Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

Part 15. TEXAS VETERANS COMMISSION

Chapter 452. ADMINISTRATION GENERAL PROVISIONS

40 TAC §452.7

The Texas Veterans Commission (commission) proposes new §452.7, concerning Commission Duties, which will be located in Title 40, Part 15, Chapter 452 of the Texas Administrative Code. The proposed new section establishes the policy for commission duties. The proposed new rule is required under House Bill 3426 and authorized under the Texas Government Code §434.010, granting the commission authority to adopt rules that it considers necessary for its administration.

Tina Coronado, General Counsel for the commission, has determined that for each year of the first five-year period that the new section is in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the section.

Ms. Coronado has also determined that for the first five years the new rule is in effect, the public will benefit from the separation of policymaking and management responsibilities of the commission and management responsibilities of the director and staff. There will be no effect on individuals, or large, small, or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Ms. Coronado has also determined that for the first five-year period the proposed section is in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act, §2001.022.

Comments on the proposed new section may be submitted to Tina Coronado, General Counsel, Texas Veterans Commission, 1700 North Congress Avenue, Austin, Texas 78701 or by fax to (512) 463-3288. Comments may also be submitted electronically to tina.coronado@tvc.state.tx.us . For comments submitted electronically, please include "Commission Duties" in the subject line. The deadline for submission of comments is 20 days from the date of publication of the proposed section in the Texas Register. Comments should be organized in a manner consistent with the organization of the section under consideration.

The new section is proposed under §434.010, which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and specifically, §2155.076 of the Texas Government Code which requires the commission to develop and adopt protest procedures for vendors concerning commission purchases.

No other statutes, articles, or codes are affected by this section.

§452.7.Commission Duties.

(a) The commission is composed of five members appointed by the governor, with advice and consent of the senate. The commission adopts rules for the agency, and employs and directs the executive director. The commissioners retain and exercise all authority and responsibility assigned to them by law that has not been delegated to the executive director.

(b) The executive director manages the day-to-day business of the commission, employs staff, and carries out other duties and responsibilities assigned by law or delegated by the commission.

(c) A delegation of authority to the executive director must be made by the commission in an open meeting. The commission may review, modify, or ratify a delegation at any open meeting. A change in membership of the commission does not void an existing delegation of authority; it remains in effect until another one is approved by a majority vote of the commission at an open meeting.

(d) All decisions of the commission shall be by majority vote of a quorum of commissioners present and voting.

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 January 29, 2008.

TRD-200800483

Tina Coronado

General Counsel

Texas Veterans Commission

Earliest possible date of adoption: March 16, 2008

For further information, please call: (512) 463-1981

Chapter 456. CONTRACT NEGOTIATION AND MEDIATION

40 TAC §§456.1 - 456.17

The Texas Veterans Commission (commission) proposes new Chapter 456, §§456.1 - 456.17, regarding contract negotiation and mediation, which will be located in Title 40, Part 15, of the Texas Administrative Code. The proposed new chapter establishes the procedure for contract negotiation and mediation. The proposed new chapter is required under Texas Government Code Chapter 2260 and authorized under Texas Government Code §434.010, granting the commission authority to adopt rules that it considers necessary for its administration.

Tina Coronado, General Counsel for the commission, has determined that for each year of the first five-year period that the new sections are in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the sections.

Ms. Coronado has also determined that for the first five years the new sections are in effect, the public will benefit from having set procedures for contract negotiation and dispute. There will be no effect on individuals, or large, small, or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Ms. Coronado has also determined that for the first five-year period the proposed sections are in effect there should be no effect on a local economy; therefore, no local employment impact statement is required under the Administrative Procedure Act, §2001.022.

Comments on the proposed new sections may be submitted to Tina Coronado, General Counsel, Texas Veterans Commission, 1700 North Congress Avenue, Austin, Texas 78701 or by fax to (512) 463-3288. Comments may also be submitted electronically to tina.coronado@tvc.state.tx.us . For comments submitted electronically, please include "Contract Negotiation and Mediation" in the subject line. The deadline for submission of comments is 20 days from the date of publication of the proposed sections in the Texas Register. Comments should be organized in a manner consistent with the organization of the chapter under consideration.

The new sections are proposed under §434.010, which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and specifically, §2155.076 of the Texas Government Code which requires the commission to develop and adopt protest procedures for vendors concerning commission purchases.

No other statutes, articles, or codes are affected by these sections.

§456.1.Purpose.

Purpose. This chapter governs the negotiation and mediation of certain breach of contract claims asserted by contractors against the agency under Chapter 2260 of the Government Code.

§456.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:

(1) Agency--The Texas Veterans Commission.

(2) Claim--A written demand for damages by the contractor that is based upon the agency's alleged breach of the contract.

(3) Contract--A written contract between the agency and a contractor, under the terms of which the contractor agrees to either:

(A) provide goods or services, by sale or lease, to or for the agency; or

(B) perform a project as defined by Government Code, §2166.001.

(4) Contractor--Independent contractor who has entered into a contract directly with the agency. The term does not include:

(A) the contractor's subcontractor, officer, employee, agent, or other person who furnishes goods or services to the contractor;

(B) an employee of the agency; or

(5) Counterclaim--A demand by the agency that is based upon the contractor's claim.

(6) Day--A calendar day. If an act is required to occur on a Saturday, Sunday, or holiday, then the next working day that is not one of these days is counted as the required day for the purpose of this act.

(7) Event--An act or omission, or a series of acts or omissions that give rise to a claim. The following list contains illustrative examples of events, subject to the specific terms of the contract:

(A) Examples of events in the context of a contract for goods or services:

(i) the failure of the agency to timely pay for the goods or services;

(ii) the failure of the agency to pay the balance due and owing on the contract price, including amounts that arose from orders for additional work, after deduction of any amount that is owed to the agency for work that has not been performed under the contract or in substantial compliance with the contract terms;

(iii) the suspension, cancellation, or termination of the contract;

(iv) final rejection wholly or partly of the goods or services that the contractor has tendered;

(v) repudiation of the entire contract prior to or at the outset of performance by the contractor;

(vi) withholding liquidated damages from final payment to the contractor.

(B) Examples of events in the context of a project:

(i) the failure of the agency to timely pay the unpaid balance of the contract price following final acceptance of the project;

(ii) the failure of the agency to make timely progress payments as required under the contract;

(iii) the failure of the agency to pay the balance that is due and owing on the contract price, including amounts that arose from orders for additional work, after deduction of any amount that is owed the agency for work that has not been performed under the contract or in substantial compliance with the contract terms;

(iv) the failure to grant time extensions to which the contractor is entitled under the terms of the contract;

(v) the failure to compensate the contractor for occurrences for which the contract provides a remedy;

(vi) suspension, cancellation or termination of the contract;

(vii) rejection by the agency, wholly or partly, of the "work," as defined under the contract, that the contractor has tendered;

(viii) repudiation of the entire contract prior to or at the outset of performance by the contractor;

(ix) withholding liquidated damages from final payment to the contractor;

(x) refusal, in whole or in part, of a written request that the contractor has made in compliance with the contract to adjust the contract price, the contract time, or the scope of work.

(C) The lists in subparagraphs (A) and (B) of this paragraph should not be considered exhaustive, but are merely illustrative in nature and do not expand the limits of Chapter 2260 of the Government Code.

(8) Goods--Supplies, materials or equipment.

(9) Parties--The contractor that has entered into a contract with the agency, in connection with which a claim of breach of contract has been filed under this chapter.

(10) Project--A building construction project as defined under Government Code, §2166.001, that is financed, wholly or partly, by a specific appropriation, bond issue, or federal money, including the construction of:

(A) a building, structure, or appurtenant facility or utility, including the acquisition and installation of original equipment and original furnishing; and

(B) an addition to, or alteration, modification, rehabilitation, or repair of, an existing building, structure, or appurtenant facility or utility.

(11) Services--The furnishing of skilled or unskilled labor, or of consulting or professional work, or a combination thereof, excluding the labor of an employee of the agency.

§456.3.Prerequisites to Suit.

The procedures that are contained in this chapter are exclusive and required prerequisites to suit under Civil Practice and Remedies Code, Chapter 107, and Government Code, Chapter 2260.

§456.4.Sovereign Immunity.

This chapter does not waive the agency's sovereign immunity to suit or liability.

§456.5.Notice of Claim of Breach of Contract.

(a) A contractor who asserts a claim of breach of contract under Government Code, Chapter 2260, must file a notice of the claim as provided under this section.

