Part 19.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Chapter 745.
LICENSING
The Health and Human Services Commission proposes, on behalf of the
Department of Family and Protective Services (DFPS), amendments to §§745.11,
745.201, 745.243, 745.273, 745.275, 745.321, 745.323, 745.325, 745.341, 745.343,
745.345, 745.347, 745.349, 745.351, 745.385, 745.435, 745.501, 745.505, 745.507,
745.509, 745.519, 745.8307, 745.8605, 745.8613, 745.8683, 745.8807, 745.8835,
745.8837, 745.8843, 745.8855, and 745.8875; new §§745.277, 745.279,
745.281, 745.401, 745.403, 745.405, 745.407, 745.437, 745.901, 745.903, 745.905,
745.907, 745.909, 745.911, 745.913, 745.915, 745.8419, 745.8425, 745.8661,
and 745.8841; and the repeal of §§745.401, 745.403, 745.405, 745.407,
745.409, 745.8419, and 745.8841, in its Licensing chapter.
The proposed changes are the result of legislation passed during the 79th
Legislature, Regular Session, 2005, and changes necessary to provide clarification
to existing rules.
Legislated changes are the result of requirements stated in House Bill
(H.B.) 183 and Senate Bill (S.B.) 6, passed by the 79th Legislature, Regular
Session, 2005. These laws require the Executive Commissioner to adopt or amend
regulated child-care facility rules relating to (1) a new definition for noncontiguous
facilities; (2) controlling persons; (3) denial of permit applications submitted
by an entity who has had a license revoked in another state; (4) invalidating
agency home verifications if a public hearing was not held as required; and
(5) changing the term "provisional license" to "initial license." Clarifications
to existing rules address exemptions to regulation, public hearings, permit
issuance, permit suspension due to nonpayment of fees, adverse action, and
due process. Changes to specific rules are described below.
Section 745.11 expands the definition of "I, my, you, and your" by adding
the phrase "or the context clearly indicates otherwise."
Section 745.201 is required by §1.93 of S.B. 6., Human Resources Code
(HRC) §42.041(c), which describes when a noncontiguous residential operation
may operate under a single license.
Section 745.243 is revised as follows. Paragraph (2) is amended to conform
to Chapter 747, Minimum Standards for Registered Child-Care Homes. Paragraph
(3) changes the name of a provisional license to an initial license as required
by S.B. 6. Paragraph (4) adds the requirement to obtain a Controlling Person
Form at the time of application so that Licensing is aware of all of the controlling
persons involved in an operation prior to licensure. Subparagraphs (G) and
(J) are combined and are now subparagraph (H), in order to clarify what is
needed at the time of application for a residential permit, which are those
items required by the residential minimum standards. Paragraph (6) adds the
requirement to obtain a Controlling Person Form. Subparagraphs (E) and (F)
are combined and become subparagraph (F) in order to clarify what is needed
at the time of application for a residential permit. Sections 745.341, 745.343,
745.345, 745.347, 745.349, 745.351, 745.501, 745.509, 745.519, 745.8307, and
745.8875 also change the name of a provisional license to an initial license.
Sections 745.273 and 745.275 include provisions from HRC §42.0461,
clarifying when independent foster family or group homes are subject to public
notice and hearing requirements.
Sections 745.277, 745.279, and 745.281 list actions taken by Licensing
when public notice and hearing requirements are not met as required in HRC §42.0461
and §1.00 of S.B. 6.
Section 745.321 changes the time frame to make a decision regarding issuance
of a permit from 60 days to two months, as stated in HRC §42.046.
Sections 745.323 and 745.325 change the title of the Director of Licensing
to the Assistant Commissioner for Child-Care Licensing, and update the name
of this agency.
Section 745.385 amends the rule as required by §1.93 of S.B. 6., HRC §42.041(c),
to add a grandfather clause for the residential child-care operations that
will be affected by the changes to §745.201(1) regarding non-contiguous
operations.
Sections 745.401, 745.403, 745.405, and 745.407 (previously §745.401
to §745.409) are a rewrite of the previous division of rules to add the
HRC 42.072 requirement of a five-year bar from reapplying after denial or
revocation of a residential permit. It also clarifies when a denial or revocation
is final.
Section 745.435 is clarified to complement HRC §42.048(e), regarding
revocation via a change in location.
Section 745.437 is clarified to complement HRC §42.048(e), regarding
revocation via a change in ownership. This rule also clarifies what circumstances
constitute and do not constitute a change in ownership.
Sections 745.505, 745.507, and 745.509 are revised to be more consistent
with HRC §42.054(f), and to reflect that the permit holder's failure
to pay an annual fee results in an automatic suspension of the permit.
Sections 745.901, 745.903, 745.905, 745.907, and 745.909 implement §1.90(18)
and §1.107, S.B. 6 by defining controlling person, establishing how an
operation has to submit information regarding a controlling person, establishing
when Licensing will designate someone as a controlling person, establishing
the consequences of such a designation, and establishing due process rights
for "designated controlling persons."
Section 745.911 implements §1.105 of S.B. 6 by adding a provision
that lists the consequences of being denied a license by us due to out-of-state
compliance history.
