that conflict or interfere with the best interests of a child in care, a caregiver's responsibilities, or space in the homes. If you offer more than one type of service, you must determine and document that no conflict exists;

(11) Maintain liability insurance as required by the Human Resources Code, §42.049;

(12) Comply with Chapters 42 and 43 of the Human Resources Code and all other applicable laws and rules of the Texas Administrative Code;

(13) Prior to implementing any changes, inform us of any changes to the plan you developed under §749.101 of this title (relating to What are my responsibilities as the permit holder before I begin operating?);

(14) Prepare the annual budget and control expenditures to ensure needs of the children are met; and

(15) Ensure that no member of the governing body, member of the executive committee, management staff, or employee is listed as a prohibited controlling person.

§749.105.What responsibilities do I have for personnel policies and procedures?

(1) Develop a written organizational chart showing the administrative, professional, and staffing structures and lines of authority;

(2) Develop written job descriptions, including minimum qualifications and job responsibilities for each position;

(3) Develop written policies on the training requirements for employees and caregivers;

(4) Ensure that personnel policies comply with personnel requirements outlined in Subchapter F of Chapter 745 of this title (relating to Background Checks);

(5) Ensure your employees report serious incidents and suspected abuse, neglect, or exploitation as required by the Family Code, §261.401;

(8) Report to the Licensing Division within 24 hours after learning of an allegation that a person under the auspices of the agency who directly cares for or has access to a child has abused drugs within the past seven days.

§749.107.What must my conflict of interest policies include?

Your conflict of interest policies must include a:

(1) Code of conduct on the relationship between employees, contract service providers, children in placement, foster and adoptive parents, and children's families;

(2) Statement that it is a conflict of interest for any of the following people or relatives of any of the following to be verified as a foster parent or approved as an adoptive parent of the agency: an owner, member of the governing body, executive director, or any other employee or contract service provider of your agency; and

(3) Statement that it is a conflict of interest for an owner, member of the governing body, executive director, or any employee or contract staff of the agency to enter into an independent financial relationship or transaction with a current or prospective adoptive parent, including rental agreements, personal cash loans, or sale, trade or transfer of property.

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 February 28, 2006.

TRD-200601048

For further information, please call: (512) 438-3437

2. GOVERNING BODY

40 TAC §749.131, §749.133

§749.131.What are the specific responsibilities of the governing body?

The governing body is responsible for:

(1) Ensuring the agency remains fiscally sound;

(2) Overseeing and ensuring the management of the agency's services and programs in compliance with your policies;

(3) Approving and having authority over the agency's operational policies and activities which must comply with rules of this chapter;

(4) Complying with the law, including Chapters 42 and 43 of the Human Resources Code, the applicable rules of this chapter, and other applicable rules in the Texas Administrative Code;

(5) Ensuring that persons employed by or working at the agency, family members, paid consultants, or others who benefit financially from the agency, such as subcontractors or vendors, do not comprise a majority of the voting members of the governing body:

(A) Agencies that are granted a permit by us before January 1, 2007, have two years to comply with this paragraph; and

(B) Agencies that are granted a permit by us after January 1, 2007, have two years from the date the agency is licensed by us to comply with this paragraph; and

(6) Carrying out governing body responsibilities assigned in the agency's policies and procedures.

§749.133.After a permit has been issued, what subsequent information regarding my governing body must I provide to Licensing, and when must I provide it?

You must provide to us in writing any change in:

Figure: 40 TAC §749.133

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 February 28, 2006.

TRD-200601049

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. GENERAL FISCAL REQUIREMENTS

40 TAC §§749.161, 749.163, 749.165

§749.161.What are my general fiscal requirements?

(a) You must establish and maintain your agency on a sound fiscal basis.

(b) You must maintain complete financial records.

(c) If you provide adoption services, you must have a fee policy that clearly describes what fees you charge and what services the fees cover. We must approve your fee policy.

§749.163.What are my specific fiscal requirements?

(1) Submit documentation to us of a 12-month budget of income and expenses with the application for a new permit;

(2) Submit documentation to us of reserve funds or available credit at least equal to operating costs for the first three months of operation with the application for a new permit;

(3) Have predictable funds sufficient for the first year of operation;

(4) Demonstrate at all times that you have or will have sufficient funds to provide appropriate services for all children in your care; and

(5) Account for a child's money separately from the funds of your agency and the foster home. No child's personal earnings, allowances, or gifts may be used to pay for the child's room and board, unless such a use is a part of the child's service plan and the child's parent approves it in writing. You must give the child's money to the child, parent, or next placement upon discharge.

§749.165.How often must I have a professional audit?

You must have a professional audit completed annually and make it available for our review.

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 February 28, 2006.

TRD-200601050

For further information, please call: (512) 438-3437

4. FISCAL REQUIREMENTS FOR ADOPTION AGENCIES

40 TAC §§749.191, 749.193, 749.195, 749.197, 749.199

§749.191.What type of financial report must I submit to Licensing if I provide adoption services?

(a) You must submit an annual financial report to us on a form that we provide. The report must include:

(1) Information on adoption-related income from all sources, including the source of the income and the amount; and

(b) You must submit the financial report to us within 60 days of the end of your agency's fiscal year.

§749.193.May I make payments for adoption referrals?

No, you may not make any payments for adoption referrals.

§749.195.What types of fees may I collect prior to the completion and approval of a home study?

You may only accept reasonable application fees and home study fees prior to the completion of the home study.

§749.197.For adoption services, what fee policies must I have?

(a) For adoption services, you must have an adoption fee or adoption fee schedule that you apply to all clients. The policy must include the type of expenditures you will meet for birth parents and whether you will do so through an overall fee, pass-through expenses, or some combination. Policies on pass-through expenses must comply with all requirements listed in §749.273 of this title (relating to What must I do if I pass through expenses to adoptive families?).

(b) If you charge additional fees, your policy must explain clearly what the fees cover.

§749.199.Must I charge the same fees for all adoptions?

No, you are not required to charge the same fees for all adoptions. The fee or fee schedule may take into consideration relevant factors such as adoptive placement of children considered to be hard to place. You may also have a sliding scale fee schedule. The parameters of any differential fee schedules must be specified and equally applied.

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 February 28, 2006.

TRD-200601051

For further information, please call: (512) 438-3437

5. FINANCIAL ASSISTANCE TO BIRTH MOTHERS

40 TAC §§749.231, 749.233, 749.235, 749.237, 749.239, 749.241, 749.243, 749.245

§749.231.What financial assistance may I provide for a birth mother?

(a) You may provide financial assistance to a birth mother to meet her reasonable and necessary living expenses and legal costs.

(b) Reasonable and necessary living expenses include:

(1) Housing expenses;

(2) Necessary utilities, such as electric, water, or telephone bills;

(3) Food for the birth mother;

(4) Travel expenses for transportation necessary to support the pregnancy, such as gasoline or bus fares to medical appointments or the grocery store;

(5) Medical costs; and

(6) Child-care or foster care while a birth mother is hospitalized or unable to care for her children.

(1) Any expenses met by a birth mother's existing resources;

(2) Any expenses supporting other family members;

(3) Any expenses for recreational and leisure activities; or

(4) The purchase of an automobile.

§749.233.During what period of time may I provide financial assistance to a birth mother?

Financial assistance may only be provided:

(1) During the time of the pregnancy; and

(2) After the pregnancy, during the time the birth mother requires inpatient or outpatient postpartum care.

§749.235.How do I determine the birth mother's need for financial assistance?

(a) You must review the birth mother's financial resources.

(b) Your evaluation must include an evaluation of family support, medical insurance, and other resources available.

(c) The evaluation must justify a payment you make for the birth mother's reasonable and necessary living expenses and legal costs related to the adoption and, if applicable, post partum care.

(d) You must document the evaluation and provide a copy to the birth mother.

§749.237.How do I document financial assistance that I provide for a birth mother?

(a) You must document financial assistance that you provide for the birth mother through receipts.

(b) A receipt must include the date, payee identification, purpose of payment, and documentation that the funds were expended for services rendered or goods provided for the birth mother.

(d) You must organize and maintain this documentation in the individual record of the birth mother.

§749.239.May I provide cash payments to birth mothers?

(a) For reasonable and necessary living expenses, you may provide cash payments to birth mothers to cover the cost of day-to-day routine purchases, such as food, household supplies, personal hygiene or grooming items, and gasoline or public transportation if your policies:

(1) State when and for what purpose you can make cash payments to a birth mother;

(2) Establish a maximum amount per category, per time period, based on the current rates in the community in which the care is provided;

(3) Require you to obtain receipts from a birth mother acknowledging receipt of the payments; and

(4) Provide a method for documenting that the funds are spent for the goods and/or services intended.

(b) Each cash disbursement may cover a period of up to one month.

§749.241.If a birth mother decides not to relinquish a child for adoption, may I require her to repay my agency or the adoptive parent for expenses and services incurred?

(a) No, you may not require a birth mother to repay you for expenses and/or services incurred.

(b) You must inform a birth mother of this policy in writing prior to establishing any formal relationship between your agency and a birth mother and post it in the agency's offices in a place routinely visible to birth mothers. The written policy provided to the birth mother must be in the language spoken and read by the birth mother.

§749.243.May I provide foster care services free of charge or at a reduced rate to a birth mother that needs time to make a decision about adoptive placement?

Yes, as long as the foster care services provided free of charge or at a reduced rate are not contingent upon the relinquishment of the child for adoption, you may provide the foster care services.

§749.245.If a birth mother's needs are met through existing resources, can I disrupt that arrangement?

(a) If a birth mother's needs are met through an existing resource, you must not, by action or advice, disrupt that unless your child placement management staff determines there is imminent danger to the basic health or safety of the birth parent or the child, including psychological or emotional abuse. For example, if family members are providing housing at no cost to a birth mother, your agency may not advise the birth mother to move to an apartment for which your agency would pay rent.

(b) This rule applies to any kind of financial assistance.

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 February 28, 2006.

TRD-200601052

For further information, please call: (512) 438-3437

6. FISCAL ACCOUNTABILITY/PASS-THROUGH EXPENSES

40 TAC §749.271, §749.273

§749.271.May I require adoptive families to reimburse me for expenses incurred by the birth mother?

(a) You may pass through to the adoptive parents certain expenses that:

(1) You incur on behalf of the birth mother; or

(2) The birth mother incurs.

(b) You cannot pass through expenses for medical or other services that were met through a birth mother's insurance company or some other source or that were provided free to the birth mother.

§749.273.What must I do if I pass through expenses to adoptive families?

You must meet the following requirements if you pass through the birth mother's expenses to adoptive families:

(1) Your fee policy must include a complete description of the types of expenses that you may pass through to adoptive families.

(2) The fee policy must comply with the financial assistance requirements in Division 5 of this subchapter (relating to Financial Assistance to Birth Mothers).

(3) You must prepare an individual report for each case where you pass through expenses to the adoptive family. The report must be organized by expense category and include the date, amount, and a description of each expenditure. You must give the report to the adoptive family. The report must be available for our review.

(4) If requested by an adoptive parent, you must provide an itemized list of how pass though money was expended and if there is a surplus.

(5) With the exception of unforeseeable medical and legal expenses, you must provide to the adoptive family a written estimate of the pass-through expenses you anticipate will be associated with the adoption. You must provide this estimate before the adoptive family makes any financial commitment to the placement.

(6) If you exceed the estimated expenses by more than 10%, you must obtain acknowledgement and agreement in writing from the adoptive parents that they will incur the additional expenses. If you cannot reach an agreement with the adoptive parents, you must incur the additional expenses.

(7) If there is a surplus of pass through money, you must refund the surplus back to the adoptive parents.

(8) You must inform the adoptive family, in writing, that:

(A) A birth mother may choose not to relinquish a child for adoption; and

(B) You are prohibited from seeking repayment from that birth mother for expenses incurred in providing adoption services.

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 February 28, 2006.

TRD-200601053

For further information, please call: (512) 438-3437

7. BRANCH OFFICES

40 TAC §749.301, §749.303

§749.301.What is a branch office?

(a) A branch office is anywhere the child placement staff and child master records or foster/adoptive home master records are located.

(b) You may operate a branch office if you:

(1) Maintain compliance with the rules of this chapter; and

(2) Are in good standing with us.

§749.303.What must I do before opening a branch office?

At least 30 days prior to the opening of a branch office, you must provide us the following information with your application to amend your license:

(1) The address, telephone numbers (if available), and office hours for the branch office;

(2) The name, qualifications, and contact information of the administrative staff person who will be primarily responsible for the day-to-day operation of the branch office;

(3) The name(s), qualifications, and contact information of the child placement management staff that will be responsible for child-placing activities of the branch office;

(4) The name(s) and qualifications of other employees who will be involved in child-placing activities at the branch office; and

(5) A written plan describing how child placement staff will supervise child-placement activities provided from the branch office. The plan must describe:

(A) Who will be responsible for the on-going supervision and support to the employees;

(B) How often there will be in-person contact and supervision of the employees;

(D) How employees will be provided with reasonable access to their supervisor(s).

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 February 28, 2006.

TRD-200601054

For further information, please call: (512) 438-3437

8. AGENCY POLICIES

40 TAC §§749.331, 749.333, 749.335, 749.337, 749.339, 749.341, 749.343, 749.345, 749.347, 749.349, 749.351, 749.353, 749.355, 749.357, 749.359

§749.331.What are the general requirements for my agency's policies?

(a) The policies that we require must be written and they must indicate the approval of the governing body, date of approval, and effective date.

(b) The policies must be clearly stated and comply with the rules of this chapter.

(d) All employees and caregivers must be made aware of and follow your policies and procedures. A copy of your policies and procedures must be maintained at the agency and available for review by an employee or caregiver.

(e) All policies must be available for review by our staff and your clients, upon request.

(f) You must report any significant change to the policies to us at least seven days before implementing the change.

(g) You must maintain copies of all current and previous policies for at least two years.

§749.333.What are the requirements for my admission policies?

(a) Your admission policies must:

(1) Have a program statement that describes the program's goals, the services provided, and the population of children served by the program;

(2) Describe the specific characteristics of children the program will serve, such as the age range, gender, and needs of children served; and

(3) Indicate whether you will admit children on an emergency basis.

§749.335.What information must my placement policy contain?

Your placement policy must describe how you will:

(1) Ensure that your agency will not place a child before determining that foster care and/or adoption is appropriate for the child;

(2) Match a child with a foster and/or adoptive home to ensure that the child's needs are met;

(3) Make every effort to place siblings together and document when it is necessary to separate siblings groups; and

(4) Ensure contact between siblings is maintained when siblings are not placed together or document why contact is not appropriate for one or more of the siblings.

§749.337.What policies must I provide to the person placing the child?

(a) You must give copies of the following policies to the person legally authorized to place the child:

(1) Fee policies;

(2) Emergency behavior intervention policies;

(3) Discipline policies;

(4) Treatment services policies, if the child is receiving treatment; and

(5) Adoption policies.

(b) Upon request you must make available to the person legally authorized to place the child any other policies that are required by us.

(c) The policies listed in subsection (a) of this section must also be made available to employees, contract staff, foster parents, and adoptive parents.

§749.339.What child-care policies must I develop?

Your must develop policies that describe:

(1) Visitation rights between the child and family members and the child and friends;

(2) The child's rights to correspond by mail with family members and friends, including any policies regarding mail restrictions and receipt of electronic mail;

(3) The child's rights to correspond by telephone with family members and friends;

(4) The child's rights to receive and give gifts to family, friends, staff or caregivers, or other children in care, including any restrictions on gifts;

(5) Personal possessions a child is or is not allowed to have;

(6) Emergency behavior intervention techniques;

(7) Discipline policies including techniques and methods for ensuring the appropriateness of discipline techniques used with a child. These policies and procedures must:

(A) Guide employees and caregivers in methods used for discipline of a child in care;

(B) Include measures for positive responses to appropriate behavior;

(D) Emphasize the importance of nurturing behavior, stimulation, and promptly meeting the child's needs;

(8) Any religious program or activity that you offer, including whether children are required to participate in religious activities with caregivers or staff;

(9) The plans for meeting the educational needs of each child;

(10) When trips with caregivers away from the home are allowed and what protocols will be used;

(11) Program expectations and rules for children;

(12) Child grievance procedures;

(13) The types and frequency of reports to parents;

(14) Procedures for routine and emergency diagnosis and treatment of medical and dental problems;

(15) Routine health care relating to pregnancy and childbirth, if you admit and/or care for a pregnant child; and

(16) Your plan for providing health-care services to a child with primary medical needs.

§749.341.What emergency behavior intervention policies must I develop?

At a minimum, you must develop emergency behavior intervention policies to implement the requirements in Subchapter L of this chapter (relating to Foster Care Services: Emergency Behavior Intervention). The policies must include the following:

(1) A complete description of emergency behavior interventions that you permit caregivers to use;

(2) The specific techniques that caregivers can use;

(4) Your requirements for and restrictions on the use of permitted emergency behavior interventions;

(5) How you will meet the following requirements:

(A) During admission, explain and document the following to a child in a manner that the child can understand:

(i) Who can use an emergency behavior intervention;

(ii) The actions a caregiver must first attempt to defuse the situation and avoid the use of emergency behavior intervention;

(iii) The situations in which emergency behavior intervention may be used;

(iv) The types of emergency behavior intervention you authorize;

(v) When the use of an emergency behavior intervention must cease;

(vi) What action the child must exhibit to be released from the emergency behavior intervention;

(vii) The way to report an inappropriate emergency behavior intervention;

(viii) The way to provide voluntary comments on any emergency behavior intervention; and

(ix) The process for making comments on any emergency behavior intervention, such as comments regarding the incident that led to the emergency behavior intervention, the manner in which a caregiver intervened, and the manner in which the child was the subject or to which they were a witness. You may create a standardized form that is easily accessible or give children the permission to submit comments on regular paper; and

(B) At admission, requirements for obtaining each child's input on preferred de-escalation techniques that caregivers can use to assist the child in the de-escalation process, and revisiting this information with the child and caregivers during each post emergency behavior intervention discussion;

(6) Requirement that caregivers must attempt less restrictive and less intrusive emergency behavior interventions as preventive measures and de-escalating interventions to avoid the need for the use of emergency behavior intervention;

(8) Prohibitions for discharging or otherwise retaliating against:

§749.343.What policies must I develop on the discipline of children in foster care and pre-adoptive care?

You must develop policies that guide caregivers in methods used for discipline of children in foster care or adoptive placement prior to consummation, and include:

(1) Measures for positive responses to appropriate behavior;

(2) If you work with infants and toddlers, a statement that discipline of any type is not appropriate or permitted for that age group; and

(3) The importance of nurturing behavior, stimulation, and promptly meeting the child's needs.

§749.345.What foster care policies must I develop?

You must develop foster care policies that include the following:

(1) Criteria and procedures for screening and accepting foster parent applicants or agency home caregivers who can meet the needs of the children your agency serves;

(2) Criteria for making decisions about the number, ages, gender, and needs of children who may be placed in a foster home;

(3) Respective rights and responsibilities of the agency and foster parents;

(4) Pre-service and annual training requirements for foster parents or agency home caregivers; and

(5) Policies on how you will provide services if the home provides more than one type of care.

§749.347.What policies must I develop on the rights and responsibilities of the agency, foster parents, and caregivers?

You must develop a statement of the rights and responsibilities of the agency and foster parents that address the relationship between the agency and the foster parents and must specify:

(1) What decisions you will make, what decisions the foster parents will make, and which ones you and the foster parents must agree upon;

(2) Training requirements for foster parents and caregivers, including:

(A) What part you will provide;

(B) What part the foster parents and caregivers must acquire on their own; and

(3) The channels through which you and the foster parents will communicate with each other;

(4) The amount of reimbursement(s) you will provide the foster parents and when the foster parents will receive it;

(5) The kind and amount of information and pre-placement contact you will provide, so the foster parents can make an informed decision about a placement;

(6) How much discretion the foster parents have in accepting or declining specific placements;

(7) The kind and amount of support provided to all foster families and any services available to foster parents, including respite care, homemaker services, or counseling;

(8) The kind and amount of information about a child (including previous placements) that you will give to foster parents where placing or considering placing the child;

(9) The kind of information you expect the foster parents to report to you and within what time frames;

(10) If treatment is needed for any child in the home, the foster parents' role in the treatment process, including expectations for the foster parents' participation in service planning and implementation; and

(11) The foster parents' right to appeal your actions and decisions that affect them and the procedures for making an appeal.

§749.349.What additional policies must I develop for foster parents that provide treatment services?

(a) You must develop additional policies for foster parents that provide treatment services. These policies must include:

(1) Ongoing assessments of the caregiver's abilities to meet the needs of the children in care;

(2) Safeguards for protecting the children and caregivers;

(3) Emergency back-up and support systems for the caregivers; and

(4) A procedure for your review and approval of paragraphs (1)-(3) of this subsection.

(b) Your child placement management staff must review and approve these policies in writing.

§749.351.What policies must I develop for fosters parents who offer a transitional living program?

If foster parents offer a transitional living program, you must develop policies that address the following:

(1) Criteria used to select participants for the program;

(2) Supervision of participants;

(3) Expected behaviors of participants and consequences for failure to comply;

(4) Training, education, and experiences to be achieved in the program; and

(5) Roles of participants, agency employees, contract staff, and caregivers.

§749.353.What policies must I develop for babysitters and respite care in foster homes?

You must develop policies for babysitters and respite care in foster homes that include:

(1) Minimum age for care providers;

(2) Minimum amount and type of prior child-care experience that a provider must have;

(3) Amount and type of training a provider must have;

(4) Reference and background information that foster parents must obtain before using the provider;

(5) Amount of time a provider can care for children;

(6) Number of children that a provider can care for;

(7) Information that the foster parents must share with a provider, including information about the children in care and emergency contact information for the foster parent and the agency;

(8) Specific care instructions that the foster parents must share with a provider for children with treatment needs;

(9) A method for contact between the foster parent and provider during the time of the provider's care;

(10) Procedures for agency review and approval of arrangements; and

(11) Requirements for documentation of arrangements, including agency child placement staff review and approval, in the foster home record.

§749.355.What policies must I develop for a legal risk placement program for foster-adoptive families?

If you operate a legal risk placement program, you must develop policies that specify:

(1) The requirements for foster-adoptive families to participate in this program; and

(2) Criteria used in selecting children for appropriate legal-risk placements.

§749.357.What policies must I develop if I offer adoption services?

You must develop policies for adoption services that include:

(1) Procedures and criteria for qualifying, screening, and selecting adoptive parents, including the:

(A) Criteria you will use to evaluate potential adoptive parents;

(B) Criteria you will use to make decisions about placing specific children with an adoptive family; and

(2) Training and programs for the adoptive parents;

(3) Statement of the rights and responsibilities of the agency and adoptive parents prior to the consummation of the adoption;

(4) Plan for review of adoption service plans appropriate to the needs of children served in the adoption program;

(5) How you will assist the adoptive homes on how to best preserve the cultural identity of the children in their care;

(6) Fees charged to adoptive parents and reimbursements to birth mothers;

(7) Services that will be offered to birth parents;

(8) Degree to which birth parents may be involved in planning for and placing their child; and

(9) Post adoption services that will be offered to adoptive parents, adopted children, and birth parents.

§749.359.What policies must I develop if I use volunteers?

If you use volunteers, you must develop policies that:

(1) Include volunteer job descriptions and/or responsibilities;

(2) Address volunteer qualifications, screening and selection procedures, and orientation and training programs; and

(3) Address supervision of volunteers.

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 February 28, 2006.

TRD-200601055

For further information, please call: (512) 438-3437

9. CLIENTS AND APPEALS

40 TAC §§749.421, 749.423, 749.425

§749.421.Who are my clients?

(a) Your child clients include children in:

(1) Foster care; and

(2) Pre-consummated adoptive placement.

(b) Your adult clients include:

(1) Birth parent, managing conservator, or whoever has legal responsibility for the child that you are placing;

(2) Foster parent applicants;

(3) Foster parents;

(4) Adoptive applicants;

(5) Adoptive parents prior to consummation of the adoption; and

(6) Adoptive parents and birth parents seeking post adoptive services.

(c) Anyone can call you for information or attend a meeting open to all interested persons, but a person becomes your client when you establish a relationship beyond that available to someone who is merely an interested person.

§749.423.What rights do my adult clients have?

You must inform your adult clients:

(1) That the rules of this chapter, the compliance status reports, and your policies are available for review upon their request;

(2) Of their right to appeal agency actions and decisions that affect them, and the procedures for making an appeal; and

(3) Of procedures for making a complaint to us.

§749.425.What must my appeal process include?

(a) You must have a written appeal process for your adult clients in regard to your actions and decisions that affect those clients.

(b) The process must describe:

(1) How you will inform clients of their right to appeal;

(2) The procedures for making an appeal;

(3) Who will hear an appeal and make the decision;

(4) How the person who requests an appeal will find out about the decision;

(5) Time frames for making a decision and communicating the decision to the complainant; and

(6) The basis for an appeal decision.

(c) You must provide this information to each birth parent, foster parent applicant, or adoptive applicant before you make that person your client.

(d) Your appeal process does not have to involve anyone from outside your agency. An internal review procedure is sufficient.

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 February 28, 2006.

TRD-200601056

For further information, please call: (512) 438-3437

Subchapter D. REPORTS AND RECORD KEEPING

1. SERIOUS INCIDENT REPORTS

40 TAC §§749.501, 749.503, 749.505, 749.507, 749.509, 749.511, 749.513, 749.515

§749.501.What is a serious incident?

A serious incident is a non-routine occurrence that has or may have dangerous or significant consequences on the care, supervision, and/or treatment of a child.

§749.503.When must I report and document a serious incident involving a child in my care?

Figure: 40 TAC §749.503(a)

§749.505.What constitutes a suicide attempt by a child?

A suicide attempt includes a child's attempt to take his own life using means or methods for causing his death, including a means or method that the child believes is capable of causing his death.

§749.507.When must I report a serious incident involving my agency, one of my foster homes, an employee, contract staff, or a volunteer?

You must report and document the following types of serious incidents to the following entities within the specified time frame:

Figure: 40 TAC §749.507

§749.509.How do I report a serious incident to Licensing?

(a) Serious incidents that are required to be reported in writing must be forwarded to your Licensing representative (See §749.507 (3), (4), and (9) of this title (relating to When must I report a serious incident involving my agency, one of my foster homes, an employee, contract staff, or a volunteer?)).

(b) All other serious incident reports must be made to the Child Abuse Hotline.

§749.511.How must I document a serious incident?

A serious incident must be documented in a written report that includes the following information:

(1) The name of the foster home, physical address, and telephone number;

(2) The time and date of the incident;

(3) The name, age, gender, and date of admission of the child or children involved;

(4) The names of all adults involved and their role in relation to the child(ren);

(5) The names or other means of identifying witnesses to the incident, if any;

(6) The nature of the incident;

(7) The circumstances surrounding the incident;

(8) Interventions made during and after the incident, such as medical interventions, contacts made, and other follow-up actions;

(9) The treating licensed health-care professional's name, findings, and treatment, if any; and

(10) The resolution of the incident.

§749.513.What additional documentation must I include with a written serious incident report?

You must include the following additional documentation with a written serious incident report, as applicable:

Figure: 40 TAC §749.513

§749.515.Where must I keep incident reports?

(a) You must keep a copy of the incident reports in the foster home for three months and the originals in the agency for two years. The reports must be kept in a place where they are easily accessible.

(b) You must also keep a copy of the report in the child's record.

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 February 28, 2006.

TRD-200601057

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

2. GENERAL REQUIREMENTS FOR ALL RECORDS

40 TAC §§749.531, 749.533, 749.535, 749.537

§749.531.If I keep electronic records, what procedures must I have for those records?

(a) If you keep electronic records, you must develop procedures that address what must be in the external paper file and what can be in the electronic file.

(b) You must limit access to your electronic files to:

(1) Persons within your agency authorized to see specific information; and

(2) Others outside of your agency authorized by law to have access to specific information.

(1) Computer security systems, including confidentiality, passwords, and employee procedures to ensure security of the system;

(2) Requirements for routine back up of data; and

(3) Anti-virus protection systems.

§749.533.What procedures must I have for protecting records?

You must have procedures for protecting electronic and paper records from destruction, loss, and unauthorized access.

§749.535.How current must a record be?

(a) All documentation must be in the record no later than 30 days after the occurrence or event.

(b) Copies of any records kept by the foster parents must be submitted to you each month. You must file these records in the child's record.

§749.537.Must I make records available for Licensing to review?

(a) You must make all active records available for our immediate review and reproduction.

(b) You must make all archived records available for our review and reproduction within 24 hours.

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 February 28, 2006.

TRD-200601058

For further information, please call: (512) 438-3437

3. PERSONNEL RECORDS

40 TAC §§749.551, 749.553, 749.555

§749.551.Where must I maintain personnel records?

(a) You must maintain active personnel records at the agency.

(b) You must maintain archived personnel records at the agency and/or in a central administratively designated location.

(d) Your system for maintaining all personnel records must be uniform throughout the agency.

(e) You must maintain a master list of active and archived personnel records and their location in the main office of the agency.

§749.553.What information must the personnel record of an employee include?

For each employee and caregiver, the personnel record must include:

(1) Documentation showing the date of employment;

(2) Documentation showing how the person meets the minimum age and qualifications for the position;

(3) A current job description;

(4) Evidence of any valid professional licensures, certifications, or registrations the person must have to meet qualifications for the job position, such as a current renewal card or a letter from the credentialing entity verifying that the person has met the required renewal criteria;

(5) A copy of a health card or licensed health-care professional's statement verifying the person is free of active tuberculosis, if required by the regional Department of State Health Services TB program or local health authority before having contact with children in care, see §749.1417 of this title (relating to Who must have a tuberculosis (TB) examination?) and §749.1419 of this title (relating to What must I do if someone in my agency has a positive tuberculosis test result?);

(6) A notarized Licensing Affidavit for Applicants for Employment form as specified in Human Resources Code, §42.059;

(7) A statement signed and dated by the employee that he has read a copy of the:

(A) Operational policies; and

(B) Personnel policies;

(8) A statement signed and dated by the employee indicating that he must immediately report any suspected incident of child abuse, neglect, or exploitation to the Child Abuse Hotline and the agency's administrator or administrator's designee;

(9) Proof of request for background checks;

(10) A copy of the valid driver's license for each person who transports a child;

(11) A record of training and training hours;

(12) Any documentation of the person's tenure with the agency; and

(13) The date and reason for the person's separation from the agency, if applicable.

§749.555.How long must I maintain personnel records?

(a) You must maintain annual training records for current personnel for the last full training year and current training year.

(b) With the exception of subsection (a) of this section, you must keep personnel records for a year after an employee's last day on the job, or until any investigation involving the employee is resolved, whichever is longer.

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 February 28, 2006.

TRD-200601059

For further information, please call: (512) 438-3437

4. CLIENT RECORDS

40 TAC §§749.571, 749.573, 749.575, 749.577, 749.579, 749.581, 749.583, 749.585, 749.587

§749.571.What client records must I maintain?

You must maintain master records for all clients. The records must be individualized, current, and complete.

§749.573.Where must I maintain active master records for clients?

(a) You must maintain the active master case record for a child at the office where the child placement staff that is managing the child's placement is located.

(b) You must maintain the active master record for a foster or adoptive home at the office where the child placement staff that is managing the home is located.

§749.575.What is an active record for a child?

An active child record consists of the child's most recent 12 months of service.

§749.577.What information must an active child record include?

For each child, the active record must include:

(1) The child's full name and another method of identifying the child, such as a client number;

(2) Documentation of known allergies on the exterior of the child's record or in another location where the information is clearly visible to persons with access to the record; and

(3) The date of each data entry and the signature of the person who makes the data entry.

§749.579.How must I maintain an active child record?

On an on-going basis, you must ensure that each child's record is:

(1) Kept accurate and current;

(2) Locked and kept in a safe location or locations; and

(3) Kept confidential as required by law.

§749.581.Where must I maintain archived client records?

(a) You must maintain archived client records at the agency and/or in a central administratively designated location.

(b) You may archive entire closed client records electronically.

(d) You must maintain a master list of archived client records and their location in the main office of the agency.

§749.583.Who must consent to the release of a child's record?

Unless you are releasing information to a parent or us, you may not release any portion of a child's record to any agency, organization, or individual without the written consent of the person legally authorized to consent to the release.

§749.585.How long must I maintain client records?

(a) For children placed in adoption, you must maintain complete child, birth parent, and adoptive family records permanently or transfer them, as appropriate, to the Bureau of Vital Statistics.

(b) You must maintain complete child records for a child placed in foster care:

(1) For at least two years after the child is discharged; and

(2) Until the resolution of any investigation of a serious incident that occurred while the child was in care with your agency.

(c) You must maintain records for foster homes for at least five years after the foster home is closed. This includes foster homes that did not receive placements.

(d) You must maintain records for approved adoptive applicants with whom you did not place a child for at least five years after the family withdraws or you close consideration of the family for a placement.

(e) You must maintain records for applicants for foster or adoptive homes whom you did not approve for at least one year after denial of the application.

(f) You do not have to maintain records of foster or adoptive home applicants who drop out before the completion of a home study.