(b) The notice of claim shall:

(1) be written and signed by the contractor or the contractor's authorized representative;

(2) be delivered by hand, certified mail return receipt requested, or other verifiable delivery service, to the agency officer who is designated in the contract to receive a notice of claim of breach of contract under Government Code, Chapter 2260; if no person is designated in the contract, then the notice shall be delivered to the agency's chief administrative officer; and

(3) state in detail:

(A) the nature of the alleged breach of contract, including the date of the event that the contractor cites as the basis of the claim and each contractual provision that the contractor alleges has been breached;

(B) a description of damages that resulted from the alleged breach, including the amount and method that the contractor has used to calculate those damages; and

(C) the legal theory for recovery, including the causal relationship between the alleged breach and the damages that the contractor claims.

(c) In addition to the mandatory contents of the notice of claim that are required under subsection (b) of this section, the contractor may submit supporting documentation or other tangible evidence to facilitate the agency's evaluation of the contractor's claim.

(d) The notice of claim shall be delivered not later than 180 days after the date of the event that the contractor cites as the basis of the claim.

§456.6.Agency Counterclaim.

(a) To assert a counterclaim under Government Code, Chapter 2260, the agency shall file a notice of the counterclaim as provided under this section.

(b) The notice of counterclaim shall:

(1) be written;

(2) be delivered by hand, certified mail return receipt requested, or other verifiable delivery service to the contractor or representative of the contractor who signed the notice of claim of breach of contract; and

(3) state in detail:

(A) the nature of the counterclaim; and

(B) a description of the damages or offsets that the agency seeks, including the amount and method that the agency has used to calculate those damages or offsets; and

(c) In addition to the mandatory contents of the notice of counterclaim that are required under subsection (b) of this section, the agency may submit documentation or other tangible evidence to aid the contractor's evaluation of the agency's counterclaim.

(d) The notice of counterclaim shall be delivered to the contractor not later than 90 days after the agency's receipt of the contractor's notice of claim.

(e) Nothing herein precludes the agency from initiation of a lawsuit for damages against the contractor.

§456.7.Duty to Negotiate.

The parties shall negotiate in accordance with the timetable set forth in §456.8 of this title (relating to Negotiation Timetable) to attempt to resolve all claims and counterclaims. No party is obligated to settle with the other party as a result of the negotiation.

§456.8.Negotiation Timetable.

(a) Following receipt of a contractor's notice of claim, the agency's chief administrative officer or his designee, shall review the contractor's claim and the agency's counterclaim, if any, and initiate negotiations with the contractor to attempt to resolve the claim and counterclaim.

(b) Subject to subsection (c) of this section, the parties shall begin negotiations within a reasonable period of time, not to exceed 60 calendar days following the later of:

(1) the date of termination of the contract;

(2) the completion date in the original contract; or

(3) the date the agency receives the contractor's notice of claim.

(c) The agency may delay negotiations until after the 180th day from the date of the event giving rise to the claim of breach of contract by delivering written notice to the contractor that the commencement of negotiations will be delayed and notice of when the agency will be ready to begin negotiations.

(d) The parties may conduct negotiations according to an agreed schedule as long as they complete the negotiations no later than 270 days after the agency receives the contractor's notice of claim.

(e) The parties may agree in writing on or before the 270th day after the agency receives the contractor's notice of claim to extend the time for negotiations. The agreement shall be signed by representatives of the parties with authority to bind each respective party and shall provide for the extension of the statutory negotiation period until a date certain. The parties may enter into a series of written extension agreements that comply with the requirements of this section.

(f) The contractor may request a contested case hearing before the State Office of Administrative Hearings on or before the 270th day after the agency receives the contractor's notice of claim, or the expiration of any extension agreed to by the parties.

(g) The parties may agree to mediate the dispute at any time before the 270th day after the agency receives the contractor's notice of claim or before the expiration of any extension agreed to by the parties pursuant to subsection (e) of this section.

§456.9.Conduct of Negotiation.

(a) The negotiation may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties.

(b) To facilitate the meaningful evaluation and negotiation of the claim and any counterclaim, the parties may exchange relevant documents that support their respective claims, defenses, counterclaims or positions.

(c) Material submitted pursuant to this section and claimed to be confidential by the contractor shall be handled pursuant to the requirements of the Public Information Act, Government Code, Chapter 552.

§456.10.Settlement Approval Procedures.

The parties' settlement approval procedures shall be disclosed prior to, or at the beginning of, negotiations. To the extent possible, the parties shall select negotiators who are knowledgeable about the subject matter of the dispute, who are in a position to reach agreement, and who can credibly recommend approval of an agreement.

§456.11.Settlement Agreement.

(a) A settlement agreement may resolve an entire claim or any designated and severable portion of a claim.

(b) To be enforceable, a settlement agreement must be in writing and signed by representatives of the contractor and the agency who have authority to bind each respective party.

(c) A partial settlement does not waive a party's rights under the Government Code, Chapter 2260, as to the parts of the claim or counterclaim that are not resolved.

§456.12.Costs of Negotiation.

Unless the parties agree otherwise, each party shall be responsible for its own costs incurred in connection with a negotiation, including, without limitation, the costs of attorney's fees, consultant's fees, and expert's fees.

§456.13.Request for Contested Case Hearing.

(a) If a claim for breach of contract is not resolved in its entirety on or before the 270th day after the agency receives the notice of claim, or after the expiration of any extension, the contractor may file a request with the agency for a contested case hearing before State Office of Administrative Hearings (SOAH).

(b) A request for a contested case hearing shall state the legal and factual basis for the claim and shall be delivered to the agency's chief administrative officer, his designee, or the person designated in the contract to receive notice, within 30 days after the 270th day or the expiration of any agreed extensions.

(c) The agency shall forward the contractor's request for a contested case hearing to SOAH within thirty days after receipt of the request.

(d) The parties may agree to submit the case to SOAH before the 270th day after the notice of claim is received by the agency if they have achieved a partial resolution of the claim or if an impasse has been reached in the negotiations and proceeding to a contested case hearing would serve the interests of justice.

§456.14.Mediation of Contract Claims.

The contractor and the agency may agree to mediate the claim and counterclaim at any time.

§456.15.Conduct of Mediation.

(a) A mediator may not impose his or her own judgment on the issues for that of the parties. The mediator must be acceptable to both parties.

(b) The mediation is subject to the provisions of the Governmental Dispute Resolution Act, Government Code, Chapter 2009.

(c) To facilitate a meaningful opportunity for settlement, the parties shall, to the extent possible, select representatives who are knowledgeable about the dispute, who are in a position to reach agreement, or who can credibly recommend approval of an agreement.

§456.16.Costs of Mediation.

The costs of the mediator shall be divided equally between the parties. Unless the contractor and the agency agree otherwise, each party shall be responsible for its own costs incurred in connection with the mediation, including costs of document reproduction for documents requested by such party, attorney's fees, and consultant or expert fees.

§456.17.Settlement Agreement.

(a) A settlement agreement reached during, or as a result of mediation, that resolves an entire claim or any designated and severable portion of a claim shall be in writing and signed by representatives of the contractor and the agency who have authority to bind each respective party.

(b) If the settlement agreement does not resolve all issues raised by the claim and counterclaim, the agreement shall identify the issues that are not resolved.

(c) A partial settlement does not waive a contractor's rights under the Government Code, Chapter 2260, as to the parts of the claim that are not resolved.

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 January 29, 2008.

TRD-200800484

Tina Coronado

General Counsel

Texas Veterans Commission

Earliest possible date of adoption: March 16, 2008

For further information, please call: (512) 463-1981

Chapter 457. PROTESTS OF AGENCY PURCHASES

40 TAC §457.1

The Texas Veterans Commission (commission) proposes new Chapter 457, §457.1, regarding protests of agency purchases, which will be located in Title 40, Part 15, of the Texas Administrative Code. The proposed new section establishes the procedure for the protesting of agency purchases. The proposed section is required under Texas Government Code §2155.076 and authorized under §434.010 of the Texas Government Code, granting the commission authority to adopt rules that it considers necessary for its administration.

Ms. Coronado has also determined that for the first five years the new section is in effect, the public will benefit from having procedures set in place for protests of agency purchase. There will be no effect on individuals, or large, small, or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposed new section may be submitted to Tina Coronado, General Counsel, Texas Veterans Commission, 1700 North Congress Avenue, Austin, Texas 78701 or by fax to (512) 463-3288. Comments may also be submitted electronically to tina.coronado@tvc.state.tx.us . For comments submitted electronically, please include "Protests of Agency Purchases" in the subject line. The deadline for submission of comments is 20 days from the date of publication of the proposed section in the Texas Register. Comments should be organized in a manner consistent with the organization of the section under consideration.

The new section is proposed under §434.010, which provides the Texas Veterans Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and specifically, §2155.076 of the Texas Government Code which requires the commission to develop and adopt protest procedures for vendors concerning commission purchases.

No other statutes, articles, or codes are affected by this section.

§457.1.Protests.

(a) The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.

(1) Agency--The Texas Veterans Commission.

(2) Commissioners--Commissioners of the Texas Veterans Commission.