Sections 745.913 and 745.915 add provisions to implement §1.105 and §1.107
of S.B. 6. Licensing will conduct checks and notify residential operations
if a person is prohibited from employment in an operation.
Section 745.8419 clarifies Licensing's authority to leave an operation
with copies of records from that operation.
Section 745.8425 contains information from previous §745.8419.
Section 745.8605 adds reasons when Licensing can take remedial action.
This is based on §§1.99, 1.100, 1.107, and 1.110 of S.B. 6, and
S.B. 325.
Section 745.8613 adds the right to a due process hearing when Licensing
imposes an administrative penalty against an operation.
Section 745.8661 clarifies existing statute and requires that all operations
send notification to parents or managing conservators after an adverse action
is final. This is based on HRC §42.077(d).
Section 745.8683 updates the name of this agency.
Section 745.8807 is changed to apply to both administrator license types,
to clarify under what circumstances an operation may request an administrative
review, to add that a designated perpetrator of child abuse/neglect in a Licensing
investigation is eligible to request an administrative review, and to add
that a person designated as a controlling person is eligible to request an
administrative review.
Section 745.8835 adds two situations when a person may request a due process
hearing: (1) When Licensing takes action against a controlling person; and
(2) When Licensing imposes an administrative penalty be imposed against a
permit holder or controlling person. Also, the last paragraph of this rule
has been changed to apply to both administrator license types.
Section 745.8837 is revised so it applies to both administrator license
types. Two subsections are added to show who may request a due process hearing
if certain actions are taken against them: (1) a controlling person; and (2)
the governing body, director/administrator, or the designee if Licensing recommends
the imposition of an administrative penalty.
Section 745.8841 (previous §745.8841) is rewritten to remove the address
for the docket clerk, and to clarify that the address will be included in
the notice sent to the permit holder.
Section 745.8843 clarifies the procedures DFPS takes after a person requests
a due process hearing. It also creates circumstances in which DFPS may nullify
a request for a release hearing without the person losing the right to a request
a hearing in the future.
Section 745.8855 clarifies when an adverse action decision is effective
once the right to the due process hearing has been waived.
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the
first five-year period the proposed sections will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the sections.
Ms. Brown also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that the protection of children in out-of-home care will
be enhanced and the quality of regulated child care will improve. There will
be no effect on large, small, or micro-businesses because the proposed changes
do not impose new requirements on any business and do not require the purchase
of any new equipment or any increased staff time in order to comply. There
is no anticipated economic cost to persons who are required to comply with
the proposed sections.
Questions about the content of the proposal may be directed to Amy Chandler
at (512) 438-3134 in DFPS's Licensing Division. Electronic comments may be
submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal
may be submitted to Texas Register Liaison, Legal Services-344, Department
of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
HHSC has determined that the proposed sections do not restrict or limit
an owner's right to his or her property that would otherwise exist in the
absence of government action and, therefore, do not constitute a taking under §2007.043,
Government Code.
Subchapter A. PRECEDENCE AND DEFINITIONS
2.
DEFINITIONS FOR THE LANGUAGE USED IN THIS CHAPTER
40 TAC §745.11
The amendment 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.
The amendment implements HRC §42.042(a).
§745.11.What words must I know to understand this chapter?
The following words have the following meanings when used in this chapter:
(1)
I, my, you, and your--An applicant or permit holder, unless
otherwise stated
or the context clearly indicates otherwise
.
(2)
We, us, our, and Licensing--The Licensing Division of the
Texas Department of
Family and
Protective [
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 April 24, 2006.
TRD-200602272
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
1.
DEFINITIONS
40 TAC §745.201
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.201.What words must I know to understand this subchapter?
These words have the following meanings:
(1)
Nearby--For child day-care operations,
"nearby"
[
(2)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602273
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.243
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.243.What does a completed application for a permit include?
Application forms vary according to the type of permit. We will provide
you with the required forms. Contact your local Licensing office for additional
information. The following table outlines the requirements for a completed
application:
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 April 24, 2006.
TRD-200602274
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.273, 745.275, 745.277, 745.279, 745.281
The amendments and new sections are 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.
The amendments and new sections implement Senate Bill 6, 79th Legislature,
Regular Session, 2005, and HRC §42.042(a).
§745.273.Which residential child-care operations [
(a)
All [
(1) - (2)
(No change.)
(b)
All other residential child-care operations (not including
maternity homes) applying for a permit to operate or
requesting
[
§745.275.What are the specific requirements for a public notice and hearing?
The following chart lists the public notice, hearing requirements,
and subsequent report you must complete:
§745.277.What will happen if I fail to comply with public notice and hearing requirements?
If you fail to comply with any one of the public notice and hearing
requirements that are set forth under §745.273 of this title (relating
to Which residential child-care operations must meet the public notice and
hearing requirements?) and §745.275 of this title (relating to What are
the specific requirements for a public notice and hearing?), we may do the
following, as applicable:
(1)
Deny you a permit;
(2)
Deny you an amendment to your permit to increase capacity;
(3)
Prohibit you from verifying the agency home; or
(4)
Invalidate the verification of the agency home.
§745.279.How may the results of a public hearing affect my application for a permit or a request to amend my permit?