§749.587.How must I handle adoption records if I cease operating?

(a) If you cease operating, you must transfer adoption records to:

(1) The Department of State Health Services, Bureau of Vital Statistics; or

(2) Another licensed child-placing agency. If you transfer your records to another child-placing agency, you must inform the Bureau of Vital Statistics, in writing, of the closing and of the location of the adoption records. You must send a copy of the letter you send to the Bureau of Vital Statistics to the local Licensing office.

(b) You must transfer the records within the time frame specified by the Bureau of Vital Statistics.

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 February 28, 2006.

TRD-200601060

For further information, please call: (512) 438-3437

Subchapter E. AGENCY STAFF AND CAREGIVERS

40 TAC §§749.601, 749.603, 749.605, 749.607, 749.609, 749.611

§749.601.What must my written professional staffing plan include?

Your written professional staffing plan must:

(1) Demonstrate that the number, qualifications, and responsibilities of professional staff, including the child-placing agency administrator, are appropriate for the size and scope of your services and that workloads are reasonable enough to meet the needs of the children in care;

(3) Describe how employees are assigned responsibilities for providing services; and

(4) Describe how staff or service providers support clients served through branch offices.

§749.603.Does education received outside of the United States count toward educational qualifications?

§749.605.What minimum qualifications must all employees meet?

(a) An employee's behavior or health status must not present a danger to children in care.

(b) Each employee who is regularly or frequently present while children are in care must:

(1) Meet the requirements in Subchapter F of Chapter 745 of this title (relating to Background Checks);

(2) Have a current record of a tuberculosis examination, showing the employee is free of contagious TB, if required by the regional Texas Department of State Health Services or local health authority. If the result is positive, the agency must follow through with all recommendations for further testing. All public health precautions and treatment must be documented and carried out in accordance with public health authority recommendations;

(3) Be physically, mentally, and emotionally capable of performing assigned tasks and must have the skills necessary to perform assigned tasks; and

(4) Complete a notarized Licensing Affidavit for Applicants for Employment form, as specified in Human Resources Code, §42.059.

§749.607.What general responsibilities do all employees and caregivers have?

Regardless of whether the employee is counted in the child/caregiver ratio, each employee must:

(1) Demonstrate competency, prudent judgment, and self-control in the presence of children and when performing assigned responsibilities;

(2) Report suspected abuse, neglect, and exploitation to the Child Abuse Hotline and to the designated administrator or supervisor; and

(3) Know and comply with applicable rules of this chapter, Chapter 42 of the Human Resources Code, Chapter 745 of this title (relating to Licensing), and any other applicable laws.

§749.609.What are the requirements for tuberculosis testing?

Before having contact with children in care, all caregivers, employees, contract staff, volunteers, foster parents, foster home household members, and employees in foster homes must be tested for tuberculosis according to the recommendations of local health authorities, or if you do not have a local health authority, the regional Department of State Health Services.

§749.611.How do I document the recommendations of a local health authority or the regional Department of State Health Services for tuberculosis testing?

(a) You must have on file a letter from your local health authority or the regional Department of State Health Services stating its recommendations for tuberculosis testing for the area(s) where your agency offices and foster homes are located.

(b) This documentation must be available for our review in any office:

(1) Where an employee file is located;

(2) That monitors the foster home; and

(3) Where a foster home's file is located.

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 February 28, 2006.

TRD-200601061

For further information, please call: (512) 438-3437

2. CHILD-PLACING AGENCY ADMINISTRATOR

40 TAC §§749.631, 749.633, 749.635, 749.637

§749.631.What qualifications must a child-placing agency administrator meet?

A child-placing agency administrator must:

(1) Meet the qualifications established by the agency's governing body;

(2) Be a Licensed Child-Placing Agency Administrator according to Chapter 43 of the Human Resources Code and Subchapter N of Chapter 745 of this title (relating to Administrator's Licensing); and

(3) Be a full-time employee of the agency.

§749.633.Can a child-placing agency administrator be an administrator for both a child-placing agency and a general residential operation or a residential treatment center?

(a) Except as provided in subsection (b) of this section, a child-placing agency administrator can be an administrator for a child-placing agency and a general operation or a residential treatment center if:

(1) Both the agency and the operation are in good standing with Licensing;

(2) The agency's and the operations' size and scope are manageable by one person, which is clarified in the written professional staffing plan; and

(3) The child-placing agency is not managing more than 20 foster homes.

(b) An agency that provides assessment services may designate their child-placing agency administrator or another employee as the person responsible for administering those services. The person designated must:

(1) Be a Licensed Child-Placing Agency Administrator;

(2) Have a master's degree in social work or a human services field from an accredited college or university and at least two years of supervised child-placing experience. The degree must include:

(A) A minimum of nine credit hours in graduate level courses that focus on family and individual function and interaction; and

(B) At least 350 hours of formal, supervised field placement or practicum with a social service or human services agency; or

(3) Have a master's degree in a human services field and at least three years of supervised child-placing experience.

§749.635.What responsibilities must the child-placing agency administrator designated to be responsible for the administration of the agency have?

The child-placing agency administrator must:

(1) Have daily supervision and overall administrative responsibility for all of your offices, including your main office and any branch.

(2) Be responsible for or assign responsibility for:

(A) Administering and managing the agency according to the policies adopted by the governing body;

(B) Ensuring that the agency complies with applicable rules of this chapter, Chapter 42 of the Human Resources Code, Chapter 745 of this title (relating to Licensing), and other applicable laws;

(C) Personnel matters, including hiring, assigning duties, training, supervision, evaluation of employees, and terminations; and

(D) Ensuring persons whose behavior or health status presents a danger to children are not allowed at the agency or foster homes.

§749.637.Who must have overall administrative responsibility when the child-placing agency administrator is absent on a frequent and/or extended basis?

(a) The child-placing agency administrator must designate an employee to be responsible for the overall administration of the agency while the administrator is absent from the agency on a frequent and/or extended basis.

(b) The designee must be a Licensed Child-Placing Agency Administrator as required in Chapter 43 of the Human Resources Code.

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 February 28, 2006.

TRD-200601062

For further information, please call: (512) 438-3437

3. CHILD PLACEMENT STAFF

40 TAC §§749.661, 749.663, 749.665, 749.667, 749.669, 749.671, 749.673, 749.675, 749.677, 749.679

§749.661.What employees must my agency have to perform child placement activities?

Your agency must have the following employees identified:

(1) Child placement staff; and

(2) Child placement management staff.

§749.663.What are the responsibilities of child placement staff?

(a) Child placement staff are responsible for:

(1) Deciding whether to admit a child for placement, including completion of an admission assessment and any other evaluation of a child for placement;

(2) Placing a child into a foster home, adoptive home, or any other substitute living arrangement;

(3) Managing the case of a child in any substitute living arrangement, including:

(A) Developing and updating of service plans;

(B) Stewarding direct contact with the child and the adoptive parents, foster parents, or other caregivers; and

(4) Case management and service delivery to birth parents;

(5) Orientation, assessment, and verification of foster parents;

(6) Orientation, assessment, and approval of adoptive parents; and

(7) Monitoring and providing support services to foster parents, including the initiation of development plans, corrective actions, or adverse actions.

(b) Child placement management staff may directly perform any of these responsibilities.

§749.665.What are the requirements for contact between child placement staff and children in care?

(a) Child-placement staff must have monthly face-to-face contact with a child in care. However, staff can miss two visits per year, provided a child does not go longer than 60 days without a visit. These contacts are to ensure the:

(1) Needs of a child are being met; and

(2) Placement continues to be appropriate.

(b) If the child is able to communicate in a meaningful way, the contact with the child must:

(1) Be for a length of time sufficient to address the child's needs and determine the appropriateness of the placement;

(2) Provide an opportunity to meet in private; and

(3) Provide an opportunity for the child to express his feelings about how the placement is working out.

(c) If the child is non-verbal or pre-verbal, the contact with the child must be for a length of time sufficient for an appropriate observation of the child's placement, including verification that the placement is meeting the child's needs as specified in the service plan.

(d) The required contacts must be significant and must be documented in the child's record. The documentation in the child's record must be sufficient to address the requirements of subsections (b) and (c) of this section.

(e) Child placement management staff must review and approve documentation of contacts.

§749.667.What are the responsibilities of child placement management staff?

Child placement management staff must:

(1) Review and approve:

(A) All child placement activities, as outlined in §749.663 of this title (relating to What are the responsibilities of child placement staff?);

(B) Investigation findings; and

(2) Supervise less qualified or experienced employees, if any, including planning for the employee's professional development and taking any other appropriate action in regard to their child-placing decisions.

§749.669.How do child placement management staff document approval?

Child placement management staff must review and approve by signing and dating the following documents:

(1) Assessment/admission forms;

(2) Initial and subsequent placement documents;

(3) Foster and adoptive home studies;

(4) Investigation reports;

(5) Foster home development and/or corrective action plans;

(6) Initial and updated service plans;

(7) Discharge or transfer plans and summaries;

(8) Any restrictions imposed on the child for more than seven days that have not been approved by the treatment director or service planning team, in any monthly re-evaluations of a restriction that continues for more than 30 days;

(9) Any restrictions to communication and visitation with family imposed on a child;

(10) Any restrictions to a particular room or building for more than 24 hours imposed on a child; and

(11) Child placement staff contacts with children per §749.665 of this title (relating to What are the requirements for contact between child placement staff and children in care?).

§749.671.What is a corrective or adverse action?

A corrective or adverse action can be anything that places a restriction or condition on the foster homes verification, including the removal of the verification.

§749.673.What are the qualifications that an employee must have to perform child placement activities?

In addition to the requirements that all employees must meet, employees who perform child placement activities must meet the following qualifications:

Figure: 40 TAC §749.673

§749.675.What are the qualifications an employee must have to perform child placement management activities?

In addition to the requirements that all employees must meet, employees who perform child placement management activities must meet the following qualifications:

Figure: 40 TAC §749.675

§749.677.What are the requirements for child placement management staff at a branch office?

(a) You must have a child placement management staff assigned for each branch office to perform the child-placement activities.

(b) Your child placement management staff must have and document at least 10 monthly supervision conferences per year with a branch-office employee who performs child-placing activities.

§749.679.What are the requirements for the caseloads of my child placement staff?

There are no caseload requirements for child placement staff; however, you must ensure manageable caseloads that allow child placement staff to meet the needs of children in care and adequately support foster and adoptive homes.

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 February 28, 2006.

TRD-200601063

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

4. TREATMENT DIRECTOR

40 TAC §§749.721, 749.723, 749.725, 749.727

§749.721.Must I have a treatment director?

You must have a treatment director if you provide treatment services to 30 or more children at any one time, or to more than 50% of the children in your care. Your treatment director must be a full-time employee of your agency.

§749.723.What are the responsibilities of my treatment director?

(a) Your treatment director:

(1) Is responsible for your overall treatment program, including clinical responsibility for the management of your agency's therapeutic interventions; and

(2) Provides direction and overall management of your treatment program.

(b) When assigning responsibilities to your treatment director, you must ensure that the treatment director can oversee the treatment of all children receiving treatment services.

§749.725.What qualifications must a treatment director have?

(a) A treatment director that provides or oversees treatment services for children with mental retardation or children with pervasive developmental disorders must be:

(1) Licensed as a psychiatrist, psychologist, professional counselor, clinical social worker, marriage and family therapist, or registered nurse; or

(2) Certified by the Texas Education Agency as an education diagnostician, have a master's degree in special education or a human services field and have three years of experience working with children with mental retardation or a pervasive developmental disorder.

(b) A treatment director that provides or oversees treatment services for children with primary medical needs must be a physician or a licensed registered nurse.

(1) Be a psychiatrist or psychologist;

§749.727.If I provide more than one type of treatment service, can I have one treatment director?

Yes, you can have one treatment director if he meets the required qualifications for the most prevalent treatment services your agency offers.

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 February 28, 2006.

TRD-200601064

For further information, please call: (512) 438-3437

5. TREATMENT SERVICES PROVIDED BY NURSING PROFESSIONALS

40 TAC §749.741, §749.743

§749.741.What treatment services must a registered nurse provide if I support a child with primary medical needs?

(a) The registered nurse must be on staff or on contract to respond to emergencies, questions, or other medical issues.

(b) The registered nurse must:

(1) Perform a medical assessment of the child to include the child's medical needs and selection of placement;

(2) Lead the service planning process for the child's care and serve as a resource for caregivers;

(3) Direct medical training of caregivers, such as gastric tube care;

(4) Review medical records, including compliance with written physician orders;

(5) Contact other professionals, as needed, for the child's care;

(6) Monitor the implementation of the child's service plan; and

(7) Document outcomes for interventions used in the child's care.

§749.743.In what circumstances may a physician or registered nurse delegate nursing tasks to unlicensed nursing personnel?

The physician or registered nurse may delegate nursing tasks to an unlicensed person only if:

(1) The physician or registered nurse delegating the task is directly responsible for the nursing care given to the child;

(2) The agency employing or contracting with the foster parent, caregiver, or other unlicensed nursing personnel develops and follows a protocol, with input from a registered nurse, for the instruction and training of unlicensed personnel performing nursing tasks. The protocol must address:

(A) An established mechanism for identifying those individuals to whom nursing tasks may be designated;

(B) The manner in which the instruction addresses the complexity of the delegated task;

(D) The mechanism for re-evaluation of the competency;

(4) A licensed physician or registered nurse instructs a foster parent or caregiver, or other unlicensed personnel in performing nursing tasks.

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 February 28, 2006.

TRD-200601065

For further information, please call: (512) 438-3437

6. CONTRACT STAFF, VOLUNTEERS, AND STUDENT INTERNS

40 TAC §§749.761, 749.763, 749.765, 749.767, 749.769, 749.771

§749.761.What are the requirements for a volunteer?

(a) You must maintain a personnel record for each volunteer, which includes a student intern.

(b) The personnel record must include a statement signed and dated by the volunteer indicating he must immediately report any suspected incident of abuse, neglect, or exploitation to the Child Abuse Hotline and the agency's administrator or administrator's designee.

(c) If the volunteer provides short-term services through an agency or an organization, you must be aware of and approve the organization or agency's policies on volunteer short-term services before the volunteer can have contact with children.

§749.763.What are the additional requirements for a volunteer to be able to perform employee or caregiver functions?

(a) A volunteer who performs any function must meet the same requirements as an employee or caregiver who performs that function.

(b) You must maintain records documenting how these requirements are met.

§749.765.What requirements must a contract service provider meet?

(a) A contract service provider who will regularly or frequently be present at your agency or foster homes or who performs any child-placing activities or provides case management or treatment services must:

(1) Meet the same requirements as an employee;

(2) Meet the same requirements as a caregiver, if the provider functions as a caregiver; and

(3) Provide a copy of the contractor's valid and applicable professional license, certification, and/or registration to the agency.

(b) A contract service provider is not a caregiver if the person:

(1) Provides a specific type of service to your agency for a limited number of hours per week or month; or

(2) Works with a particular child.

§749.767.Is a volunteer who is part of another agency or organization subject to my policies and procedures?

If the volunteer is a part of an organization, including another agency, that provides screening, training, and supervision, you do not have to duplicate these services. However, you must determine that the volunteer program's policies and procedures meet the intent of these rules, before the volunteer can have contact with children.

§749.769.Can I use "volunteers" referred for community service through the courts as an alternative to incarceration or as a condition of probation?

No, you may not use these persons in any agency activities. This prohibition applies even if the activities do not involve contact with children in care.

§749.771.Is a family or organization that invites a child in care for an overnight or weekend a "volunteer"?

(a) When a family or organization takes a child who is in care for an overnight or weekend visit, this is not a volunteer activity.

(b) In order for a family or organization to take a child out of care for more than 48 hours, you must get written approval from the parent.

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 February 28, 2006.

TRD-200601066

For further information, please call: (512) 438-3437

Subchapter F. TRAINING AND PROFESSIONAL DEVELOPMENT

40 TAC §749.801

§749.801.What do certain words and terms mean in this subchapter?

The words and terms used in this subchapter have the following meanings:

(1) CEU--Continuing education unit.

(2) CPR--Cardiopulmonary resuscitation.

(3) Hours--Clock hours.

(5) Self instructional training--Training that is designed to be used by one individual working alone and at their own pace to complete lessons or modules. Examples of this type of training include computer based training, written materials, or video training.

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 February 28, 2006.

TRD-200601067

For further information, please call: (512) 438-3437

2. ORIENTATION

40 TAC §749.831, §749.833

§749.831.What is the orientation requirement for caregivers and employees?

(a) Prior to beginning job duties or having contact with children in care, each caregiver or employee must have orientation that includes:

(1) An overview of the relevant and applicable rules of this chapter;

(2) Your philosophy, organizational structure, policies, and a description of the services and programs you offer; and

(3) The needs and characteristics of children that you serve.

(b) You must document the completion of the orientation in the appropriate personnel record.

§749.833.Must I provide orientation to a person who was previously a caregiver or an employee at my agency?

(a) You do not have to provide orientation to a person who was a caregiver or employee at your agency during the past 12 months. However, before this person can be the only caregiver for a group of children, you must:

(1) Discuss with the employee any changes in your services or programs that have occurred since the previous employment; and

(2) Ensure the employee has received training during the past 12 months from your agency on preventing, identifying, treating, and reporting child abuse, neglect, and exploitation.

(b) You must document this discussion and the previous training in the person's personnel record.

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 February 28, 2006.

TRD-200601068

For further information, please call: (512) 438-3437

3. PRE-SERVICE EXPERIENCE AND TRAINING

40 TAC §§749.861, 749.863, 749.865, 749.867, 749.869

§749.861.What are the pre-service experience requirements for caregivers?

(a) For caregivers providing care to children only receiving child-care services and/or programmatic services, there are no pre-service experience requirements.

(b) Before a caregiver can provide care to a child receiving treatment services, you must ensure that the caregiver has the experience to care for the child's treatment need. If a caregiver does not have the necessary experience, your child-placement management staff must prescribe a regimen of specific child-care experience that the caregiver must complete before you place a child with treatment needs in the caregiver's home.

§749.863.What are the pre-service hourly training requirements for caregivers and employees?

(a) Caregivers and employees must complete the following training hours before the noted timeframe:

Figure: 40 TAC §749.863(a)

(b) You must document the completion of each training requirement in the appropriate personnel record.

§749.865.Can time spent in orientation training count towards pre-service training?

No, the orientation training must be separate from the pre-service hourly training requirement.

§749.867.Must I provide pre-service training to a caregiver or employee who was previously a caregiver or employee for a child-placing agency?

(a) A caregiver is exempt from completing the eight hours of general pre-service training if he has been a caregiver for a residential child-care operation during the past 12 months.

(b) A caregiver or employee is exempt from completing the 16 hours of pre-service training regarding emergency behavior intervention if he:

(1) Has been a caregiver for or employed by a residential child-care operation during the past 12 months;

(2) Has received training during the past 12 months in the types of emergency behavior intervention used at your agency; and

(3) Can demonstrate knowledge and competency of the training material, both in writing and in physical techniques.

§749.869.What are the instructor requirements for providing pre-service training?

(a) A qualified instructor must deliver the pre-service training.

(b) The training must be instructor led.

(d) To provide training in emergency behavior intervention the:

(1) Instructor must be certified in a recognized method of emergency behavior intervention, or be able to document knowledge of:

(A) The emergency behavior intervention;

(B) The course material;

(D) Training evaluation or assessment methods and techniques;

(2) Training must be competency-based and require participants to demonstrate skill and competency at the end of the training.

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 February 28, 2006.

TRD-200601069

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

4. GENERAL PRE-SERVICE TRAINING

40 TAC §§749.881, 749.883, 749.885

§749.881.What curriculum components must be included in the general pre-service training?

The general pre-service training curriculum must include the following components:

(2) The different roles of caregivers;

(3) Measures to prevent, identify, treat, and report suspected occurrences of child abuse (including sexual abuse), neglect, and exploitation;

(4) Strategies and techniques for monitoring and working with these children;

(5) Procedures to follow in emergencies, including fire, tornado, toxic fumes, volatile persons, and severe injury or illness of a child or adult;

(6) Preventing the spread of communicable diseases; and

(7) The location and use of fire extinguishers and first-aid equipment.

§749.883.Are there additional general pre-service training requirements for a caregiver who will care for children younger than two years old?

Yes. You must ensure that each caregiver providing care for children younger than two years old receives training on:

(1) Recognizing and preventing shaken baby syndrome;

(2) Preventing sudden infant death syndrome; and

(3) Understanding early childhood brain development.

§749.885.Are there additional general pre-service training requirements for a caregiver that administers psychotropic medication?

Yes. You must ensure that each caregiver that administers psychotropic medication receives training on:

(1) Identification of psychotropic medications;

(2) Basic pharmacology (the actions and side effects of, and possible adverse reactions to, various psychotropic medications);

(3) Techniques and methods of administering medications;

(4) Who is legally authorized to provide consent for the psychotropic medication; and

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 February 28, 2006.

TRD-200601070

For further information, please call: (512) 438-3437

5. PRE-SERVICE TRAINING REGARDING EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.901, §749.903

§749.901.If I do not allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?

(1) Developing and maintaining an environment that supports positive and constructive behaviors;

(2) The causes of behaviors potentially harmful to children, including aspects of the environment;

(3) Early signs of behaviors that may become dangerous to the child or others;

(4) Strategies and techniques the child can use to avoid harmful behaviors;

(5) Teaching children to use the strategies and techniques of your agency's de-escalation protocols to avoid harmful behavior, and supporting the children's efforts to progress into a state of self-control;

(6) Less restrictive strategies caregivers can use to intervene in potentially harmful behaviors;

(7) Less restrictive strategies caregivers can use to work with oppositional children; and

(8) The risks associated with the use of prone or supine restraints, including positional, compression, or restraint asphyxia.

§749.903.If I allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?

(a) If you allow the use of emergency behavior intervention, at least 75% of the pre-service training curriculum regarding emergency behavior intervention must focus on early identification of potential problem behaviors and strategies and techniques of less restrictive interventions, including the components listed in §749.901 of this title (relating to If I do not allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?).

(b) The training does not have to address the use of any type of emergency behavior intervention that your policies do not allow.

(c) The other 25% of the pre-service training curriculum regarding emergency behavior intervention must include the following components:

(1) Different roles and responsibilities of caregivers qualified in emergency behavior intervention versus employees or volunteers who are not qualified in emergency behavior intervention;

(2) Escape and evasion techniques to prevent harm to the child and caregiver without requiring the use of an emergency behavior intervention;

(4) The physiological impact of emergency behavior intervention;

(5) The psychological impact of emergency behavior intervention, such as flashbacks from prior abuse;

(6) How to adequately monitor the child during the administration of an emergency behavior intervention to prevent injury or death;

(7) Monitoring physical signs of distress and obtaining medical assistance;

(8) Health risks for children associated with the use of specific techniques and procedures;

(9) Drawings, photographs, or videos of each personal or mechanical restraint permitted by your policy; and

(10) Strategies for re-integration of children into the environment after the use of emergency behavior intervention, including the debriefing of caregivers and 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 February 28, 2006.

TRD-200601071

For further information, please call: (512) 438-3437

6. ANNUAL TRAINING

40 TAC §§749.931, 749.933, 749.935, 749.937, 749.939, 749.941, 749.943, 749.945, 749.947, 749.949

§749.931.What are the annual training requirements for caregivers and employees?

Caregivers and employees must complete the following training hours:

Figure: 40 TAC §749.931

§749.933.When must an employee or caregiver complete the annual training?

(a) Each person must complete the annual training:

(1) Within 12 months from the date of his employment; and

(2) During each subsequent 12-month period.

(b) You have the option of prorating the person's annual training requirements from the date of employment to the end of the calendar year and then beginning a new 12-month period on January 1st.

§749.935.What types of hours or instruction can be used to complete the annual training requirements?

(a) Annual training may include hours or CEUs earned through:

(1) Workshops or courses offered by local school districts, colleges or universities, or Licensing;

(2) Conferences or seminars;

(3) Self-instructional training, excluding training on emergency behavior intervention, first-aid, and CPR;

(4) Planned learning opportunities provided by child-care associations or Licensing; or

(5) Planned learning opportunities provided by a child-placing agency administrator, professional contract service provider, professional service provider, treatment director, child placement management staff, child placement staff, contractor, or caregiver who meets minimum qualifications in the rules of this chapter.

(b) For annual training hours, you may count:

(1) The hours of annual training that a person received at another child-placing agency, general residential operation, or residential treatment center, if the person:

(A) Received the training within the time period you are using to calculate the person's annual training; and

(B) Provides documentation of the training;

(2) Annual emergency behavior intervention training;

(3) First-aid and CPR training;

(4) CEUs while maintaining a professional license;

(5) The hours attending college or a professional credentialing or registry program, if the:

(A) Training concerns a topic that is appropriate to the needs of the children that the foster home serves, or is directly related to job duties; and

(B) Documentation requirements of §749.949 of this title (relating to What documentation must I maintain for annual training?) are met;

(8) One-fourth of the hours spent updating and making revisions to training curriculum that is relevant to the population of children served.

(1) Orientation training;

(2) Pre-service training;

(3) The hours involved in case staffings and conferences with the supervisor; or

(4) The hours presenting training to others.

(d) No more than one-third of the required annual training hours may come from self-instructional training.

§749.937.Does Licensing approve training resources or trainers for annual training hours?

(1) Specifically stated learning objectives;

(2) A curriculum, which includes experiential or applied activities;

(3) An evaluation/assessment tool to determine whether the person has obtained the information necessary to meet the stated objectives; and

(4) A certificate, letter, or a signed and dated statement of successful completion from the training source.

§749.939.What are the instructor requirements for providing annual training?

The annual training instructors must meet the same requirements in §749.869 of this title (relating to What are the instructor requirements for providing pre-service training?).

§749.941.What areas or topics are appropriate for annual training?

Annual training must be in areas appropriate to the needs of children for whom the caregiver provides care, which include:

(1) Developmental stages of children;

(2) Constructive guidance and discipline of children;

(3) Fostering children's self-esteem;

(4) Positive interaction with children;

(5) Strategies and techniques for working with the population of children served;

(6) Supervision and safety practices in the care of children; and

(7) Preventing the spread of communicable diseases.

§749.943.For a caregiver who will care for children younger than two years old, what annual training is required?

If you permit a caregiver to care for children younger than two years old, his annual training must meet the requirements in §749.883 of this title (relating to Are there additional general pre-service training requirements for a caregiver who will care for children younger than two years old?).

§749.945.For a caregiver that administers psychotropic medication, what annual training is required?

If you permit a caregiver to administer psychotropic medication, his annual training must meet the requirements in §749.885 of this title (relating to Are there additional general pre-service training requirements for a caregiver that administers psychotropic medication?).

§749.947.What must annual training regarding emergency behavior intervention include?

(a) The annual training regarding emergency behavior intervention must reinforce basic principles covered in pre-service training, see §749.901 of this title (relating to If I do not allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?) and §749.903 of this title (relating to If I allow the use of emergency behavior intervention, what curriculum components must be included in the pre-service training regarding emergency behavior intervention?), and develop and refine the caregiver's skills.

(b) You may determine the content of the training based on your evaluation of your emergency behavior intervention programs.

(c) The training may repeat pre-service training components, including training in the proper use and implementation of emergency behavior intervention.

§749.949.What documentation must I maintain for annual training?

(b) The documentation must include the following information:

(1) The participant's name;

(2) Date of the training;

(3) Title or subject of the training;

(4) The trainer's name and qualifications, or the source of the training for self-instructional training; and

(5) Length of the training in hours.

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 February 28, 2006.

TRD-200601072

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

7. FIRST-AID AND CPR CERTIFICATION

40 TAC §§749.981, 749.983, 749.985, 749.987, 749.989

§749.981.What first-aid and cardiopulmonary resuscitation (CPR) certification must caregivers have?

(a) Before a caregiver can be the only caregiver for a group of children, the caregiver must be certified in:

(1) First-aid, with rescue breathing and choking; and

(2) CPR for infants, children, and adults.

(b) A caregiver who is a health professional can use documentation of the following in lieu of these certifications:

(1) The training to be a health professional includes the knowledge covered in first aid and/or CPR training; and

(2) The person's employment ensures that these skills are kept current.

§749.983.When must a caregiver renew first-aid and CPR certification?

Each caregiver must complete any new first-aid training or CPR training, as required to maintain a current certification.

§749.985.Who can provide first-aid and CPR certification?

(a) The following may provide first-aid and CPR certification:

(1) The American Red Cross, American Heart Association, or a training program that has been approved by the local Emergency Medical Services Authority, or is offered through a local hospital; or

(2) A person with a current certification to provide the training.

(b) A caregiver may not obtain first-aid or CPR certification through self-instructional training.

§749.987.What must the first-aid and CPR training include?

(a) First-aid and CPR training and re-certification must consist of a curriculum that includes both written and hands-on skill-based instruction, practice (for CPR, the practice is through the use of a CPR mannequin), and testing.

(b) CPR training and re-certification must include CPR for infants, children, and adults.

§749.989.What documentation must I maintain for first-aid and CPR certification?

(b) The documentation must include the following information:

(1) The participant's name;

(2) Date of the training;

(3) Title or subject of the training;

(4) The trainer's name and qualifications, or the source of the training for self-instructional training;

(5) The expiration date of the certification as determined by the organization providing the certification; and

(6) Length of the training in hours.

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 February 28, 2006.

TRD-200601073

For further information, please call: (512) 438-3437

Subchapter G. CHILDREN'S RIGHTS

40 TAC §§749.1001, 749.1003, 749.1005, 749.1007, 749.1009, 749.1011, 749.1013, 749.1015, 749.1017, 749.1019, 749.1021

§749.1001.How must I protect the rights of children served by my child-placing agency?

(a) You must protect the rights of children while they are in foster care or in adoptive placement prior to the consummation of the adoption.

(b) You must ensure that a caregiver or an adoptive parent, prior to consummation of the adoption, does not restrict or deny a child's rights.

§749.1003.What rights does a child in care have?

(a) A child's rights are cumulative of any other rights granted by law or other Licensing rules.

(b) You must adhere to the child's rights, including:

(1) The right to appropriate care and treatment in the least restrictive setting available that can meet the child's needs;

(2) The right to be free from discrimination on the basis of gender, race, religion, national origin, or sexual orientation;

(3) The right to have his physical, emotional, developmental, educational, social and religious needs met;

(4) The right to be free of abuse, neglect, and exploitation as defined in Texas Family Code §261.401;

(5) The right to be free from any harsh, cruel, unusual, unnecessary, demeaning, or humiliating punishment, which includes:

(A) Shaking the child;

(B) Subjecting the child to corporal punishment;

(D) Any unproductive work that serves no purpose except to demean the child, such as moving rocks from one pile to another or digging a hole and then filling it in;

(E) Denying the child food, sleep, toileting facilities, mail, or family visits as punishment;

(F) Subjecting the child to remarks that belittle or ridicule the child or the child's family; and

(G) Threatening the child with the loss of placement or shelter as punishment;

(6) The right to discipline that is appropriate to the child's age and developmental level;

(7) The right to have restrictions or disciplinary consequences explained to him when the measures are imposed;

(8) The right to a humane environment, including any treatment environment, which provides reasonable protection from harm and appropriate privacy for personal needs;

(9) The right to receive educational services appropriate to the child's age and developmental level;

(10) The right to training in personal care, hygiene, and grooming;

(12) The right to have adequate personal clothing, which must be suitable to his age and size and comparable to the clothing of other children in the community;

(13) The right to have personal possessions at his home and to acquire additional possessions within reasonable limits;

(14) The right to be provided with adequate protective clothing against natural elements such as rain, snow, wind, cold, sun, and insects;

(15) The right to maintain regular contact with his family unless the child's best interest, appropriate professionals, or court necessitates restrictions;

(16) The rights to send and receive uncensored mail, to have telephone conversations, keep a personal journal and to receive visitors, unless the child's best interest, appropriate professionals, or court order necessitates restrictions;

(17) The right to hire independent mental health professionals, medical professionals, and attorneys at his own expense;

(18) The right to be compensated for any work done for the agency or home as part of the child's service plan or vocational training, with the exception of assigned routine duties that relate to the child's living environment, such as cleaning his room or other assigned chores;

(19) The right to have personal earnings, allowances, possessions, and gifts as the child's personal property;

(20) The right to have services provided in a language or any other means that is understandable to the child at admission, or within a reasonable time after an emergency admission of a child. (If you place a child with foster parents who cannot speak to the child in the child's language, you must provide for an interpreter or other means for the foster parents to communicate with the child in the child's own language, or have at least one person at the home at all times who is able to communicate with the child in the child's own language);

(21) The right to confidential care and treatment;

(22) The right to consent to any publicity or fund raising activity for the agency, including the use of his photograph;

(23) The right to be free of unnecessary or excessive medication;

(24) The right to have a comprehensive service plan that addresses the child's needs, including transitional and discharge planning;

(25) The right to participate in the development and review of his service plan within the limits of the child's comprehension and ability to manage the information;

(26) The right to receive emotional, mental health, or chemical dependency treatment separately from adults (other than young adults) who are receiving services;

(27) The right to receive appropriate treatment for physical problems that affect his treatment or safety;

(28) The right to be free from pressure to get an abortion, relinquish her child for adoption, or to parent her child, if applicable; and

(29) The right to report abuse, neglect, exploitation, or violation of personal rights without fear of punishment, interference, coercion, or retaliation.