(3) Interested parties--All vendors who have submitted bids or proposals for the provision of goods or services pursuant to a contract with the agency.

(b) Any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Director of Finance. Such protests must be in writing and received in the finance director's office within 10 working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. Formal protests must conform to the requirements of this subsection and subsection (c) of this section, and shall be resolved in accordance with the procedure set forth in subsections (d) and (e) of this section. Copies of the protest must be mailed or delivered by the protesting party to the agency and other interested parties.

(c) In the event of a timely protest or appeal under this section, the agency shall not proceed further with the solicitation or with the award of the contract unless the Executive Director, after consultation with the Director of Finance, makes a written determination that the award of contract without delay is necessary to protect the best interests of the state.

(d) A formal protest must be sworn and contain:

(1) a specific identification of the statutory or regulatory provision(s) that the protesting party alleges has been violated;

(2) a specific description of each action by the agency that the protesting party alleges to be a violation of the statutory or regulatory provision(s) that the protesting party has identified pursuant to paragraph (1) of this subsection;

(3) a precise statement of the relevant facts;

(4) a statement of any issues of law or fact that the protesting party contends must be resolved;

(5) a statement of the argument and authorities that the protesting party offers in support of the protest; and

(6) a statement that copies of the protest have been mailed or delivered to the agency and all other identifiable interested parties.

(e) The Director of Finance shall have the authority, prior to appeal to the Executive Director of the commission, to settle and resolve the dispute concerning the solicitation or award of a contract. The Director of Finance may solicit written responses to the protest from other interested parties.

(f) If the protest is not resolved by mutual agreement, the Director of Finance will issue a written determination on the protest.

(1) If the Director of Finance determines that no violation of rules or statutes has occurred, he/she shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination.

(2) If the Director of Finance determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he/she shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.

(3) If the Director of Finance determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he/she shall so inform the protesting party and other interested parties by letter which sets forth the reasons for the determination, which may include ordering the contract void.

(g) The Director of Finance's determination on a protest may be appealed by the protesting party to the Executive Director of the agency. An appeal of the Director of Finance's determination must be in writing and must be received in the Executive Director's office no later than 10 working days after the date of the Director of Finance's determination. Copies of the appeal must be mailed or delivered by the protesting party and other interested parties. The appeal must include a certified statement that such copies have been provided. The appeal shall be limited to review of the Director of Finance's determination.

(h) The Executive Director may confer with the General Counsel in his/her review of the matter appealed. The Executive Director may, in his/her discretion, refer the matter to the Commissioners for their consideration at a regularly scheduled open meeting or issue a written decision on the protest.

(i) When a protest has been appealed to the Executive Director under subsection (f) of this section and has been referred to the Commissioners by the Executive Director under subsection (g) of this section, the following requirements shall apply:

(1) Copies of the appeal and responses of interested parties, if any, shall be mailed to the Commissioners.

(2) All interested parties who wish to make an oral presentation at the open meeting are requested to notify the Commission's General Counsel at least 48 hours in advance of the open meeting.

(3) The Commissioners may consider oral presentations and written documents presented by staff and interested parties. The Chairman shall set the order and amount of time allowed for presentations.

(4) The Commissioners' determination of the appeal shall be by duly adopted resolution reflected in the minutes of the open meeting, and shall be final.

(j) A protest or appeal that is not filed timely will not be considered, unless good cause for delay is shown or the commission determines that a protest or appeal raises issues significant to procurement practices or procedures.

(k) A decision issued either by the Commissioners in open meeting, or in writing by the Executive Director, shall be the final administrative action of the 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 January 29, 2008.

TRD-200800485

Tina Coronado

General Counsel

Texas Veterans Commission

Earliest possible date of adoption: March 16, 2008

For further information, please call: (512) 463-1981

Chapter 458. STATUTORY ADVISORY COMMITTEES

40 TAC §458.1

The Texas Veterans Commission (commission) proposes new Chapter 458, §458.1, concerning Veterans Employment and Training Advisory Committee, which will be located in Title 40, Part 15, of the Texas Administrative Code. The proposed new section is authorized under Texas Government Code §434.0101, granting the commission the authority to establish advisory committees for the development of rules or policies. Texas Government Code §2110.005 requires an agency that establishes an advisory committee to adopt rules for the establishment of those committees.

Ms. Coronado has also determined that for the first five years the new section is in effect, the public will benefit from having the Veterans Employment and Training Advisory Committee established to seek input of employers to better assist veterans in gaining employment and/or training. There will be no effect on individuals, or large, small, or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposed new section may be submitted to Tina Coronado, General Counsel, Texas Veterans Commission, 1700 North Congress Avenue, Austin, Texas 78701 or by fax to (512) 463-3288. Comments may also be submitted electronically to tina.coronado@tvc.state.tx.us . For comments submitted electronically, please include "Veterans Employment and Training Advisory Committee" in the subject line. The deadline for submission of comments is 20 days from the date of publication of the proposed new section in the Texas Register . Comments should be organized in a manner consistent with the organization of the rule under consideration.

The new section is proposed pursuant to Texas Government Code §434.010, which provides general authority for the commission to adopt rules necessary for its administration.

No other statutes, articles, or codes are affected by this section.

§458.1.Veterans Employment and Training Advisory Committee.

(a) The Veterans Employment and Training Advisory Committee is established.

(b) Purpose. The purpose of the Veterans Employment and Training Advisory Committee is to seek the input of employers to better assist veterans in gaining successful employment and/or training.

(c) The Executive Director may appoint one or more members of the commission staff to serve and assist the committee. This position(s) shall be non-voting. This person(s) shall keep minutes of committee meetings and prepare those minutes for approval by the presiding member of the committee and shall assist the presiding officer in preparing the reports required for submission to the commission.

(d) Composition and appointment of members. The Veterans Employment and Training Advisory Committee shall consist of at least 7, but no more than 15 persons appointed by the commission. Appointment to the committee will be limited to individuals who are nominated by veterans organizations that have a national employment program or individuals who are recognized authorities in the fields of business, employment, training, rehabilitation or labor.

(e) Removal of members. Members of the committee serve at the pleasure of the commission. The commission may remove a member from the committee by a majority vote of the commission.

(f) Conditions of membership. The term of office for each member appointed by the commission shall be staggered for a two-year term. To achieve staggered terms, one-half of the initial appointments will be for a two-year term; and one-half will be for a three-year term. A member whose term has expired shall continue to serve until a qualified replacement is appointed by the commission. In the event that a member appointed by the commission cannot complete his or her term or is removed by the commission, the commission shall appoint a qualified replacement to serve the remainder of the term.

(g) No compensation. Committee members appointed by the commission shall serve without compensation. Committee members appointed by the commission are not entitled to reimbursement from the commission for travel and per diem incurred in the performance of their official duties.

(h) Meetings. The committee shall meet quarterly unless directed otherwise by the commission. The committee shall be subject to meeting at the call of the presiding member. A quorum shall consist of a majority of the committee membership.

(i) Duration. The Committee shall remain in existence as long as deemed necessary by the Commissioners of the Texas Veterans Commission.

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 January 30, 2008.

TRD-200800519

Tina Coronado

General Counsel

Texas Veterans Commission

Earliest possible date of adoption: March 16, 2008

For further information, please call: (512) 463-1981

40 TAC §458.2

The Texas Veterans Commission (commission) proposes new Chapter 458, §458.2, concerning Fund for Veterans' Assistance Advisory Committee, which will be located in Title 40, Part 15, of the Texas Administrative Code. The proposed new section is authorized under Government Code §434.0101, granting the commission the authority to establish advisory committees for the development of rules or policies. Government Code §2110.005 requires an agency that establishes an advisory committee to adopt rules for the establishment of those committees.

Ms. Coronado has also determined that for the first five years the new section is in effect, the public will benefit from having the Fund for Veterans' Assistance Advisory Committee established to seek input as to raising and distributing funds for the Fund for Veterans' Assistance. There will be no effect on individuals, or large, small, or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposed new section may be submitted to Tina Coronado, General Counsel, Texas Veterans Commission, 1700 North Congress Avenue, Austin, Texas 78701 or by fax to (512) 463-3288. Comments may also be submitted electronically to tina.coronado@tvc.state.tx.us . For comments submitted electronically, please include "Fund for Veterans' Assistance Advisory Committee" in the subject line. The deadline for submission of comments is 20 days from the date of publication of the proposed section in the Texas Register . Comments should be organized in a manner consistent with the organization of the section under consideration.

The new section is proposed pursuant to Government Code §434.010, which provides general authority for the commission to adopt rules necessary for its administration.

No other statutes, articles, or codes are affected by this section.

§458.2.Fund for Veterans' Assistance Advisory Committee.

(a) The Fund for Veterans' Assistance Advisory Committee is established.