We may deny you a permit or an amendment to increase capacity if we
determine that:
(1)
The community has insufficient resources to support the
children that you propose to serve;
(2)
Issuing the license or amending your permit would significantly
increase the ratio in the local school district of students enrolled in a
special education program to students enrolled in a regular education program,
and the increase would adversely affect the children that you propose to serve;
or
(3)
Issuing the license or increasing the capacity would have
a significant adverse impact on the community and would limit opportunities
for social interaction for the children that you propose to serve.
§745.281.How may the results of a public hearing affect my ability to verify an agency foster home or agency foster group home?
We may prohibit you from verifying the proposed agency foster home
or agency group foster home if we determine that:
(1)
The community has insufficient resources to support the
children that the home would serve;
(2)
The home would significantly increase the ratio in the
local school district of students enrolled in a special education program
to students enrolled in a regular education program, and the increase would
adversely affect the children that the home would serve; or
(3)
The home would have a significant adverse impact on the
community and would limit opportunities for social interaction for the children
that the home would serve.
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 April 24, 2006.
TRD-200602275
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.321, 745.323, 745.325
The amendments are 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.
The amendments implement Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.321.What will Licensing do after accepting my application?
After we accept your application, our process of deciding to issue
or deny varies depending on the type of permit you requested. For example,
we must conduct an on-site inspection before issuing a registration or license
to determine compliance with licensing minimum standards, rules, and statutes.
However, regardless of the type of permit you have requested, we will decide
to issue or deny the permit no later than
two months
[
§745.323.What if Licensing exceeds its timeframes for processing my application?
You may file a complaint with the
Assistant Commissioner for Child-Care
[
§745.325.How do I file a complaint?
You must send a written request within 30 days after our time limit
expires. You must send your request stating the nature of the dispute to the
Assistant Commissioner for Child-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 April 24, 2006.
TRD-200602276
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.341, 745.343, 745.345, 745.347, 745.349, 745.351
The amendments are 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.
The amendments implement Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.341.What type of permit will Licensing issue me?
(a)
(No change.)
(b)
We issue
licensed
[
§745.343.What is the difference between an initial [
An initial
[
(1)
You pay your annual fees
, or you are exempt from paying
them as set forth in §745.503 of this title (relating to Is anyone exempt
from paying fees?)
;
(2)
You remain at the same location and under the same ownership
[
(3) - (4)
(No change.)
§745.345.When does Licensing issue initial licenses [
We must issue
an initial license
[
(1) - (3)
(No change.)
(4)
We licensed you for one type of child care, and you apply
to add another type of child care to your program (
an initial
[
(5)
Change in ownership results in changes in policy and procedure
or in the staff who have direct contact with the children or maternity home
clients.
(See §745.437 of this title (relating to What is a change
in the ownership of an operation?)).
[
§745.347.How long is an initial [
An initial
[
§745.349.What if I am not able to care for children during the initial [
We cannot determine compliance with all the
Licensing
[
(1)
We may renew your
initial
[
(2)
We may take remedial action,
as appropriate; and/or
(3)
[
§745.351.If I have an initial [
You will be eligible for a non-expiring permit when:
(1)
Your
initial
[
(2)
(No change.)
(3)
The Licensing
staff
[
(4)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602277
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.385
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.385.Can multiple operations operate under one permit?
(a)
Multiple operations may not operate under one
permit unless they are:
(1)
Contiguous to one another, are the same type of child-care
operation, and have the same governing body; or
(2)
Not contiguous, but they are the same type of child-care
operation, are nearby one another, and operate as a single operation as evidenced
by staffing, finance, and administrative supervision effectively supporting
the operations.
(b)
A permit that we issued prior
to September 1, 2005, that allows multiple residential child-care operations
to operate under that permit remains valid regarding the addresses listed
on the permit until it is revoked or voluntarily relinquished.
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 April 24, 2006.
TRD-200602278
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.401, 745.403, 745.405, 745.407, 745.409
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Department of Family and Protective Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are 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.
The repeals implement Senate Bill 6, 79th Legislature, Regular Session,
2005.
§745.401.Can I reapply for a permit after Licensing denies me one?
§745.403.Can I operate after I reapply for a permit?
§745.405.What fees must I pay when I reapply for a permit?
§745.407.Can I apply for another permit after Licensing revokes my permit?
§745.409.What fees must I pay when I apply for another permit after Licensing revokes my permit?
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 April 24, 2006.
TRD-200602279
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.401, 745.403, 745.405, 745.407
The new sections are 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.
The new sections implement Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.401.What fees must I pay when I reapply for a permit?
Unless you are reapplying within 30 days after you withdrew your original
application, you must pay all fees. The reapplication is considered an original
application.
§745.403.Can I apply for another permit after Licensing denies or revokes my permit?
(a)
If we revoke your child day-care permit or deny you a permit
to operate a child day-care operation on or after September 1, 2005, you may
not apply for another permit before the second anniversary of the date on
which the denial or revocation takes effect.
(b)
If we revoke your residential child-care permit or deny
you a permit to operate a residential operation on or after September 1, 2005,
you may not apply for another permit before the fifth anniversary of the date
on which the denial or revocation takes effect.