§749.1005.How must I inform a child and the child's parents of their rights?

(a) Within 24 hours after you accept a child into your agency, you must review the child's rights with the child and a child's parent, unless the parent's consent is not required. You must also provide the child and a child's parent with a written copy of the child's rights.

(b) Child rights must be written in:

(1) Simple, non-technical terms; and

(2) English, unless the person does not understand English. The child's rights must be written in the person's primary language, if possible.

(c) If the person you are informing has a visual or auditory impairment, you must explain the child's rights in a manner that is understandable to the person.

(d) The person you are informing of the child's rights must sign a statement indicating that the person has read and understands these rights. You must put the signed copy in the child's record.

§749.1007.What are a child's rights regarding education?

(a) A child must have an appropriate education through attending an educational/vocational program in the most appropriate and least restrictive educational settings, including, but not limited to, attending regular classes conducted in accredited elementary, middle, and secondary schools within the community.

(b) Foster parents and caregivers must:

(1) Attend and participate in school staffings, conferences, and education planning meetings;

(2) Make reasonable efforts to involve the child in extracurricular activities; and

(3) Make reasonable efforts to allow the child to participate in school extracurricular activities to the extent of his interests and abilities and in accordance with his service plan.

§749.1009.What right does a child have regarding contact with a parent?

(a) You must allow contact between a child and his parent whose parental rights have not been terminated according to:

(1) Your policies; and

(2) The provisions of a court order or any visitation agreement.

(b) You must document in the child's service plan:

(1) Plans for contact between the child and a parent; and

(2) Any decision to limit contact with a parent.

(c) Before you can temporarily restrict ongoing contacts or communication between the child and a parent, your child placement management staff must:

(1) Explain the reasons for the restrictions to the child and the child's parent; and

(d) Restrictions that continue more than 30 days must be re-evaluated monthly by your child placement management staff, who also must:

(1) Explain the reasons for the continued restrictions to the child and the child's parents; and

§749.1011.What right does a child have regarding contact with siblings?

(a) A child must have a reasonable opportunity for sibling visits and contacts in an effort to preserve sibling relationships.

(b) You must address plans for sibling visits and contacts in the child's service plan.

(c) In those circumstances where you recommend contact restrictions because contact is inadvisable for any significant reason, you must include justification in the service plan and service plan reviews and updates.

(d) If barriers to visits exist, such as unavoidable geographic distance and expense issues, the agency must make provisions for sibling contact through letters, telephone calls, or some other means.

§749.1013.What right to privacy does a child have with respect to his communications with others?

(a) Except as determined by child placement management staff or the child's managing conservator, you may not:

(1) Open or read the child's incoming or outgoing mail, including electronic mail; or

(2) Monitor the child's telephone calls.

(b) You must document in the child's record:

(1) Any reason for restricting the child's mail or telephone calls; and

(2) A listing of the mail or telephone calls that you restrict.

(d) Restrictions that continue for more than 30 days must be re-evaluated monthly by your child placement management staff, who also must:

(1) Explain the reasons for the continued restrictions to the child; and

§749.1015.Under what circumstances may I conduct a search?

(a) A child's possessions must be free of unreasonable searches and removal of personal items.

(b) You may search a child, his possessions, or his room only when you have reasonable suspicion:

(1) Of the presence of any contraband;

(2) That the child made suicidal threats or threatened to hurt himself or others; or

(3) That the child or children was involved in theft.

(c) Only a caregiver may conduct searches that involve the removal of clothing, other than outer clothing, such as coats, jackets, hats, gloves, shoes, or socks.

(d) If a search of a child who is five years old or younger involves the removal of clothing (other than outer clothing), another adult must witness the search.

(e) If a search of a child who is over the age of five involves the removal of clothing (other than outer clothing), an adult of the same gender must witness the search.

(f) The caregiver must ensure that other children do not witness a search that involves the removal of clothing, other than outer clothing.

§749.1017.May a caregiver conduct a body cavity search of a child in care?

With the exception of a child's mouth, a caregiver may not conduct a body cavity search of a child in care.

§749.1019.What must a caregiver document regarding a search?

A caregiver must document the following in the child's record when conducting a search if it results in the removal of personal items or clothing worn by the child:

(1) The date of the search;

(2) The name of the child and any other child involved;

(3) Reason for the search;

(4) A description of what was searched;

(5) The articles of clothing removed, if applicable;

(6) The name of the person conducting the search;

(7) The name of the witness, if applicable;

(8) The results of the search; and

(9) The resolution of the issue with the child or children involved.

§749.1021.What techniques am I prohibited from using on a child?

You may not use any of the following techniques on a child:

(1) Chemical restraints, mechanical restraints, and seclusion. For more information on emergency behavior intervention, see Subchapter L of this chapter (relating to Foster Care Services: Emergency Behavior Intervention);

(3) Pressure points;

(4) Rebirthing therapy; and

(5) Hug and/or holding therapy.

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 February 28, 2006.

TRD-200601074

For further information, please call: (512) 438-3437

Subchapter H. FOSTER CARE SERVICES: ADMISSION AND PLACEMENT

1. ADMISSIONS

40 TAC §§749.1101, 749.1103, 749.1105, 749.1107, 749.1109, 749.1111, 749.1113, 749.1115

§749.1101.What children may I admit?

(1) Whose age and gender are specified on your permit; and

(2) Needing the services that are specified on your permit.

(b) Each placement must meet the child's physical, medical, recreational, educational, and emotional needs as identified in the child's admission assessment.

§749.1103.After a child in my care turns 18 years old, may the person remain in my care?

(a) A young adult may remain in your care in order to:

(1) Transition to independence;

(2) Complete the school year;

(3) Complete your program; or

(4) Stay with a minor sibling.

(b) A young adult who turns 18 in your care may remain in your care indefinitely if the person:

(1) Continues to need the same level of care; and

(2) Is unlikely to physically and/or intellectually progress over time.

§749.1105.May I admit a young adult into care who is moving from another residential child-care operation?

You may admit a young adult into your care from another residential child-care operation if the reason for admittance is consistent with a condition listed in §749.1103 of this title (relating to After a child in my care turns 18 years old, may the person remain in my care?).

§749.1107.What must I document in the child's record at the time of admission?

(a) You must document the following in the child's record at the time of admission:

(1) The child's name, gender, race, religion, date of birth, and birthplace;

(2) Court orders establishing who is the managing conservator for the child, if applicable;

(3) The name, address, and telephone number of the managing conservator(s), the primary caregivers for the child, and any other individual who has the legal authority to consent to the child's medical care;

(4) The date and time of admission;

(5) Medication the child is taking;

(6) The child's immunization record;

(7) Allergies, such as food, medication, sting, and skin allergies;

(8) Identification of the child's treatment needs, if applicable, and any additional treatment services or programmatic services the child is receiving; and

(9) A copy of the placement agreement, if applicable.

(b) For children with primary medical needs, you must also document the medical needs assessed at intake.

(c) For emergency admissions, you must meet the requirements in Division 4 of this subchapter (relating to Emergency Admission).

§749.1109.What is a placement agreement?

(1) Authorization permitting you to care for the child;

(2) A medical consent form signed by a person authorized by the Texas Family Code to provide consent; and

(3) The reason for placement and anticipated length of time in care.

§749.1111.What orientation must I provide a child at admission?

(a) You must provide orientation to each newly admitted child who is not an infant or a toddler. You must gear orientation to the intellectual level of the child.

(b) For a child functioning at a school age level, orientation must include information about your policies on the following:

(1) Visitation, including family visitation and overnight visitation;

(2) Mail;

(3) Telephone calls;

(4) Gifts;

(5) Personal possessions, including any limits placed on the possessions the child may or may not have;

(6) Emergency behavior intervention, including your agency's policies and practices on the use of personal restraint;

(7) Discipline;

(8) The religious program and practices;

(9) The educational program;

(10) Trips away from the home;

(11) Program expectations and rules; and

(12) Grievance procedures.

(c) For a child functioning above toddler age and below school age, orientation must include as many of the items in subsection (b) of this section as possible.

(d) You must document in the child's record when the orientation occurred, any item that the orientation did not include, and the reason that the orientation did not include that item.

§749.1113.What information must I share with the parent at the time of placement?

(a) The parent must be able to determine whether your program and/or practices are appropriate for the child and can meet the child's needs.

(b) At admission, you must review and provide written materials to the parent placing the child that explain:

(1) Information about the policies that you would present a child during orientation;

(2) Your policies regarding the:

(A) Use of volunteers or sponsoring families; and

(B) Type and frequency of notifications made to parents; and

(3) The parent's right to:

(A) Refuse to consent to the child's participation in research programs;

(B) Give written consent before you can involve the child in any publicity and/or fund raising activity for your agency; and

§749.1115.What information must I provide caregivers when I admit a child?

(a) By the day you admit the child for care, you must provide the caregivers responsible for the child's care with information about the child's immediate needs.

(b) You must inform appropriate caregivers of any special needs, such as medical or dietary needs or conditions.

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 February 28, 2006.

TRD-200601076

For further information, please call: (512) 438-3437

2. ADMISSION ASSESSMENT

40 TAC §§749.1131, 749.1133, 749.1135, 749.1137

§749.1131.When must I complete the admission assessment?

You must complete the admission assessment when you admit the child for care. For an emergency admission assessment, see §749.1187 of this title (relating to For an emergency admission, when must I complete all of the requirements for an admission assessment?).

§749.1133.What information must an admission assessment include?

(1) The child's legal status;

(2) A description of the circumstances that led to the child's referral for substitute care;

(4) A description of the child's home environment and family functioning;

(5) A description of the child's behavior, including appropriate and maladaptive behavior;

(6) The child's skills and special interests;

(7) Any history of physical, sexual, or emotional abuse or neglect;

(8) Medical, health, and dental history, including:

(A) Current health status;

(B) Birth history;

(D) Available results of any medical and dental examinations;

(9) The child's mental health and substance abuse history, including available results of any psychological or psychiatric examination;

(10) The child's developmental history and current level of functioning;

(12) The child's history of any other placements outside the child's home, including the admission and discharge dates and reasons for placement;

(13) The child's criminal history, if applicable;

(14) Documentation indicating efforts made to obtain any of the identifying information in paragraphs (1)-(13) of this subsection, if any information is not obtainable;

(15) The services you plan to provide to the child;

(16) Immediate and long-range goals of placement;

(17) The parent's expectations for placement, duration of the placement, and family involvement;

(18) The child's understanding of the placement;

(19) Recommendations for any further assessment services and testing;

(21) A determination of whether you can meet the needs of the child based on an evaluation of the child's special strengths and needs in the following areas:

(A) Physical, including medical and dental health;

(B) Family relationships and family functioning, including parenting if applicable;

(D) Educational; and

(E) Emotional/psychological; and

(22) A rationale for the appropriateness of the admission.

§749.1135.What are the additional admission requirements when I admit a child for treatment services?

When you admit a child for treatment services, you must do the following, as applicable:

Figure: 40 TAC §749.1135

§749.1137.What if I cannot obtain the required information for an admission assessment?

(a) You must make diligent efforts to obtain all required information.

(b) If you and the child's managing conservator determine that attempting to get information at the time of placement would not be in the child's best interests, you may postpone attempting to acquire the information.

(1) Particular piece of information is unavailable; or

(2) Delay obtaining a piece of information is necessary, including efforts made to obtain the information.

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 February 28, 2006.

TRD-200601077

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. REQUIRED ADMISSION INFORMATION

40 TAC §§749.1151, 749.1153, 749.1155

§749.1151.What are the medical requirements when I admit a child into care?

(b) If you admit a child with primary medical needs, you must provide the child with a medical examination by a health-care professional within seven days before or three days after admission.

(c) If a child admitted shows symptoms of abuse or illness, a health-care professional must examine the child immediately.

(d) The reports and findings of any medical examination must be signed and dated by the health-care professional who performed the examination and must be documented in the child's record.

§749.1153.What are the dental requirements when I admit a child into care?

(a) If the child is younger than three years old and a physician recommends a dental examination, then you must ensure that a dentist examines the child.

(c) The report and findings of the dental examination must be signed and dated by the dentist and must be documented in the child's record.

§749.1155.What must I document when I re-admit a child for care?

For re-admission, you must complete the admission documentation as if the child was never in your care; or for children that were discharged from your agency within the last 12 months, you may update the previous admission documentation.

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 February 28, 2006.

TRD-200601078

For further information, please call: (512) 438-3437

4. EMERGENCY ADMISSION

40 TAC §§749.1181, 749.1183, 749.1185, 749.1187, 749.1189

§749.1181.For which of my programs may I accept emergency admissions?

You may accept emergency admissions in all of your programs with the exception of a transitional living program.

§749.1183.What constitutes an emergency admission to my child-placing agency?

You may admit a child on an emergency basis if the child:

(1) Is being removed from a situation involving alleged abuse or neglect;

(2) Is an alleged perpetrator of abuse and cannot be served in the child's current placement due to his perpetrating behaviors;

(3) Displays behavior that is an immediate danger to himself or to others and cannot function or be served in his current setting;

(5) Is removed from his home or placement, and there is an immediate need to find a residence for the child; or

(6) Is released to your authorized child-placing agency by a law enforcement or juvenile probation officer.

§749.1185.May I take possession of a child from a law enforcement or juvenile probation officer?

You may take possession of a child from a law enforcement or juvenile probation officer only if you meet the requirements of Division 7, Subchapter H of Chapter 745 of this title (relating to Taking Possession of a Child Through Law Enforcement or a Juvenile Probation Officer).

§749.1187.For an emergency admission, when must I complete all of the requirements for an admission assessment?

(a) For an emergency admission, you must complete all of the requirements (see Division 1 of this subchapter (relating to Admissions)) for an admission assessment within 40 days from the date of the child's admission.

(b) In an emergency admission of a child receiving treatment services, the child must not continue in care for more than 30 days after the date of admission unless the child has received the required psychological, psychiatric, psychometric, or physician's evaluation that is required by §749.1135 of this title (relating to What are the additional admission requirements when I admit a child for treatment services?), and the evaluation indicates manifestations of the disorder requiring treatment services. All evaluations must be signed, dated, and documented in the child's record.

§749.1189.At the time of an emergency admission, what information must I document in the record of a child that I admit?

At the time of the emergency admission:

(1) You must document in the child's record a brief description of the circumstances necessitating the emergency admission; and

(2) For the purpose of providing treatment services, you must also obtain and document the following in the child's record:

(A) A brief description of the child's history;

(B) The child's current behavior; and

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 February 28, 2006.

TRD-200601079

For further information, please call: (512) 438-3437

5. FOSTER CARE PLACEMENT

40 TAC §§749.1251, 749.1253, 749.1255

§749.1251.What are the requirements for pre-placement visits for a child?

(a) A child over six months of age must visit the foster home at least once before placement.

(b) There must be a meaningful interval between the pre-placement visit and the placement. This interval must be at least sufficient to allow a child and foster parents to have privacy, an opportunity to discuss and consider placement, and to have their questions, opinions, and concerns addressed.

(d) Pre-placement visits are not required for emergency admissions.

§749.1253.What must staff do to prepare a child for a placement?

(a) The child-placement staff must discuss with the child the circumstances that make the placement necessary, as appropriate to the child's age and ability to respond orally and behaviorally to such a discussion. The discussion must take place prior to or at the time of the placement of a child.

(b) You must document into the child's record:

(1) That the discussion occurred; and

(2) The child's understanding of and response to the discussions and the placement.

§749.1255.What information from an admission assessment must I share with the caregivers responsible for the child's care?

(a) In a non-emergency placement, you must share all information from the admission assessment with the foster parents or caregiver responsible for the child's care prior to placement.

(b) In an emergency placement, you must share with the foster parents or caregiver responsible for the child's care:

(1) At the time of placement, all available information relating to the child's needs and your plans for care and management; and

(2) Within 10 days of completing the admission assessment, all information from the admission assessment.

(1) The information you share with the caregiver;

(2) Any information you do not share and the reason why you did not share the information; and

(3) How the placement is capable of meeting the child's 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 February 28, 2006.

TRD-200601080

For further information, please call: (512) 438-3437

6. SUBSEQUENT PLACEMENT

40 TAC §749.1281

§749.1281.What are the requirements when I move a child from one foster home to another?

(a) If the move is not an emergency, child placement management staff must:

(1) Review and approve the move before you move the child to the new placement;

(2) Document the review and approval in the child's record, including signature and date; and

(3) Comply with the pre-placement requirements in §749.1251 of this title (relating to What are the requirements for pre-placement visits for a child?).

(b) If the move is an emergency, child placement staff must:

(1) Give verbal approval before the move; and

(2) Document the verbal approval in the child's record within 10 days of the placement. Documentation must be signed and dated and include the date verbal approval was given and circumstances of the emergency placement.

(c) For all moves, child-placing staff must prepare a child according to §749.1253 of this title (relating to What must staff do to prepare a child for a placement?).

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 February 28, 2006.

TRD-200601081

For further information, please call: (512) 438-3437

Subchapter I. FOSTER CARE SERVICES: SERVICE PLANNING, DISCHARGE

1. SERVICE PLANS

40 TAC §§749.1301, 749.1303, 749.1305, 749.1307, 749.1309, 749.1311, 749.1313, 749.1315, 749.1317, 749.1319, 749.1321, 749.1323

§749.1301.What are the requirements for a preliminary service plan?

(a) You must complete a preliminary service plan that addresses the immediate needs of the child receiving services within 72 hours of the child's admission.

(b) In addition, for a child receiving treatment services the preliminary service plan must include:

(1) A description of the child's immediate treatment and care needs;

(2) A description of the child's immediate, educational, medical, and dental needs, including possible side effects of medications or treatment prescribed to the child;

(3) A description of how you will meet the child's needs, including follow-up actions of possible side effects of medication or treatment provided to the child;

(5) A designation of who will be responsible for meeting each of the child's needs; and

(6) If the bedroom of the caregiver(s) is on a different level than a foster child's bedroom, a description and approval of the foster homes plans on how the foster child will be supervised, as required in §749.1303 of this title (relating to What must I do if the caregivers' bedrooms are located on a different level than foster children's bedrooms?).

(d) You must document the plan in the child's record.

(e) You must inform each professional service provider and caregiver working with a child about the child's preliminary service plan.

(f) You must implement and follow the preliminary service plan.

§749.1303.What must I do if the caregivers' bedrooms are located on a different level than foster children's bedrooms?

(a) If a caregiver's bedroom is not located on the same level as a foster child's bedroom and the foster child is receiving treatment services, then your child placement management staff must review and approve the caregiver's plan for supervision, protection, and safety of the children by signing and dating the plan. The plan must be based on the specific needs of children in the home.

(b) Your child placement management team must update its review and approval of the plan each time you place a new child in the home.

§749.1305.Who must be involved in developing the preliminary service plan?

The child placement staff must develop, sign, and date the preliminary service plan.

§749.1307.When must I complete an initial service plan?

You must complete the initial service plan within 40 days after you admit the child.

§749.1309.What must a child's initial service plan include?

(b) The child's initial service plan must be documented and include those items that a preliminary plan must include (see §749.1301 of this title (relating to What are the requirements for a preliminary service plan?)), and the items noted below for each specific type of service that you provide the child:

Figure: 40 TAC §749.1309(b)

§749.1311.Who must be involved in developing an initial service plan?

(a) A service planning team must develop the service plan. The team must consist of:

(1) A current caregiver;

(2) Any professional service provider who provides direct services to the child; and

(3) If you are providing treatment services to the child, at least two of the following professionals:

(A) A licensed professional counselor;

(B) A psychologist;

(D) A licensed registered nurse;

(E) A licensed masters level social worker;

(F) A licensed or registered occupational therapist; or

(G) Any other person in a related discipline or profession that is licensed or regulated in accordance with state law.

(b) The child, as appropriate, and the parents must be invited to the meeting to develop the service plan.

§749.1313.When must I inform the child's parent(s) of an initial service plan meeting?

(a) You must give the child's parent(s) at least two weeks advance notice of the review.

(b) The child's record must include the notice, the mailed copy or summary, and any responses from the parents.

§749.1315.Must a professional service provider or a professional who must participate in a child's service plan be an employee of my agency?

No. You may employ or contract with a professional service provider or any other professional who participates in a child's service plan.

§749.1317.What roles do professional service providers have in service planning?

The roles of professional service providers in service planning include:

Figure: 40 TAC §749.1317

§749.1319.What must I document regarding a professional service provider's participation in the development of an initial service plan?

(a) You must document the professional service provider's:

(1) Name;

(2) Date of participation; and

(3) Comments and input.

(b) The professional service provider must sign and date the document. If the provider disagrees with any portion of the plan, the provider must document the issue(s) of contention before signing it.

§749.1321.With whom do I share the initial service plan?

(a) You must give a copy or summary of the initial service plan to the:

(1) Child, when appropriate; and

(2) Child's parents.

(b) If you do not share the service plan or summary with the child, you must document your justification for not sharing the plan in the child's record.

§749.1323.When must I implement a service plan?

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 February 28, 2006.

TRD-200601082

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

2. SERVICE PLAN REVIEW AND UPDATES

40 TAC §§749.1331, 749.1333, 749.1335, 749.1337, 749.1339

§749.1331.How often must I review and update a service plan?

Except for when the child's placement within your agency changes because of a change in the child's needs, you must review and update the service plan as follows:

Figure: 40 TAC §749.1331

§749.1333.How does a transfer within my agency affect the timing of the review of the child's service plan?

(a) You must review a child's service plan whenever the child's placement within your agency changes because of a change in the child's needs.

(b) If the child's placement in your agency changes for another reason:

(1) The child' service planning team must approve the decision not to review the plan; and

(2) You must document the decision not to review the plan.

§749.1335.How do I review and update a service plan?

To review and update a service plan, you must:

(1) Evaluate the child's progress and the effectiveness of strategies and techniques used toward meeting identified needs, including educational progress reports;

(2) Identify any new needs and strategies or techniques to meet these needs, including instructions to appropriate employees;

(3) Document any achieved or changed objectives;

(4) If the review shows no progress towards meeting the identified needs of the child, document reasons for continued placement;

(6) Document visitation and contacts between the child and the child's parents, the child and the child's siblings, and the child and the child's extended family;

(7) Update the estimated length-of-stay and discharge plans, if changed;

(8) Determine for children receiving treatment services for emotional disorders, pervasive developmental disorders, or primary medical needs whether to:

(A) Continue the placement;

(B) Continue the placement as child-care services;

(D) Refer the child to an inpatient hospital;

(9) Document in the child's record the review and update of the plan;

(10) Evaluate the use and effectiveness of emergency behavior intervention techniques if used during the child's progress reporting period. If applicable, this evaluation must focus on:

(A) The frequency, patterns, and effectiveness of types of emergency behavior interventions;

(B) Strategies to reduce the need for emergency behavior interventions overall; and

(C) Specific strategies to reduce the need for use of personal and mechanical restraints, emergency medication, and/or seclusion, where applicable; and

(11) Document the names of the persons participating in the review and update.

§749.1337.Are the participation, implementation, and documentation requirements for a service plan review and update the same as for an initial service plan?

Yes, the same requirements found in Division 1 of this subchapter (relating to Service Plans) apply to a service plan review and update.

§749.1339.How often must I re-evaluate the intellectual functioning of a child receiving treatment services for mental retardation?

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 February 28, 2006.

TRD-200601083

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. DISCHARGE AND TRANSFER PLANNING

40 TAC §§749.1361, 749.1363, 749.1365, 749.1367, 749.1369, 749.1371, 749.1373, 749.1375, 749.1377, 749.1379

§749.1361.What does "the transfer of a child in care" mean?

The transfer of a child in care refers to when you move a child in care from one agency placement to another.

§749.1363.Who must plan a child's non-emergency discharge or transfer?

(a) You must involve the following persons in planning the child's non-emergency discharge or transfer:

(1) At least one of the child's regular caregivers;

(2) Any professional service provider involved in service planning;

(3) The child; and

(4) The child's parent(s), if agreeable.

(b) If you are unable to plan the transfer or discharge with the persons required in subsection (a) of this section, you must document in the child's record the reason why. For example, an emergency transfer or discharge was necessary or the child met the requirements to consent for emergency care services and decided not to include his parents in planning for the child's transfer or discharge.

(d) If a child in your care is receiving treatment services, you must inform him of his non-emergency discharge or transfer at least four days prior to the date of the discharge or transfer, unless your treatment director, three members of the child's service planning team, or the child's psychiatrist or psychologist has a justification for not giving him such notice. Whoever determines the justification for the child not having the advance notice of the discharge or transfer must put the justification in writing and sign and date it. The justification must be in the child's record.

§749.1365.May a foster home release a child to any person without my consent?

No, the foster home must not release a child to any person without your consent.

§749.1367.To whom can I discharge a child in a non-emergency situation?

You must discharge a child to the child's parent or to anyone with written authorization from the parent or a person authorized by the court to assume custody of the child.

§749.1369.How do I discharge or transfer a child who is an immediate danger to himself or others?

The child's caregiver(s) or the child placement staff must accompany the child to the receiving operation, agency, or person unless the child's parent or law enforcement transports the child.

§749.1371.What must I document in the child's record at the time of a planned discharge or transfer?

(a) Your documentation of a planned discharge or transfer is called a "discharge or transfer summary" and must include:

(1) A discharge or transfer summary showing services provided to the child, accomplishments, assessment of remaining needs, and recommendations about the services to meet those needs;

(2) The date and circumstances of the discharge or transfer;

(3) Discharge or transfer medications and/or prescriptions for medications;

(4) Support resources for the child, including telephone numbers and addresses;

(5) Aftercare plans and recommendations, including medical, psychiatric, psychological, dental, educational, and social appointments;

(6) Date and time the child was informed of his discharge or transfer; and

§749.1373.When I discharge a child to another agency or residential child care operation, what information must I provide them?

(b) If legal consent is granted when you discharge a child to another operation, you must provide the following information in writing to that operation:

(1) The child's background information, including progress notes for the past 60 days if applicable;

(2) Any unresolved incidents or investigations involving the child, if applicable;

(4) The child's service plans while in your care for the past 12 months;

(5) A list of medications the child is taking, the dosage, frequency, and reason the medication was prescribed; and

(6) Any treatment for a physical condition that is in progress and requires continuing or follow-up medical care.

(c) Within 30 days from the date of the child's discharge, you must provide the receiving operation with the child's discharge summary if legal consent is granted.

§749.1375.To whom do I provide a copy of the discharge summary when I discharge a child to his home?

You must send a copy of the discharge summary to the child's parent within 30 days after you discharge the child.

§749.1377.What constitutes an emergency transfer or discharge?

An emergency transfer or discharge occurs when:

(1) The parent withdraws a child unexpectedly from care, including withdrawals with less than 10 days notice;

(2) There is a medical emergency requiring inpatient care;

(3) The child is absent from the home and cannot be located; or

(4) There is an immediate danger to the child or others and the child remains in the agency or program.

§749.1379.What must I document in the child's record at the time of an emergency discharge or transfer?

At the time of an emergency discharge or transfer, you must document the following in the child's record:

(1) The circumstances necessitating the emergency transfer or discharge;

(2) The date of transfer or discharge; and

(3) The name, address, and relationship of the person to whom you transfer or discharge the child, where applicable.

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 February 28, 2006.

TRD-200601084

For further information, please call: (512) 438-3437

Subchapter J. FOSTER CARE SERVICES: MEDICAL AND DENTAL

1. MEDICAL AND DENTAL CARE

40 TAC §§749.1401, 749.1403, 749.1405, 749.1407, 749.1409, 749.1411, 749.1413, 749.1415, 749.1417, 749.1419, 749.1421, 749.1423, 749.1425, 749.1427, 749.1429, 749.1431, 749.1433, 749.1435

§749.1401.What general medical requirements must my agency meet?

(a) A child in your care must receive medical care:

(1) Initially, according to the requirements in §749.1151 of this title (relating to What are the medical requirements when I admit a child into care?);

(2) As needed for injury, illness, and pain; and

(3) As needed for ongoing maintenance of medical health.

(b) The child's record must include a written record of each medical examination specifying:

(1) The date of the examination;

(2) The procedures completed;

(3) The follow-up treatment recommended and any appointments scheduled;

(4) The child's refusal to accept medical treatment, if applicable;

(5) The results of the medical examination that is signed and dated by the health-care professional who performed the examination; and

(6) If the medical examination is a result of an injury or medical incident, the documentation of the circumstances surrounding the incident, including the date and time of the incident.

§749.1403.Who determines the need and frequency for ongoing maintenance of medical care and treatment for a child?

A health-care professional determines the need and frequency for ongoing maintenance of medical care and treatment for a child.

§749.1405.Who must perform medical care examinations and provide medical treatment for a child?

A health-care professional licensed in the state of Texas to practice medicine in his discipline must perform medical care examinations and provide medical treatment for a child.

§749.1407.What information must I provide to caregivers about a child's medical needs?

You must inform the child's caregivers of any special medical needs that the child has.

§749.1409.What general dental requirements must my agency meet?

(a) A children in your care must receive dental care:

(1) Initially, according to the requirements in §749.1153 of this title (relating to What are the dental requirements when I admit a child into care?);

(2) At as early an age as necessary;

(3) As needed for relief of pain and infections; and

(4) As needed for ongoing maintenance of dental health.

(b) The child's record must include a written record of each dental examination specifying the:

(1) Date of the examination;

(2) Procedures completed;

(3) Follow-up treatment recommended and any appointments scheduled;

(4) The child's refusal to accept medical treatment, if applicable; and

(5) The results of the dental examination that is signed and dated by the health-care professional who performed the examination.

§749.1411.Who must determine the frequency and need for ongoing maintenance of dental health for a child?

A licensed dentist must determine the frequency and need for ongoing maintenance of dental health for a child. You must comply with dentist recommendations for examinations and treatment for each child.

§749.1413.Who must perform dental examinations and provide dental treatment?

A health-care professional licensed in the state of Texas to practice dentistry must provide dental care.

§749.1415.What health precautions must I take if a child, caregiver, or someone else in my agency has a communicable disease?

(a) You must notify the Department of State Health Services (DSHS) after you become aware that a child in your care or employee, caregiver, student intern, or volunteer has contacted a communicable disease that the law requires you to report to the DSHS as specified in 25 TAC 97, Subchapter A (relating to Control of Communicable Diseases).

(b) If a child has symptoms of a communicable disease that is reportable to the DSHS, you must:

(1) Follow the treating physician's orders, which may include separating the child from other children in care;

(2) Notify the child's parent;

(3) Consult a health-care professional about the child's treatment; and

(4) Sanitize all items used by the sick child before another person uses one of them.

(1) Be written and in the child's record;

(2) Include a statement that the child will not pose a serious threat to the health of the other children; and

(3) Include any specific instructions and precautions to be taken for the protection of the children.

(d) If an employee, caregiver, student intern, or volunteer has a communicable disease that may be spread through casual contact, you must obtain written authorization from a health-care professional for the person to work with children and/or to be present at the agency. The written authorization must include a statement that the adult will not pose a serious threat to the health of the children.

(e) You must follow any written instructions and precautions specified by a health-care professional.

§749.1417.Who must have a tuberculosis (TB) examination?

(b) If your regional DSHS office or local health authority requires tuberculosis testing for children in your agency, then you must have a licensed health-care professional's statement verifying that each child in your care is free of active tuberculosis.

§749.1419.What must I do if someone in my agency has a positive tuberculosis test result?

When testing is required and the result is positive, you must:

(1) Follow through with all recommendations for further testing; and

(2) Carry out and document all public health precautions and treatment in accordance with the requirements of the regional Department of State Health Services or local health authority.

§749.1421.What immunizations must a child in my care have?

(a) Each child that you admit must meet and continue to meet applicable immunization requirements specified by §42.043 of the Human Resources Code and the Department of State Health Services.

(b) You must maintain current immunizations records for each child in your care.

(1) Be completed by the date of admission; or

(2) Begin within 30 days after admission.

§749.1423.What are the exemptions from immunization requirements?

Exemptions for immunization requirements must meet criteria specified by:

(1) §42.043 of the Human Resources Code; or

(2) The Department of State Health Services rules in 25 TAC §97.62 (relating to Exclusions from Compliance).

§749.1425.What documentation is acceptable for an immunization record?

(a) A immunization record must include:

(1) The child's name and birth date;

(2) The number of doses and vaccine type;

(3) The month, day, and year the child received each vaccination; and

(4) A signature or rubber stamp signature from the health-care professional who administered the vaccine.

(b) Documentation of an immunization record on file at your agency may be:

(1) The original record;

(2) A photocopy;

(3) An official immunization record generated from a state or local health authority, such as a registry; or

(4) A record received from school officials, including a record from another state.

§749.1427.Must children in my care have a vision and hearing screening?