(b) Purpose. The purpose of the committee is to raise and distribute funds for the Fund for Veterans' Assistance established under §434.017 of the Texas Government Code.

(d) Composition and appointment of members. The commission shall appoint to the committee at least 10 but no more than 18 members who at a minimum include the following:

(1) Two representatives of veterans' organizations;

(2) Three representatives of business;

(3) Two representatives of veterans;

(4) Two representatives of family members of veterans; and

(5) Other members with experience and knowledge to assist the committee achieve its purpose.

(e) Removal of members. Members of the committee serve at the pleasure of the commission. The commission may remove a member from the committee by a majority vote of the commission.

(i) Duration. The Committee shall remain in existence as long as deemed necessary by the Commissioners of the Texas Veterans Commission.

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 January 30, 2008.

TRD-200800542

Tina Coronado

General Counsel

Texas Veterans Commission

Earliest possible date of adoption: March 16, 2008

For further information, please call: (512) 463-1981

40 TAC §458.3

The Texas Veterans Commission (commission) proposes new Chapter 458, §458.3, concerning Veterans Communication Advisory Committee, which will be located in Title 40, Part 15, of the Texas Administrative Code. The proposed new section is authorized under Government Code §434.0101, granting the commission the authority to establish advisory committees for the development of rules or policies. Government Code §2110.005 requires an agency that establishes an advisory committee to adopt rules for the establishment of those committees.

Ms. Coronado has also determined that for the first five years the new section is in effect, the public will benefit from having the Veterans Communication Advisory Committee established by improving services provided by the Commission through better communication with veterans and their families. There will be no effect on individuals, or large, small, or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Comments on the proposed new section may be submitted to Tina Coronado, General Counsel, Texas Veterans Commission, 1700 North Congress Avenue, Austin, Texas 78701 or by fax to (512) 463-3288. Comments may also be submitted electronically to tina.coronado@tvc.state.tx.us . For comments submitted electronically, please include "Veterans Communication Advisory Committee" in the subject line. The deadline for submission of comments is 20 days from the date of publication of the proposed section in the Texas Register. Comments should be organized in a manner consistent with the organization of the section under consideration.

The new section is proposed pursuant to Government Code §434.010, which provides general authority for the commission to adopt rules necessary for its administration.

No other statutes, articles, or codes are affected by this section.

§458.3.Veterans Communication Advisory Committee.

(a) The Veterans Communication Advisory Committee is established.

(b) Purpose. The purpose of the committee is to improve the services provided by the Texas Veterans Commission through better communication with veterans and their families. This committee will also determine what communication methods should be used to reach OIF and OEF veterans and their families.

(d) Composition and appointment of members. The commission shall appoint to the committee at least 10 but no more than 18 members who at a minimum include the following individuals with experience and knowledge reaching out to the various veteran populations:

(1) One representative of the communication industry;

(2) One representative of the Reserves;

(3) One representative of the Texas National Guard;

(4) One representative of the active duty military;

(5) One representative of the United States Department of Veterans Affairs;

(6) One representative of Texas Health and Human Services Commission;

(7) Other members with experience and knowledge to assist the committee achieve its purpose.

(e) Removal of members. Members of the committee serve at the pleasure of the commission. The commission may remove a member from the committee by a majority vote of the commission.

(f) Conditions of membership. The term of office for each member appointed by the commission shall be staggered for a two-year term. To achieve staggered terms, one-half of the initial appointments will be for a three-year term; and one-half will be for a two-year term. A member whose term has expired shall continue to serve until a qualified replacement is appointed by the commission. In the event that a member appointed by the commission cannot complete his or her term or is removed by the commission, the commission shall appoint a qualified replacement to serve the remainder of the term.

(g) Compensation. Committee members appointed by the commission shall serve without compensation.

(i) Duration. The Committee shall remain in existence as long as deemed necessary by the Commissioners of the Texas Veterans Commission.

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 January 30, 2008.

TRD-200800543

Tina Coronado

General Counsel

Texas Veterans Commission

Earliest possible date of adoption: March 16, 2008

For further information, please call: (512) 463-1981

Part 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Chapter 745. LICENSING

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§745.119, 745.509, 745.601, 745.611, 745.615, 745.623, 745.625, 745.626, 745.629, 745.651, 745.663, 745.683, 745.685, 745.687, 745.693, 745.701, 745.707, and 745.735; the repeal of §745.627; and new §745.630, concerning background checks, in its Licensing chapter. The purpose of the proposed amendments, repeal, and new section is to: (1) implement new fingerprint-based criminal history checks against the Department of Public Safety (DPS) and Federal Bureau of Investigation (FBI) databases for children in child care, including new fingerprint-based criminal history checks required by amendments to §42.056, Human Resources Code, that were enacted in Senate Bill 758, 80th Legislative Session, and new fingerprint-based criminal history checks required by the federal "Adam Walsh Child Protection and Safety Act of 2006" (the Adam Walsh Act); (2) implement new out-of-state central registry checks in certain foster and adoptive homes as required by the Adam Walsh Act; (3) expand the list of criminal convictions that may be used to prevent a person from having access to children in care; (4) clarify terminology and amend certain procedures relating to the background check and risk evaluation processes; (5) add child-placing agencies to the types of child-care operations that are exempt from the payment of an amended license fee; and (6) incorporate changes as a result of House Bill (HB) 1385, Section 1, 80th Legislative Session, regarding educational exemptions. The changes will not only bring Child-Care Licensing rules in compliance with state and federal law, but will significantly enhance protections for children in child care by identifying certain persons with criminal histories or child abuse or neglect findings that are not identified under the current background check process and ensuring that such persons do not pose a risk to children in care. In addition, these changes, which will necessitate the use of fingerprint-based criminal history checks, will reduce the incidence of "false positive" matches, that sometimes result from name-based criminal history checks and cause delays in hiring qualified applicants in child-care operations.

Section 745.119 revises the current Texas Private School Accreditation Commission education exemption to only apply in a county that has a population of less than 25,000; revises an educational exemption to reduce the age of children from five to four years if the school is located in a county with a population of less than 25,000; and adds preschool to the list of grades offered at the school.

Section 745.509 adds child-placing agencies to the list of operations that are exempt from paying a fee to amend their license.

Section 745.601 amends terminology used in subsequent sections of this chapter concerning background checks in order to clarify who is subject to the new fingerprint-based criminal history check and out-of-state central registry checks.

Section 745.611 adds out-of-state central registry checks to the types of databases searched by DFPS when conducting background checks on certain persons, and significantly clarifies the names and explanation for each type of background check.

Section 745.615 is significantly amended to specify those persons for whom a fingerprint-based criminal history check is required under new mandatory provisions in §42.056(b-1) of the Human Resources Code and the federal Adam Walsh Act, or under permissive authority of §42.056(b) of the Human Resources Code. In addition, this section is amended to specify who is subject to an out-of-state central registry check.

Section 745.623 makes procedural changes to the methods that may be used by a child-care operation to submit its background check request and to require that certain new information be provided by child-placing agencies when submitting a background check for a foster or adoptive parent applicant who has lived outside the state of Texas any time during the five years preceding the person's application to become a foster or adoptive parent.

Section 745.625 clarifies language relating to when a background check request must be submitted. This clarification is necessary to implement the new background checks required under §745.615.

Section 745.626 clarifies how soon a person for whom a background check has been requested may provide direct care or have direct access to a child in care. The primary changes related to child-care centers, which are needed to comply with changes made to Human Resources Code, §42.506, regarding mandatory fingerprint-based criminal history checks for child-care centers.

Section 745.627 is repealed, and the language is incorporated in §745.623.

Section 745.629 describes the procedure used for submitting a fingerprint-based criminal history check, including a requirement to use the contractor selected by DPS for electronic submission of fingerprints when conducting a background check.

New §745.630 provides that a person does not require a new fingerprint-based criminal history check if the person has a fingerprint-based criminal history on file with DFPS and more than 24 months has not elapsed since the person underwent a background check with Licensing.

Section 745.651 adds several criminal offenses to the list of offenses for which there is a 10-year bar to persons being present in a child-care operation.

Section 745.663 clarifies the process for clearing up any claimed errors in a name-based criminal history check match.

Section 745.683 clarifies that a child-placing agency must request a risk evaluation on a non-client child of a foster or adoptive parent and requires that the risk evaluation for a licensed administrator must be requested by the CPA, general residential operation, or residential treatment center.

Section 745.685 requires that risk evaluations must be sent to the DFPS Centralized Background Check Unit, and the risk evaluations must be returned within 21 days if the person is continuing to work in child-care pending a risk evaluation.

Section 745.687 clarifies the documentation that must be submitted to establish that a person has completed all of the conditions of probation, including the date the probation was completed for deferred adjudications.