(c)
If our revocation of your permit took effect before September
1, 2005, you may not apply for another one before the second anniversary of
the date on which the revocation took effect.
(d)
If our denial of your permit took effect before September
1, 2005, you may reapply for a permit if your operation has remained closed
between the effective date of the denial and the reapplication.
(e)
A revocation or denial takes effect when:
(1)
You have waived or exhausted your due process rights regarding
the revocation or denial; and
(2)
Our revocation or denial of your permit is upheld.
(f)
This rule does not apply if your permit is revoked solely
because you have relocated your operation or changed ownership.
§745.405.Can I operate after I apply for a permit?
You cannot operate merely because you apply for a permit. We may deny
you a permit if you operate before a permit is issued.
§745.407.What fees must I pay when I apply for another permit after Licensing revokes my permit?
In addition to the fees you would pay with an original application,
you must reimburse us for the cost of publishing the notice of revocation.
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 April 24, 2006.
TRD-200602280
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.435, §745.437
The amendment and new section are 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.
The amendment and new section implement Senate Bill 6, 79th Legislature,
Regular Session, 2005, and HRC §42.042(a).
§745.435.What must I do if I relocate my operation after I receive my license or certification?
(a)
A change in location automatically
revokes your permit.
(b)
If you
are going to
relocate your
operation for any reason, you must notify us as early as possible before the
move [
(c)
If you fail to notify us
before you relocate
[
§745.437.What is a change in the ownership of an operation?
(a)
A change in ownership of an operation occurs when:
(1)
The owner stated on the permit no longer owns the operation;
(2)
The governing body stated on the permit no longer has the
ultimate authority and responsibility for the operation;
(3)
There is a change in the legal organizational structure
of the operation; or
(4)
If the permit holder is a type of business entity, that
business entity is sold, except as set forth in subsection (b) of this section.
(b)
A change in ownership of an operation does not include
the acquisition of a corporate permit holder's publicly traded stock if the
following conditions exist:
(1)
The corporate permit holder listed on the application and
on the permit will continue to exist as the same corporate entity and to own
and operate the operation;
(2)
There will be no change in the operation's policy or procedure
because of the transaction;
(3)
There will be no change in the staff who have contact with
children in care because of the transaction; and
(4)
Any change in the day-to-day operations that might occur
after the sale is in the ordinary course of business and not as a result of
the stock transaction.
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 April 24, 2006.
TRD-200602281
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.501, 745.505, 745.507, 745.509, 745.519
The amendments are 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.
The amendments implement Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.501.What type of fees may Licensing charge me?
We may charge the following fees:
(1) - (2)
(No change.)
(3)
Fees for issuing your
initial
[
(4)
Fees for renewing your
initial
[
(5) - (7)
(No change.)
§745.505.What fees must I pay to list my family home and maintain the listing?
The following chart contains the fees required for listed family homes,
when the fees are due, and the consequences for failure to pay the fees on
time. Note that for listed family homes the fees for background checks are
included in the $20 application and annual fees.
§745.507.What fees must I pay to register my child-care home and maintain the registration?
The following chart contains the fees required for registered child-care
homes, when the fees are due, and the consequences for failure to pay the
fees on time:
§745.509.What fees must I pay to apply for and maintain a license for an operation?
The following chart contains fees required for licenses, (including
child day-care and residential child-care operations, child-placing agencies,
and maternity homes), when the fees are due, and the consequences for failure
to pay the fees on time:
§745.519.Are any fees refundable?
The following fees are refundable under the conditions noted:
(1)
(No change.)
(2)
We refund the
initial
[
(3)
We refund the non-expiring license fee if the
initial
[
(4)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602282
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.901, 745.903, 745.905, 745.907, 745.909, 745.911, 745.913, 745.915
The new sections are 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.
The new sections implement Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.901.Who is a controlling person at a residential child-care operation?
(a)
A controlling person of a residential child-care operation
is any:
(1)
Owner of the operation or member of the governing body
of the operation, including, as applicable, an executive, an officer, a board
member, a partner, or a sole proprietor;
(2)
Person who manages, administrates, or directs the operation
or its governing body; or
(3)
Person who either alone or in connection with others has
the ability to influence or direct the management, expenditures, or policies
of the operation. For example, a person may have influence over the operation
because of a personal, familial, or other relationship with the governing
body, manager, or other controlling person of the operation.
(b)
A person does not have to be present at the operation or
hold an official title at the operation or governing body in order to be a
controlling person.
(c)
An employee, lender, secured creditor, or landlord of the
operation is not a controlling person unless the person meets a definition
in subsection (a) of this section.
§745.903.When must I submit to Licensing information about a person whom I consider to be a controlling person at my residential child-care operation?
We will provide you with a Controlling Person Form. You must provide
us information on the form about each person that is a controlling person
at your operation as defined in §745.901(a) of this title (relating to
Who is a controlling person at a residential child-care operation?). You must
complete and submit this form to your local Licensing office:
(1)
When you apply for your permit; or
(2)
Within two days after a person becomes a controlling person
at your operation.
§745.905.When will Licensing designate someone at my residential child-care operation as a controlling person?