(b) For each child required to be screened, you must keep one of the following in each child's record:

(1) The individual vision and hearing screening results;

(2) A signed statement from the child's parent that the child's screening records are current and on file at the program or school the child attends away from the agency. The statement must be dated and include the name, address, and telephone number of the program or school; or

(3) An affidavit from the child's parent stating that the vision or hearing screening and/or examination conflicts with the tenets or practices of a church or religious denomination of the parents.

§749.1429.What must I do if a child in my care is identified as needing a diagnostic vision or hearing examination?

(1) Schedule the child for professional examination and needed health services;

(2) Ensure the professional and medical recommendations are carried out; and

(3) Convey the information concerning the child's visual and/or hearing difficulty to the educational and agency caregivers, so the recommended adjustments can be made in programs.

§749.1431.What special equipment must I provide for a child with a physical disability?

§749.1433.How often must the physician review a child's primary medical needs?

(a) A licensed physician must review a child's primary medical needs at least every 90 days and whenever a medical or related problem occurs.

(b) The review must address:

(1) Whether the child can continue to be cared for appropriately in the foster home; and

(2) Any new or changed orders regarding the items outlined in §749.1135 of this title (relating to What are the additional requirements when I admit a child for treatment services?).

§749.1435.What are the requirements for using a nasogastric tube?

(a) Only a licensed nurse or a caregiver instructed by a licensed nurse may insert a nasogastric tube according to a physician's written orders.

(b) The caregiver must document each insertion in the child's record. The documentation for each insertion must include the:

(1) Signature of the nurse or caregiver who inserted the tube; and

(2) Date of the insertion.

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 February 28, 2006.

TRD-200601085

For further information, please call: (512) 438-3437

2. ADMINISTRATION OF MEDICATION

40 TAC §§749.1461, 749.1463, 749.1465, 749.1467, 749.1469

§749.1461.What consent must I obtain to administer medications?

(a) You must obtain a general written consent to administer routine, preventive, and emergency medications.

(b) You must obtain the written, signed, and dated consent from the person legally authorized to give medical consent before administering the medication.

§749.1463.What safety requirements must caregivers meet when handling medications?

(a) To the best of their knowledge, caregivers must inform the person legally authorized to give medical consent of the benefits, risks, and side effects of all medication and treatment procedures used and the medical consequences of refusing them, and/or provide the name and telephone number of the prescribing health-care professional for more information.

(b) Caregivers must:

(1) Be informed about possible side effects of medications administered to the child;

(2) Ensure a person trained in and authorized to administer medication administers medication to a child in care unless the child is on a self-medication program;

(3) Administer medications according to the instructions on the label or according to a prescribing health-care professional's subsequent signed orders (See §749.1465 of this title (relating to May a caregiver accept verbal instructions on the administration of medication?));

(4) Administer each child's medication immediately after preparation;

(5) Ensure the child has taken the medication as prescribed;

(6) Maintain any documentation provided by the health-care professional on the administration of current medication;

(7) Not physically force a child to take prescription medication;

(8) Ensure that your employees do not provide any medication or treatment to a child except on written orders of a health-care professional;

(9) Not borrow or administer medication to a child that is prescribed to another person;

(11) Not administer prescription medication to more than one child from the same container. Only the child for whom the prescription medication was prescribed may use the medication.

§749.1465.May a caregiver accept verbal instructions on the administration of medication?

Assuming the caregiver has obtained written consent according to §749.1461 of this title (relating to What consent must I obtain to administer medications?), a licensed health-care professional may provide verbal instructions on the administration of medication. However, the health-care professional must write and sign orders within 72 hours of the verbal order.

§749.1467.What is over-the-counter medication?

§749.1469.What are the requirements for administering over-the-counter medication and non-prescription vitamins?

(a) You must follow the label and ensure the over-the-counter medication is not contraindicated with any other medication prescribed to the child or the child's medical conditions.

(b) You may give an over-the-counter medication or non-prescription vitamins to more than one child from one container.

(c) Documentation of approved over-the-counter medication and non-prescription vitamins for each child must be maintained in the medication record, which must be incorporated into the child's record.

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 February 28, 2006.

TRD-200601086

For further information, please call: (512) 438-3437

3. SELF-ADMINISTRATION OF MEDICATION

40 TAC §749.1501, §749.1503

§749.1501.What are the requirements for a self-medication program?

For a child to be on a self-medication program:

(1) The child's health-care professional must give written authorization for the child to be on the program;

(2) The child's service plan must include the self-medication program and any requirements for caregiver supervision; and

(3) You must notify the parent and the person legally authorized to give medical consent that the child is on the program.

§749.1503.Who must record a medication dosage if the child is on a self-medication program?

When a child who is on a self-medication program takes a dosage of the medication, the child may:

(1) Record the dosage if you have a system for reviewing the child's medication each day; or

(2) Report the medication to a caregiver, who must then do the actual recording.

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 February 28, 2006.

TRD-200601087

For further information, please call: (512) 438-3437

4. MEDICATION STORAGE AND DESTRUCTION

40 TAC §749.1521, §749.1523

§749.1521.What medication storage requirements must a foster home meet?

A foster home must:

(1) Store medication in a locked container that requires a key to unlock it;

(2) Keep medication inaccessible other than to employees responsible for stored medication;

(3) Ensure the medication storage area has a separate locked container where medications "for external use only" are stored separately from other medications;

(5) Make provisions for securely storing medication that requires refrigeration;

(6) Keep medication storage area(s) clean and orderly;

(7) Remove discontinued medication from the medication area within 90 days of the discontinuance date and properly destroy it;

(8) Remove medication on or before the expiration date and properly destroy it; and

(9) Remove medication of a discharged or deceased child immediately and properly destroy it.

§749.1523.What are the requirements for discontinued or expired medication?

(a) Foster parents must properly destroy medication within 30 days after:

(1) It has been discontinued for a child;

(2) The expiration date has passed; or

(3) The child has left care without the medication.

(b) Foster parents or child-care staff must log the destruction of the medication and provide documentation to you for the child's record.

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 February 28, 2006.

TRD-200601088

For further information, please call: (512) 438-3437

5. MEDICATION RECORDS

40 TAC §§749.1541, 749.1543, 749.1545

§749.1541.What records must caregivers maintain for each child receiving medication?

(a) Caregivers must maintain a cumulative record of all prescription and nonprescription medication dispensed to the child. Caregivers must maintain the medication record during the time that they provide services to the child. This record must include the:

(1) Child's full name;

(2) Prescribing health-care professional's name, if applicable; and

(3) Medication name, strength, and dosage.

(b) Each time the child receives a dosage of the medication, the person who administers the medication must immediately document the:

(1) Date (day, month, and year) and the time the medication was administered;

(2) Name and signature of the person who administered the medication; and

(3) Child's refusal to accept medication, if applicable.

(c) For PRN prescriptions or over-the-counter medications, the caregivers must document the reasons for administering the medication, including the specific symptoms, condition, and/or injuries of the child that the caregiver is treating.

(d) Caregivers must keep a running count of each child's prescribed medication. The medication count must match the medication documentation.

(e) The medication records of prescription and nonprescription medication dispensed to the child must be incorporated into the child's record.

§749.1543.Where must a child's medication records be maintained?

(a) The foster parents must maintain at the foster home the child's medication records for 90 days.

(b) Foster parents must submit copies of the child's medication records to you each month. You must file these medication records in the child's record.

(c) You must maintain copies of all the child's medication records for the length of time that you provide services to the child.

§749.1545.What other requirements must I meet regarding medication records?

You must make suitable forms available to caregivers for maintaining adequate records of all medications administered to a 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 February 28, 2006.

TRD-200601089

For further information, please call: (512) 438-3437

6. MEDICATION AND LABEL ERRORS

40 TAC §§749.1561, 749.1563, 749.1565

§749.1561.What is a medication error?

A medication error includes, but is not limited to, the following:

(1) A child receives the wrong medication;

(2) A child receives medication prescribed to someone else;

(3) A child receives the wrong dosage of medication;

(4) A child receives medication at the wrong time;

(5) A medication dose is skipped or missed;

(6) A child receives expired medication;

(7) Not following the medication administration instructions, such as giving a child medication on an empty stomach when the medication should be given with food; and

(8) A child receives medication that was not stored as required to maintain the effectiveness of the medication, such as refrigerating or not refrigerating the medication as required, or exposing the medication to heat or sunlight.

§749.1563.What must a caregiver do if the caregiver finds a medication error?

(a) If a caregiver finds a medication error regarding a prescribed medication, the caregiver must contact a health-care professional immediately, unless the error is the type described in paragraph (4) or (5) of §749.1561 of this title (relating to What is a medication error?), and follow the health-care professional's recommendations.

(b) If a caregiver finds a medication error regarding an over-the-counter medication, the caregiver must take the appropriate and necessary actions as required by the circumstances.

(1) The time and date of the error;

(2) The medication error;

(3) The time and date of the call(s) to the licensed health-care professional, if applicable;

(4) The name and title of the health-care professional contacted, if applicable; and

(5) The health-care professional's medical recommendations for ensuring the child's safety, if applicable.

§749.1565.What must a caregiver do if the caregiver finds a medication label error?

If a caregiver finds a medication label error, the caregiver must:

(1) Report the error to the pharmacist; and

(2) Have the label on the medication container corrected immediately.

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 February 28, 2006.

TRD-200601090

For further information, please call: (512) 438-3437

7. SIDE EFFECTS AND ADVERSE REACTIONS TO MEDICATION

40 TAC §749.1581, §749.1583

§749.1581.What must caregivers do if a child has an adverse reaction to a medication?

If a child has an adverse reaction to a medication, the caregiver must:

(1) Immediately report the reaction to a health-care professional;

(2) Follow the health-care professional's recommendations;

(3) Seek further medical care for the child if the child's condition appears to worsen; and

(4) Document in the child's medical record the:

(A) Adverse reactions that the child had to the medication;

(B) Time and date of call(s) to the health-care professional;

(D) Health-care professional's medical recommendations for ensuring the child's safety.

§749.1583.What must a caregiver do if a child experiences side effects from any medications?

If a child experiences side effects from any medication, the caregiver must:

(1) Document the observed and reported side effects;

(2) Immediately report any serious side effects to the child's physician; and

(3) Report any other side effect to the prescribing physician within 72 hours.

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 February 28, 2006.

TRD-200601097

For further information, please call: (512) 438-3437

8. USE OF PSYCHOTROPIC MEDICATION

40 TAC §§749.1601, 749.1603, 749.1605, 749.1607, 749.1609, 749.1611

§749.1601.If a caregiver is not authorized to give consent, what consent must I obtain for a caregiver to administer psychotropic medication to a child?

(a) You must have written consent from a person legally authorized to give medical consent before a foster parent can administer a new prescription for a psychotropic medication to a child. The consent must be specific regarding the psychotropic medication to be administered.

(b) The written consent must be signed and dated.

§749.1603.If my agency employs or contracts with a health-care professional who prescribes psychotropic medications to a child in care, what information must I provide the person legally authorized to give consent before requesting his consent for the child to be placed on psychotropic medication?

(1) The child's diagnosis;

(2) The nature of the child's mental illness or condition;

(3) An explanation of the purpose of the medication;

(4) A description of the benefits expected;

(6) A statement of whether the medication is habituating in nature;

(7) Alternative interventions to the use of psychotropic medication that have been attempted and that have been unsuccessful;

(8) Other alternative treatments or procedures to the use of the psychotropic medication;

(9) Risks and benefits of the alternative treatments or procedures;

(10) Risks and benefits of not receiving or undergoing a treatment or procedure;

(11) An explanation that the person legally authorized to give medical consent may ask questions about the child's response to the medication, and may review your daily records on request; and

(12) An explanation that the person legally authorized to give medical consent may withdraw consent and request the medication be discontinued at any time.

(b) The health-care professional must offer to answer any questions the person legally authorized to give consent has about the medication.

§749.1605.If my agency does not employ or contract with the health-care professional who prescribes psychotropic medications to a child in care, what information must I provide the person legally authorized to give medical consent prior to the health-care professional prescribing psychotropic medications to a child in care?

If you are requesting consent and the person legally authorized to give consent is not privy to this information, you must:

(1) Before requesting the person's written consent to give the child psychotropic medication, provide information in writing or document a discussion with the person regarding:

(A) The nature of the child's mental illness or condition;

(B) A general explanation of the purpose of the medication;

(D) An explanation that the person may ask questions about the child's response to the medication; and

(E) An explanation that the person may withdraw medical consent and request the medication be discontinued at any time.

§749.1607.What are the requirements if a physician orders administration of a psychotropic medication to a child in an emergency?

(b) Within 72 hours after you have administered the medication, you must notify the parent and the person legally authorized to give medical consent.

§749.1609.What information must be documented about a child's use of psychotropic medication?

(a) You must ensure that caregivers maintain a daily record of the child's use of such medication according to the requirements in §749.1541 of this title (relating to What records must caregivers maintain for each child receiving medication?).

(b) Caregivers must document in the child's medication record a description of the child's response to the medication and an assessment of its effectiveness on at least a quarterly basis.

§749.1611.If I employ or contract with a health-care professional who prescribes psychotropic medication to a child, what are the requirements for evaluating whether a child should continue taking a psychotropic medication?

(a) If a child takes psychotropic medications, the prescribing health-care professional must evaluate and document in the child's medication record a description of the child's response to the medication and an assessment of its effectiveness and the appropriateness of continuing the medication on at least a quarterly basis. The written evaluation must include any reasons for discontinuing the medication.

(c) The health-care professional must consider the target symptoms and treatment goals in evaluating the child's use of psychotropic medications.

(d) The health-care professional must document whether the child needs to continue taking the medication. You must document the health-care professional's decision in the child's record.

(e) If the health-care professional does not substantiate the effectiveness of a specific psychotropic medication within 90 days, the health-care professional must provide a written rationale for continuing the medication for an additional period. The continuation of the medication may not exceed an additional 90 days (for a total of 180 days) if the health-care professional does not substantiate effectiveness. A copy of the written rationale must be documented in the child's record.

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 February 28, 2006.

TRD-200601098

For further information, please call: (512) 438-3437

9. PROTECTIVE DEVICES

40 TAC §§749.1641, 749.1643, 749.1645, 749.1647

§749.1641.What is a protective device?

(a) A protective device is a restraint device that:

(1) Protects a person from involuntary self-injurious behavior or permits wounds to heal; and

(2) Does not prohibit a person's mobility.

(b) Examples of a protective device are helmets, elbow guards, mittens, bedrails, and wheelchair seat belts.

§749.1643.What does "involuntary self-injurious behavior" mean when used in this division?

Involuntary self-injurious behavior means a person's physical movements that are automatic and not subject to control of the person's will that may inflict injury to the person.

§749.1645.May I use protective devices?

(a) You may use protective devices if:

(2) A licensed physician orders their use for a specific child. The orders must indicate the circumstances under which the protective device is permitted.

(b) You may use bed rails that extend, from the head, half the length of the bed, for assistance with mobility. However, you may not use bed rails that extend the entire length of the bed except for a child with primary medical needs, if authorized by a physician.

(4) A convenience for caregivers or other persons; or

(5) A substitute for effective treatment or habilitation.

(d) You must document the use of protective devices in the child's record, service plan, and service plan reviews. Clinical justification for continued use of protective devices must be discussed and documented in the child's service plan review.

§749.1647.Who may use PRN orders with respect to protective devices?

A licensed physician ordering protective devices may use PRN orders. The physician must review PRN orders for protective devices at least every 90 days.

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 February 28, 2006.

TRD-200601099

For further information, please call: (512) 438-3437

10. SUPPORTIVE DEVICES

40 TAC §§749.1671, 749.1673, 749.1675

§749.1671.What is a supportive device?

(a) A supportive device is a restraint device used:

(1) To support a person's posture;

(2) To assist a person who cannot obtain and/or maintain normal physical functioning to improve his mobility and independent functioning; or

(3) As an adjunct to proper care and treatment, for example physical therapy.

(b) The purpose of a supportive device is not to restrict movement.

§749.1673.May I use supportive devices?

(a) You may use supportive devices if:

(2) A licensed physician orders their use for a specific child. The orders must indicate the circumstances under which the supportive device is permitted.

(b) You may not use a supportive device as a substitute for appropriate nursing care.

(d) You may not use supportive devices as:

(3) Means to get a child to comply;

(4) A convenience for caregivers or other persons; or

(5) A substitute for effective treatment or habilitation.

(e) If a device is not specifically for assisting with sleep or safety during sleep, you must remove the device during rest periods.

(f) You must document the use of supportive devices in the child's record, service plan, and service plan reviews. Clinical justification for continued use of protective devices must be discussed and documented in the child's service plan review.

§749.1675.Who may use PRN orders with respect to supportive devices?

A licensed physician ordering supportive devices may use PRN orders. The physician must review PRN orders for supportive devices at least every 90 days.

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 February 28, 2006.

TRD-200601100

For further information, please call: (512) 438-3437

Subchapter K. FOSTER CARE SERVICES: DAILY CARE, PROBLEM MANAGEMENT

1. ADDITIONAL REQUIREMENTS FOR INFANT CARE

40 TAC §§749.1801, 749.1803, 749.1805, 749.1807, 749.1809, 749.1811, 749.1813, 749.1815, 749.1817, 749.1819

§749.1801.What do certain words mean in this division?

These words have the following meanings in this division:

(1) Baby bungee jumper--A bucket seat that is suspended from a doorway by an elastic bungee cord that allows an infant to bounce while sitting in the seat.

(2) Baby walker--A baby walker allows an infant to sit inside the walker equipped with rollers or wheels and move across the floor.

(3) Bouncer seat--A stationary seat designed to provide gentle rocking or bouncing motion by an infant's movement or by battery-operated movement. This type of equipment is designed for an infant's use from birth until the child can sit up unassisted.

§749.1803.What are the basic care requirements for an infant?

(a) Each infant must receive individual attention, including playing, talking, cuddling, and holding.

(b) A caregiver must provide prompt attention to an infant's physical needs, such as feeding and diapering.

(c) An infant's caregiver must ensure that the environment is safe. For example, free the area of objects that may choke or harm the infant, take measures to prevent electric shock, free the area of furniture that is in disrepair or unstable, and allow no unsupervised access to water to prevent the risk of drowning.

(d) An infant's caregiver must never leave the infant unsupervised. A sleeping infant is considered supervised if the caregiver uses a video camera or audio monitoring device to monitor the child and is close enough to the child to intervene as needed.

§749.1805.What furnishings and equipment must I have in an infant care area?

An infant care area must at a minimum include the following furnishings and equipment:

(1) An individual crib for each infant; and

(2) A sufficient number of toys to keep each child engaged in activities.

§749.1807.What specific safety requirements must my cribs meet?

(a) All cribs must have:

(1) A firm, flat mattress that snugly fits the sides of the crib. The mattress must not be supplemented with additional foam material or pads;

(2) Sheets that fit snugly and do not present an entanglement hazard;

(3) A mattress that is waterproof or washable;

(4) Secure mattress support hangers, and no loose hardware or improperly installed or damaged parts;

(5) A maximum of 2 3/8 inches between crib slats or poles;

(6) No corner posts over 1/16 inch above the end panels;

(7) No cutout areas in the headboard or footboard that would entrap a child's head or body; and

(8) Drop rails, if present, which fasten securely and cannot be opened by a child.

(b) Caregivers must sanitize each crib before a different child uses it and when soiled.

(d) The foster home must not have stackable cribs.

§749.1809.Are mesh cribs or port-a-cribs allowed?

A foster home may use a full-size, portable, or mesh-side crib if:

(1) Caregivers follow the manufacturer's instructions;

(2) The crib has:

(A) A minimum height of 22 inches from the top of the railing to the mattress support at its lowest level;

(B) Mesh openings that are 1/4 inch or less;

(D) Folded sides that securely latch in place when raised; and

(3) Caregivers never leave a child in a mesh-sided crib with a side folded down.

§749.1811.What equipment must have safety straps before I can use it with an infant?

(a) A high chair, swing, stroller, infant carrier, rocker, bouncer seat, or a similar type of equipment that a foster home uses for an infant must be equipped with safety straps; and

(b) The safety straps must be fastened whenever the infant is using the equipment.

§749.1813.What types of equipment may a foster home not use with infants?

(a) A foster home may not use any of the following types of equipment with infants:

(1) Baby walkers;

(2) Baby bungee jumpers;

(3) Accordion safety gates;

(4) Toys that are small enough to swallow or choke a child; and

(5) Bean bags, waterbeds, and foam pads for use as sleeping equipment.

(b) A foster home may not use soft bedding, such as stuffed toys, quilts, pillows, bumper pads, and comforters in a crib for an infant six months old or younger.

§749.1815.Are infants required to sleep on their backs?

Yes. Caregivers must place an infant not yet able to turn over on his own in a face-up sleeping position.

§749.1817.If an infant has difficulty falling asleep, may the infant's head or crib be covered?

No. An Infant must not have his head, face, or crib covered at any time by an item such as a blanket, linen, or clothing.

§749.1819.What are the specific requirements for feeding an infant?

(a) Caregivers must feed an infant based on the recommendations of the infant's licensed physician.

(b) Unless recommendations from the service team are contrary, caregivers must hold the infant while feeding him if the infant is:

(1) Birth through six months old; or

(2) Unable to sit unassisted in a high chair or other seating equipment during feeding.

(d) A caregiver who cares for more than one infant must:

(1) Label each bottle and training cup with the child's first name and initial of last name;

(2) Not permit the infant to share bottles or training cups; and

(3) Clean high chair trays before each use.

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 February 28, 2006.

TRD-200601101

For further information, please call: (512) 438-3437

2. ADDITIONAL REQUIREMENTS FOR TODDLER CARE

40 TAC §749.1841

§749.1841.What are the basic care requirements for a toddler?

(a) Each toddler must receive individual attention, including playing, talking, and cuddling.

(b) A toddler's caregiver must ensure that the environment is safe. For example, free the area of objects that may choke or harm the toddler, take measures to prevent electric shock, free the area of furniture that is in disrepair or unstable, and allow no unsupervised access to water to prevent the risk of drowning.

(c) A toddler's caregiver must never leave the toddler unsupervised. A sleeping toddler is considered supervised if the caregiver uses a video camera or an audio monitoring device to monitor the child and is close enough to the child to intervene as needed.

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 February 28, 2006.

TRD-200601102

For further information, please call: (512) 438-3437

3. ADDITIONAL REQUIREMENTS FOR PREGNANT CHILDREN

40 TAC §§749.1861, 749.1863, 749.1865

§749.1861.What information must I provide a pregnant child regarding her pregnancy?

(1) Ensure information, training, and counseling is available regarding health aspects of pregnancy, preparation for child birth, and recovery from child birth;

(2) Ensure the pregnant child receives nutritional counseling and guidance that meets generally accepted standards, including nutrition during pregnancy, lactation, and foods to avoid;

(3) Inform the child of her right to be free from pressure to get an abortion, relinquish her child for adoption, or to parent her child; and

(4) Document in the child's record the information and counseling that you provide.

§749.1863.Is the use of emergency behavior intervention of a pregnant child permitted in a foster home?

If your policies allow for the use of personal restraints on a pregnant child:

(1) The health-care professional attending to the child's pregnancy must document whether any type of emergency behavior intervention that your policies allow is inadvisable; and

(2) You may not use any emergency behavior intervention that the child's health-care professional attending to her pregnancy finds inadvisable.

§749.1865.If my policies permit the admission of adolescent parents with their child(ren), who is responsible for the care of an adolescent's child?

If your policies permit the admission of adolescent parents with their child(ren):

(1) An adolescent parent must provide most of the care for her child;

(2) Caregivers must be available to the adolescent parent as a resource and support; and

(3) When you care for an adolescent's child in the adolescent parent's absence, you are responsible for that child as if the child is in your care.

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 February 28, 2006.

TRD-200601103

For further information, please call: (512) 438-3437

4. EDUCATIONAL SERVICES

40 TAC §§749.1891, 749.1893, 749.1895

§749.1891.What responsibilities do I have for the education of a child in care?

(a) You must arrange an appropriate education for each child. You must:

(1) Ensure a school-age child has the training and education in the least restrictive setting necessary to meet the child's needs and abilities;

(2) Ensure the child in care attends an educational facility or program approved or accredited by the Texas Education Agency; and

(3) Advocate that a school-age child receives the educational instruction to which he is entitled under provisions of federal and state law and regulations.

(b) For children receiving treatment services you must designate a liaison between the agency and the child's school.

§749.1893.What responsibilities do caregivers have for the educational needs of a child in their care?

Caregivers must:

(1) Review report cards and other information received from teachers or school authorities with the child and provide necessary information to agency staff;

(2) Counsel and assist the child regarding adequate classroom performance;

(4) Provide a quiet, well-lighted space for the child to study and allow regular times for homework and study;

(5) Know what emergency behavior interventions are permitted and being used with the child;

(6) Request ARD, IEP, and ITP meetings if concerned with the child's educational program or if the child does not appear to be making progress; and

(7) Attend ARD, IEP, ITP meetings, other school staffings, and conferences to represent the child's educational best interests, including the child being evaluated for and provided with services needed for the child to benefit from educational services, and positive behavior supports designed to decrease the need for negative disciplinary techniques or interventions.

§749.1895.What are the specific requirements for the educational program of a child diagnosed with a pervasive development disorder?

You must ensure that the educational program for a child with a pervasive development disorder:

(1) Encourages normalization through appropriate stimulation and by encouraging self-help skills; and

(2) Is appropriate to his intellectual and social functioning.

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 February 28, 2006.

TRD-200601104

For further information, please call: (512) 438-3437

5. RECREATIONAL SERVICES

40 TAC §§749.1921, 749.1923, 749.1925, 749.1927

§749.1921.What responsibilities do foster parents have for providing a child with opportunities for recreational activities?

(a) Caregivers must provide daily indoor and outdoor recreational and other activities appropriate to the needs, interests, and abilities of the children so every child may participate.

(b) You must have a written plan for ensuring that a range of indoor and outdoor recreational and leisure opportunities is provided for children in care. Such opportunities must be based on individual interests, with personal and treatment needs being considered.

(1) Physical fitness development that prescribes a variety of body positions; and

(2) Changes in environment.

(d) Each child must have individual free time as appropriate to the child's age and abilities.

(e) Caregivers must provide the following types of recreational activities based on each individual child's needs:

Figure: 40 TAC §749.1921(e)

§749.1923.What physical fitness activities must caregivers provide for a child with primary medical needs?

(a) A child with primary medical needs must have a minimum of one hour of physical stimulation each day.

(b) Training programs for non-mobile children must include development of physical fitness. This must include a variety of body positions and changes in environment.

§749.1925.What type of daily schedule must caregivers provide for a child with primary medical needs?

A child needing services to improve adaptive functioning must have a schedule that is based on the normalization principle. In order to help the child obtain an existence as normal as possible, the daily schedule must:

(1) Demonstrate an understanding of normal child development; and

(2) Enhance the child's physical, emotional, and social development.

§749.1927.To what extent must a child with primary medical needs have community living experiences?

The child's surroundings and experiences must reflect normal patterns of community living as closely as possible and as appropriate for the child's special 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 February 28, 2006.

TRD-200601105

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

6. DISCIPLINE AND PUNISHMENT

40 TAC §§749.1951, 749.1953, 749.1955, 749.1957, 749.1959, 749.1961

§749.1951.What are the requirements for disciplinary measures?

(a) Only a caregiver known to and knowledgeable of a child may discipline the child.

(b) Each disciplinary measure must:

(1) Be consistent with your policies and procedures;

(2) Not be physically or emotionally damaging to the child;

(3) Be individualized to meet each child's needs;

(4) Be appropriate to the child's level of understanding, age, and developmental level; and

(5) Be appropriate to the incident and severity of the behavior demonstrated.

§749.1953.May I use corporal punishment for children in care?

(a) You may not use or threaten to use corporal punishment with any child in care.

(b) Corporal punishment is the infliction of physical pain on any part of a child's body as means of controlling or managing the child's behavior. It includes:

(1) Hitting or spanking a child with a hand or instrument; or

(2) Forcing or requiring the child to do any of the following as a method of managing or controlling behavior:

(A) Perform any form of physical exercise, such as running laps or doing sit ups or push ups;

(B) Hold a physical position, such as kneeling or squatting; or

§749.1955.What is "unproductive work"?

§749.1957.What other methods of punishment are prohibited?

In addition to corporal punishment, prohibited discipline techniques include, but are not limited to:

(1) Any harsh, cruel, unusual, unnecessary, demeaning, or humiliating discipline or punishment;

(2) Denial of mail or visits with their families as discipline or punishment;

(3) Threatening with the loss of placement as discipline or punishment;

(4) Using sarcastic or cruel humor and verbal abuse;

(5) Standing in a corner or maintaining an uncomfortable physical position, such as kneeling, or holding his arms out;

(6) Pinching, pulling hair, or biting a child;

(7) Putting anything in or on a child's mouth, such as soap or tape;

(8) Humiliating, shaming, ridiculing, rejecting, or yelling at a child;

(9) Subjecting a child to harsh, abusive, or profane language;

(10) Placing a child in a dark room, bathroom, or closet;

(11) Requiring a child to remain silent or inactive for inappropriately long periods of time for the child's age;

(12) Confining a child to a highchair, box, or other similar furniture or equipment as discipline or punishment;

(13) Denying basic child rights as a form of discipline or punishment;

(14) Withholding food that meets the child's nutritional requirements; and

(15) Using or threatening to use emergency behavior intervention as discipline or punishment.

§749.1959.To what extent may a caregiver restrict a child's activities as a behavior management tool?

(a) Within limits, a foster parent may restrict a child's activities as a behavior management tool.

(b) Restrictions of activities, other than school or chores, which will be imposed on a child for more than seven days, must be reviewed with and approved by the child placement management staff or treatment director prior to or within 24 hours of imposing the restriction.

(c) Restrictions to communication and visitation with family, which will be imposed on a child, must have prior approval of the child placement management staff or treatment director.

(d) Restrictions to a particular room or building that will be imposed on a child for more than 24 hours must have approval from the service planning team, a professional service provider, or treatment director prior to or within 24 hours of imposing the restriction.

(e) You must inform the child and parent about any such restrictions you place on the child.

(f) Documentation of all approvals, justification for the restriction, and informing the child and parents must be in the child's record.

§749.1961.May a person in care discipline or punish another person in care?

No. A person in care must not punish or discipline another person in care.

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 February 28, 2006.

TRD-200601106

For further information, please call: (512) 438-3437

Subchapter L. FOSTER CARE SERVICES: EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2001

§749.2001.What do certain words mean in this subchapter?

These words have the following meaning in this subchapter:

(2) De-escalation--See §749.43(12) of this title (relating to What do certain words and terms mean in this chapter?).

(3) Emergency behavior intervention--See §749.43(17) of this title.

(A) Imminent probable death or substantial bodily harm to the child because the child attempts or continually threatens to commit suicide or substantial bodily harm; or

(8) PRN--See §749.43(42) of this title (relating to What do certain words and terms mean in this chapter?).

(9) Prone restraint--Placing a child in a chest down restraint hold.

(10) Quiet time--A type of behavior modification where a child voluntarily enters and remains in a designated area for a certain period of time.

(12) Short personal restraint--A personal restraint that does not last longer than one minute before the child is released.

(13) Supine restraint--Placing a child in a chest up restraint hold.

(15) Transitional hold--The use of a temporary restraint technique that lasts no longer than one minute as part of the continuation of a longer personal or mechanical restraint.

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 February 28, 2006.

TRD-200601107

For further information, please call: (512) 438-3437

2. TYPES OF EMERGENCY BEHAVIOR INTERVENTION THAT MAY BE ADMINISTERED

40 TAC §§749.2051, 749.2053, 749.2055, 749.2057, 749.2059, 749.2061, 749.2063

§749.2051.What types of emergency behavior intervention may I administer?

(a) If permitted in your policies and you meet the requirements of this subchapter, a caregiver may administer the following types of emergency behavior intervention to a child in your care:

(1) Short personal restraint;

(2) Personal restraint; and

(3) Emergency medication.

(b) You may never administer chemical restraints, mechanical restraints, or seclusion.

§749.2053.Who may administer emergency behavior intervention?

Only a caregiver qualified in emergency behavior intervention may administer any form of emergency behavior intervention, except for the short personal restraint of a child five years old or younger.

§749.2055.What actions must a caregiver take before using a permitted type of emergency behavior intervention?

Before using a permitted type of emergency behavior intervention, the caregiver must:

(1) Attempt less restrictive behavior interventions that prove to be ineffective at defusing the situation; and

(2) Determine that the basis for the emergency behavior intervention is:

(A) An emergency situation;

(B) A need for a personal restraint to administer intra-muscular medication or other medical treatments prescribed by a licensed physician, such as administering insulin to a child with diabetes; or

(C) A need for a personal restraint in a foster home where a child is significantly damaging property, such as breaking car windows or putting holes into walls. If this is the basis of the personal restraint, only a transitional hold may be used and only to prevent the damage.

§749.2057.What requirements must I meet in the use of less restrictive behavior interventions?

(a) Caregivers must follow your policies and procedures for attempting less restrictive interventions.

(b) Less restrictive measures include quiet time and time out.

§749.2059.What is the appropriate use for a short personal restraint?