Section 745.693 adds certain criminal convictions to the list of those which bar a person from being present at a child-care operation and clarifies who is eligible for a risk evaluation and who can be present at a child-care operation, pending the outcome of the risk evaluation.

Section 745.701 clarifies when a person who has been arrested for an offense may be present in a child-care operation.

Section 745.707 transfers authority for approval of a risk evaluation from the Director of Child-Care Licensing to the Manager of the DFPS Centralized Background Check Unit.

Section 745.735 clarifies that, when a DFPS central registry check is conducted on a person who is a minor and that person is found to be a designated perpetrator, notice of the finding will be sent to the minor's parent rather than to the minor.

FISCAL AND ECONOMIC IMPACT STATEMENTS

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. This is because DFPS was appropriated funds by the 80th Legislature to implement a new Centralized Background Check Unit and to automate certain processes relating to criminal history checks. In addition, while the newly required fingerprint-based criminal history checks will generate new revenues to DPS, these revenues will be offset by the cost of conducting the additional criminal history checks.

Ms. Brown also has determined that, for each year of the first five years the sections will be in effect, the public benefit anticipated as a result of enforcing the sections will be that children in regulated child care will be better protected as a result of the expanded criminal history central registry checks and related changes to the background check and risk evaluation process. These proposed changes will minimize the likelihood that a person who has engaged in prior criminal activity that may pose a risk to children, or who has previously been found to have abused or neglected a child in another state, will have access to children in child care, thus keeping children safer from persons who may pose a danger to the health and safety of those children.

Ms. Brown has determined that, for the first five years the proposed rules will be in effect, no proposed rule sections other than those discussed below are anticipated to have any fiscal impact on persons or businesses that must comply with the rules because compliance will not require any additional new equipment, staff time, or other costs.

Ms. Brown has determined that, for the first five years the proposed rules will be in effect, there will be an adverse economic impact on large, small and micro-businesses, and on other persons who must comply with the new regulations concerning fingerprint-based criminal history checks and on-line submission of background check requests, as required in §§745.615, 745.623, 745.626, 745.629, and 745.630, and supported by amendments to §§745.601, 745.611, and 745.625, and the repeal of §745.627. Collectively, these new, amended, and repealed rules will require: (1) that a large number of individuals who currently undergo a "name-based-only" criminal history check against the DPS database will now also undergo a fingerprint-based criminal history check against both the DPS and FBI databases; (2) that all child-care centers submit their background check requests to DFPS on-line; (3) that the fingerprints needed to conduct a fingerprint-based criminal history check be scanned and submitted electronically using the statewide contractor selected by DPS for this purpose; (4) that child-care centers prohibit a person subject to a fingerprint-based criminal history check from having access to children in care until the results of the check are received, subject to certain exceptions; and (5) that child-care operations familiarize themselves with the new rules and make some minor modifications to current procedures in order to implement the new rules. Each of these impacts is described below in greater detail.

The proposed rules will impact three categories of regulated child-care operations: child-care centers; child-care homes; and residential child-care operations, some of which meet the definition of a small or micro-business under Chapter 2006 of the Government Code. As defined, small and micro-businesses must be "for-profit"; therefore, all child-care operations that are "non-profit" or operated by a governmental entity were excluded from the estimates of small and micro-businesses. Although micro-businesses are also necessarily small businesses, they are separately counted, where noted, below.

Child-care centers provide care for seven or more children for less than 24 hours per day, at a location other than the permit holder's home. The average capacity for child-care centers is 94 children per center. In FY 2006, DFPS licensed 9,091 child-care centers, of which an estimated 31%, or 2,818, are estimated to be small businesses, and an additional estimated 19.6%, or 1,782, are estimated to be micro-businesses.

Child-care homes, which include licensed, registered, and listed homes, provide care for children for less than 24 hours a day in the home of the primary caregiver. The average capacity in child-care homes is 5.8 children per home. In FY 2006, DFPS licensed, registered or listed 12,987 child-care homes, 100% of which, or 12,987, are estimated to be micro-businesses.

Residential child-care operations include residential child-care facilities that provide 24-hour care for children, such as emergency shelters, residential treatment centers, and maternity homes; as well as child-placing agencies that place children in residential care settings and may verify foster and adoptive homes. In FY 2006, DFPS licensed 555 residential child-care operations, of which an estimated 8.1%, or 45, are estimated to be small businesses, and an additional estimated 1.2%, or 7, are estimated to be micro-businesses.

(1) For each of the next five years, it is estimated that the cost of the fingerprint-based criminal history check will be $44.20 per background check. This is the current fee charged to submit electronic fingerprints through the DPS contractor and includes the fees charged by DPS ($15.00) and the FBI ($19.25) for conducting the fingerprint-based criminal history check of their respective databases, as well as a $9.95 service processing fee charged by the DPS contractor. None of this cost will go to DFPS. Use of the DPS contractor is required under proposed §745.629. Although not permitted under the proposed rules, this is the same per-criminal history check charge that would be paid for conducting fingerprint-based criminal history checks through most local law enforcement entities rather than the DPS contractor, because most, though not all, local law enforcement entities also charge the $9.95 service processing fee for assisting in a fingerprint-based check.

The rules do not specify whether the $44.20 background check charge must be paid by the individual undergoing the fingerprint-based criminal history check, or by the child-care operation requesting the check; however, it is assumed that many child-care operations will absorb this cost as part of their costs of operation. The total economic impact will vary greatly, depending on the size of the operation, the number of background checks requested by the operation that are subject to the new fingerprint-based criminal history checks, the turnover rate of the operation's employees or other persons present in the child-care operation who are subject to the fingerprint-based criminal history check, and the geographic mobility of persons for whom the operation requests background checks.

As an operation type, child-care centers are likely to have the highest percentage of their background checks subject to the newly required fingerprint-based criminal history checks, since a majority of the background checks required from child-care centers will require such a check under proposed §745.615(b)(3). For the relatively small number of child-care center checks not already covered by §745.615(b)(3), some will require a fingerprint-based criminal history check under proposed §745.615(b)(1), which requires a fingerprint-based criminal history check for any person who has lived outside the state of Texas at any time during the five-year period preceding the background check or for whom a criminal history outside of Texas is suspected (hereinafter referred to as the "five-year" rule). A U. S. Census Bureau report on geographic mobility estimates that 19% of the U.S. population moves from one state to another during any given year. Thus, it is estimated that 19% of background checks requested by child-care centers that are not subject to the fingerprint-based criminal history checks under proposed §745.615(b)(3) will require a fingerprint-based criminal history check because of the five-year rule.

Child-placing agencies that absorb the costs for the fingerprint-based criminal history check will be significantly affected. Under proposed §745.615(b)(2), fingerprint-based criminal history checks will be required for all foster and adoptive parent applicants if the home will accept placement of a child in the conservatorship of DFPS. In addition, fingerprint-based criminal history checks will be required for any other adult in a foster or adoptive home where a child in DFPS conservatorship may be placed. Other child-placing agency background checks will be subject to the fingerprint-based criminal history check to the extent that they are covered by the five-year rule.

All other child-care operation types will be affected only to the extent that a background check submitted by the operation is covered by the five-year rule and only to the extent that the operation absorbs the costs of the fingerprint-based criminal history check. For larger operations, such as residential treatment centers, the estimated number of background checks subject to the five-year rule will be 19%, based on the U.S. Census Bureau geographic mobility data. Very small operations, such as listed and registered family homes, may rarely, if ever, be subject to the fingerprint-based criminal history checks under the five-year rule.

Regardless of operation type, individuals for whom a fingerprint-based criminal history check is required may have to bear the cost if the child-care operation does not pay this cost on behalf of the individual.

The cost to child-care operations and individuals for a fingerprint-based criminal history check will be mitigated in the third, fourth and fifth year that the proposed rules will be in effect. Under proposed §745.630, electronically submitted fingerprints for any given person will remain on file indefinitely, so long as Licensing continues to receive a background check request on this same person every 24 months. Thus, if a person who has a valid fingerprint-based criminal history on file with DFPS ceases to work for or be present at one child-care operation, but returns to that operation or another operation within two years from the date the person's last background check was requested, the person's fingerprints will remain on file and the person will not be required to obtain a new fingerprint scan when the person returns to the old operation or transfers to a new child-care operation. DFPS estimates that this will lead to at least a one-third reduction in ongoing costs for fingerprint-based criminal history checks that will be required of persons and child-care operations in the third, fourth and fifth years that the proposed rules will be in effect.