(a)
We will designate each person who meets the definition
of a controlling person in §745.901(a) of this title (relating to Who
is a controlling person at a residential child-care operation?) as a controlling
person at your operation when:
(1)
We revoke your permit; or
(2)
You voluntarily close your operation or relinquish your
permit after you receive notice of our intent to revoke your permit or that
we are revoking your permit.
(b)
We may designate a person at your operation as controlling,
regardless of whether you submitted their name on a Controlling Person Form.
§745.907.What are the consequences of Licensing designating me as a controlling person?
(a)
If we designate you as a controlling person:
(1)
We may not issue you a permit of any kind for five years
after our designation is sustained;
(2)
You may not be the controlling person at a residential
child-care operation for five years after the designation is sustained; and
(3)
A residential child-care operation may not employ you for
five years after the designation is sustained.
(b)
Our designation of you as a controlling person is sustained
when:
(1)
You have waived or exhausted your due process rights regarding
the designation; and
(2)
The designation is upheld.
§745.909.What due process rights do I have if Licensing designates me as a controlling person?
(a)
If we designate you as a controlling person, we will offer
you an administrative review and due process hearing. See Subchapter M of
this chapter (relating to Administrative Reviews and Due Process Hearings).
(b)
At our discretion, we may combine the administrative review
with a review regarding the revocation. The administrative law judge may combine
hearings that involve issues related to the same decision or action.
§745.911.In what other circumstances may I not employ someone because of his previous involvement with a residential child-care operation?
(a)
You may not employ a person in any capacity to work in
a residential child-care operation if we denied the person a permit because
the:
(1)
Person is barred from operating a residential child-care
operation in another state; or
(2)
Person's permit to operate a residential child-care operation
in another state was revoked.
(b)
The person is prohibited from employment in a residential
child-care operation on or after the denial referred to in subsection (a)
of this section is sustained.
(c)
If the person is no longer barred from operating in the
other state or is subsequently allowed to operate in the other state, then
you may employ the person if approved by Licensing.
§745.913.When does Licensing check whether someone is ineligible for employment at my residential child-care operation?
(a)
When you submit a Controlling Person Form to us, we will
check to see if any person listed on the form is a sustained controlling person
or if the person was denied a residential permit due to compliance history
in another state.
(b)
When you submit a Request for Criminal History and Central
Registry Check form for staff as required under §745.615 of this title
(relating to On whom must I request background checks?), we will check whether
the person is ineligible for employment at your operation for reasons noted
under §745.907 of this title (relating to What are the consequences of
Licensing designating me as a controlling person?) or §745.911 of this
title (relating to In what other circumstances may I not employ someone because
of his previous involvement with a residential child-care operation?).
§745.915.What happens after Licensing determines that someone is ineligible for employment at my operation?
(a)
We will notify you if someone is ineligible for employment
at your operation.
(b)
If the person that we have prohibited you from employing
believes that the results of the check are inaccurate, you may contact the
local Licensing office that sent the notice to you to discuss the accuracy
of the information.
(c)
Unless we determine that the results of the check were
inaccurate, you must remove this person from your operation.
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 April 24, 2006.
TRD-200602283
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.8307
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8307.How does Licensing make the decision to grant or deny my waiver or variance request?
We will not grant a waiver or variance if the minimum standard is required
by statute. For all other waiver and variance requests, we consider the following
factors when making the decision to grant or deny your request:
(1) - (4)
(No change.)
(5)
Your regulatory status (for example, whether you are on
initial
[
(6) - (7)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602284
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
1.
OVERVIEW OF INSPECTIONS AND INVESTIGATIONS
40 TAC §745.8419
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Department of Family and Protective Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal 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.
The repeal implements HRC §42.042(a).
§745.8419.What will happen if I do not allow Licensing to inspect and/or investigate all areas of my operation?
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 April 24, 2006.
TRD-200602285
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.8419, §745.8425
The new sections are 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.
The new sections implement HRC §42.042(a).
§745.8419.Can Licensing staff take copies of records from my operation?
Yes. Our staff may take copies of records from your operation, including
child records and personnel records.
§745.8425.What will happen if I do not allow Licensing to inspect and/or investigate all areas of my operation?
We may take remedial action as specified in Subchapter L of this chapter
(relating to Remedial Actions), if you refuse, prevent, or delay our ability
to conduct an inspection and/or investigation.
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 April 24, 2006.
TRD-200602286
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
1.
OVERVIEW OF REMEDIAL ACTIONS
40 TAC §745.8605, §745.8613
The amendments are 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.
The amendments implement Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8605.When can Licensing take remedial action against me?
We can impose a remedial action any time we find one of the following:
(1) - (11)
(No change.)