Generally, a short personal restraint is used in urgent situations, such as:

(1) To protect the child from external danger that causes imminent significant risk to the child, such as preventing the child from running into the street or coming into contact with a hot stove;

(2) To intervene when a child under the age of five (chronological or developmental age) demonstrates disruptive behavior, if other efforts to de-escalate the child's behavior have failed; or

(3) When a child over five years old demonstrates behavior disruptive to the environment or milieu, such as disrobing in public, provoking others that creates a safety risk, or to intervene to prevent a child from physically fighting.

§749.2061.What precautions must a caregiver take when implementing a short personal restraint?

(a) When a caregiver implements a short personal restraint, the caregiver must:

(1) Minimize the risk of physical discomfort, harm, or pain to the child; and

(2) Use the minimal amount of reasonable and necessary physical force.

(b) A caregiver may not use any of the following techniques:

(1) A prone or supine restraint;

(2) Restraints that impair the child's breathing by putting pressure on the child's torso, including leaning a child forward during a seated restraint and basket holds;

(4) Restraints that obstruct the caregiver's view of the child's face;

(5) Restraints that interfere with the child's ability to communicate or vocalize distress; or

(6) Restraints that twist or place the child's limb(s) behind the child's back.

§749.2063.Are there any purposes for which emergency behavior intervention cannot be used?

Emergency behavior intervention may never be used as:

(4) A convenience for caregivers or other persons; or

(5) A substitute for effective treatment or habilitation.

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 February 28, 2006.

TRD-200601108

For further information, please call: (512) 438-3437

3. ORDERS

40 TAC §§749.2101, 749.2103, 749.2105, 749.2107

§749.2101.Are written orders required to administer emergency behavior intervention, and if so, who can write them?

According to the following chart, written orders by certain professionals are required to administer certain emergency behavior intervention:

Figure: 40 TAC §749.2101

§749.2103.Must the written order be in a child's record before a caregiver can use an emergency behavior intervention on a child?

Yes, any type of written order that is required must be in the child's record before a caregiver can use emergency behavior intervention on that child.

§749.2105.What information must a written order include?

(a) All written orders must include the following:

(1) A statement that the particular type of emergency behavior intervention may only be used in an emergency situation;

(2) Designation of the specific intervention and procedure or technique that is authorized;

(3) Any specific measures for ensuring the child's health, safety, and well being, and the privacy of the setting that safeguards the child's personal dignity;

(4) A complete description of the behaviors and circumstances under which the intervention may be used;

(5) Instructions for observation or heightened observation of the child during the intervention;

(6) The behaviors that indicate the child is ready to be released from the intervention;

(7) The maximum length of time the child may be restrained regardless of behaviors exhibited;

(9) Clinical justification for the intervention.

(b) For personal restraint, the written order must also include:

(1) The number of times a child may be restrained in a seven-day period; and

(2) If the orders allow more than three restraints within a seven-day period, a plan for reducing the need for intervention.

§749.2107.Under what conditions are PRN orders permitted for a specific child?

PRN orders for certain emergency behavior interventions are permitted under the following conditions:

Figure: 40 TAC §749.2107

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 February 28, 2006.

TRD-200601109

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

4. RESPONSIBILITIES DURING ADMINISTRATION OF ANY TYPE OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2151, §749.2153

§749.2151.What responsibilities does a caregiver have when implementing a type of emergency behavior intervention?

(a) The use of emergency behavior intervention must be an appropriate response to the behavior demonstrated, and de-escalation must have failed.

(b) The caregiver must act to protect the child's safety and consider the:

(1) Characteristics of the immediate physical environment;

(2) Permitted types of emergency behavior intervention; and

(3) Potential risk of harm in using emergency behavior intervention versus the risk of not using emergency behavior intervention.

(1) Initiate an emergency behavior intervention in a way that minimizes the risk of physical discomfort, harm, or pain to the child; and

(2) Use the minimal amount of reasonable and necessary physical force to implement the intervention.

(d) The caregiver must make every effort to protect the child's:

(1) Privacy, including shielding the child from onlookers; and

(2) Personal dignity and well-being, including ensuring that the child's body is appropriately covered.

(e) As soon as possible after starting any type of emergency behavior intervention, the caregiver must:

(1) Explain to the child the behaviors the child must exhibit to be released or have the intervention reduced, if applicable; and

(2) Permit the child to suggest actions the caregivers can take to help the child de-escalate.

§749.2153.When must a caregiver release a child from an emergency behavior intervention?

A child must be released as follows:

Figure: 40 TAC §749.2153

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 February 28, 2006.

TRD-200601110

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

5. ADDITIONAL RESPONSIBILITIES DURING ADMINISTRATION OF A PERSONAL RESTRAINT

40 TAC §§749.2201, 749.2203, 749.2205

§749.2201.Who must monitor a personal restraint?

During any personal restraint, a caregiver qualified in emergency behavior intervention must monitor the child's breathing and other signs of physical distress and take appropriate action to ensure adequate respiration, circulation, and overall well-being.

§749.2203.What is the appropriate action for a caregiver to take to ensure the child's adequate respiration, circulation, and overall well-being?

§749.2205.What personal restraint, including short personal restraint, techniques are prohibited?

(a) The following personal restraint, including short personal techniques, are prohibited:

(2) Restraints that obstruct the child's airway, including procedures that place anything in, on, or over the child's mouth, nose, or neck;

(3) Restraints that obstruct a caregiver's ability to view the child's face;

(4) Restraints that interfere with the child's ability to communicate or vocalize distress; or

(5) Restraints that twist or place the child's limb(s) behind the child's back.

(b) Prone and supine restraints are also prohibited as a short personal restraint.

(1) As a transitional hold that lasts no longer than one minute;

(2) As a last resort when other less restrictive interventions have proven to be ineffective; and

(3) When an observer meeting the following qualifications ensures the child's breathing is not impaired:

(A) Trained to identify risks associated with positional, compression, or restraint asphyxia;

(B) Trained to identify risks associated with prone and supine holds; and

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 February 28, 2006.

TRD-200601111

For further information, please call: (512) 438-3437

6. COMBINATIONS OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2231, §749.2233

§749.2231.May a caregiver successively use emergency behavior interventions on a child?

(a) A caregiver may successively use emergency behavior interventions on a child only if:

(2) Permitted by rules of this subchapter for both types of emergency behavior intervention; and

(3) Written orders specifically allow the combination.

(b) The written orders must include clinical justification for the successive use of emergency behavior interventions that goes beyond the justification for the use of a single intervention. The licensed physician ordering the emergency medication must provide clinical justification for the combination of emergency medication and personal restraint.

(1) Bathroom privileges at least once every two hours;

(2) An opportunity to drink water at least once every two hours;

(3) Regularly prescribed medications unless otherwise ordered by the licensed physician;

(4) Regularly scheduled meals and snacks served in a safe and appropriate manner; and

(5) An environment that is adequately ventilated during warm weather, adequately heated during cold weather, appropriately lighted, and free of safety hazards.

§749.2233.May a caregiver simultaneously use emergency medication in combination with personal restraint?

(a) A caregiver may simultaneously use emergency medication in combination with personal restraint only if:

(2) Permitted by the rules of this subchapter for both types of emergency behavior intervention; and

(3) Written orders specifically allow the combination.

(b) The written orders must include clinical justification for the combination of emergency medication with personal restraint that goes beyond the justification for the use of a single emergency behavior intervention. If they are different people, both the licensed physician ordering the emergency medication and the professional ordering the personal restraint must provide the clinical justification for the combination.

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 February 28, 2006.

TRD-200601112

For further information, please call: (512) 438-3437

7. TIME RESTRICTIONS FOR EMERGENCY BEHAVIOR INTERVENTION

40 TAC §749.2281, §749.2283

§749.2281.What is the maximum length of time that an emergency behavior intervention can be administered to a child?

The maximum length of time that certain emergency behavior interventions can be administered to a child is as follows:

Figure: 40 TAC §749.2281

§749.2283.Can a caregiver exceed the maximum length of time that an emergency behavior intervention can be administered to a child?

A caregiver may exceed the maximum length of time for certain emergency behavior interventions as follows:

Figure: 40 TAC §749.2283

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 February 28, 2006.

TRD-200601113

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

8. GENERAL CAREGIVER RESPONSIBILITIES, INCLUDING DOCUMENTATION, AFTER THE ADMINISTRATION OF EMERGENCY BEHAVIOR INTERVENTION

40 TAC §§749.2301, 749.2303, 749.2305

§749.2301.What follow-up actions must caregivers take after the child's behavior no longer constitutes an emergency situation?

(a) The caregivers must take appropriate actions to help the child return to routine activities. The follow-up actions of the caregivers must include:

(1) Providing the child with an appropriate transition and offering the child an opportunity to return to regular activities;

(2) Observing the child for at least 15 minutes; and

(b) Caregivers involved in the emergency behavior intervention must conduct a post-emergency behavior intervention discussion. The goal of the discussion is to allow the child and caregiver to discuss:

(1) The child's behavior and the circumstances that constituted the need for an emergency behavior intervention;

(2) The strategies attempted before the use of the emergency behavior intervention and the child's reaction to those strategies;

(3) The emergency behavior intervention itself and the child's reaction to the emergency behavior intervention;

(4) How caregivers can assist the child in regaining self-control in the future to avoid the administration of an emergency behavior intervention; and

(5) What the child can do to regain self-control in the future to avoid the administration of an emergency behavior intervention.

(1) Debrief with child placing staff concerning the incident as soon as possible after the situation has stabilized; and

(2) Make every effort to debrief with children in care who witness the incident.

(d) The child placing staff must review and document the use of the emergency behavior intervention within 72 hours of the intervention.

(f) This rule does not apply to short personal restraint.

§749.2303.What must the caregiver document after discussing his use of an emergency behavior intervention with a child?

(a) The date and time the caregiver offered the discussion;

(b) The child's reaction to the opportunity for discussion;

(d) The content of the discussion, if applicable.

§749.2305.When must a caregiver document the use of an emergency behavior intervention, and what must the documentation include?

(a) As soon as possible, but no later than 24 hours after the initiation of the intervention, the caregiver must document in the child's record the following information:

(1) The child's name;

(2) The basis for the emergency behavior intervention;

(3) A description and assessment of the circumstances and specific behaviors that caused the basis for the emergency behavior intervention;

(4) The de-escalation attempted before the use of the emergency behavior intervention and the child's reaction to those strategies;

(5) The specific emergency behavior intervention administered;

(6) The date and time the intervention was administered;

(7) The length of time the child was restrained;

(8) The name of the caregiver(s) that participated in the incident that led to the intervention, and who administered the intervention;

(9) The name of the person(s) who observed the child;

(10) The duration of the emergency behavior intervention;

(11) All attempts to explain to the child what behaviors were necessary for release from the intervention;

(13) The actions the caregiver(s) took to facilitate the child's return to normal activities following the end of the intervention; and

(14) Supervisors of caregivers involved in emergency behavior intervention of a child must document their review of the use of the intervention within 72 hours of the incident.

(b) If personal restraint is used, documentation must also include the specific restraint techniques used, including a prone or supine restraint used as a transitional hold.

(c) If emergency medication is used, documentation must also include the specific medication used and the dosage administered to the child.

(d) This rule does not apply to short personal restraints.

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 February 28, 2006.

TRD-200601114

For further information, please call: (512) 438-3437

9. TRIGGERED REVIEWS

40 TAC §§749.2331, 749.2333, 749.2335, 749.2337, 749.2339

§749.2331.What circumstances trigger a review of the use of emergency behavior intervention for a specific child?

The following circumstances trigger a review for certain emergency behavior interventions:

Figure: 40 TAC §749.2331

§749.2333.When must a triggered review occur?

(a) A triggered review must occur as soon as possible, but no later than 30 days after the review is triggered.

(b) The regularly scheduled review of the child's service plan can serve as the triggered review if it meets the requirements in §749.2337 of this title (relating to What must the triggered review include and what must be documented in the child's record?) and takes place no later than 30 days after the review is triggered.

§749.2335.Who must participate in the triggered review?

The service planning team must participate in the triggered review.

§749.2337.What must the triggered review include and what must be documented in the child's record?

(a) The same items that must be included and documented in an initial service plan, (see §749.1309 of this title (relating to What must a child's initial service plan include?));

(b) A review of the records and orders of the emergency behavior interventions;

(d) An examination of alternatives to manage the child's behavior and to assist the child in managing his own behavior; and

(e) A written plan for reducing the need for emergency behavior intervention.

§749.2339.What if there are four triggered reviews within a 90-day period?

If there are four triggered reviews within a 90-day period:

(1) A licensed psychiatrist, psychologist, clinical social worker, professional counselor, or marriage and family therapist must examine the child; and

(2) The licensed professional must make service plan recommendations regarding the use of emergency behavior interventions. You must document these recommendations in the child's record.

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 February 28, 2006.

TRD-200601115

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

10. OVERALL AGENCY EVALUATION

40 TAC §749.2381, §749.2383

§749.2381.What is an overall agency evaluation?

(a) The overall agency evaluation is an annual review regarding:

(1) The use and effectiveness of emergency behavior interventions at your agency; and

(2) Your emergency behavior intervention policies and procedures, including the training policy and curriculum.

(b) The objectives of the evaluation are to:

(1) Develop and maintain an environment that supports positive and constructive behaviors of children in care;

(2) Use any type of emergency behavior intervention safely, appropriately, and effectively; and

(3) Eliminate or reduce physical injuries and any other negative side effects on the child's behavior or emotional development resulting from the emergency behavior interventions.

(1) The frequency, patterns, and effectiveness of the types of emergency behavior intervention techniques that are used for all children in your foster homes;

(2) Strategies to reduce the need for emergency behavior interventions for all children in your foster homes; and

(3) Specific strategies to reduce the need for use of specific types of emergency behavior intervention techniques for all children in your foster homes.

(d) The results of each overall agency evaluation must be made available to us for review.

§749.2383.What data must be collected?

(a) Quarterly, you must collect, document, and review aggregate numbers of emergency behavior interventions by type of intervention.

(b) This information must be reported to us quarterly.

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 February 28, 2006.

TRD-200601116

For further information, please call: (512) 438-3437

Subchapter M. FOSTER HOMES: SCREENINGS AND VERIFICATIONS

40 TAC §§749.2401, 749.2403, 749.2405

§749.2401.If one spouse will not be involved in the care of foster children, may I verify the spouse who will provide care individually as a foster parent?

No. In order for one spouse to be a foster parent, you must verify both of them to provide foster care.

§749.2403.What minimum age requirement must foster parents and caregivers meet?

Each caregiver in a home that you verify on or after January 1, 2007, must be at least 21 years old. Each caregiver in a home that you verified prior to that date must be at least 18 years old.

§749.2405.Will my home have to be re-verified if I am a single foster parent and I get married after my home is verified?

Yes, you will have to re-verify that home in both spouse's names.

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 February 28, 2006.

TRD-200601117

For further information, please call: (512) 438-3437

2. FOSTER HOME SCREENINGS

40 TAC §§749.2441, 749.2443, 749.2445, 749.2447, 749.2449, 749.2451

§749.2441.Can I verify foster homes anywhere in the state?

(a) For each permit, you must choose an area covering no more than 40 contiguous counties. We must approve an additional permit for each additional area.

(b) If you were licensed before January 1, 2007, you have five years from January 1, 2007, to comply with this requirement.

§749.2443.Do the requirements described in §749.2441 of this title (relating to Can I verify foster homes anywhere in the state?) apply to the counties in which I place children for adoption?

No, you can place children for adoption anywhere in Texas.

§749.2445.What is a foster home screening?

(a) You must complete a foster home screening prior to verifying the foster home.

(b) Your child placement management staff must review and approve each foster home screening.

(1) Required information (see §749.2447 of this title (relating to What information must I obtain for the foster home screening?));

(2) An assessment of the information obtained to determine whether the applicant meets the requirements for verification; and

(3) An evaluation of the information obtained in order to make recommendations about the applicant's capacity to work with children, including but not limited to age, gender, special needs, and number of children.

§749.2447.What information must I obtain for the foster home screening?

You must obtain, document, and assess the following information about a prospective foster home:

Figure: 40 TAC §749.2447

§749.2449.Whom must I interview when conducting a foster home screening?

(a) Interviews for a foster home screening must include at least:

(1) One individual interview with each prospective foster parent;

(2) One individual interview with each child three years old or older living in the home either full or part time;

(3) One individual interview with each other person living full or part time with the family;

(4) One joint interview with the prospective foster parents;

(5) One family group interview with all family members living in the home; and

(6) One interview, by telephone, in person, or by letter, with any minor child 12 years old or older or adult child of the prospective foster parents not living in the home. If you cannot reach an adult child to interview, you must document your diligent efforts.

(b) You must visit the home at least once when all members of the household are present.

§749.2451.What are the requirements for documenting the interviews I conduct for a foster home screening?

(a) You must document all interviews and attempts to interview persons you are required to interview for a foster home screening.

(b) The documentation must include the dates and methods used to contact the required persons, the dates of the interviews, who was present at the interviews, their relationship to the prospective foster parents, and a summary of the interviews.

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 February 28, 2006.

TRD-200601118

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. VERIFICATION OF FOSTER HOMES

40 TAC §§749.2471, 749.2473, 749.2475, 749.2477, 749.2479, 749.2481, 749.2483, 749.2485, 749.2487, 749.2489, 749.2491, 749.2493

§749.2471.What must I do to verify a foster home?

Verifying a foster home includes the following steps:

(1) Completing and documenting the requirements for §749.2447 of this title (relating to What information must I obtain for the foster home screening?);

(2) Completing and documenting the required interviews as specified in §749.2449 of this title (relating to Whom must I interview when conducting a foster home screening?);

(3) Obtaining the following:

(A) A floor plan of the home showing dimensions and purposes of all rooms in the home and identifying indoor areas for children's use;

(B) A sketch or photo of the outside areas showing buildings, driveways, fences, storage areas, gardens, recreation areas, pools, ponds, or other bodies of water;

(D) An approved health inspection;

(4) Inspecting the home to ensure and document that the home meets appropriate rules of this chapter, including:

(A) TB testing, see §749.609 of this title (relating to What are the requirements for tuberculosis testing?) and §749.611 of this title (relating to How do I document the recommendations of a local health authority or the regional Department of State Health Services for tuberculosis testing?);

(B) Subchapter K of this chapter (relating to Foster Care Services: Daily Care and Problem Management; and

(C) Subchapter O of this title (relating to Foster Homes: Health and Safety Requirements, Environment, Space and Equipment);

(5) If the home will provide treatment services, ensuring that the home complies with the policies developed according to §749.349 of this title (relating to What additional policies must I develop for foster homes that provide treatment services?);

(6) If the home will provide a transitional living program, ensuring the home complies with the policies developed according to §749.351 of this title (relating to What policies must I develop for foster parents who offer a transitional living program?);

(7) Evaluating all areas required for the foster home screening and verification, and make recommendations regarding the home's ability to work with children with respect to their age, gender, number of children, and services to be provided; and

(8) Obtaining from the child placement management staff review and approval of the screenings, home study, and the recommended verification of the home.

§749.2473.What must I do to verify a foster home that another child-placing agency has previously verified?

When a home has previously been verified by another agency, you may:

(1) Complete an entirely new screening and home study to comply with the requirements in §749.2471 of this title (relating to What must I do to verify a foster home?); or

(2) You may use the foster home screening and home study the previous child-placing agency conducted as a basis for meeting the requirement. You must update the information for every required section. You must describe any changes from the previous information. This verification will require you to:

(A) Conduct new interviews as specified in §749.2449 of this title (relating to Whom must I interview when conducting a foster home screening?);

(B) Conduct new criminal history and central registry background checks for foster home members, with results documented in the foster home record. Homes transferring from one agency to another, with children in care, may be verified by the receiving agency prior to completion of background checks;

(D) Ensure that all family members have had tuberculosis testing in accordance with the recommendations of the local or regional Department of State Health Services;

(E) Ensure that the previous agency completed all investigations and addressed and resolved all deficiencies;

(F) Conduct a new evaluation of all areas required for the foster home screening and verification, and make recommendations regarding the home's ability to work with children with respect to their age, gender, number of children, and services to be provided; and

(G) Obtain review and approval of the screening, home study, and the recommended verification of the home by child placement management staff.

§749.2475.If another child-placing agency is requesting information regarding a parent that I previously conducted a foster or adoptive screening or home study on, must I release the information to the child-placing agency?

(a) If background information is requested by a child-placing agency conducting a foster or adoptive screening or home study, then you must release any background information you have acquired through previous foster or adoptive screening or home study.

(b) An agency must release the background information to the requesting agency within 10 days after receiving the written request.

(c) If there are any unresolved investigations or deficiencies related to the home, the agency must release the information within 10 days after the resolution of investigations or deficiencies.

§749.2477.May I verify a foster home prior to approval by child placement management staff?

No. Before you can verify a foster home, child placement management staff must:

(1) Review and approve the verification, including the documented foster home screening, home study, and other requirements; and

(2) Sign and date the document.

§749.2479.May I place children in a foster home before verifying the home?

No, you cannot place children in a foster home before completing the foster home screening and verification.

§749.2481.What type of certificate must a foster home have in order to prove verification?

(a) You must give the home a verification certificate after:

(1) Verifying the home; and

(2) Making any change that affects the verification certificate.

(b) The home must post the current verification certificate or have it immediately available upon request.

§749.2483.Do foster parent applicants have to own the home they live in for it to be their primary residence?

No, they do not have to own or rent the home they live in for it to be considered their primary residence.

§749.2485.What are the requirements for verifying a foster home at a residence that I own?

(a) You must verify the home in the name of one foster family for whom the home is the primary residence. You may only verify the home in the name of one foster family.

(b) A home is considered a primary residence if the person lives there on a routine basis and:

(1) It is the place of residence on their most recent tax return; or

(2) It is the address listed on their motor vehicle registration, driver's license, voter's registration, or other document filed with a public agency.

§749.2487.What are the requirements for an agreement that I have with a foster home that I verify?

(a) You must sign a written agreement with each agency foster home at the time that you verify the home. You and the foster home must each have copies of the signed agreement. You must file a copy in the agency home record.

(b) The agreement must specify the following:

(1) The foster parents' responsibility for complying with rules of this chapter;

(2) The financial agreement between you and the foster home;

(3) The foster home agrees not to accept a non-relative child for 24-hour care from any source other than you;

(4) You have the right to remove the child from the home at your discretion;

(5) You must consent to any discharge of a child from the home;

(6) Visits by the child's parents or relatives must be arranged through you;

(7) You are responsible for regular supervision of the foster home;

(8) The foster parents' commitment to comply with your policies regarding child care, discipline, supervision of children, and children's visits or trips away from the foster home; and

(9) The foster parents' commitment to comply with your policies about foster parents' reports to you regarding foster children and events or occurrences impacting the provision of foster care.

§749.2489.What information must I submit to Licensing about a foster home's verification status?

You must submit information to us within two working days of:

(1) Verifying a new foster home;

(2) Temporary verification of a foster home and when the verification is not longer temporary;

(3) Putting a foster home on inactive status or taking a foster home off of inactive status;

(4) Changing conditions of the verification for an existing home; or

(5) Closing a foster home.

§749.2491.May I verify a foster home to provide different services?

(a) You may verify a foster home to provide different services as long as a child placement staff completes an assessment of the home that includes a review of the following:

(1) The number, ages, and needs of children to be placed in the home;

(2) The foster home's capacity to provide each different service and supervise all children appropriately;

(3) The needs of any children currently in the home; and

(4) The foster parents' experience and ability to provide service.

(b) The child placement staff must sign, date, and document this assessment in the foster home record. The different services permitted must be listed on the verification certificate.

(c) Child placement management staff must review and approve the documentation prior to the placement of a child. You must document the review and approval in the record.

(d) For each placement of a child into a home verified to provide multiple types of services, a child placement staff must ensure there will be no conflict of care. Examples of conflicts in care are placements that:

(1) Place one child at serious risk for harm by another child;

(2) Significantly compromise the care and supervision of any child in care;

(3) Require a level of expertise by the foster parents and/or caregivers that they do not possess; or

(4) Create an environment that is appropriately restrictive for one child but inappropriate for another.

(e) A child needing treatment services may only be placed in a foster home that is verified to provide the treatment services needed by that child. If the treatment service needs of any of the children in a foster home changes and the home is not verified to provide that particular treatment service, the foster parent must notify the child placement staff and a new assessment of the home must be completed, signed, and dated by the child placement management staff. If the foster home is not approved to provide the services after the assessment, then the child must be moved to a placement that can provide the needed services.

§749.2493.May a foster family provide day care in addition to foster care?

A foster home may provide day care in addition to foster care under the following conditions:

(1) The number and ages of children in both types of care must meet all relevant laws, including those listed in §745.375 of this title (relating to May I offer child day care at my agency foster home or independent foster home?);

(2) The caregivers can supervise all children appropriately, can meet all children's' needs, and can protect all children in both foster and day care;

(3) There is adequate space and there are adequate staff or caregivers to meet all applicable rules;

(4) The child-placing agency completes a written assessment, signed by child placement management staff, of the:

(A) Needs of the children in foster care and how the needs of the children in day care may impact the foster children; and

(B) Basis for determining no conflict of care exists in providing the two types of care; and

(5) Both the Residential Child-Care and Child Day-Care Divisions of Licensing approve.

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 February 28, 2006.

TRD-200601119

For further information, please call: (512) 438-3437

4. TEMPORARY VERIFICATION

40 TAC §§749.2521, 749.2523, 749.2525

§749.2521.What must I do prior to issuing a temporary verification?

(a) The purpose of a temporary verification is to permit continued care of foster children in a foster home when a foster family moves from one residence to another and there is a short-term delay in verification, for example, fire and health inspections cannot be obtained prior to the move.

(b) You may only issue a temporary verification after you:

(1) Inspect the new location;

(2) Determine that the home meets the minimum standards;

(3) Document that all health and safety, environment, and space and equipment standards are met; and

(4) The child placement management staff review and approve the temporary verification by signing and dating it.

(c) You may not use a temporary verification to change the verification conditions (number of children, age, gender, or services provided) of an agency home other than residence address.

(d) You may not issue a temporary verification if no children are in placement in the foster home.

§749.2523.For what length of time can I issue a temporary verification?

(a) You may issue a temporary verification for up to six months.

(b) A temporary verification is valid for no longer than six months from the date the verification is issued. You may not renew the temporary verification.

§749.2525.Can foster children remain in the foster home while a temporary verification is in effect?

Yes, children who were in the care of the foster family at the time of the move may continue to live in the foster home while the temporary verification is in effect. However, you may not make new placements of children into a home that is temporarily verified.

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 February 28, 2006.

TRD-200601120

For further information, please call: (512) 438-3437

5. CAPACITY AND CHILD/CAREGIVER RATIO

40 TAC §§749.2551, 749.2553, 749.2555, 749.2557, 749.2559, 749.2561, 749.2563, 749.2565, 749.2567

§749.2551.What is the maximum number of children a foster family home may care for?

(a) A foster family home may care for up to six children, including the biological and adopted children of the foster family, children receiving foster respite care, and children for whom the family provides day care.

(b) All adults in care must also be counted in the capacity of the home per §749.2651 of this title (relating to May a foster home accept adults into the home for care?).

§749.2553.What is the maximum number of children that a foster group home may care for?

(a) A foster group home may care for up to 12 children, including the biological and adopted children of the foster family and children receiving foster or respite care.

(b) All adults in care must also be counted in the capacity of the home as specified in §749.2651 of this title (relating to May a foster home accept adults into the home for care?).

§749.2555.How do I determine capacity?

Capacity of the home is based on the:

(1) Services being provided, the number of caregivers, and the age of the children in the home and in placement; and

(2) Amount of space available for children and the needs of the children in care.

§749.2557.May a foster agency home exceed its verified capacity?

No. The maximum number of children in a foster home, including the biological and adopted children of the foster family, any children receiving foster or respite care, and children for whom the family provides day care, must not exceed the capacity stated on the home's verification.

§749.2559.How do I determine the child/caregiver ratio for a foster family home?

The number of children one caregiver may supervise in a foster family home is six, unless the home meets one of the criteria in the chart below:

Figure: 40 TAC §749.2559

§749.2561.How many infants may a foster family home care for?

(a) A foster family home may only care for two infants at the same time unless you place more than two infants in a home in order to keep a single sibling group together.

(b) If the home cares for two infants or more according to subsection (a) of this section, it can only care for two additional children under six years of age.

(c) These restrictions include the biological and adopted children of the foster family, children in foster or respite care, and children for whom the family provides day care.

§749.2563.How do I determine child/caregiver ratio for a foster group home?

The number of children one caregiver may supervise in a foster group home is eight, unless the home meets one of the criteria in the chart below:

Figure: 40 TAC §749.2563

§749.2565.Are there restrictions on placing a child younger than five years old in a foster group home?

Yes, you:

(1) May only place a child who is younger than five years old in a foster group home if you determine that:

(A) The placement is necessary to maintain a sibling group; and

(B) A less restrictive setting cannot meet the needs of the sibling group.

(2) You must document your decision in the child's record.

§749.2567.Must a home maintain the child/caregiver ratio at all times?

No. However, even during a time that all children in care are away from the home, at least one caregiver must be available by phone to:

(1) Respond to emergencies, changes in schedules, or unplanned events; and

(2) Provide care and supervision whenever a child needs the attention of a caregiver, including when the child returns to the home.

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 February 28, 2006.

TRD-200601121

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

6. SUPERVISION

40 TAC §§749.2591, 749.2593, 749.2595, 749.2597, 749.2599

§749.2591.How am I responsible for ensuring adequate supervision of children in care?

(a) Your child placement management staff must ensure that supervision of children in care adequately accounts for the following:

(1) Specific needs of the children in care in each home;

(2) Non-routine events taking place in the lives of individual children, the foster parents, or the group of children in care; and

(3) The children's history, including background of abuse or neglect by caretakers, sexual or physical abuse against others, fire-setting, maiming or killing animals, suicide attempts, and run-away behaviors.

(b) Your child placement management staff must also approve a written plan for the increased supervision of a child who presents an immediate harm to himself or others.

§749.2593.What responsibilities does a caregiver have when supervising a child?

(a) The caregiver is responsible for:

(1) Knowing which children they are responsible for;

(2) Being aware of and accountable for each child's on-going activity;

(3) Directing each child's activities or actions;

(4) Overseeing each child's activities or actions;

(5) Providing the level of supervision necessary to ensure each child's safety and well being, including auditory and visual awareness of each child's on-going activity as appropriate;

(6) Being able to intervene when necessary to ensure each child's safety; and

(7) Not performing tasks that clearly impede the caregiver's ability to supervise and interact with the children while being responsible for the supervision of the children and meet any service-planning requirement regarding supervision of any child.

(b) In deciding how closely to supervise a child, the caregiver must take into account:

(1) The child's age;

(2) The child's individual differences and abilities;

(3) The indoor and outdoor layout of the home;

(4) Surrounding circumstances, hazards, and risks; and

(5) The child's needs, including the physical, mental, emotional, and social.

(1) Be aware of the children's habits, interests, and any special needs;

(2) Maintain a safe and contained environment;

(3) Cultivate developmentally appropriate independence in children through planned but flexible program activities;

(4) Positively reinforce children's efforts and accomplishments;

(5) Ensure continuity of care for children by sharing with incoming caregivers information about each child's activities during the previous shift and any verbal or written information or instructions given by the parent or other professionals; and

(6) Implement and follow the children's service plans.

(d) Caregivers that supervise a child receiving treatment services must maintain progress notes for the child, at a frequency determined by the service planning team. Caregivers must sign and date each progress note at the time the progress note is completed. Progress notes must be available for Licensing staff to review.

§749.2595.May I use a video camera to supervise a child in the child's bedroom?

(a) Video cameras may be used to supervise infants and toddlers.

(b) Video cameras may not be used to supervise other children, except infants and toddlers, unless the:

(1) Parent, or other person legally authorized to consent, consents to the use of the video camera; and

(2) Child:

(A) Is younger than five years old;

(B) Has primary medical needs; or

(C) Has a service plan that permits the use for purposes of a documented history of sexually offensive behavior. You must document the justification for the video camera in the child's service plan.

§749.2597.Where must the caregivers reside in order to supervise children who are in a transitional living program?

Caregivers counted in the child/caregiver ratio and responsible for supervising children in a transitional living program must:

(1) Reside within close physical proximity of the child's living quarters;

(2) Be physically available to the children at all times;

(3) Be capable of responding quickly in an emergency; and

(4) Be capable of monitoring the comings and goings of the children in the program.

§749.2599.Can a child serve as a caregiver?

A child who is over the age of 16 may serve as a caregiver for foster care children under the age of 13 as long as:

(1) The child placement management staff approves the child to be a caregiver, establishing limits with duration and frequency;

(2) The child acts as a caregiver for no more than eight hours and never over night;

(3) The child is certified in first aid and CPR; and

(4) Neither the child nor any of the foster children is supervising or receiving treatment services.

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 February 28, 2006.

TRD-200601122

For further information, please call: (512) 438-3437

7. RESPITE CHILD-CARE SERVICES

40 TAC §§749.2621, 749.2623, 749.2625, 749.2627, 749.2629, 749.2631, 749.2633, 749.2635

§749.2621.What is "respite child-care"?