(2) For each of the next five years, there will be costs to some child-care centers associated with the proposed amendments in §745.623, requiring that child-care centers submit their background checks on-line through the DFPS website. Under the current rules, both child-care centers and child-care homes have the option of submitting their background checks on-line or in paper form by mail. A majority of child-care centers already submit their background checks on-line, but some do not. It is estimated that no more than 15% of child-care centers may be adversely impacted by this new requirement, because they will have to have access to a computer and Internet service in order to submit their background checks and receive the results of their background checks on-line. Although this process can be undertaken by using a publicly available computer with Internet service, such as a computer available in a local public library, and a free e-mail account available via the public Internet, this solution may not be feasible for all child-care centers. For those who do not presently have a computer and Internet service at their disposal and for whom a publicly available computer with Internet access is not a feasible option, there will be a one-time cost for purchase of a computer and monitor, at an estimated cost of $500, based on a survey of current prices advertised by electronics stores for a computer with the capability of sending and receiving e-mail. In addition, there will be an ongoing cost for Internet service of approximately $29.00 per month, which is the average cost of high-speed Internet service based on a survey of Internet service providers. In areas where dial-up service is available, the average cost for dial-up service will generally be less than the cost for high-speed Internet service.

(3) For each of the next five years, in addition to the $44.20 charge per fingerprint scan discussed under (1) above, there will be a one-time cost to persons who must undergo a fingerprint-based criminal history check that is not incurred with a name-based criminal history check. This is the cost associated with traveling to the location of the DPS contractor site to obtain the electronic fingerprint scan, as required by proposed rule §745.629. The DPS contractor currently operates in 77 different locations in the state of Texas, with two additional locations planned before the end of this year. The DPS contract requires that at least one location be available within a 50 mile radius of any location in the state. It is estimated that the travel costs associated with obtaining a fingerprint scan will range from a negligible amount (for those living in metropolitan areas near a contractor site), to a maximum of $48.50, for those living in the most rural areas, as calculated by multiplying 100 miles (the maximum return trip distance from the contractor's site) by 48.5 cents per mile, which is the maximum state mileage reimbursement rate for travel as of September 1, 2007. It is assumed that these costs will most often be borne by the person undergoing the fingerprint-based criminal history check; however, some child-care operations may assume these costs in some instances.

(4) For each of the next five years, there may be adverse economic impact to child-care centers because proposed amendments to §745.626 prohibit a child-care center from allowing a person to provide direct care or have direct access to children in care until the person receives all the results of a fingerprint-based criminal history check from DFPS, subject to the following exception. If a center is experiencing a staffing shortage and requires the person to meet child-to-caregiver ratios, the child-care center may allow the person to work at the center as soon as the center receives notice from DFPS that the person has cleared the name-based criminal history check and the DFPS central registry check. Under current rules, the person may begin work at a child-care center prior to receipt of these same name-based check results. Typically, DFPS is able to complete the name-based portion of the background check and return "cleared" results to the child-care operation within 48 hours for background requests that are submitted on-line. This response will take longer when there is a match against the DPS criminal database or the DFPS central registry records requiring further research to determine whether the match precludes a person from having access to children in care. A child-care center that is unable to utilize a person needed to meet child-to-caregiver ratios pending the results of the name-based portion of the background check may have to hire a substitute caregiver or pay overtime to another staff member until the cleared results are received. In the event that the cost-per-hour that the center must pay the substitute caregiver is higher than the rate the center would have paid the new employee, or the center must pay overtime wages to another caregiver, the center may experience an increase in wages paid. The amount of this impact cannot be determined, but it is not anticipated that this increased cost will be so high or occur so frequently as to be a significant new cost to child-care centers when compared to overall operational costs.

(5) For the first year of the next five years, there will be a one-time cost to all child-care operations to familiarize themselves with the amended background check requirements and the location of the nearest DPS contractor site and to implement changes to internal procedures for compliance with the new rules, including the training of appropriate staff, as necessary, regarding the new requirements. This cost will vary depending on the size and type of operation; but it is estimated that most child-care operations will expend between three and ten total staff hours on these administrative activities, for a total estimated cost per child-care-operation of between $22.50 and $75.00, assuming the average wage for child-care workers who will perform these duties is $7.50 per hour.

REGULATORY FLEXIBILITY ANALYSIS

HB 3430, enacted by the 80th Legislature, amended §2006.002 of the Government Code to require a Regulatory Flexibility Analysis (RFA) for proposed rules that may have an adverse economic impact on small or micro-businesses. In developing an RFA, an agency must consider several alternative methods of achieving the purpose of the proposed rule that will reduce the adverse economic impact of the rule on small and micro-businesses, if alternative methods are consistent with the "health, safety, and environmental and economic welfare of the state". HB 3430 directed the Office of the Attorney General (OAG) to develop guidelines for the guidance of state agencies in preparing an RFA. The OAG has not yet finalized its guidelines, but has published Interim Guidelines clarifying that, when the substance of a proposed rule is required by a state or federal legislative mandate, the rule may be considered per se consistent with the health, safety, and environmental and economic welfare of the state, and the agency is not required to consider alternative methods of achieving the purpose of the rule. Likewise, the state may exercise its discretion in determining that there are no alternative methods of achieving the purpose of the proposed rule that are consistent with the health, safety, and environmental and economic welfare of the state. Following is the RFA for each of the five categories of costs described in the foregoing Fiscal and Economic Impact Statement section of this preamble.

(1) The most significant costs to small and micro-businesses associated with the proposed rules will be the $44.20 charge per fingerprint-based criminal history check required in amended §745.615, subsections (b)(1), (b)(2) and (b)(3). The fingerprint-based criminal history checks required under subsection (b)(3) for child-care centers, and under subsection (b)(2) for foster and adoptive parent applicants are required by §42.056(a-2) of the Human Resources Code (HRC) and the federal Adam Walsh Act, respectively. Thus, no alternative methods to these provisions in amended §745.615 were considered. The new fingerprint-based criminal history checks required for adults other than the foster or adoptive parent required under subsection (b)(2)(B), and the fingerprint-based criminal history checks required for all other persons who have resided outside the state of Texas in the previous five years required under subsection (b)(1), are proposed under DFPS's general authority in HRC §42.042 to adopt rules for the health, safety and welfare of children in regulated care, combined with the statutory directive under HRC §42.056(b-1) to conduct criminal history checks using either the DPS or FBI criminal history databases. A criminal history search of the FBI database must be fingerprint-based and, as a result, is more accurate than a name-based criminal history check--making it less susceptible to either a false-positive or a false-negative match, as compared with a name-based check. In addition, a check with the FBI database will detect criminal history matches that occurred outside the state of Texas that would go undetected using a name-based search of the DPS database. DFPS considered several alternatives before proposing the new fingerprint-based criminal history checks that are not required by state or federal law. Specifically, DFPS considered continuing to conduct only name-based criminal history checks for all persons not mandated to have a fingerprint-based criminal history check under state or federal law, but this option was deemed to create an unacceptable risk to children in care that was not justified by the costs associated with a fingerprint-based criminal history background check. DFPS also considered requiring that all persons undergo a fingerprint-based criminal history check, but the costs of this option outweighed the benefits, especially for persons who have never lived outside the state of Texas and who would be highly unlikely to have an out-of-state criminal history. DFPS also considered a shorter and longer period of time than the five-year period finally selected as the cut-off for requiring a fingerprint-based criminal history check under proposed §745.615(b)(1). Based on prior agency experience in conducting fingerprint-based criminal history checks for persons who have previously resided outside the state, as well as discussions of this issue with representatives of the child-care industry, DFPS determined the five-year period to be the most appropriate period for requiring the fingerprint-based criminal history check.

(2) The new requirement in §745.623 that child-care centers submit their background check requests to DFPS on-line will also adversely affect some small and micro-businesses that do not currently have ready access to a computer and Internet service. Residential child-care operations are already required to submit their background checks on line, but child-care centers and child-care homes have the option of doing so, or of submitting their background checks by mail. DFPS considered several alternatives to this proposed rule. Specifically, DFPS considered making no change; DFPS considered requiring both child-care centers and child-care homes to submit their requests on-line; and DFPS considered requiring all child-care centers to submit their requests on-line, while continuing to allow child-care homes to submit their requests manually--which is the option that DFPS determined to be the most reasonable after considering all the costs and benefits of each option. There are numerous benefits to the on-line submittal process as compared to the manual process. The on-line submittal process has been designed to prompt the user through a series of questions to ensure that all of the information needed to complete the background check is obtained. The DFPS automated system will automatically check to determine whether a fingerprint-based criminal history check is needed, and, if so, whether the person already has a valid fingerprint-based criminal history on file or whether the person must obtain a fingerprint scan for the check. Without the benefit of this automated feature, child-care operations might require an individual to submit new fingerprints when none are needed or, conversely, might erroneously assume that no new fingerprints are needed when, in fact, the person no longer has a valid fingerprint-based criminal history on file with DFPS. The on-line process will prevent unnecessary costs for duplicate fingerprint-based criminal history checks and will prevent mistakes that could lead to a person not obtaining the required fingerprint-based criminal history check because of a mistaken assumption, which would pose undue risk to children in care. On-line submittal also ensures that, when the results of the fingerprint-based criminal history check are received, DFPS will have all necessary data to automatically forward the results of a cleared check back to the requestor electronically, without time-consuming and labor intensive efforts. This automated process should result in most cleared fingerprint-based criminal history checks being returned to the operation within 48 hours of the time the fingerprint scan is obtained by the DPS contractor.