(12)
A failure to meet the terms and conditions of your evaluation
or probation; [
(13)
A failure to comply with minimum standards, rules, or
laws at the end of the suspension period; [
(14)
On or after September 1, 2005:
(A)
We revoked your permit to operate a residential
child-care operation; or
(B)
You voluntarily closed your residential
child-care operation or relinquished your permit after receiving notice of
our intent to take adverse action against your permit or that we were taking
adverse action against your permit;
(15)
After we designate you as a controlling
person, you apply for a permit:
(A)
Before you waive or exhaust your due process
rights regarding that designation; or
(B)
Within five years after that designation
is sustained;
(16)
You are barred from operating a residential
child-care operation in another state;
(17)
You had a permit to operate a residential
child-care operation in another state and that permit was revoked;
(18)
You are applying for a permit to operate
a residential child-care operation and:
(A)
You fail to comply with public notice and
hearing requirements as set forth in §745.277 of this title (relating
to What will happen if I fail to comply with public notice and hearing requirements?);
or
(B)
The results of the public hearing meet
one of the criteria set forth in §745.279 of this title (relating to
How may the results of a public hearing affect my application for a permit
or a request to amend my permit?);
(19)
You operate a residential child-care operation,
and that operation discharges or retaliates against an employee, client, resident,
or other person because the person or someone on behalf of the person files
a complaint, presents a grievance, or otherwise provides in good faith, information
relating to the misuse of restraint or seclusion at the operation;
(20)
A reason set forth in Human Resources
Code, §42.078; or
(21)
A failure to pay an administrative penalty
under Human Resources Code, §42.078.
§745.8613.What rights do I have if I disagree with the decision of Licensing to impose a remedial action?
(a)
The rights you have vary depending upon the type of action
imposed against you. The chart in this subsection describes your rights for
each type of remedial action:
(b) (No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602287
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.8661
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.
The new section implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8661.What notice must I provide parents when the denial, suspension, or revocation of my permit is final?
If you are operating at the time you receive the final notice, you
must notify the parents of each child that is enrolled of the denial, suspension
or revocation of your permit. You must send notice of this action to the parents
by certified mail within five days of the receipt of the notice of the denial,
suspension, or revocation.
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 April 24, 2006.
TRD-200602288
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.8683
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8683.Will anyone be informed of the judicial action being taken against me?
Yes, the fact that we are attempting to enforce a judicial action against
you is available to the public. If you are a child day-care operation participating
in the Child Care Management Program or the Child and Adult Care Food Program,
we will inform the staff of those programs of any judicial action taken against
you. If a child in your care is in the custody of
the Department of Family
and Protective Services (DFPS)
[
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 April 24, 2006.
TRD-200602289
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
1.
ADMINISTRATIVE REVIEWS
40 TAC §745.8807
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8807.Who may request an administrative review?
(a)
The governing body, director, or designee
of an operation
may request an administrative review
with respect
to our decision or action concerning that operation's permit
.
(b)
A licensed administrator
[
(c)
A person we have designated
as a perpetrator of child abuse or neglect may request an administrative review
of that finding.
(d)
A person that we designate
as a controlling person of a residential child-care operation may request
a review of that designation.
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 April 24, 2006.
TRD-200602290
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §§745.8835, 745.8837, 745.8841, 745.8843, 745.8855
The amendments and new section are 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.
The amendments and new section implement Senate Bill 6, 79th Legislature,
Regular Session, 2005, and HRC §42.042(a).
§745.8835.When can I request a due process hearing?
You may request a
[
(1)
(No change.)
(2)
When we are going to release the fact that
you are
[
(3)
(No change.)
(4)
When we are taking adverse action against your operation;
[
(5)
When we designate you as a
controlling person at a residential operation;
(6)
When we impose an administrative
penalty against you; or
(7)
[
§745.8837.Who can request the due process hearing?
(a) - (b)
(No change.)
(c)
A licensed
[
(d)
A person that we designate
as a controlling person of a residential child-care operation can request
a review of that designation.
(e)
The governing body, director,
or the designee of the operation can request a due process hearing for an
administrative penalty imposed against a permit holder.
§745.8841.Where do I send the written request for a due process hearing?
You must send your request for a due process hearing by certified or
regular mail to our Docket Clerk in Legal Services. The exact mailing address
is included in the notice informing you of your right to due process. You
must also send a copy of your request to the Licensing staff that sent you
the notice letter.
§745.8843.What happens after I make a request for a due process hearing?
(a)
(No change.)
(b)
After the State Office of Administrative Hearings assigns
a docket number to your case
:
[
(1)
We
[
(2)
If the Docket Clerk has received
written notice of representation from an attorney who will be representing
you at the hearing, we will send the notice of the hearing to the attorney
in a manner allowed under the rules referenced in §745.8845 of this title
(relating to How is a due process hearing conducted?).
(c)
(No change.)
(d)
If you requested a hearing
because we are going to release a Child Protective Services or Adult Protective
Services finding that you abused or neglected a child, we may nullify your
request if we decide not to release the finding to the operation. We may decide
not to release the finding to the operation if we determine that you are no
longer present at the operation. If we nullify your request for a hearing,
you will retain your right to request a due process hearing in the event that
we seek to release the finding in the future. We may not nullify your request
for a hearing if:
(1)
We released the finding to the operation as
set forth in §745.733 of this title (relating to Will Licensing release
a central registry finding on a designated perpetrator or sustained perpetrator
to my operation?); or
(2)
We are taking adverse action against your operation
because of the finding.
§745.8855.Can I waive my right to a due process hearing?
(a)
You will waive your right to a due process hearing
by not requesting
one
[
(b)
If you
want to expedite the
decision and/or
action, you may send us a written waiver of your right
to the due process hearing before the 30-day timeframe has expired.