(a) Respite child-care is a planned alternative 24-hour care that has the purpose of providing relief to the child's primary caregiver.

(b) For the purposes of this chapter, respite care placement is a placement that lasts more than 72 hours. The placement of a child in a home for less than 72 hours is not respite care.

§749.2623.What must occur before I place a child for respite care?

You must notify the child's parent before placing the child in respite care.

§749.2625.What information regarding the child must I share with the respite care provider?

To ensure continuity of care, you must share the following information with the respite care provider before placing the child in the home:

(1) Specific needs of a child, including:

(A) All psychiatric or medical treatment currently being provided;

(B) Medication regimen and medication instructions;

(D) Any expectations of the respite caregiver;

(2) Non-routine events taking place in the life of the child;

(3) Emergency contact information, including the:

(A) Child's physician(s);

(B) Child's parent; and

(4) The child's history that may affect the provider's ability to provide care for the child, including:

(A) Background of abuse and/or neglect;

(B) Sexually aggressive and/or physically abusive behavior;

(D) Maiming or killing animals;

(E) Suicidal ideations and attempts; and

(F) Run-away behaviors.

§749.2627.What must occur before one of my foster homes accepts a child for respite care?

(a) You must approve each occurrence of respite care in your homes. Respite care must not be used if it could be detrimental to the child.

(b) Your child placement management staff must determine that the respite placement will not cause a conflict in care for any child that you have already placed in the foster home. The record of the foster home providing foster care must include documentation of this determination.

§749.2629.In addition to the requirements of this division, what requirements of this chapter apply to respite care that a foster home provides?

You and the foster home providing respite care must meet all requirements of the applicable rules of this chapter for all children in care, including children admitted for respite care. This includes compliance with capacity and child/caregiver ratios and supervision rules.

§749.2631.How long may a child be in respite care?

(a) A child may be in respite care up to 14 consecutive days. If the child is in care for more than 14 days, it is a new placement.

(b) A child may be in respite care up to 40 days each year.

§749.2633.How frequently may a foster home provide respite care services?

(a) The home may not provide respite care services for more than:

(1) 14 consecutive days; or

(2) 60 days annually.

(b) There must be at least a 10-day period between the completion of one occurrence of respite care at the home and the beginning of the next occurrence at the home.

§749.2635.May I place a child for respite care in a home that Licensing does not regulate?

You may place a child for respite care in a home that meets the requirements of the exemption set forth in §745.117(6) of this title (relating to Which programs of limited duration are exempt from Licensing regulation?).

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 February 28, 2006.

TRD-200601123

For further information, please call: (512) 438-3437

8. AGENCY-FOSTER FAMILY RELATIONSHIPS

40 TAC §§749.2651, 749.2653, 749.2655

§749.2651.May a foster home accept adults into the home for care?

(a) Yes. Foster homes may accept adults into the home for care if the:

(2) Adult is a client in the Department of Aging and Disability Services, Community Based Services Program; and

(3) Young adult is:

(A) Transferring from another residential child-care operation; or

(B) Joining a minor sibling in your care.

(b) Adults in care must be counted in the capacity of the home.

§749.2653.What are the requirements for an unrelated adult to reside in a foster home?

(a) Before a foster home may add a new member to the household:

(1) The home must notify you of the potential new member of the household;

(2) The home must comply with requirements specified in Subchapter F of Chapter 745 of this title (relating to Background Checks) and §749.609 of this title (relating to What are the requirements for tuberculosis testing?); and

(3) You must evaluate the effect that the adult will have on the foster children in the home. Your evaluation must include the following considerations:

(A) The needs of the foster children in care;

(B) The impact the adult will have in the foster family and for the foster children; and

(b) You must document the following in the foster home record:

(1) The results of the background check and the tuberculosis test;

(2) Your evaluation; and

(3) The approval of the child placement management staff.

§749.2655.When must a foster home notify you of changes that affect the foster home?

A foster home must notify you of any of the following changes as follows:

Figure: 40 TAC §749.2655

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 February 28, 2006.

TRD-200601124

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

Subchapter N. FOSTER HOMES: MANAGEMENT AND EVALUATION

40 TAC §§749.2801, 749.2803, 749.2805, 749.2807, 749.2809, 749.2811, 749.2813, 749.2815, 749.2817, 749.2819, 749.2821, 749.2823, 749.2825

§749.2801.When must I evaluate a foster home for compliance with Licensing rules?

(a) You must evaluate a foster home for compliance with the relevant Licensing rules affecting the need for the evaluation, whenever:

(1) You receive an allegation of deficiency;

(2) There is a major life change in the foster family; or

(3) A change occurs that affects the conditions of the verification.

(b) Every two years you must evaluate a foster home for compliance with all rules that apply to that home.

§749.2803.What changes affect the conditions of a foster home's verification?

Changes that affect the conditions of a foster home's verification include a change in:

(1) Family residence;

(2) The number, ages, or gender of children for which the home is verified;

(3) The type of care the foster family will provide;

(4) The name of the foster family; or

(5) The composition of the family.

§749.2805.What is a "major life change in the foster family"?

A major life change in the foster family includes:

(1) Marriage, divorce, separation, death, birth, or any other change in household composition;

(2) A serious health problem that affects the ability of the foster parent to care for children; or

(3) Extended absences by one parent, such as military service or out-of-town job assignments.

§749.2807.How do I evaluate a foster home's compliance with the relevant Licensing rules affecting the need for the evaluation?

You are responsible for the home's ongoing compliance with our rules. You must evaluate the home as follows:

(1) When there is an allegation of a deficiency, you must evaluate the rule and any rules related to the deficiency;

(2) When a change in the conditions of the verification or a major life change occurs, you must evaluate the rules related to the conditions or change;

(3) You must document the rules that were evaluated and the determination of the evaluation;

(4) During any contact with the foster family, including routine supervisory contacts and investigations, you must cite and address any deficiencies noted;

(5) Your documentation of deficiencies must include plans for achieving compliance; and

(6) You must also document a plan for follow-up to ensure compliance was achieved.

§749.2809.What must a plan for achieving compliance include?

The plan for achieving compliance must include:

(1) Specific actions or changes needed for the foster home to achieve compliance;

(2) Time frames for corrections and consequences for failure to achieve compliance;

(3) A determination of whether children can remain in the foster home before the home achieves compliance; and

(4) A determination whether you will make new placements in the home before the home achieves compliance.

§749.2811.How do I follow-up to ensure compliance?

(1) Re-inspect the foster home or receive documentation from the home showing that all deficiencies have been corrected; and

(2) Document that the foster home has corrected all deficiencies in the foster home's record.

§749.2813.How do I evaluate Licensing rules for each home every two years?

You may either:

(1) Perform a rule-by-rule evaluation of the home once every two years; or

(2) Evaluate different parts of the rules at different times during the two-year period.

§749.2815.How often must I have supervisory contacts with the foster home?

(a) You must have supervisory contacts with:

(1) The foster home at least quarterly;

(2) Both foster parents, if applicable, at least once every six months; and

(3) All household members at least once every year.

(b) At least one supervisory contact per year must be unannounced.

(c) You must document each contact in the home's record. The documentation must include specific rules evaluated, results of the evaluation, deficiencies found, plans for achieving compliance, and plans for follow-up to ensure compliance was achieved.

§749.2817.Must I monitor and have supervisory contacts with a foster home where no children are placed?

(a) You must maintain all monitoring and supervisory requirements if the home is available for placements.

(b) If you place the home on inactive status, you do not have to monitor the home or have supervisory contacts.

§749.2819.When may I place a foster home on inactive status?

(a) You may place a foster home on inactive status if:

(1) There are no foster children in the home;

(2) You and the foster parents agree that the home will be on inactive status; and

(3) You document in the home's record that the home is on inactive status and will not accept a child for placement.

(b) You may not place a home that you should close on inactive status. A home that you should close includes a home:

(1) Whose repeated noncompliance with rules endangers the health or safety of children;

(2) That repeatedly fails to comply with agency policies or corrective action plans;

(3) That refuses to comply with the rules of this chapter or agency policies; or

(4) That refuses to allow you or our staff to inspect the home.

(c) When you place a home on inactive status or remove a home from inactive status, you must inform us by submitting an agency home report form.

§749.2821.How do the foster parents meet their training requirements while their home is on inactive status?

(a) Foster parents may prorate their annual training requirement for the period of time that the home was on inactive status.

(b) If the home remains on inactive status for more than a year, the foster parents must complete at least eight hours of pre-service retraining before you may place children in the home.

§749.2823.Are background checks required on homes that are on inactive status?

Background checks are not required for homes that are on inactive status. However, the home must submit background check requests before you can take a foster home off inactive status and place children back in the home.

§749.2825.How do I take a foster home off inactive status?

When the home is ready to become active and accept children, you must:

(1) Make a supervisory contact in the home prior to placing a child in the home;

(2) Document that the home is complying with all applicable rules of this chapter; and

(3) Ensure that the home is in compliance with all background check requirements.

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 February 28, 2006.

TRD-200601125

For further information, please call: (512) 438-3437

Subchapter O. FOSTER HOMES: HEALTH AND SAFETY REQUIREMENTS, ENVIRONMENT, SPACE AND EQUIPMENT

1. HEALTH AND SAFETY

40 TAC §§749.2901, 749.2903, 749.2905, 749.2907, 749.2909, 749.2911, 749.2913, 749.2915, 749.2917

§749.2901.What health and safety regulations must each foster home meet in addition to Licensing rules?

All agency homes must comply with all applicable fire, health, and safety laws, ordinances, and regulations.

§749.2903.Who must conduct fire and health inspections at a foster home?

(a) You must explore all available resources, city, county, and local governments to determine whether there is any local authority to conduct health and fire inspections. You must document all contacts with the date, name of person contacted, and the person's response to the request to complete an inspection.

(b) If no local authority exists to complete a fire inspection for the home, you must request the state Fire Marshal's Office to do the inspection. If no local authority exists to complete a health inspection for the home, you must request a health inspection from the Department of State Health Services.

(c) If, after exploring and documenting all efforts to obtain a local or state fire inspection, you cannot obtain a fire inspection, you may use our Fire Prevention Checklist form.

(d) If, after exploring and documenting all efforts to obtain a local or state health inspection for the home, you may use our Environmental Health Checklist form.

§749.2905.How often must a health or fire inspection be conducted at a foster home?

(a) Unless otherwise stated in the report, a health or fire inspection report obtained from a local or state fire or health authority is current for:

(1) One year for a foster group home; and

(2) Two years for a foster family home.

(b) If the home uses a DFPS checklist, the checklist is current for one year.

(c) If the home was unable to obtain an inspection from state or local authorities, the home must contact the authorities annually as to whether they remain unable to conduct inspections. The home must document the date, name of the person contacted, and the person's response to your inquiry. You must keep this documentation on file in each foster home record to which the inquiry applies.

§749.2907.What disaster and emergency plans must each foster home have?

(a) Each foster home must have written plans and procedures for handling potential disasters and emergencies, such as fire, severe weather emergencies, and transportation emergencies.

(b) Foster parents and caregivers must know the procedures for meeting disasters and emergencies, including evacuation procedures, supervision of the children, and contacting emergency help.

§749.2909.How many smoke detectors must a foster home have?

(a) Each home must have a working smoke detector in the following areas:

(1) In hallways or open areas outside sleeping rooms; and

(2) On each level of a home with multiple levels.

(b) Depending on the size and layout of the home, additional smoke detectors may be required based on manufacturer's or fire marshal's instructions.

§749.2911.How must smoke detectors be installed and maintained at a foster home?

(a) Smoke detectors must be installed and maintained according to the manufacturer's instructions, or in compliance with the state or local fire marshal's instructions.

(b) Batteries must be changed annually or sooner as required to maintain operable smoke detector units.

§749.2913.How many fire extinguishers must a foster home have?

(a) A foster home must have a fire extinguisher:

(1) In each kitchen; and

(2) On each level of the home.

(b) The fire extinguisher(s) must be:

(1) Serviced after each use; and

(2) Checked for proper weight at least once a year.

§749.2915.Where must a foster home store dangerous tools and equipment?

A foster home must store dangerous tools and equipment, such as hatchets, saws, and axes, so they are inaccessible to children.

§749.2917.What are the requirements for animals that are present at a foster home?

(a) Caregivers must keep the home and premises free of stray animals. If the foster home chooses to have animals on the premises, it must ensure the animals do not create health problems or health risk for children, such as allergic reactions or the spread of disease through direct or indirect means.

(b) The foster home must not allow children to play with stray animals or other animals that could be dangerous.

(c) Any animals on the premises of a home must be kept free of disease. Animals must be vaccinated and treated as recommended by a licensed veterinarian. The caregivers must have documentation at the home showing that dogs, cats, and ferrets have been vaccinated as required by Texas Health and Safety Code, Chapter 826.

(d) All animals on the premises, including pets and livestock, must be treated according to a licensed veterinarian's recommendations to protect the health and safety of children.

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 February 28, 2006.

TRD-200601126

For further information, please call: (512) 438-3437

2. TOBACCO USE

40 TAC §749.2931

§749.2931.What policies must I enforce regarding tobacco products?

(a) A child may not use or possess tobacco products.

(b) Caregivers and other adults may only use tobacco products outside.

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 February 28, 2006.

TRD-200601127

For further information, please call: (512) 438-3437

3. WEAPONS, FIREARMS, EXPLOSIVE MATERIALS, AND PROJECTILES

40 TAC §§749.2961, 749.2963, 749.2965, 749.2967

§749.2961.Are weapons, firearms, explosive materials, and projectiles permitted in a foster home?

(a) Generally, weapons, firearms, explosive materials, and projectiles (such as darts or arrows), are permitted, however, there are some specific restrictions:

(1) Weapons, firearms, explosive materials, and projectiles are not permitted at a foster home providing treatment services;

(2) If you allow weapons, firearms, explosive materials, projectiles, or toys that explode or shoot, you must develop policies identifying specific precautions to ensure children do not have unsupervised access to them, including locked storage and separate locked storage for the weapons and ammunition;

(3) You must determine it is appropriate for a child receiving only child-care services to use the weapons, firearms, explosive materials, projectiles, or toys that explode or shoot; and

(4) No child may use a weapon, firearm, explosive material, projectile, or toy that explodes or shoots, unless the child is directly supervised by a caregiver.

(b) Your policies must require foster parents to notify you if there is a change in the type of or an addition to weapons, firearms, explosive materials, or projectiles.

§749.2963.What factors must I consider when determining whether weapons, firearms, explosive materials, or projectiles are stored adequately?

When determining if these items are stored adequately, you must consider the age, history, emotional maturity, and background of the children in the home.

§749.2965.How must I determine whether weapons, firearms, explosive materials, or projectiles are present in a foster home?

(a) When you complete a foster home screening, you must ask whether weapons, firearms, explosive materials, or projectiles are present in the home. If these items are present, you must review your policies and requirements with the prospective foster parents.

(b) The foster home record must include documentation on the:

(1) Items present in the home; and

(2) Specific precautions the caregivers must take to ensure that children do not have unsupervised access.

(c) The two-year evaluation of compliance with rules of this chapter must include a discussion of whether the home has weapons, firearms, explosive materials, or projectiles, and if so, how these items are stored.

§749.2967.May a caregiver transport a child in a vehicle where weapons, firearms, explosive materials, or projectiles are present?

A caregiver may not transport a child in a vehicle where a handgun is present. Otherwise, a caregiver may transport a child in a vehicle where firearms, explosive materials, or projectiles are present if:

(1) The child is only receiving child-care services;

(2) All firearms are not loaded; and

(3) Weapons, firearms, explosive materials, or projectiles are inaccessible to 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 February 28, 2006.

TRD-200601128

For further information, please call: (512) 438-3437

4. SPACE AND EQUIPMENT

40 TAC §§749.3021, 749.3023, 749.3025, 749.3027, 749.3029, 749.3031, 749.3033, 749.3035, 749.3037, 749.3039, 749.3041

§749.3021.How much space must bedrooms used by foster children have?

(a) A bedroom must have at least 40 square feet of space for each occupant and no more than four occupants per bedroom are permitted, even if the square footage of the room would accommodate more than four occupants. The four occupants restriction does not apply to children receiving treatment services for primary medical needs.

(b) Single occupant bedrooms must have at least 80 square feet of floor space.

(d) Floor space must be space that children can use for daily activities.

(e) If prior to January 1, 2007, we granted you a verification, then you are exempt from the maximum bedroom occupancy requirement until:

(1) You move to a new home;

(2) You structurally alter the current home by adding a new room; or

(3) Your verification is no longer valid.

§749.3023.Which rooms in the home may not be used as bedrooms?

(a) Only rooms that provide adequate opportunities for rest and privacy may be used as a bedroom.

(b) Foster children or any other household members may not use any of the following as a bedroom:

(1) A room commonly used for other purposes, including dining rooms, living rooms, hallways, or porches;

(2) A passageway to other rooms;

(3) A room that does not have doors for privacy; or

(4) A detached structure.

(1) A second fire escape route from the basement; and

(2) Natural lighting.

(d) A foster child may not use a basement as a bedroom if there is no natural lighting:

(1) Unless you verified the home prior to January 1, 2007; and

(2) Until the verification is no longer valid, or the home is structurally altered through the addition of a new room.

§749.3025.May a resident in care who turns 18 years old share a bedroom with a minor?

(a) Before an adult resident who has turned 18 years old while placed in his current foster home can share a bedroom with a minor resident, you must assess the behaviors, maturity level, and relationships of each resident to determine whether there are risks to either the minor or adult in care.

(b) You must document your assessment in each resident's record.

§749.3027.May a child in care share a bedroom with an adult caregiver?

(a) A child may share a bedroom with an adult caregiver if:

(1) In the best interest of the child;

(2) The child is under three years old and sleeps in the bedroom of the caregiver; and

(3) Approval is documented and dated in the child's service plan by the service planning team.

(b) An exception for a child to share a bedroom with an adult caregiver may be made during specific travel and camping situations if no other more reasonable provision is available to the child and other requirements are met.

(c) To facilitate continuous supervision of a child, the caregiver may move a child to a location where the caregiver can directly and continuously supervise a child until there is no longer an immediate danger to himself or others. However, the caregiver must provide comfortable sleeping arrangements for the child.

§749.3029.Can children of opposite sex share a bedroom?

Children six years old or older must not share a bedroom with a person of the opposite sex.

§749.3031.What are the requirements for beds and bedding?

(a) Each child shall have his own bed and mattress.

(b) Beds must be clean and comfortable.

(d) Linens must be changed when soiled, and not less often than once a week.

§749.3033.What type of personal storage space must a foster child have?

Each child must have accessible storage space for his clothing and personal possessions.

§749.3035.What bathroom accommodations must a home have?

(a) A foster home must have one lavatory, one tub or shower, and one toilet for every eight household members. A foster home verified before January 1, 2007, is exempt from this requirement until it is no longer verified by the agency under which it is currently verified, or it makes structural changes to the home by adding additional bathrooms.

(b) All lavatories, tubs, and showers must have hot and cold running water.

(c) For foster homes that care for primary medical needs children, the caregiver and the child's bathroom must be located on the same floor. A foster home verified before January 1, 2007, is exempt from this requirement until it is no longer verified by the agency.

(d) Bathrooms must be thoroughly cleaned daily.

(e) Bathrooms must allow for privacy.

§749.3037.What are the requirements for indoor space that children can use?

(a) Children must have indoor areas for their use. There must be at least 40 square feet for each child. This does not include bedrooms, kitchens, bathrooms, utility rooms, unfinished attics, or hallways.

(b) A foster home must identify indoor areas that children can use.

§749.3039.What are the requirements for outdoor recreation space and equipment?

(a) Outdoor activity areas must be arranged so that caregivers can supervise activities.

(b) Equipment must not have openings, angles, or protrusions that can entangle a child's clothing or entrap a child's body or body parts.

(c) Equipment must be securely anchored according to manufacturer's specifications to prevent collapsing, tipping, sliding, moving, or overturning.

(d) Equipment must not be installed over asphalt or concrete.

(e) Equipment must be appropriate, cleaned, maintained, and repaired.

(f) Trampolines may not be used as play or recreational equipment.

§749.3041.What are the requirements for a foster home's physical environment?

The foster home must ensure that:

(1) Outdoor areas are well drained;

(2) Windows and doors used for ventilation are screened;

(3) Equipment and furniture are safe for children, kept clean, and in good repair;

(4) Flammable or poisonous substances are stored out of the reach of children;

(5) House and grounds are free of rodents, insects, and stray animals; and

(6) Exits in living areas are not blocked by furniture.

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 February 28, 2006.

TRD-200601129

For further information, please call: (512) 438-3437

5. NUTRITION AND FOOD PREPARATION

40 TAC §§749.3061, 749.3063, 749.3065, 749.3067, 749.3069, 749.3071, 749.3073, 749.3075, 749.3077, 749.3079, 749.3081

§749.3061.What are the requirements for feeding children in care?

(a) Caregivers must give children food of adequate quality and in sufficient quantity to supply the nutrients necessary for proper growth and development.

(b) Caregivers must feed an infant whenever the infant is hungry.

(d) No more than 14 hours may pass between the last meal or snack of the day and the serving of the first meal of the following day.

§749.3063.What types of food and water must caregivers provide children?

(a) Caregivers must provide a child with food that is:

(1) Of adequate variety, quality, and in sufficient quantity to supply the nutrients needed for proper growth and development according to the United States Department of Agriculture guidelines; and

(2) Appropriate for the child's age and activity level.

(b) Caregivers must not serve nutrient concentrates and supplements such as protein powders, liquid protein, vitamins, minerals, and other nonfood substances to a child without written instructions from a licensed health-care professional.

(c) Caregivers must ensure drinking water is always available to each child and is served in a safe and sanitary manner. Children must be well hydrated and must be encouraged to drink water during physical activity and in warm weather.

§749.3065.What must the caregiver do if a child refuses to or cannot eat a meal or snack that is offered?

(a) The caregiver must offer a child a meal or snack according to this division, but the caregiver may not force the child to eat. The caregiver does not have to offer other food to a child who:

(1) Refuses a meal or snack; or

(2) Chooses not to be present when a meal or snack is scheduled.

(b) The caregiver must discuss recurring eating problems with child placement staff and the child's parent.

(c) If a meal or snack is not appropriate to meet a child's individual needs, for example food allergies or religious reasons, then you must offer the child an appropriate nutritional substitute.

§749.3067.May a caregiver use food as a reward or punishment or as part of any behavior management program?

A caregiver may not use food that meets a child's nutritional requirements as a reward or punishment or as part of a behavior management program. Food cannot be withheld.

§749.3069.May caregivers offer a child in care different food choices than what the family is eating?

No, the caregiver must offer the child in care the same food choices that the family is eating.

§749.3071.What must I do if a child requires a therapeutic or special diet?

(a) For a caregiver to serve a therapeutic or special diet to a child, you must have written approval in the child's record from a licensed physician or a registered or licensed dietician. This approval must be in the child's record.

(b) If a child requires a therapeutic or special diet, you must give information regarding the diet to the child's caregivers.

(c) Caregivers must make dietary alternatives available to a child who has special health needs as instructed by a licensed health-care professional.

§749.3073.What are the nutrition requirements for a child with primary medical needs?

(a) Caregivers must feed a child with primary medical needs according to his medical and developmental needs.

(b) A licensed physician must prescribe tube feeding. A dietician must plan the diet that the physician prescribes.

§749.3075.What food service practices must caregivers use for children with primary medical needs?

(a) Food service practices for children with primary medical needs, including non-mobile children, must encourage self-help and development.

(b) Children must eat or be fed in the dining area, unless the service planning team's recommendations are to the contrary.

§749.3077.What are the requirements for tube-feeding formula?

(a) A registered licensed dietician or a registered nurse must ensure and document that the caregiver responsible for formula preparation is adequately trained to prepare the formula.

(b) Tube-feeding formulas must supply the recommended dietary allowance for each child.

(1) Prepare the formula no more than 24-hours before feeding; and

(2) Store it in bacteriologically safe, sanitized, and covered containers unless the tube-feeding formula is prepared immediately before administration.

(d) Tube-feeding formula must be maintained at less than 40 degrees Fahrenheit or as instructed in manufacturer directions.

§749.3079.What are the requirements for storing food?

All food items must be:

(1) Covered and stored off the floor;

(2) Stored on clean surfaces;

(3) Be protected from contamination;

(4) Stored in a container that is protected from insects and rodents;

(5) Refrigerated immediately after use and after meals, if the food requires refrigeration; and

(6) Covered when stored in the refrigerator.

§749.3081.How must kitchen, dining areas, supplies, and equipment be maintained?

(a) Caregivers must keep furniture, equipment, food contact surfaces, and other areas where food is prepared, eaten, or stored clean and well repaired.

(b) Utensils and containers intended for one-time use, such as paper and plastic dishes, must not be used more than once.

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 February 28, 2006.

TRD-200601130

For further information, please call: (512) 438-3437

6. TRANSPORTATION

40 TAC §§749.3101, 749.3103, 749.3105, 749.3107, 749.3109, 749.3111

§749.3101.What are the requirements for the vehicles used to transport foster children?

Vehicles used to transport foster children must be:

(1) Maintained in safe operating conditions at all times; and

(2) Inspected and registered according to federal, state, and local laws.

§749.3103.What are the requirements for transporting foster children?

The driver and all passengers must follow all federal, state, and local laws when driving, including laws on the use of child passenger safety systems, seat belts, and liability insurance.

§749.3105.May children transport other foster children?

Other children in the foster home may transport a foster child if the:

(1) Child driving has a valid drivers license; and

(2) Service planning teams for the foster children being transported and the foster child transporting, if applicable, approve of the transportation arrangements.

§749.3107.May caregivers teach or supervise foster children in learning to drive?

(a) With your approval, caregivers may teach or supervise foster children in learning to drive. You must document your approval in the child's record.

(b) Only the caregiver responsible for instruction and the child learning to drive may be present in the vehicle.

§749.3109.What are the special requirements for transporting a child who requires increased supervision or is non-ambulatory or non-mobile?

(a) A sufficient number of caregivers to meet the child's needs must accompany the child.

(b) Special provision(s) must be made for transporting non-ambulatory and non-mobile children. When necessary, this must include locks for wheelchairs and hydraulic lifts.

§749.3111.Do the seat belt requirements prohibit transporting children in the bed of a pick-up truck or other parts of the vehicle on the foster parents' property or public roads?

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 February 28, 2006.

TRD-200601131

For further information, please call: (512) 438-3437

7. SWIMMING POOLS, BODIES OF WATER, SAFETY

40 TAC §§749.3131, 749.3133, 749.3135, 749.3137, 749.3139, 749.3141, 749.3143, 749.3145, 749.3147, 749.3149

§749.3131.Who is responsible for complying with the requirements in this subchapter?

These requirements only apply to homes that are providing foster care services. This includes foster homes also approved as adoptive homes, but does not include adoptive homes only approved for adoption.

§749.3133.What are the requirements for a pool at a foster home?

(a) The caregivers must inform children about house rules for use of the pool and appropriate safety precautions. Adult supervision and monitoring of safety features must be adequate to protect children from unsupervised access to the pool.

(b) The swimming pool must be built and maintained according to the standards of the Department of State Health Services and any other applicable state or local regulations.

(c) A fence that is at least four feet high must enclose the pool area. The fence must be well constructed and be installed completely around the pool area. A foster home that you verified before January 1, 2007, has one year from that date to comply with this requirement. Caregivers must continue to prevent children's unsupervised access to the pool.

(d) Fence gates leading to the outdoor pool area must be self-closing and self-latching. Gates must be locked when the pool is not in use. Keys to open the gate must not be accessible to children under the age of 16 years old or children receiving treatment services.

(e) Doors that lead from the home to the pool area must have a lock that only adults or children over 10 years old can reach. The lock must be completely out of the reach of children younger than 10 years old.

(f) Furniture, equipment, or large materials must not be close enough to the pool area for a child to use them to scale the fence or release a lock.

(g) At least two life-saving devices must be available, such as a reach pole, backboard, buoy, or a safety throw bag with a brightly colored buoyant rope or throw line. One additional life-saving device must be available for each 2,000 square feet of water surface, so a pool of 2,000 square feet would require three life saving devices.

(h) Drain grates must be in place, in good repair, and capable of being removed only with tools.

(i) Caregivers must be able to clearly see all parts of the swimming area when supervising activity in the area.

(j) The bottom of the pool must be visible at all times.

(k) Pool covers must be completely removed prior to pool use.

(l) An adult must be present who is able to immediately turn off the pump and filtering system when any child is in the pool.

(m) Pool chemicals and pumps must be inaccessible to all children.

(n) Machinery rooms must be locked to keep children out.

(o) An aboveground pool must:

(1) Have a barrier that prevents a child's access to the pool;

(2) Be inaccessible to children when it is not in use; and

(3) Meet all other pool safety requirements specified in this subchapter.

§749.3135.What general requirements must caregivers meet for children regarding a body of water?

(a) Caregivers must use prudent judgment and ensure children in your care are protected from unsupervised access to water such as a swimming pool, hot tub, fountain, pond, lake, creek, or other body of water.

(b) If children are allowed to swim in a body of water such as a river, creek, pond, or lake, the supervising adult must clearly designate swimming areas.

(c) Rules governing the activity must be explained to participants in a manner that is clearly understood prior to their participation.

§749.3137.What are the child/adult ratios for swimming activities?

(a) The maximum number of children one adult can supervise during swimming activities is based on the age of the youngest child in the group and is specified in the following chart:

Figure: 40 TAC §749.3137(a)

(1) Is at low risk of seizures and that special precautions are not needed; or

(2) Only needs to wear an approved life jacket while swimming and additional special precautions are not needed.

§749.3139.May I include volunteers or relatives who do not meet minimum qualifications for caregivers in the swimming child/adult ratio?

To meet the swimming child/adult ratio, you may include adult volunteers and adult relatives who do not meet the minimum qualifications for caregivers, providing:

(1) You maintain enough caregivers to meet the child/caregiver ratio required in Subchapter M, Division 5 of this chapter (relating to Capacity and Child/Caregiver Ratio);

(2) Children in your care do not supervise water activities; and

(3) You ensure compliance with all other rules of this chapter, including, but not limited to, rules relating to supervision and discipline.

§749.3141.When must a child wear a life jacket?

A child must wear a life jacket when:

(1) Participating in boating activities;

(2) The child is in more than two feet of water and does not know how to swim; or

(3) Ordered by a physician for a child with a medical problem or disability.

§749.3143.Must persons who are counted in the swimming child/adult ratio know how to swim and carry out a water rescue?

At all times during a swimming activity, at least one adult counted in the swimming child/adult ratio must be able to swim, carry out a water rescue, and be prepared to do so in an emergency.

§749.3145.What are the safety requirements for wading pools?

Wading/splashing pools (less than two feet of water) must be:

(1) Stored out of children's reach, when not in use;

(2) Drained at least daily and sanitized; and

(3) Stored, so it does not hold water.

§749.3147.What are the requirements for a hot tub?

A hot tub must be covered with a locking cover when not in use.

§749.3149.What must I document regarding a body of water that is on or adjacent and accessible to the premises of a foster home?

You must document the following regarding a body of water that is on or adjacent and accessible to the premises of a foster home:

(1) Type, location, and size of the body of water; and

(2) Barriers between the foster home and the body of water.

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 February 28, 2006.

TRD-200601132

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

Subchapter P. FOSTER-ADOPTIVE HOMES AND LEGAL RISK PLACEMENTS

1. VERIFICATION OF FOSTER-ADOPTIVE HOMES

40 TAC §749.3201, §749.3203

§749.3201.May I verify the same applicant as a foster family home and an adoptive placement at the same time?

Yes. You may approve applicants as a foster-adoptive home.

§749.3203.What rules must I follow to verify a foster-adoptive home?

(a) You must follow all rules for verifying a foster family home and for approving an adoptive home.

(b) You may combine the foster home screening and pre-adoptive home screening into one screening report as long as requirements for each screening are covered.

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 February 28, 2006.

TRD-200601133

For further information, please call: (512) 438-3437

2. LEGAL RISK PLACEMENTS

40 TAC §749.3221

§749.3221.What is a "legal risk placement"?

(a) A "legal risk placement" exists when you:

(1) Have a child that is not available for adoption because his parent(s)' rights have not been terminated;

(2) Have placed a child into a home that has been jointly verified as a foster home and approved as an adoptive home; and

(3) Intend for the placement to change from foster care to adoption once the child is eligible for adoption.

(b) A "legal risk placement" does not exist when you merely place a child with foster parents who want to adopt the child but have not been approved as an adoptive home.

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 February 28, 2006.

TRD-200601134

For further information, please call: (512) 438-3437

Subchapter Q. ADOPTION SERVICES: CHILDREN

1. CONSENT

40 TAC §749.3301

§749.3301.What legal authority must I have to place a child in adoptive care?

To place a child in adoptive care, you must have an agreement signed by the person legally authorized to consent to the child's placement.

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 February 28, 2006.