By contrast, the manual system for submitting a background check request to DFPS does not permit a similar quality control function and often requires follow-up inquiry with the operation submitting the form to gain additional or clarifying information necessary to complete a background check. Moreover, the manual system requires submission of the request by mail, data entry by DFPS staff into the DFPS automated system, and manual return of the results by mail, adding many days to the process and requiring additional staff time. Because DFPS will typically receive the results of the fingerprint-based criminal history check from DPS within 48 hours of the fingerprints being scanned by the DPS contractor, the background check results will often be received from DPS before the manually submitted background check request is received from the child-care operation--making it difficult and time consuming to associate the criminal history results with the operation that requested the background check. At best, the entire process of conducting a check based on a manual submission process, assuming no errors in completion of the forms, no delays in mailing, and no delays in associating the fingerprint results with the operation that requested the background check, will take roughly one business week longer than the on-line submission process. Experience indicates, however, that additional delays are common.

Given the high volume of child-care center requests that will be subject to the new fingerprint-based criminal history checks, the fact that most child-care centers already submit their requests on-line, the additional staff time needed to process fingerprint-based criminal history checks using a manual process, the potential that operations may err in determining when to obtain the fingerprint-based criminal history check, and the fact that errors and delays in the process pose inherent risks to children, DFPS has determined that the benefits outweigh the cost of the proposed rule. On the other hand, given the fact that a much smaller percentage of child-care homes currently submit their background checks on-line and the fact that many will rarely, if ever, require a fingerprint-based criminal history check under the five-year rule, DFPS determined that the cost of imposing this new requirement on child-care homes outweighs the benefits.

(3) State law permits, but does not require, DFPS to conduct fingerprint-based criminal history checks by using the DPS-selected contractor. DFPS has opted to require that fingerprints be submitted through the DPS contractor under proposed §745.629. The only other option for obtaining fingerprint-based criminal history checks would have been to permit persons to obtain a fingerprint card from a local law enforcement entity that prepares a fingerprint card using the ink impression method. Had DFPS not imposed the use of the DPS contractor, there might have been reduced travel costs to some small and micro-businesses associated with the decreased distance to the nearest local law enforcement entity to obtain the fingerprint card. DPS will only accept electronic fingerprint cards when submitted by its contractor, and this method has many added-value features as compared with ink-based fingerprint checks. The DPS contractor prepares the fingerprint card by electronically scanning the fingerprints and immediately forwarding the scanned prints electronically to DPS for automated matching against DPS and FBI criminal history databases. This automated method allows most results to be returned to DFPS and automatically forwarded back to the child-care operation within 48 hours.

Even more importantly, DPS has established a system for storing all electronically scanned fingerprints submitted through its contractor for an appropriate retention period, as determined by the governmental entity submitting the background request. For any such stored fingerprints, DPS will automatically notify the governmental entity any time there is a new match between the fingerprints and the DPS and FBI criminal history databases. In short, by using the DPS contractor, Licensing will now be able to obtain a continuously updated criminal history record on all persons for whom a background check has been requested within the previous 24 months and will no longer have to await the every-two-year background check renewal to resubmit a person's name against the DPS records to discover a new arrest or conviction that took place in the intervening 24 months since the prior background check was undertaken. This new system will greatly enhance protections for children since it will ensure that a person who "clears" an initial criminal history check but who is subsequently arrested or convicted of a crime that would prevent that person from having access to children in child care will no longer be able to avoid detection during the two-year period between background checks. Moreover, the fact that DPS will store the scanned prints obtained through its contractor until notified to destroy the prints is the reason that persons and child-care operations will not have to obtain new prints every two years, which would have greatly increased the overall costs of the new fingerprint-based criminal history checks to child-care operations and individuals. Accordingly, DFPS has determined that no other alternative method of implementing the new fingerprint-based criminal history check requirements is available that will accomplish the same purposes as proposed §745.629.

(4) Proposed amendments to §745.626, prohibiting child-care centers from allowing persons to have access to children in care until the results of all or part of the required background checks have been completed may have an adverse impact on small and micro-businesses as described in the foregoing Fiscal and Economic Impact Statement. This requirement is mandated by new HRC §42.056(g) and, therefore, no alternatives can be considered that are consistent with the health, safety, and economic welfare of the state.

(5) Finally, there may be slight adverse economic impact to small and micro-businesses as a result of the administrative overhead associated with implementing the proposed rules, including the costs of familiarizing appropriate staff with the new requirements, training, and making needed changes to any internal procedures related to the background check process. Such costs are a necessary and unavoidable cost of implementing the new rules; and thus no alternatives can be considered that would be consistent with the health, safety and economic welfare of the state.

HHSC has determined that the proposed amendments, new section, and repeal 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.

Questions about the content of the proposal may be directed to Tiffany Ashby at (512) 438-2638 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-373, 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 C. OPERATIONS THAT ARE EXEMPT FROM REGULATION

Division 2. EXEMPTIONS FROM REGULATION

40 TAC §745.119

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 proposed amendment implements House Bill 1385 Section 1, 80th Legislative Session.

§745.119.What educational facilities are exempt from Licensing regulation?

The following educational facilities and programs are exempt from our regulation:

Figure: 40 TAC §745.119

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 1, 2008.

TRD-200800597

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Subchapter E. FEES

40 TAC §745.509

The proposed amendment implements HRC, §42.056, as enacted by Senate Bill 758, 80th Session.

§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:

Figure: 40 TAC §745.509

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 1, 2008.

TRD-200800598

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Subchapter F. BACKGROUND CHECKS

Division 1. DEFINITIONS

40 TAC §745.601

The proposed amendment implements HRC, §42.042, and 42 USC §671.

§745.601.What words must I know to understand this subchapter?

These words have the following meanings:

(1) Continuous stay--Staying overnight or consecutive nights at an operation [ ~~Frequently--More than two times in a 30-day period~~ ].

(2) Direct care or direct access--Being counted in the child-to-caregiver ratio or having any responsibility that requires contact with children in care.

(3) Frequently present at your operation--More than two non-continuous visits at your operation in a 30-day period; one continuous stay per year at your operation and the duration of the stay exceeds seven days; or more than two continuous stays per year at your operation and the duration of each stay exceeds 48 hours.

(4) Non-continuous visit--Being physically present at an operation for a period of time of less than 24 hours. Multiple or periodic visits to an operation within the same day is one visit.

(5) [ ~~(2)~~ ] Regularly--On a scheduled basis.

(6) Unsupervised access--The person is allowed to be with children without the presence of a qualified caregiver.

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 1, 2008.

TRD-200800599

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Division 2. REQUESTING BACKGROUND CHECKS

40 TAC §§745.611, 745.615, 745.623, 745.625, 745.626, 745.629, 745.630

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 proposed amendments and proposed new section implement HRC §42.042, 42 USC §671, and HRC §42.056, as enacted by Senate Bill 758, 80th Session.

§745.611.What are background checks?

[ ~~Background checks are searches of different databases.~~ ] There are four [ ~~three~~ ] types of background checks:

(1) A name-based criminal history check: the Department of Public Safety (DPS) conducts a comparative search between a person's name and the DPS database of crimes committed in the State of Texas [ ~~Criminal history checks conducted by the Department of Public Safety for crimes committed in the state of Texas~~ ];

(2) A fingerprint-based criminal history check: DPS and the Federal Bureau of Investigation (FBI) conduct comparative searches between a person's fingerprints and the DPS database of crimes committed in the State of Texas and the FBI database of crimes committed anywhere in the United States, respectively; [ ~~Criminal history checks conducted by the Federal Bureau of Investigation for crimes committed anywhere in the United States; and~~ ]

(3) A DFPS central [ ~~Central~~ ] registry check: DFPS conducts a comparative search between a person's name and the DFPS central registry, which [ ~~checks conducted by PRS. The Central Registry~~ ] is a DFPS database of people who have been found by DFPS's divisions of Child Protective Services, Adult Protective Services, or Licensing to have abused or neglected a child ; and

(4) An out-of-state central registry check: a comparative search between a person's name and another state's database of persons who have been found to have abused or neglected a child.

§745.615.On whom must I request background checks?