Our decision or action will be effective on the date that we receive your
written waiver.
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 April 24, 2006.
TRD-200602291
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.8841
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Department of Family and Protective Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal 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.
The repeal implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8841.Where do I send the written request for a due process hearing?
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 April 24, 2006.
TRD-200602292
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §745.8875
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005, and HRC §42.042(a).
§745.8875.If Licensing takes adverse action against me, may I continue to operate pending the outcome of an administrative review and/or a due process hearing?
Whether you may operate pending the outcome of an administrative review
and/or due process hearing depends upon the type of adverse action being taken
against you.
(1)
If we denied your permit, you may or may not operate depending
upon the following conditions:
(2) (No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602293
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
The Health and Human Services Commission proposes, on behalf of the
Department of Family and Protective Services (DFPS), amendments to §§746.3401,
746.5101, 746.5401, and 746.5607, concerning must my child-care center have
an annual sanitation inspection, must my child-care center have an annual
fire inspection, must my child-care center be inspected for gas leaks, and
what safety seat system must I use when I transport children, in its Minimum
Standards for Child-Care Centers chapter. The amendments to §§746.3401,
746.5101, and 746.5401 change provisional permit to initial permit based on
legislation passed by Senate Bill 6, 79th Legislature, Regular Session, 2005.
The amendment to §746.5607 updates the rule for center-based operations
in response to House Bill 183 of the 79th Legislature, Regular Session, 2005,
and clarifies safety requirements for children younger than one year and more
than 20 pounds.
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the
first five-year period the proposed sections will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the sections.
Ms. Brown also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that the protection of children in out-of-home care will
be enhanced and the quality of regulated child care will improve. There will
be no effect on large, small, or micro-businesses because the proposed changes
do not impose new requirements on any business and do not require the purchase
of any new equipment or any increased staff time in order to comply. There
is no anticipated economic cost to persons who are required to comply with
the proposed sections.
Questions about the content of the proposal may be directed to Amy Chandler
at (512) 438-3134 in DFPS's Licensing Division. Electronic comments may be
submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal
may be submitted to Texas Register Liaison, Legal Services-344, Department
of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
HHSC has determined that the proposed amendments do not restrict or limit
an owner's right to his or her property that would otherwise exist in the
absence of government action and, therefore, do not constitute a taking under §2007.043,
Government Code.
Subchapter R. HEALTH PRACTICES
1.
ENVIRONMENTAL HEALTH
40 TAC §746.3401
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005.
§746.3401.Must my child-care center have an annual sanitation inspection?
(a)
Your child-care center must have a sanitation inspection
before we issue
your initial
[
(b)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 24, 2006.
TRD-200602294
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
1.
FIRE INSPECTION
40 TAC §746.5101
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005.
§746.5101.Must my child-care center have an annual fire inspection?
(a)
Your child-care center must have a fire inspection before
we issue your
initial
[
(b)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 24, 2006.
TRD-200602295
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §746.5401
The amendment 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.
The amendment implements Senate Bill 6, 79th Legislature, Regular Session,
2005.
§746.5401.Must my child-care center be inspected for gas leaks?
Your child-care center must be inspected for gas leaks before we issue
your
initial
[
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 April 24, 2006.
TRD-200602296
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
40 TAC §746.5607
The amendment 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.
The amendment implements House Bill 183, 79th Legislature, Regular Session,
2005.
§746.5607.What safety seat system must I use when I transport children?
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,
child safety seat,
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. 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.
The following restraint devices must be used 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 April 24, 2006.
TRD-200602297
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: June 11, 2006
For further information, please call: (512) 438-3437
Subchapter X. TRANSPORTATION
and Regulatory
] Services
(DFPS)
[
(PRS)
].
Subchapter D. APPLICATION PROCESS
nearby
] means next to, across the street from, or in the same city block.
For residential child-care operations,
"nearby"
[
nearby
]
means
across the street from, in the same city block, or on the same
property
[
the actual physical distance between the facilities makes
it possible to provide appropriate management and supervision at each site
].
3.
SUBMITTING THE APPLICATION MATERIALS
4.
PUBLIC NOTICE AND HEARING REQUIREMENTS FOR RESIDENTIAL CHILD-CARE OPERATIONS operators ] must meet the public notice and hearing requirements?
applicants to be an
] independent foster
family or foster group home
operations applying for a permit to operate
or requesting to amend their permit to increase capacity
and any child-placing
agency planning to verify an agency foster family or foster group home must
meet the public notice and hearing requirements if:
applying
] to amend their license to increase capacity must meet the
public notice and hearing requirements if they are located in a county with
a population of less than 300,000.
6.
REVIEWING THE APPLICATION FOR COMPLIANCE WITH MINIMUM STANDARDS, RULES, AND STATUTES
60 days
] after we accept your application.
Director of
] Licensing. The
Assistant Commissioner
[
director
] will resolve the dispute in a timely manner.
We must reimburse you for your application fee if we do not establish good
cause for exceeding the time limit.
Director of
] Licensing,
Mail Code E-550, Texas Department of
Family and
Protective [
and Regulatory
] Services, P.O. Box 149030, Austin, Texas 78714.
7.