TRD-200601135

For further information, please call: (512) 438-3437

2. ADOPTION SERVICE PLAN

40 TAC §§749.3321, 749.3323, 749.3325, 749.3327

§749.3321.When must I initiate and complete the adoption service plan?

(a) You must initiate the plan when you accept a child or enter into a written agreement with the birth parent for adoption placement services.

(b) You must complete the service plan within 40 days of initiation.

§749.3323.What must an adoption service plan include?

(a) The service plan must address:

(1) The needs of the birth parents (unless parental rights have been relinquished or involuntarily terminated), the fetus or child, and the adoptive family; and

(2) Any other issue that impacts the adoption.

(b) The adoptive family becomes part of the service plan when matched with a child, or with a birth parent and fetus. You do not have to develop separate service plans for adoptive families that do not have a completed home study.

(c) The plan must include an estimate of the time required to consummate the adoption. You must inform the birth parents and adoptive parents of the services you provide.

§749.3325.When placing a sibling group, must I develop a plan for each child?

If you place siblings in the same adoptive home, you do not have to develop a plan for each child. If you place siblings in separate adoptive homes, you have to develop separate plans for each home.

§749.3327.If a child had a foster care service plan prior to preparation for adoption, must I complete a new adoption service plan?

No. The adoption service plan may be a continuation of the foster care service plan.

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 February 28, 2006.

TRD-200601136

For further information, please call: (512) 438-3437

3. PREPARATION FOR ADOPTION

40 TAC §§749.3341, 749.3343, 749.3345, 749.3347, 749.3349, 749.3351, 749.3353

§749.3341.How often must I have contact with a child being considered for adoptive placement?

(a) You must have contact at least quarterly with the child being considered for adoption. The contact must be meaningful and must include:

(1) Continued preparation for adoption; and

(2) Updated information concerning the adoption.

(b) You must make a minimum of three face-to-face contacts with a child who is 18 months old or older to prepare the child for adoption.

(d) You must document each contact in the child's record.

§749.3343.What does preparing a child for adoption include?

(a) You must base your preparation on the child's needs and level of understanding.

(b) Preparation must include helping the child to:

(1) Know and understand his history;

(2) Understand the difference between biological, foster, and adoptive parents;

(3) Express hopes and fears about adoption, including fears of disruption;

(4) Separate from people he is close to, and grieve their loss;

(5) Form new attachments; and

(6) Work on his "life book" in order to address issues of separation and attachment.

§749.3345.Who must prepare a child for adoption?

(a) A person meeting the qualifications of child placement staff or child placement management staff must prepare a child for adoption.

(b) Before you can place the child in the adoptive home, child placement management staff must review and approve the preparation and related documentation.

§749.3347.What assessment information must I obtain on a child being placed for adoption?

(a) You must obtain professional assessments of the child's physical, mental, and emotional status and the child's developmental level.

(b) These assessments must be current within:

(1) 30 days of placement if the child is age zero to 18 months;

(2) Three months of placement if the child is age 18 months to five years; and

(3) Six months of placement if the child is age five years old or older.

(d) You must document the assessments and results in the adoption record.

§749.3349.What must the professional assessment of a child include?

(a) The extent of the professional assessment required depends on the age, history, and special needs of the child being considered.

(b) The professional assessment must always include a medical examination by a licensed physician.

(c) If the child's age is zero to 18 months old, the professional assessment must also include an evaluation by a professional credentialed in the area appropriate to the child's needs if:

(1) There is history of abuse, neglect, or failure to thrive; or

(2) The child is physically or mentally disabled or developmentally delayed.

(d) If the child's age is over 18 months old, the assessment must include an evaluation by a licensed psychiatrist, psychologist, or other appropriately licensed or credentialed professional.

(e) If professional assessments have been completed since the child was placed in the home, you are not required to repeat them.

§749.3351.What information from the professional assessments must I share with the adoptive family?

You must share the following with the adoptive family:

(1) All information from the licensed physician and from the licensed psychiatrist, psychologist, or other licensed or credentialed professional about the potential impact on the child of existing conditions; and

(2) All information about any further testing or assessments that these professionals recommend. Any such tests must be scheduled by the date of placement.

§749.3353.What other referrals must I make regarding a child who has or may have a disability?

You must make a referral to the Social Security Administration to determine the child's eligibility for Social Security Income (SSI).

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 February 28, 2006.

TRD-200601137

For further information, please call: (512) 438-3437

4. PLACEMENT REQUIREMENTS

40 TAC §749.3371, §749.3373

§749.3371.What are the requirements for a child to visit the adoptive family prior to placement?

(a) Except in the case of children 12 months old and younger, a child must have at least one pre-placement visit with the adoptive family prior to placement. You must base the length, location, and number of visits on the age, development, and needs of the child.

(b) You must schedule these visits over a period of time that ensures that both the child and the adoptive family have adequate time to prepare for the placement. The period of time should be based on the age and developmental needs of the child.

(c) The planning for the pre-placement visits must include the child, if applicable, the foster parents, and the adoptive parents.

(d) You must document the plan for pre-placement visits. Your child placement management staff must approve the plan before visits are initiated.

§749.3373.What must my agreement with the adoptive parents include?

(a) Before placing the child into the home, you must have a written agreement with the adoptive parents.

(b) You must give a signed copy of this agreement to the adoptive parents and place a copy in the case record.

(1) The parties' agreement to complete the adoption at a specified time;

(2) The adoptive parents agreement for you to supervise them prior to the completion of the adoption;

(3) That the adoptive parents must notify you before moving their residence prior to the completion of the adoption;

(4) That you and the adoptive parents each have the discretion to end the placement prior to the adoption; and

(5) The fee and schedule of payment.

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 February 28, 2006.

TRD-200601138

For further information, please call: (512) 438-3437

5. REQUIRED INFORMATION

40 TAC §§749.3391, 749.3393, 749.3395

§749.3391.What information must I compile for a child I am considering for adoptive placement?

As part of the Health, Social, Educational, and Genetic History report, you must compile the following information for a child you are considering for adoption placement:

Figure: 40 TAC §749.3391

§749.3393.What written authorization must I give adoptive parents at the time of placement?

(a) You must provide:

(1) Written authorization to care for the child;

(2) Written information about the legal status, including if the parental rights to the child have not been terminated; and

(3) Written consent for the medical care of the child at the time of the child's placement in the home, if available.

(b) You must file a copy of the signed authorizations and consent forms in the child's record and in the adoptive home record.

§749.3395.What information must I provide the adoptive parents prior to or at the time of adoptive placement?

(a) According to the Texas Family Code §162.006, you must inform the prospective adoptive parents of their right to examine the records and other information relating to the history of the child.

(b) The information provided to the prospective adoptive parents must be edited to protect the identity of the biological parents and any other person whose identity is confidential.

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 February 28, 2006.

TRD-200601139

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

6. POST-PLACEMENT SUPERVISION

40 TAC §§749.3421, 749.3423, 749.3425, 749.3427, 749.3429, 749.3431

§749.3421.What are my responsibilities for the child during the post-placement period?

During the post-placement period, you must:

(1) Ensure the adoptive placement continues to meet the child's needs;

(2) Maintain responsibility for the child until the court signs the adoption decree; and

(3) Make every effort to see that the adoption is consummated as stipulated within the written agreement, or renegotiate another time frame for when the adoption will be consummated.

§749.3423.What responsibility do I have to offer counseling services to the adoptive family?

To reduce the risk of adoptive placement breakdown, you must offer counseling services to the adoptive family. You must ensure that the adoptive family is aware that counseling is available. Counseling services may be provided by your agency or by an outside counseling resource.

§749.3425.What are the requirements for post-placement contacts with the adoptive family and child?

(a) You must have at least quarterly face-to-face contacts in the adoptive home, with both parents present, if applicable, as follows:

Figure: 40 TAC §749.3425(a)

(b) Contacts not in the home may be in your office or another location that allows you enough privacy to counsel with the adoptive family and evaluate the placement.

§749.3427.What must I do if the adoption is not completed within the time frame stipulated in the written agreement?

(a) The following individuals must assess why the adoption was not completed within the time frame stipulated in the written agreement:

(1) Staff who supervise the adoption placement;

(2) Any other professional staff involved with the family; and

(3) The adoptive family.

(b) You must establish a plan for finalizing the adoption and for supervising the placement. The plan must be based upon the assessment. The plan for supervising the placement must require at least quarterly face-to-face contacts in the adoptive home with both parents present.

(d) Child placement management staff must:

(1) Review the documentation and plan; and

(2) Determine whether the assessment and plan will meet the needs of the child for safety, care, and permanency.

(e) The adoptive placement must be re-evaluated if consummation of the adoption has not been completed within one year.

§749.3429.What must I do if there are changes in the adoptive family during the post-placement period?

You must document any changes in the adoptive family that may affect the child. This includes changes in health, financial condition, or family or household composition.

§749.3431.What must I do if I determine that the placement cannot be completed and/or is not in the best interest of the child and/or the adoptive family?

(a) You must remove the child from the adoptive family if the placement and adoption is not in the best interest of the child and/or the adoptive family.

(b) The decision to remove the child must be reviewed and approved by child placement management staff prior to the removal.

(1) The circumstances necessitating the removal from the adoptive family; and

(2) An update of the child's service plan.

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 February 28, 2006.

TRD-200601140

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

7. POST-ADOPTION SERVICES

40 TAC §§749.3461, 749.3463, 749.3465

§749.3461.Must I continue offering counseling to an adoptive child after the adoption is consummated?

Yes, you must continue to offer counseling services after the adoption is consummated. You may provide these services through your agency or an outside counseling resource.

§749.3463.If information concerning birth parents comes to my attention, what are my responsibilities?

(a) You must make diligent efforts to inform adoptive parents and/or adult adoptee, in writing, about developing genetic conditions, terminal illnesses, or death of a birth parent that comes to your attention. You must document the information provided, the date and method of providing the information, and the names of the persons receiving the information.

(b) When an adoptive placement is made, you must tell older adopted children and adoptive parents that you will communicate the information in subsection (a) of this section to them provided that they keep you informed of their whereabouts. You must document when you gave this information to the child and to adoptive parents.

(1) Write the adoptive parents and/or adult adoptee at the last known address;

(2) If the letter is returned to you as undeliverable, check the telephone directory or Internet search for the city where the adoptive parents and/or adult adoptee were last known to be living;

(3) If this action does not locate the adoptive parents and/or adult adoptee, check the record for contact information on family members or others who may have knowledge of the adoptive parents and/or adult adoptee's whereabouts and attempt to contact these persons and obtain forwarding information; and

(4) Document your attempts to locate the adoptive parents and/or adult adoptee.

§749.3465.What must I do when an adoptee requests his adoption record?

(a) According to Texas Family Code §162.006, you must provide to the adult adoptee a copy of the adoption report that has been edited to protect the identity of the biological parents and any other person whose identity is confidential.

(b) If the adoptee is younger than 18 years of age, the request for the information must come from or must include the written consent of the adoptee's adoptive parents or managing conservator.

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 February 28, 2006.

TRD-200601141

For further information, please call: (512) 438-3437

Subchapter R. ADOPTION SERVICES: BIRTH PARENTS

1. BIRTH PARENT PREPARATION

40 TAC §749.3501, §749.3503

§749.3501.What information must I provide to birth parents who contact me for services?

(a) Prior to establishing a formal relationship with birth parents, you must provide the following information to them in writing:

(1) Alternatives and options to adoption that your policies do not oppose;

(2) The services you provide, including counseling and post-adoption services;

(3) Adoption registries;

(4) Legal rights and responsibilities of both birth parents in regard to:

(A) Relinquishment of parental rights;

(B) Waivers of Interest;

(D) Termination of parental rights;

(E) Designating the father of a child as "unknown" based on legal requirements; and

(F) Paternity registry requirements; and

(5) Any assistance available through the agency to meet housing, medical, and prenatal care and other needs;

(b) You must provide and discuss this information to birth parents in a language that they understand; and

(1) Date the information was shared; and

(2) Agency staff that shared the information.

§749.3503.What are the requirements for contacting birth parents that become my clients?

(a) Child placement staff must have at least:

(1) Two face-to-face contacts with birth parents prior to the relinquishment of parental rights over a period of two or more days. At least one interview must be held after the birth of the child;

(2) Except in cases of relinquishment or involuntary termination of parental rights, quarterly contact with birth parents prior to placement of the child.

(b) Contacts must assist birth parents to:

(1) Understand their feelings regarding relinquishing the child for adoption;

(2) Understand the long-range implications of relinquishing the child for adoption;

(3) Freely make a choice regarding relinquishing the child to the agency for adoption;

(4) Insure that birth parents are not pressured to make a decision to place their child for adoption;

(5) Obtain information from birth parents about their expectations for adoptive placement, if placement is chosen, and the degree and type of involvement, if any, they desire with adoptive family; and

(6) Obtain the required Health, Social, Educational, and Genetic History Report (HSEGH).

(1) Preparation for childbirth, when applicable;

(2) Relinquishment or waiver of parental rights;

(3) Termination of parental rights; and

(4) Counseling in regard to separation, loss, and grief issues.

(d) Staff providing the service must document all contacts with birth parents.

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 February 28, 2006.

TRD-200601142

For further information, please call: (512) 438-3437

2. TERMINATION OF PARENTAL RIGHTS

40 TAC §749.3521, §749.3523

§749.3521.What requirements must I follow regarding termination of parental rights?

You must comply with all state and federal laws regarding termination of parental rights, including Chapter 161 of the Texas Family Code (relating to Termination of the Parent-child Relationship).

§749.3523.What specific information must I obtain from birth parents that voluntarily relinquish their parental rights?

A parent who signs an affidavit of voluntary relinquishment of parental rights regarding a biological child must also prepare a medical history report form that we issue. If the child is:

(1) In the managing conservatorship of Child Protective Services, DFPS must maintain the form and make it available to persons with whom the child is placed; and

(2) Placed for private adoption through a licensed child-placing agency, that agency must maintain the form.

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 February 28, 2006.

TRD-200601143

For further information, please call: (512) 438-3437

3. POST ADOPTION SERVICES

40 TAC §749.3571, §749.3573

§749.3571.Must I offer counseling services to birth parents after the adoption of their child is consummated?

(a) Yes. You must offer counseling services to birth parents after the consummation of the adoption.

(b) You must ensure that birth parents are notified in writing that counseling services are available through the agency on an ongoing basis.

§749.3573.What are the requirements to provide information about the child to birth parents after the adoption is consummated?

(a) You must make diligent efforts to inform birth parents, in writing, about developing genetic conditions, terminal illness, or death of the biological child that comes to your attention.

(b) At the time the adoption placement is made, you must tell birth parents that you will communicate the information in subsection (a) of this section to them provided that they keep you informed of their whereabouts.

(1) Write the birth parents at the last known address;

(2) If the letter is returned to the agency as undeliverable, check the telephone directory or Internet search for the city where the family was last known to be living;

(3) If this action does not locate the birth parents, check the record for contact information of family members or others who may have knowledge of the family's whereabouts and attempt to contact these persons and obtain forwarding information; and

(4) Document your attempts to locate the birth parents, the information provided, the date and method of providing the information, and the names of the persons receiving the information.

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 February 28, 2006.

TRD-200601144

For further information, please call: (512) 438-3437

Subchapter S. ADOPTION SERVICES: ADOPTIVE PARENTS

1. ADOPTIVE APPLICANT PREPARATION

40 TAC §749.3601

§749.3601.What information must I provide to persons inquiring about agency adoption services?

Prior to establishing any formal relationship with prospective adoptive applicants, you must provide written information regarding:

(1) The services you provide, including counseling and post-adoptive services;

(2) Fee policies and payment procedures;

(3) Agency requirements and procedures;

(4) Legal requirements for adoption, including their right to have independent legal counsel for legal consummation. You may require that the legal counsel selected by the applicants be experienced in adoptions. If the attorney selected by the applicants is not experienced in adoptions, you may require the adoptive applicants to have an additional, experienced attorney handle the adoption requirements while allowing oversight by the applicants' choice of attorney; and

(5) Adoption registries.

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 February 28, 2006.

TRD-200601145

For further information, please call: (512) 438-3437

2. PRE-ADOPTIVE HOME SCREENING

40 TAC §§749.3621, 749.3623, 749.3625, 749.3627, 749.3629, 749.3631, 749.3633

§749.3621.What is a pre-adoptive home screening?

A pre-adoptive home screening contains documentation of the following:

(1) Interviews with adoption applicants, their families, and collateral contacts as necessary;

(2) Information obtained through review of documents, reports, and inspections;

(3) Assessment of the information obtained to determine whether applicants meet the requirements for approval as adoptive families;

(4) Evaluation of the information obtained in order to make recommendations about the family's capacity for adoption, including the age, number, sex, and special needs of the children the family has the capacity to parent;

(5) Assessment of basic care and safety issues, including safety of the environment of the adoptive home; and

(6) Review and approval by child placement management staff.

§749.3623.What information must I obtain for the adoptive home screening?

You must obtain, document, and assess the following information about a prospective adoptive home:

Figure: 40 TAC §749.3623

§749.3625.Whom must I interview when conducting an adoptive home screening?

Interviews for an adoptive home screening must include:

(1) At least one individual interview with each prospective adoptive parent;

(2) At least one individual interview with each child three years or older living in the home either full or part time;

(3) At least one individual interview with any other person living full or part time with the family;

(4) At least one joint interview with the adoptive applicants;

(5) At least one family group interview with family members living in the home; and

(6) At least one interview, by telephone, in person or by letter, with any minor child 12 years old or older or adult child of the adoptive applicants not living in the home. If you cannot reach an adult child to interview, you must document your diligent efforts.

§749.3627.What must I document regarding interviews that I conduct for an adoptive home screening?

You must document all interviews and attempts to complete interviews. The documentation must be a part of the adoptive home record and include:

(1) The dates and methods used to contact the required persons;

(2) The dates of the interviews;

(3) Who was present at the interviews and their relationship to the adoptive applicants; and

(4) A summary of the interviews.

§749.3629.What are the requirements for visiting the home during an adoptive home screening?

(a) If the home is not providing foster care to the child prior to the consummation of the adoption, you must visit the home when all members of the household are present.

(b) You must document in the record the date, persons present, their relationship to the prospective adoptive family, and observations made during the visit.

§749.3631.What are the requirements if adoptive applicants previously adopted a child from another child-placing agency or were previously foster parents for another agency?

(a) You must request information related to the parents' experience and performance as foster and/or adoptive parents from the previous agency and any background information regarding the foster home as described in §749.2447(22) of this title (relating to What information must I obtain for the foster home screening?).

(b) If provided you must evaluate the information as part of your screening and placement decisions regarding the home. You must use the information to evaluate the family's ability to work with specific kinds of behaviors and backgrounds.

§749.3633.What must I do if I do not place a child with the adoptive applicants within six months after I complete the pre-adoptive home screening?

(a) If you do not place a child with the adoptive applicants within six months after you complete the adoptive screening, you must update the screening within the 30-day period before a child is placed in the home.

(b) For adoptive homes that are not providing foster care, the written update must include:

(1) A review and any required updating of each category of information required for an adoptive home screening; and

(2) Documentation of at least one visit to the adoptive home when all household members are present within the 30-day period before a child is placed in the home.

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 February 28, 2006.

TRD-200601146

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

3. BASIC CARE AND SAFETY REQUIREMENTS

40 TAC §749.3661, §749.3663

§749.3661.What information must adoptive applicants submit on their home and grounds as a part of their application?

(a) Adoptive applicants must submit a sketch of the floor plan of the home showing dimensions and purposes of all rooms in the home.

(b) Adoptive applicants must submit a sketch or photo of the outside areas showing areas of the grounds to be used by the child.

(d) You must review the sketches and/or photos to determine:

(1) Whether there is sufficient space to accommodate the members of the household and the adoptive child(ren); and

(2) Any potential safety or health issues.

§749.3663.What are the basic safety requirements for the home and grounds?

(a) The home must be clean, safe, and free of obvious fire and other hazards. The home must be equipped with smoke detectors.

(b) Pets must be vaccinated and treated as recommended by a licensed veterinarian.

(c) If the adoptive home has a swimming pool, wading pool, hot tub, or other bodies of water on the premises, you must discuss safety issues and plans to ensure the safety of the child with the adoptive applicants.

(d) You must discuss and assess basic care and safety issues depending on the age and specific needs of the child or children being considered for placement in the home. When you select a child for placement in the home, you must discuss issues specific to the child including supervision, special health or behavior risks, and general child care needs according to the experience and training needs of the adoptive parents.

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 February 28, 2006.

TRD-200601147

For further information, please call: (512) 438-3437

4. PRE-PLACEMENT REQUIREMENTS

40 TAC §749.3691, §749.3693

§749.3691.What contacts must I maintain with adoptive applicants prior to the placement of a child?

(a) After you accept a family as a potential adoptive placement, you must maintain at least quarterly contact with them.

(b) You must discuss any changes in the information that you obtain during the adoption screening.

(c) In addition to the quarterly contacts, you must provide education and training in regard to the following as deemed appropriate by the child placing staff:

(1) Bonding with adoptive children;

(2) Parenting issues and concerns; and

(3) Children with special needs, if appropriate.

(d) You must document each contact and training that was provided in the family's record, indicating the date, type of contact, and content.

§749.3693.May I contract with another agency for the quarterly contacts?

You may contract with another agency for the quarterly contacts as long as:

(1) The agency reports the required information to you; and

(2) You maintain the report in the adoptive applicants' record.

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 February 28, 2006.

TRD-200601148

For further information, please call: (512) 438-3437

5. PRE-ADOPTION CONSUMMATION ACTIVITIES

40 TAC §§749.3721, 749.3723, 749.3725, 749.3727, 749.3729

§749.3721.What are my agency's responsibilities during the pre-adoption supervisory period?

Your agency must:

(1) Ensure the child's needs are met in the adoptive placement;

(2) Maintain responsibility for the child until the court has entered the adoption decree; and

(3) Offer counseling services to the adoptive family. These services may be provided through referrals outside the agency.

§749.3723.What must be included in pre-adoptive placement supervision for homes that are not providing foster care services?

(a) You must have at least quarterly face-to-face contacts in the adoptive home with both parents present.

(b) For children under the age of two, with the exception of children with special needs, your agency must have a minimum of five supervisory face-to-face contacts with the adoptive parents and child within the first six months of placement.

(1) Three of the contacts must be with the entire family, including both adoptive parents, adoptive child, and any other children or household members living full time in the home; and

(2) Two of the contacts must be in the adoptive home.

(c) For children with special needs and children ages two years or older, the agency must have monthly face-to-face contacts with the adoptive family during the first six months.

(1) Five of the contacts must be with the entire family; and

(2) Four of the contacts must be in the adoptive home.

(d) Contacts must be documented and reviewed by child placement management staff.

§749.3725.If the adoption has not been completed within the stipulated time frame in the written agreement, what actions must my agency take?

Your agency must make every effort to see that the adoption is consummated as stipulated within the written agreement.

(1) You must make an assessment of why the adoption will not be completed at the end of a six-month supervisory period. The assessment must include:

(A) Input from staff who have supervised the adoption placement, professionals who have provided counseling for the family, any other professional staff involved with the family, and the adoptive family; and

(B) A plan for finalization of the adoption and for supervision of the placement that is be based upon the assessment.

(2) The assessment and plan must be documented. Child placement management staff must review the documentation and plan and must determine whether the assessment and plan will meet the needs of the child for safety, care, and permanency.

(3) The adoptive placement must be re-evaluated if it has not been completed within one year.

§749.3727.What actions must my agency take if there are changes to the adoptive family during the post-placement period?

Your agency must document any changes in the adoptive family that may affect the child and assess the effect of the changes on the child. This includes changes in health, financial condition, or family or household composition.

§749.3729.What must my agency do if the placement cannot be completed and/or is not in the best interests of the child and/or the adoptive family?

Your agency must remove the child from the adoptive family if the placement and adoption is not in the best interests of the child and/or the adoptive family. The decision to remove the child must be reviewed and approved by child placement management staff prior to the removal. You must document the circumstances necessitating the removal and the child's needs in the child's record.

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 February 28, 2006.

TRD-200601149

For further information, please call: (512) 438-3437

6. COUNSELING SERVICES

40 TAC §749.3741

§749.3741.Is my agency required to offer counseling services to the adoptive family?

Yes, you must offer counseling services post-placement and post-adoption. The services may be provided directly or through referrals outside of your agency.

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 February 28, 2006.

TRD-200601150

For further information, please call: (512) 438-3437

7. SUBSEQUENT ADOPTIONS

40 TAC §749.3761

§749.3761.What are the requirements if adoptive parents apply to adopt another child?

(a) Before you may place another child into the home, you must update the pre-adoptive screening.

(b) The update must include at least one:

(1) Individual interview with each applicant;

(2) Individual interview with each child three years or older living in the home either full or part time;

(3) Individual interview with any other person living full or part time with the family; and

(4) Visit to the home while all family members are present.

(d) If a subsequent adoption occurs within one year from a previous adoption, in which all of the required home visits and interviews were conducted, an individual interview with both adoptive parents and a home visit with all family members present will meet the interviewing and home visit requirements.

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 February 28, 2006.

TRD-200601151

For further information, please call: (512) 438-3437

Subchapter T. ADDITIONAL REQUIREMENTS FOR CHILD-PLACING AGENCIES THAT PROVIDE ASSESSMENT SERVICES

1. REGULATION

40 TAC §749.3801

The new section implements HRC, §42.042 and §42.0425.

§749.3801.Does Licensing regulate all assessment services?

(a) No. This subchapter only regulates child-placing agencies that also provide assessment services.

(b) Services provided by other individuals, agencies, and organizations are not subject to regulation under this subchapter.

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 February 28, 2006.

TRD-200601152

For further information, please call: (512) 438-3437

2. ADMISSION

40 TAC §749.3831

The new section implements HRC, §42.042 and §42.0425.

§749.3831.What are the requirements for approving a child's admission into my assessment program?

(b) The review, determination, and approval must be:

(1) In writing, signed, and dated from the person responsible for the assessment services program; and

(2) Completed prior to the admission of the child into your assessment services program.

(d) You must document in the child's record whether you are:

(1) Only providing assessment services to the child; or

(2) Also providing other services, such as transitional living services.

(e) You must document the date of the child's admission into your assessment program in the child's record.

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 February 28, 2006.

TRD-200601153

For further information, please call: (512) 438-3437

3. ASSESSMENT PLAN

40 TAC §§749.3861, 749.3863, 749.3865, 749.3867, 749.3869, 749.3871

The new sections implement HRC, §42.042 and §42.0425.

§749.3861.When must I complete the child's individual assessment plan?

(a) You must complete the child's individual assessment plan within 10 days from the date of the child's admission into the program.

(b) You must document the plan in the child's record.

§749.3863.When does admission into the assessment services program begin?

Admission into the assessment services program begins when:

(1) The parent makes the decision to place the child into the assessment services program; and

(2) You decide to accept the child for these services.

§749.3865.What must an individual assessment plan include?

An individual assessment plan must include:

(1) Time frames for providing all assessment services;

(2) Recommendations for the child's care during the assessment process;

(3) Any treatment to be provided during the assessment period; and

(4) Current data from the caregiver's evaluation of the child's behavior and level of functioning.

§749.3867.May the common application serve as the assessment plan?

No. The common application may not serve as the plan for how your assessment services program is going to meet the child's needs.

§749.3869.How must my assessment services program collect information from a child's caregivers?

(b) You must document this information in the child's assessment services record. Your documentation must include your consideration of the caregivers' observations and opinions.

§749.3871.When is the assessment plan complete?

(b) The parent must review and be provided a copy of the assessment plan.

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 February 28, 2006.

TRD-200601154

For further information, please call: (512) 438-3437

4. ASSESSMENT REPORT

40 TAC §§749.3891, 749.3893, 749.3895, 749.3897

The new sections implement HRC, §42.042 and §42.0425.

§749.3891.What is an assessment report?

(a) The assessment report that is the result of the assessment services is a narrative report that pulls together data from:

(1) Professional evaluation reports on the child; and

(2) The program's assessment on how the child is managing in the program.

(b) The report includes:

(1) Recommendations made in other professional evaluations; and

(2) Recommendations based on the program's experiences with and assessment of the child.

§749.3893.When must I complete the assessment report?

(a) The admission assessment must be conducted rapidly, consistent with good practice, in order to allow for a permanent placement as soon as possible.

(b) You must complete the assessment report:

(1) Within 30 days after you admit the child, if the child is younger than five years old; or

(2) Within 45 days after you admit the child, if the child is five years old or older.

(e) You must provide a copy of the assessment report to the child's parent as soon as the report is complete.

§749.3895.What must be included in the written assessment report?

In addition to the requirements set forth in §749.1133 of this title (relating to What information must an admission assessment include?), a written assessment report must include:

(1) Copies and results of the determination of the child's basic health and social and developmental assessment, including:

(A) The child's basic health status, as determined under the supervision of a licensed physician;

(D) An assessment of the child's immediate and extended family in terms of an ongoing relationship with the child;

(2) Copies and results of all evaluations and testing;

(3) A summary of the primary caregivers' evaluations of the child's behavior and level of functioning;

(4) An assessment of the results and summary in terms of appropriate short- and long-term planning for the child;

(5) Recommendations for placement; and

§749.3897.Who must review and approve an assessment report?

(a) The following people must review the assessment report:

(1) The person responsible for the assessment program or a designated employee who meets the qualifications of a person responsible for the assessment program;

(2) The child's primary caregiver; and

(3) The child's parent.

(b) The person responsible for the assessment program, or the designated qualified employee, must approve and sign the report.

(c) You must file the original, approved and signed assessment report, including any addendums to the report, in the child's assessment services record.

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 February 28, 2006.

TRD-200601155

For further information, please call: (512) 438-3437

Chapter 750. INDEPENDENT FOSTER HOMES

The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), new Chapter 750, Independent Foster Homes, consisting of Subchapter A, Purpose and Scope, §§750.1, 750.3, 750.5; Subchapter B, Definitions and Services, Division 1, Definitions, §750.41, §750.43; Division 2, Services, §750.61; Subchapter C, Organization and Administration, Division 1, Permit Holder Responsibilities, §§750.101, 750.103, 750.105, 750.107; Division 2, Governing Body, §750.121, §750.123; Division 3, Fiscal Requirements, §750.131, §750.133; Division 4, Foster Home Policies, §§750.151, 750.153, 750.155, 750.157, 750.159, 750.161, 750.163, 750.165, 750.167, 750.169, 750.171; Division 5, Clients and Appeals, §§750.181, 750.183, 750.185; Subchapter D, Reports and Record Keeping, Division 1, Serious Incident Reports; General Requirements for All Records; and Personnel Records, §750.201; Division 2, Client Records, §§750.231, 750.233, 750.235, 750.237, 750.239, 750.241, 750.243, 750.245; Subchapter E, Foster Home Staff and Caregivers, Division 1, General Requirements, §750.301; Division 2, Executive Director, §750.331, §750.333; Division 3, Treatment Director, §§750.351, 750.353, 750.355; Division 4, Treatment Services Provided by Nursing Professionals; Contract Staff, Volunteers, and Student Interns, §750.371, §750.373; Subchapter F, Training and Professional Development, §750.401, §750.403; Subchapter G, Children's Rights, §§750.451, 750.453, 750.455; Subchapter H, Admission, §750.501; Subchapter I, Service Planning, and Discharge, §750.601; Subchapter J, Medical and Dental, §750.701; Subchapter K, Daily Care, Problem Management, §750.801; Subchapter L, Emergency Behavior Intervention, §750.901; Subchapter M, Capacity and Child/Caregiver Ratio; Supervision; Respite Child-Care Services; and Foster Family Relationships, §§750.1001, 750.1003, 750.1005, 750.1007, 750.1009; Subchapter N, Health and Safety Requirements, Environment, Space and Equipment, §750.1101; and Subchapter O, Assessment Services, §750.1201.

A summary of some of the significant changes found in Chapter 750 follows:

Subchapter A, Purpose and Scope - This subchapter describes the applicability of the chapter, which applies to independent foster family homes and independent group homes. Because many of the rules in Chapter 750 cross-reference the rules in Chapter 749, Child-Placing Agencies, this subchapter also explains how to translate some of the terminology used in Chapter 749 into Chapter 750.

Subchapter B, Definitions and Services - This subchapter defines foster family home and foster group home as the primary residence of the foster parents, which effectively prohibits staffed foster homes. However, there is a grandfather clause for current homes. This subchapter also describes the services that independent homes may offer. Generally, homes may be licensed to provide any type of service regulated by DFPS and must have operational policies and procedures to ensure children are admitted and served appropriately. This subchapter defines the types of services DFPS regulates as child-care services, treatment services, and programmatic services. Treatment services are designed to treat and or support children with emotional disorders, mental retardation, pervasive developmental disorders, or primary medical needs. Programmatic services include transitional living services and assessment services. Homes must request and receive approval on the license to provide treatment and programmatic services.

Subchapter C, Organization and Administration - This subchapter includes the responsibilities of the permit holder, both before and during the operation of the independent home. The subchapter describes the responsibilities of the governing body and contains the fiscal requirements. This subchapter also contains requirements for certain policies that a home must have regarding admissions, child-care, emergency behavior intervention, discipline, foster care, treatment services, transitional living, babysitters and respite care, and volunteers. This subchapter also explains who a home's clients are and what rights they have.