THE DECISION TO ISSUE OR DENY A PERMIT
all other types of
]
operations either
an initial
[
a provisional
] permit
(time-limited) or a non-expiring permit.
a provisional ] and non-expiring permit?
A provisional
] permit is a time-limited
permit allowing you to operate pending the issuance of a non-expiring permit.
A non-expiring permit is effective as long as:
.
]
(See §745.437 of this title (relating to What is
a change in the ownership of an operation?))
;
provisional permits ?
a provisional permit
] when you meet our
Licensing
[
licensing
] minimum
standards, rules, and statutes and one of the following situations exists:
a provisional
] permit is issued for the new type of child care); or
A change in ownership includes
the sale of an operation, a change in the legal organizational structure of
an operation, or if the operation is incorporated, the sale of the corporation.
]
a provisional ] permit valid?
A provisional
] permit is valid for
six months from the date we issue it. We may renew it up to an additional
six months. You may only have
an initial
[
a provisional
]
permit for a maximum of one year. The
initial
[
provisional
] permit expires when we issue you a non-expiring one.
provisional ] period?
licensing
] minimum standards unless you have children (or maternity
home clients) in care.
If you do not have children (or maternity home
clients) in care during the initial license period
[
One of the
following happens
]:
provisional
] permit
, if you have not exceeded the maximum one year period
; [
or
]
(2)
] You may submit a new application
form and fees [
, if you exceed the provisional period of one year
].
a provisional ] permit, when will I be eligible for a non-expiring permit?
provisional
] permit
has been in effect for at least three months;
representative
]
has made three inspections, unless supervisory approval is obtained to make
fewer visits; and
8.
DUAL AND MULTIPLE PERMITS
9.
REAPPLYING FOR A PERMIT
10.
RELOCATION OF OPERATION
, but no later than 15 days after the move,
] to voluntarily
relinquish your permit. You may reapply for a
permit
[
license
] to operate at your new location. See Division 3 of this subchapter
(relating to Submitting the Application Materials).
within 15 days after the relocation
], we may
deny
you a
[
revoke your
] permit
for the new location
[
and you must not provide care
].
Subchapter E. FEES
provisional
] license;
provisional
] license;
provisional
]
license fee if the application is withdrawn, or the license is not issued;
provisional
] license expires without the non-expiring license
being issued; and
Subchapter G. RESIDENTIAL CONTROLLING PERSON AND CERTAIN EMPLOYMENT PROHIBITED
Subchapter J. WAIVERS AND VARIANCES FOR MINIMUM STANDARDS
provisional
] status, evaluation, or probation);
Subchapter K. INSPECTIONS AND INVESTIGATIONS
Subchapter L. REMEDIAL ACTIONS
or
]
.
]
3.
ADVERSE ACTIONS
4.
JUDICIAL ACTIONS
(PRS)
], then we will also
inform the Child Protective Services Division of
DFPS
[
PRS
], and, as appropriate, any other state and federal programs. We will
tell these programs that we have obtained a temporary restraining order preventing
you from operating, that we are attempting to extend the order or make it
permanent, and whether you may care for children pending the final hearing
in the matter.
Subchapter M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
The
holder of a child-care administrator's license (CCAL)
] may request a
review of our decisions and actions concerning that
administrator's
license.
2.
DUE PROCESS HEARINGS
A
] due process hearing
in the following
[
is only available in five
] situations:
a person is
] a perpetrator due to a Child Protective Services
or Adult Protective Services finding of child abuse or neglect [
, and
the person is requesting to be at your operation on a regular or frequent
basis
];
or
]
(5)
]
If you are a licensed
administrator, when
[
When
] we deny, revoke, [
invalidate,
] suspend, or refuse to renew your [
child-care administrator's
] license.
When we are taking an action
against a child-care
] administrator [
, only the holder of the license
] can request
a
[
the
] due process hearing
when we suspend, revoke, or deny his administrator's license
.
,
]
we
] will send you
notice of the hearing, by regular and certified mail, to your last known address
as shown by our records
; or
it
] according to §745.8839
[
and §745.8841
] of this title (relating to How do I request
a due process hearing? and
§745.8841 of this title (relating to
Where do I send the written request for a due process hearing?). If
you
waive your right to a due process hearing by not requesting one according
to the rules, our decision and/or action will be effective on the date after
your time period for requesting a due process hearing expires.
3.
OPERATIONS PENDING THE ADMINISTRATIVE REVIEW AND DUE PROCESS HEARING
Chapter 746.
MINIMUM STANDARDS FOR CHILD-CARE CENTERS
a provisional
] permit
and at least once every 12 months, unless your child-care center is in a public
school building that a local or state sanitation official has approved for
public school use.
Subchapter W. FIRE SAFETY AND EMERGENCY PRACTICES
provisional
] permit and at least
once every 12 months, unless your child-care center is in a public school
building that the state or local fire marshal has approved for public school
use.
4.
GAS AND PROPANE TANKS
provisional
] permit, and once every two
years after your permit is issued, unless your child-care center is located
in a public school building that the state or local fire marshal has approved
for public school use.
Subchapter X. TRANSPORTATION
Chapter 747.
MINIMUM STANDARDS FOR CHILD-CARE HOMES