Subchapter D, Reports and Record Keeping - This subchapter includes requirements for increased serious incident reporting, including specific time frames for notifying Licensing, a child's parent, and/or law enforcement; content and retention of home, child, and personnel records, including open, archived, and closed records; and defines timeliness of documentation in a child, personnel, or foster parent record is within 30 days of the event or occurrence.

Subchapter E, Foster Home Staff and Caregivers - This subchapter requires a written professional staffing plan; a licensed registered nurse on staff if the home serves children with primary medical needs; a treatment director for a home that provides treatment services, including minimum qualifications for this position according to the type of service being provided; specific responsibilities of a caregiver when supervising children; and restrictions and requirements for volunteers.

Subchapter F, Training and Professional Development - This subchapter includes content and hourly requirements for employee and caregiver/foster parent orientation, pre-service training, annual training, and first-aid and CPR and certification. The pre-service and annual training requirements include training on emergency behavior intervention, psychotropic medications, and for those caring for infants and toddlers, information on recognizing and preventing shaken baby syndrome, preventing sudden infant death syndrome, and early childhood brain development.

Subchapter H, Admission - This subchapter allows a child to remain in care until age 22, or indefinitely based on the child's circumstances; lists the admission assessment requirements; lists the medical and dental requirements at admission; allows certain emergency admissions, including emergency placements to authorized agencies from law enforcement or juvenile probation officers; and discusses the requirements for pre-placement visits and subsequent placements in foster homes.

Subchapter I, Service Planning and Discharge - This subchapter adds requirements for a preliminary service plan within 72 hours of admission for each child; adds specific requirements for the content of children's service plans based on age and special needs; requires each initial service plan to be completed within 40 days of admission; requires that a child be informed of his/her planned discharge at least four days in advance unless there is a documented clinical justification for not providing advance notice; and increases requirements for discharge planning and documentation.

Subchapter J, Medical and Dental - This subchapter explains the medical and dental requirements for a child in care; requirements for communicable diseases; requirements for TB testing; immunization requirements; requires children to have a vision and hearing screening; describes the parameters for administering, storing, and destroying medication; increases documentation requirements regarding children's prescription medications; increases the requirements on providing information to parents regarding the use of psychotropic medications; and explains when protective and supportive devices may be used.

Subchapter K, Daily Care, Problem Management - This subchapter includes new requirements regarding infants, including feeding, furnishings/equipment, safety, and supervision; children in care who are pregnant or parenting; the agency's involvement with a child's education, including attending conferences specific to the child and advocating for the child's needs; and children's recreational needs. Other requirements address prohibited types of punishment, such as pinching and biting, putting anything in or on a child's mouth, placing a child in a dark space, and requiring a child to remain silent or inactive for inappropriately long periods of time.

Subchapter L, Emergency Behavior Intervention - This subchapter requires a review of each use of emergency behavior intervention within 72 hours of the incident; prohibits prone personal restraints, except as transitional holds that last no longer than one minute; prohibits any personal restraints that twist or place the child's limb(s) behind the child's back; and increases requirements for regularly scheduled evaluations of emergency behavior interventions, both for individual children and for the home as a whole.

Subchapter M, Capacity and Child/Caregiver Ratio; Supervision; Respite Child-Care Services; and Foster Family Relationships - Foster parents and caregivers must be 21 years old or older if children placed in the home are 13 years old or older. Married foster parents must have been married at least two years prior to verification as foster parents. All children in the foster home must be counted in the home's capacity, including biological children and children placed for respite care. Child/caregiver ratios are decreased, particularly for young children and children receiving treatment services. Other requirements provide increased specificity regarding supervising children in care, use of babysitters, and respite care, including who may provide respite care, time frame restrictions, and required documentation. This subchapter contains specific requirements for life changes that occur at a home, of which Licensing must be notified.

Subchapter N, Health and Safety Requirements, Environment, Space and Equipment - Foster homes must have fire and health inspections; adults at a foster home can only use tobacco products outside, and use of tobacco products in a vehicle while transporting children in care is prohibited; there are requirements and limitations for weapons in foster homes; a maximum of four children may share a bedroom, excluding children with primary medical needs; foster parents must offer children in care the same food choices that the rest of the family is eating; and there are requirements for swimming pools and going swimming. Foster parents are allowed to teach a child to drive.

Subchapter O, Assessment Services - This subchapter clarifies that DFPS only regulates homes that also provide assessment services. Requirements include a determination that must be made regarding admission, and an assessment plan and report must be completed within 30 or 45 days of admission, depending on the age of the child.

Ms. Brown has also 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 risk of harm to children will be reduced and quality of care will be improved due to updating standards on current knowledge and practices. In addition, the standards will be easier to understand, which should encourage voluntary compliance and reduce noncompliance caused by misinterpretation of the rules.

For each of the first five years that the proposed rules are in effect, Ms. Brown has determined there may be an impact to large, small, and micro-businesses that must comply with these rules, namely independent foster homes. This impact may result in increased cost of services for independent foster homes that do not already meet the proposed minimum standards and these increased costs could be passed on to customers, clients, or funding sources.

To assist with evaluating the potential costs, the fiscal impact is stated in terms of cost per $100 of revenues. It is important to note that, based on survey information, many agencies already meet many of the standards being proposed. Other standards will require only a one-time investment, and will not necessarily result in higher recurring costs. Some agencies will be grandfathered in for some standards, or will be given additional time to comply. In addition, foster homes have some flexibility in the way they structure their operation so as to minimize the impact on their costs of operation.

At the same time the fiscal impact survey was released in August, a draft of the rules was placed on the DFPS agency website. The purpose of putting the draft on the website was to help those completing the fiscal impact survey understand the proposed changes, so they could furnish appropriate well-informed cost data.

The survey was available on a DFPS website from August 22, 2005, through September 20, 2005. The response rate was:

Child-Placing Agencies and Homes - 37 surveys completed and of this total, 4 were Independent Foster Homes and 2 were Independent Foster Group Homes. The total response rate was 17.7%.

Estimated annual revenue / 100 = total number of $100 revenue in a year

As cost estimates were developed for each rule, the estimate was stated by $100 of revenue for each entity potentially impacted. These amounts were then averaged to obtain the overall estimated fiscal impact. If a rule would have only a one-time cost, it was assumed that the cost would be absorbed over the course of a year. If a rule could be implemented over multiple years, it was assumed that the cost would be absorbed over the entire length of the implementation period. Finally, if a cost is recurring, it was calculated for one year at a time.

Many of the rules in Chapter 750 cross-reference entire subchapters or divisions of Chapter 749. Each section of the following fiscal impact summary with such a cross-reference will contain both the number of the rule in Chapter 750 with the cross-reference to Chapter 749, and the number of the specific rule in Chapter 749 that contains the text that is the subject of the fiscal impact. The latter will be in parentheses following the Chapter 750 rule.

Fiscal Impact for Proposed §750.159: This section requires policies on emergency behavior intervention to include a requirement to obtain, at admission, each child's input on preferred de-escalation techniques that caregivers can use to assist the child in the de-escalation process. This rule was included since asking each child what helps him calm down when he is upset is a logical and necessary part of planning for the care of the child. Required policy also includes that this information be revisited after each emergency behavior intervention. Cost of compliance includes both first year costs to develop the policies and recurring costs of subsequent years as the policies are implemented. Based on survey data, the more significant cost impact is in the first year, which is estimated at an average of $0.15 per $100 of revenue. The recurring cost of subsequent years is estimated at an average of $0.04 per $100 of revenue. An estimated 47% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.165: This section requires policies related to foster homes that provide treatment services, including an on-going assessment of the caregiver's ability to meet the needs of the child and plans for emergency back-up. Cost of compliance includes both first year costs to develop the policies and recurring costs of subsequent years as the policies are implemented. Based on survey data, the more significant cost impact is in the first year, which is estimated at an average of $0.43 per $100 of revenue. The recurring cost of subsequent years is estimated at an average of $0.19 per $100 of revenue. An estimated 28% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.169: This section requires a home to have specific policies related to babysitters and respite care in foster homes. There are no current rules regarding respite care. As more homes are providing respite foster care, it is necessary to strengthen the regulation of this type of care to ensure the safety of the child. Homes not already meeting the rule must develop and implement specific policies related to babysitters and respite care in foster homes to include the amount and type of training for caregivers, and number of children and length of time they can be cared for. Cost of compliance includes both first year costs to develop the policies, and recurring costs of subsequent years as the policies are implemented. Based on survey data, the more significant cost impact is in the first year, which is estimated at an average of $0.10 per $100 of revenue. The recurring cost of subsequent years is estimated at an average of $0.05 per $100 of revenue. An estimated 75% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.401 (§749.831): This rule stipulates there must be an orientation for caregivers and employees and specifies topics that must be covered in orientation training. Current rules require an orientation for employees on the home's policies and activities; however, this rule is more specific in what that orientation must contain. Agencies and homes were asked to compare the proposed rule to their current orientation training, and estimate the cost of revising their curriculum and providing training that includes all the required elements. Approximately 97% of the total cost estimate is first-year costs of developing and implementing training on new topics, and the rest is recurring costs of continuing the orientation training in subsequent years. The estimated average costs are $0.93 per $100 of revenue in the first year, and $0.03 per $100 of revenue in subsequent years. An estimated 26% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.401 (§749.863 and §749.869(d)): This section requires that a new caregiver with no prior training or experience in the use of emergency behavior intervention must complete a minimum of eight hours of pre-service training on this subject. Caregivers of children receiving treatment services must complete 16 hours. The current rule has no clock hour requirement for this pre-service training. The training must be competency based and require participants to demonstrate skill competency at the end of the training. A qualified instructor certified in a recognized method of emergency behavior intervention must present the training. DFPS has investigated a number of restraint-related injuries or deaths. This rule will ensure at least a minimal level of training has been given to caregivers. The cost will be recurring. Homes and agencies not meeting the requirement provided cost estimates of doing so. Costs are affected by many variables, such as number of caregivers requiring training, amount of training currently provided, and qualifications of current instructors. As would be expected, these variables led to a wide range of cost estimates from $0 to approximately $122,000 per agency. Based on the survey data, the estimated average costs are $0.23 per $100 of revenue for agencies and homes providing basic child-care services and $0.45 per $100 revenue for agencies and homes providing treatment services. An estimated 77% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.401 (§749.885 and §749.869(c)): These rules require pre-service training to caregivers who administer psychotropic medication. The training must include identification of psychotropic medications, basic pharmacology, techniques and methods of administering the medications, and related agency policies and procedures. The training must be provided prior to allowing the foster parent or caregiver to administer the medication. A pharmacist, licensed physician, or registered nurse must conduct the training. The trainer must assess each participant after the training, to ensure that the participant has learned the course content. While this is a new rule, it encompasses the current contractual requirement for agencies caring for CPS children. Agencies and homes were surveyed to determine those that either do not provide the required training, or those that offer the training but do not use an instructor meeting the qualifications. The cost will be recurring. Cost estimates are calculated by applying an hourly training rate of $71 to the estimated number of hours to be provided. Estimates ranged from $355 to $4,260 per agency. Based on the survey data, the estimated average cost is $0.16 per $100 of revenue. An estimated 21% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.401 (§749.941): This section is a new rule that requires the annual training for caregivers to be designed to be appropriate for the children they are serving based on the age of the child and the child's needs. Agencies and homes were asked to review their current training objectives and based on their experience providing training, to estimate the fiscal impact of implementing any changes from this rule. The cost will be recurring. Cost estimates ranged from $2,000 to $122,000 per agency. The estimated average cost is $0.93 per $100 of revenue. An estimated 25% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.401 (§749.945 and §749.939): This section requires that annual training on psychotropic medications, including post-training assessment of the participants, must be conducted by a pharmacist, licensed physician, or registered nurse. While this is a new rule, it encompasses the current contractual requirement on agencies and homes caring for CPS children. As more children in placement are prescribed psychotropic medications, it is necessary to ensure caregivers and staff know how to administer these medications and their effects. The cost will be recurring. Agencies and homes were asked to provide an estimate of the fiscal impact of this rule based on the training they currently provide or would provide under the requirements. Some indicated they could handle this within current resources while others estimated costs ranging to a high of $19,000. The estimated average cost is $0.26 per $100 of revenue. An estimated 29% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.401 (§749.981): This section does not allow caregivers to be the sole caregiver for a group of children unless the caregiver has current certifications for first aid, with rescue breathing and choking, and CPR for infants, children, and adults. A foster parent who is a health professional can use documentation of knowledge and training from their employment in lieu of this training requirement. Current rule requires only that the primary caretaker have CPR and first-aid training. Agencies and homes were asked to provide an estimate of the fiscal impact of this rule based on the policy decisions they anticipate making in order to achieve compliance. Compliance could be achieved in many different ways and the cost would vary accordingly. The cost will be recurring. Cost estimates ranged from $0 to $15,000 per agency. The estimated average cost is $0.35 per $100 of revenue. An estimated 100% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.451 (§749.1003): This rule added to the list of child rights the right to have services provided in a language, or any other means, that is understandable to the child. Current rules do not address this as a right, and this rule incorporates the Federal regulation that is part of Title VI of the Civil Rights Act of 1964. A child placed with foster parents who cannot speak the child's language must be provided an interpreter or other means for the foster parents to communicate in the child's own language, or have at least one person at the home at all times who is able to communicate in the child's own language. The cost will be recurring. Agencies and homes not currently meeting this standard were asked to estimate the cost of providing services in the manner required. Although many agencies and homes were already in compliance with this current federal law, this cost was calculated from estimates ranging between $0 and $175,200. The estimated average cost is $0.95 per $100 of revenue. An estimated 29% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.451 (§749.1005): This rule requires a home to inform children and/or parents of the child's rights within 24 hours of acceptance of the child. The rights must be written in simple, non-technical terms in the primary language of the person being informed. If the person being informed of the child's rights has a visual or auditory impairment, the explanation must be provided in a manner that is understandable to that person. Current rules have requirements about what a child's rights should be, but there is no requirement on how these rights should be presented to the child and parent. It is anticipated that this rule will help ensure the child adjusts better to the placement setting if he knows what can be expected. The cost will be recurring. Agencies and homes not currently in compliance with this rule were asked to estimate the cost of providing the required communications. This cost was calculated from estimates ranging between $1,000 and $50,000. The estimated average cost is $0.25 per $100 of revenue. An estimated 27% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.451 (§749.1015): This rule requires an adult of the same gender as the child to witness searches of a child over five years old that involves the removal of clothing. This new rule is designed to ensure children are protected from abuse and to add protections for the caregiver in ensuring the search was done appropriately. The cost will be recurring. Agencies and homes not currently in compliance with this rule were asked to estimate the cost of complying with this requirement. Cost estimates ranged from $3,000 to $15,000. The estimated average cost is $1.14 per $100 of revenue. An estimated 6% of the agencies and homes are potentially impacted. It should be noted that agencies have the option of whether to allow these searches, so there could be zero-cost.

Fiscal Impact for Proposed §750.501 (§749.1111): This section requires a foster home to provide orientation for a newly admitted child. For younger children, orientation must be geared to the intellectual level of the child. This is a new rule for independent foster homes, but is a rule for other residential child-care operations. Homes should be required to ensure that a child is aware at admission of the agency's policies and procedures to help with the child's adjustment to the placement. The cost will be recurring. Agencies and homes not currently in compliance with this rule were asked to estimate the cost of complying. Cost estimates ranged from $0 to $10,000. The estimated average cost is $0.25 per $100 of revenue. An estimated 22% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.601 (§749.1301): This section requires the home to complete a preliminary service plan within 72 hours of the child's admission. This is a current rule for residential treatment centers and is required contractually by CPS for all children in foster care at the specialized level of care. The new rule requires a more detailed plan for children receiving treatment services. All other children would need a preliminary service plan developed within 72 hours that simply addresses their immediate needs--the rule does not specify who must develop this plan. The cost will be recurring. Agencies and homes impacted were asked to furnish information on number of admissions, staff time to prepare plans, and other costs of complying with the requirement for preparing these preliminary service plans within 72 hours of a child's admission. A standard child placement staff salary of $34,823, or $17 per hour, was applied to the estimate of additional staff time needed to comply. Cost estimates ranged from $3,000 to $15,000. The estimated average cost is $1.42 per $100 of revenue. An estimated 39% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.601 (§749.1309): This section requires for a child 13 years old or older, the service plan must contain a plan for educating the child on: healthy interpersonal relationships, healthy boundaries, pro-social communication skills, sexually transmitted diseases, and human reproduction. This is a new rule and ensures that children are given necessary information about physical and emotional development. The cost will be recurring. Agencies and homes not already including these topics in the service plans were asked to estimate the cost of meeting this standard. Cost estimates ranged from $0 to $250,000. The estimated average cost is $0.53 per $100 of revenue. An estimated 61% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.601 (§749.1333): This section requires if there is a change in placement as a result of a change in the child's needs, the service plan must be reviewed and updated accordingly. If the change in placement is not a result of changes in needs, the service planning team may approve reviewing the plan on the original schedule. The current rule requires each home to have a policy for service plan reviews that addresses issues of placement disruption and planned subsequent placements in addition to regular reviews. This is also a currently required contractual term for homes that care for CPS children, so only those agencies that do not care for CPS children would be impacted. The cost will be recurring. Homes not already in compliance with the rule were asked to provide estimates of how many times a year placements are changed due to a change in the child's needs and how many hours are needed to review the service plan when this occurs. An hourly rate of $15 was applied to the estimate of additional staff time needed to comply with the rule. The estimated average cost is $0.37 per $100 of revenue. An estimated 19% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.601 (§749.1335): This section requires that a review and update of a service plan must include an evaluation of any psychotropic medications prescribed for the child, any change in psychotropic medications since the last review, and the behaviors and reactions of the child observed by caregivers, professional service providers, and parents. There are no current rules regarding a review of the use of psychotropic medications, although there is a requirement to address the medical needs of the child and review how those needs were met. Homes that contract with CPS are already required to meet this rule, which is likely the reason there are so few agencies impacted. The cost will be recurring. Homes not already in compliance with the rule were asked to estimate the cost of including an evaluation of psychotropic medications to the review and update of a child's service plan. An annual cost was estimated by applying this per child cost to an estimated number of children per year. The estimated average cost is $1.83 per $100 of revenue. An estimated 9% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.601 (§749.1339): This section requires that the intellectual functioning of a child diagnosed as mentally retarded must be re-evaluated at least annually by a psychologist until the child is 10 years old and every two years thereafter; or a psychologist must determine the frequency for a specific child's intellectual functioning to be re-evaluated. This determination, including justification for the timeframe, must be documented in the child's record annually by the service planning team. Current rule does not include the option for a psychologist to determine the time frame for a specific child. The rule was added at the request of providers and advocates. The cost will be recurring. Homes not already in compliance with the rule were asked to estimate the cost of complying with the options in the rule regarding the timeframes for re-evaluations of the intellectual functioning a child diagnosed as mentally retarded. The estimated average cost is $0.05 per $100 of revenue. An estimated 19% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.701 (§749.1611): This section requires that if a child takes psychotropic medications, the prescribing physician, or physician monitoring the child's use of the psychotropic medication, must evaluate the appropriateness of continuing the medication on at least a quarterly basis. If a health-care professional does not substantiate the effectiveness of a specific psychotropic medication within 90 days, the health-care professional must provide a written rationale for continuing the medication for an additional period. This additional period must not exceed 90 days if effectiveness is not substantiated. A copy of the written rationale must be documented in the child's record. Current rule requires if mind-altering or behavior-modifying medications are ordered for a child, the appropriateness of continuing the medication must be evaluated by the prescribing physician on at least a quarterly basis. This rule is compatible with the contractual requirements for homes that contract for the placement of CPS children. The cost will be recurring. Homes not already in compliance with the rule were asked to provide estimates of the cost of implementing the rule and other information that would enable an analysis to be made. While many agencies and homes were complying with all parts of this rule, others were in partial compliance. The estimated average costs range from $0.23 to $0.98 per $100 of revenue. An estimated 3% to 16% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.701 (§749.1645): This section states that bed rails that extend the entire length of the bed are prohibited as a protective device, except for children with primary medical needs if authorized by a physician. This is a new rule designed to ensure bed rails are not used to restrain children, since preventing a child from getting out of bed would be a personal restraint. The cost will be recurring. Agencies and homes not already in compliance with the rule were asked to estimate the cost of implementing a prohibition on bed rails. The exception for children with primary medical needs was a revision to the proposed rule made after the survey was complete. Thus the survey data, which did not consider the impact of that change, indicated an estimated average cost is $0.17 per $100 of revenue with an estimated 9% of the agencies and homes potentially impacted. It seems reasonable to conclude that the changes will reduce the estimated cost and the number of agencies and homes impacted, although no data is available to restate the original estimates.

Fiscal Impact for Proposed §750.801 (§749.1807): This rule stipulates specifications and safety requirements for cribs. The rule incorporates the recommendations of the Consumer Product Safety Commission. This should be a one-time cost to agencies that are not in compliance. Agencies and homes were asked to furnish information on the number of cribs in use and what percentage of those cribs meets all the specifications in the rule. By applying an estimated cost per crib to the number of cribs that would need to be replaced, the estimated fiscal impact can be calculated. The survey data indicates that there are estimated to be 951 cribs in use, and 107 of these do not meet the specifications of the rule. There is an estimated cost of $235 per crib. The estimated average cost is $0.06 per $100 of revenue. An estimated 22% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.801 (§749.1809): This section allows the use of mesh-cribs or port-a-cribs that meet stated specifications and safety requirements. The rule incorporates the recommendations of the Consumer Product Safety Commission. This should be a one-time cost to homes that are not in compliance. Agencies and homes were asked to furnish information on the number of cribs in use and how many of those do not meet all the specifications in the rule. By applying an estimated cost per crib of $235 to the number of cribs that would need to be replaced, the estimated average cost is $0.08 per $100 of revenue. An estimated 6% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.801 (§749.1861): This section states a home must offer nutritional counseling and guidance to a pregnant child and this counseling must be documented in the child's record. This is a new rule that is necessary since teen mothers are often not aware of their own nutritional needs or the nutritional needs of their unborn child. This rule ensures some attempt is made to provide for the health and safety of the mother and child. Homes have a variety of options in how to ensure this counseling is offered. The cost will be recurring. Agencies and homes were asked to determine if someone on their staff was qualified to provide the appropriate nutritional counseling. In addition, they were asked to choose from a list of other possible actions they could take to ensure the counseling was provided and to provide a cost estimate for their selection. The most significant component of the cost estimate is the cost of transportation, which represents approximately 94% of the total cost estimate. The estimated average cost is $4.71 per $100 of revenue. An estimated 6% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.801 (§749.1959): If a foster parent, in order to manage a child's behavior, restricts the child's activities for more than seven days or restricts a child to a room or building for more than 48 hours, the parent must review the restrictions with the treatment director or service planning team and document this review in the child's record. Current rule requires documentation any time that the child is restricted to the home for more than 24 hours. This change ensures the appropriate home staff are aware of the restrictions and ensures that activity restrictions do not become punitive or abusive and do not interfere with needed treatment activities. The cost will be recurring. Agencies and homes were asked to identify the people involved in conducting and documenting a review of restrictions on a child and to estimate the number of hours each would spend on this activity. Fiscal impact was calculated by applying estimated salary costs to those hours. The estimated average cost is $0.56 per $100 of revenue. An estimated 24% of the agencies and homes are potentially impacted. Agencies and homes do have the option of whether to allow this type of discipline at all which would be a zero cost.

Fiscal Impact for Proposed §750.901 (§749.2301 and §749.2303): These sections require that caregivers involved in the emergency behavior intervention of a child must debrief with the executive director, professional services provider, or child's case manager concerning the incident immediately or as soon as possible after the situation has stabilized, revisit the child's input on preferred de-escalation techniques, and document the debriefing in the child's record. Caregivers involved in the emergency behavior intervention of a child must make every effort to debrief with the children in care who witness the incident. At each review of a child's service plan, the home must evaluate the use, frequency, patterns, and effectiveness of emergency behavior intervention techniques. Current rule requires that after a personal restraint, staff involved must make every attempt to debrief concerning the incident. This new rule provides more specificity in what must be done during a follow-up to any emergency behavior intervention and includes the requirement for caregivers, not just staff, to be involved in the follow-up. It ensures that home staff and caregivers are reviewing the application of those interventions in a timely manner and that the interventions are appropriate. It also affords an additional protection for caregivers who may be accused of inappropriate use of restraint or seclusion. The cost will be recurring. Agencies and homes were asked to estimate the cost of implementing the rule in its entirety. The estimated average cost will range from $0.19 to $2.66 per $100 of revenue depending on the extent of current compliance and the number of changes that would be necessary. An estimated 36% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.901 (§749.2381 and §749.2383): These sections require that, as part of an annual overall evaluation, a home must focus on the frequency, patterns, and effectiveness of specific emergency behavior interventions. It must collect and document aggregate numbers of behavior interventions reported quarterly by type of intervention. Data must be reviewed quarterly and maintained for at least five years for review by Licensing. Current rule for other residential child-care operations require the evaluation; however, the requirement to collect and document aggregate numbers is new for all. This requirement is recommended by all national organizations as good practice for child-care operations and ensures the data is available for agencies to make necessary revisions to policies and trainings. It also provides Licensing with information on a regular basis about the use of emergency behavior interventions that can be used in reviewing how the rules on those interventions are applied by individual homes. The cost will be recurring. Agencies and homes not already doing so were asked to estimate the cost of collecting data and performing a review of emergency behavior interventions at least quarterly. Individual estimates received ranged from $0 to $27,500. The estimated average cost is $0.10 per $100 of revenue. An estimated 23% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1001 (§749.2551): This section states a foster family home may care for no more than six children, including children of the foster family, children receiving respite care, and children for whom the family provides regular day care. All adults and children in care must be counted in the capacity of the home. Current rules regarding home capacity do not address children in respite care, and there has been confusion about how these children should be counted. This rule is in compliance with statute regarding the capacity of foster homes. The cost will be recurring. Agencies and homes not determining capacity of a home in accordance with the rule were asked what actions they would take if they found a capacity problem after implementing the rule and to estimate the cost of those actions. Two responders stated that the provision of respite care was the primary cause of homes exceeding capacity. The estimated average cost is $0.58 per $100 of revenue. An estimated 13% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1001 (§749.2553): This section states a foster group home may care for no more than 12 children, including children of the foster family and children receiving respite care. All adults and children in care must be counted in the capacity of the home. Current rules regarding home capacity do not address children in respite care, and there has been confusion about how these children should be counted. This rule is in compliance with statute regarding the capacity of foster homes. The cost will be recurring. Agencies and homes not determining capacity of a home in accordance with the rule were asked what actions they would take if they found a capacity problem after implementing the rule and to estimate the cost of those actions. The estimated average cost is $0.07 per $100 of revenue. An estimated 7% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1001 (§749.2561 and §749.2563): These sections state the child/caregiver ratio in a foster home is based on the age of the youngest child in the home, number of children receiving treatment services, and number of children with primary medical needs. The number of children one caregiver may supervise in a foster family home is six, and in a foster group home it is eight, although either may be less when affected by other criteria. The cost will be recurring. Agencies and homes were asked their current practices regarding ratio requirements. The ratios provided in the survey responses were then compared to the ratios in the proposed rules and the agencies potentially impacted were identified. A cost estimate was calculated based on the number of additional homes needed to accommodate the same number of children while complying with the proposed ratios. Survey data on the cost per home was then used to estimate the impact. The estimated average cost is $0.43 per $100 of revenue. An estimated 56% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1001 (§749.2631): This section establishes rules regarding the length and frequency under which a child may be in respite care before it is considered a new placement. This is a new rule; there are no current rules on respite care. It is consistent with current contractual requirements for agencies accepting placement of CPS children. This rule places time limits on the length of a respite care placement for a child in order to ensure the continuity of care for children. The cost will be recurring. Agencies and homes were asked to compare their current respite care policies to the various requirements found in the rule and estimate the cost of incorporating all elements into their policies. Cost estimates ranged from $0 to $100,000. The estimated average cost is $0.14 per $100 of revenue. An estimated 77% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1101 (§749.2909): This section requires each home to have a working smoke detector in hallways or open areas outside sleeping rooms and on each level of a home with multiple levels. Depending on the size and layout of the home, others could be needed based on manufacturer or fire marshal instructions. This is a new rule and is in compliance with recommendations from fire marshal and manufacturer instruction. The cost will be recurring. Agencies and homes were asked the number of smoke detectors needed to meet the requirement. Applying a standard cost of $12.40 per detector to the number indicated yields the estimate of the fiscal impact. The estimated average cost is $0.07 per $100 of revenue. An estimated 15% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1101 (§749.3071): This section requires homes to have written approval from a licensed physician or a registered or licensed dietitian to serve a child a therapeutic or special diet. Dietary alternatives must be available for a child who has special health needs. This is a new rule to ensure children receive food that meets daily nutritional needs. The cost will be recurring. Agencies and homes not already in compliance with the entire rule were asked to provide an estimate of the cost of implementing any of the parts that would be necessary to meet each the requirements. Cost estimates ranged from $0 to $12,000. The estimated average cost is $0.06 per $100 of revenue. An estimated 24% of the agencies and homes are potentially impacted.

Fiscal Impact for Proposed §750.1101 (§749.3137): This rule establishes additional child/caregiver ratios for swimming activities. Current rules only require that operations and foster homes meet current caregiver/child ratios. The cost will be recurring. Agencies and homes were asked how they currently manage child/caregiver ratios during swimming activities. If they are taking no steps beyond simply maintaining regular non-swimming ratios, the assumption is that additional caregivers would be needed in order to comply with the rule. The number and cost of additional caregivers is calculated based on the numbers and ages of children in care, an assumption that all are involved in swimming activities for at least three months a year, half the additional caregivers will be part-time or volunteers, and a standard cost of a caregiver's salary which is estimated to be $18,665. Cost estimates ranged from $20,997 to $349,950. The estimated average cost is $4.10 per $100 of revenue. An estimated 34% of the agencies are potentially impacted. Increased use of volunteers beyond that assumed in the analysis would further reduce the cost, and could potentially eliminate it altogether.

Fiscal Impact for Proposed §750.1101 (§749.3143): This rule requires that when children are swimming, at least one caregiver counted in the child/caregiver ratio must be able to swim and perform a water rescue. Current rule for foster group homes only requires a certified lifeguard on duty when the home's swimming area is in use. There is no current rule for foster family homes. The cost will be recurring. Agencies and homes were asked to provide an explanation of the steps they would take to ensure compliance with this rule and to estimate the cost of those actions. If the rule represents no change from current practices, they were asked to state that in their response and no fiscal impact was assumed. The survey questions and responses were based on an earlier version of the rule that required all caregivers counted in the ratio to be able to swim. This information indicated an estimated average cost of $0.08 per $100 of revenue and an estimated 57% of the agencies and homes are potentially impacted. Although the survey data does not provide sufficient detail to re-calculate the cost impact based on the revised rule requirements of only one person being able to swim and able to perform a water rescue, it seems reasonable to assume that the changes to the rule would result in a reduced cost, and fewer agencies and homes impacted, but no revised estimate of the amounts is available. In any event, agencies and homes could comply with this rule by using all volunteers, which would be a zero cost for the agencies.

Subchapter A. PURPOSE AND SCOPE

40 TAC §§750.1, 750.3, 750.5

§750.1.What is the purpose of this chapter?

The purpose of this chapter is to set forth the rules that apply to independent foster family homes and independent group homes.

§750.3.Who is responsible for complying with the rules of this chapter?

You, the permit holder must ensure compliance with all rules of this chapter at all times, with the exception of those rules identified for specific types of child-care services or activities that your operation does not offer. For example, if we license you to offer only core child-care services, you are not required to comply with rules that apply only to treatment services or transitional living services; however, you must comply with all other applicable rules as stated in this chapter.

§750.5.How must I interpret the different terminology used in the requirements of Chapter 749 of this title (relating to Child-Placing Agencies)?

(a) The rules of this chapter require you to comply with certain requirements of Chapter 749 of this title. The language of Chapter 749:

(1) Addresses child-placing agencies or the homes that the agencies verify, including foster homes, foster family homes, and foster group homes. For the purposes of this chapter, you must substitute the terminology of Chapter 749 as follows:

Figure: 40 TAC §750.5(a)(1)

(2) In some instances requires some action, review, or approval by child placement staff or child placement management staff. For the purposes of this chapter, those actions, reviews, or approvals must be completed by the service planning team. In other words, you must substitute "service planning team" for "child placement staff" or "child placement management staff".

(b) If you must comply with a requirement in Chapter 749 of this title that has an exemption, this exemption applies to you. If, as written in Chapter 749, an applicable exemption is contingent on the date that a child-placing agency verified the home, the applicability of this exemption to you would be contingent on whether we licensed you by that date. Any other condition of the exemption would apply to you as written.

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 March 2, 2006.

TRD-200601327

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: April 16, 2006

For further information, please call: (512) 438-3437

Subchapter B. DEFINITIONS AND SERVICES

40 TAC §750.41, §750.43