(a) You must request a name-based criminal history check and a DFPS central registry check for [ ~~background checks for each person 14 years or older, other than clients of the operation, who will regularly or frequently be present at your operation while children are in care, including~~ ]:

(1) The directors, owners, operators, or administrators of the operation;

(2) [ ~~(1)~~ ] Employees and applicants you intend to hire [ ~~that will provide direct care or have direct access to a child in care~~ ];

(3) [ ~~(2)~~ ] Any person(s), including volunteers, who are counted in any [ ~~the~~ ] child/caregiver ratio required in minimum standards ;

(4) [ ~~(3)~~ ] Person(s) applying to adopt or foster children through any licensed or certified child-placing agency; [ ~~and~~ ]

(5) [ ~~(4)~~ ] Any person [ ~~under contract with your operation~~ ] who has unsupervised access [ ~~contact~~ ] with children in care ; [ ~~on a regular or frequent basis.~~ ]

(6) Non-client residents of the operation that are 14 years or older;

(7) Applicants for a child-care administrator's license; and

(8) Any other person 14 years or older, excluding client residents, who will regularly or frequently be present at your operation while children are in care.

(b) In addition:

(1) You must request a fingerprint-based criminal history check for any person who requires a background check under subsection (a) of this section if that person has lived outside of Texas any time during the previous five years or there is reason to believe other criminal history exists;

(2) Child-placing agencies and independent foster homes that will accept the placement of children in the conservatorship of DFPS must request a fingerprint-based criminal history check for:

(A) Any foster and/or adoptive parent applicant, including a person who has adopted in the past and who applies to adopt again unless the person is also verified as a foster/adopt home; and

(B) Any adults 18 years or older in a foster or adoptive home; and

(3) Child-care centers must request a fingerprint-based criminal history check for:

(A) The directors, owners, operators, or administrators of the center;

(B) Employees and applicants you intend to hire;

(C) Any person(s), including volunteers, who are counted in the child/caregiver ratio specified in §746.1601 of this title (relating to How many children may one caregiver supervise?), §746.1701 of this title (relating to How many children may one caregiver supervise if 12 or fewer children are in care?), and §746.1901 of this title (relating to If I operate a get-well care program, must I use a different child/caregiver ratio?); and

(D) Any person who has unsupervised access to children in care.

~~[ ~~(b)~~ You must also request background checks for the following:]~~

~~[ ~~(1)~~ The directors, owners, operators, or administrators of the operation;]~~

~~[ ~~(2)~~ Non-client residents of the operation that are 14 years or older; and]~~

~~[ ~~(3)~~ Applicants for a child-care administrator's license.]~~

(c) In addition, child-placing agencies and independent foster homes that will accept the placement of children in the conservatorship of DFPS must request an out-of-state central registry check for a foster or adoptive parent applicant who has lived outside of the state any time during the previous five years preceding the person's application to become a foster or adoptive parent.

(d) [ ~~(c)~~ ] You do not have to request a background check on professionals who have currently cleared a background check in compliance with [ ~~through~~ ] another governmental entity's requirements, if [ ~~regulatory entity, and~~ ] you do not employ or contract with the professional.

§745.623.How do I request a background check?

(a) (No change.)

(b) If you operate a child day-care operation other than a child-care center , you must [ ~~can~~ ] complete a request for a background check either:

(1) On-line [ ~~on-line~~ ] through the DFPS website ; or

(2) Send [ ~~or send~~ ] in a request via a signed form provided by your local Licensing office or the DFPS Centralized Background Check Unit .

(c) If you operate a residential child-care operation or a child-care center , you must submit your requests on-line through the DFPS website.

(d) If you operate a child-placing agency or independent foster home, you must also include any addresses, including counties, where a foster or adoptive parent applicant has lived outside of the state of Texas any time during the five years preceding the person's application to become a foster or adoptive parent.

§745.625.When must I submit a request for a background check?

(a) You must submit a request for a background check:

(1) At the time [ ~~When~~ ] you submit your application for a permit to us;

(2) At the time you hire someone;

(3) At the time you contract with someone who requires a background check;

(4) At the time a person applies to be a foster or adoptive parent;

(5) [ ~~(2)~~ ] At the time [ ~~When~~ ] a non-client resident 14 years [ ~~old~~ ] or older [ ~~lives or~~ ] moves into your home or operation, or a non-client resident living in your home or operation becomes 14 years old;

(6) At the time you become aware of anyone requiring a background check under §745.615 of this title (relating to On whom must I request background checks?); and

~~[ ~~(3)~~ When you apply to be a foster or adoptive parent; and]~~

(7) [ ~~(4)~~ ] Every 24 months after each person's background check [ ~~name~~ ] was first submitted.

~~[ ~~(b)~~ In addition, if you operate a residential child-care operation:]~~

~~[ ~~(1)~~ You must submit a background check request before you hire a new person who will provide direct care or have direct access to a child in care; and]~~

[ ~~(2)~~ For an employee who will not provide direct care or have direct access to a child in care, you must submit a background check request within two business days after the new person is hired or is present in your operation.]

(b) [ ~~(c)~~ ] Not withstanding subsection (a) of this section [ ~~In addition~~ ], if you operate a child day-care operation other than a child-care center , you must submit a background check request within two business days after a new person is hired or is present in your operation and every 24 months after the person's background check was first submitted .

§745.626.How soon after I request a background check on a person can that person provide direct care or have direct access to a child [ ~~in a residential child-care operation~~ ]?

(a) For residential child-care operations:

(1) You must have all required background check results from DFPS before you can allow a person to provide direct care or have direct access to a child. However, if [ If ] you do not receive the results of the background check within two working days of submission, you may allow a person to provide direct care or have direct access to a child until you receive the results of the background check performed by DFPS, when the following conditions apply:

(A) You have obtained [ ~~you may obtain~~ ] a criminal history check on the person through the Department of Public Safety (DPS) at http://records.txdps.state.tx.us/. The results of the criminal history check obtained from DPS must be kept in a sealed envelope in the person's personnel record or in another location, accessible to us; and

(B) Your [ ~~If your~~ ] DPS check verifies that the person has no criminal history [ , you may allow the person to have unsupervised client contact until you receive the results of the background check performed by the DFPS. The results of the criminal history check obtained from DPS must be kept in a sealed envelope in the person's personnel record or in another location, accessible to us. In accordance with Texas Government Code, §411.085, these results should not be released or disseminated for any other purpose ].

[ ~~(b)~~ ~~Otherwise, you may not allow the person to provide direct care or have direct access to a child in care until you receive the results of the person's background check.]~~

(2) [ ~~(c)~~ ] For verifying foster homes, foster group homes, and adoptive homes, please see §745.633 of this title (relating to Can a child-placing agency (CPA) verify a foster home, foster group home, or adoptive home prior to receiving the results of the background checks?).

(b) For all child day-care operations other than child-care centers, you may allow the person to have direct care or direct access after you request a background check unless or until DFPS notifies you that the person may not be present at your operation while children are in care.

(1) You must have all required background check results from DFPS before you can allow a person to provide direct care or have direct access to a child in care unless the following conditions apply:

(A) You provide us with documentation that proves your center is experiencing a shortage of staff and would otherwise not be able to meet DFPS child-to-caregiver ratios stated in Chapter 746 of this title (relating to Minimum Standards For Child-Care Centers) or the child-to-caregiver ratio documented in your written operational policies and procedures, whichever is more stringent; and

(B) You have received from us the results of the name-based criminal history check and the DFPS central registry check, and DFPS has not notified you that the person may not be present at your operation while children are in care.

(2) If the fingerprint criminal history check results reveal information that would preclude the person from being present at your operation, then you must immediately terminate the person's employment.

§745.629.How do I submit fingerprints [ ~~an FBI fingerprint card~~ ] for a fingerprint-based criminal history [ ~~background~~ ] check?

After you make your request through DFPS, you must submit the fingerprints electronically through the assigned applicant fingerprinting service center of DPS. [ We will provide you with a fingerprint card. The person who will be the subject of the FBI check must then go to his local law enforcement office or DPS office and have his fingerprints taken. Then you send the completed card to your local Licensing office. ]

§745.630.If a fingerprint-based criminal history check has already been completed on a person, is a new fingerprint-based criminal history check required for that person every 24 months?

A person does not require a new fingerprint-based criminal history check if:

(1) The person has a fingerprint-based criminal history on record with DFPS; and

(2) It has not been more than twenty-four (24) months since a name-based criminal history check was resubmitted.

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 1, 2008.

TRD-200800600

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

40 TAC §745.627

(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 proposed repeal implements HRC §42.042.

§745.627.When should I request an FBI criminal history check?

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 1, 2008.

TRD-200800601

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Division 3. CRIMINAL CONVICTIONS AND CENTRAL REGISTRY FINDINGS OF CHILD ABUSE OR NEGLECT

40 TAC §745.651, §745.663

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 proposed amendments implement HRC §42.042.

§745.651.What types of criminal convictions may preclude a person from being present in an operation?

(a) (No change.)

(b) A misdemeanor or felony committed within the past 10 years under [ ~~the~~ ] :

(1) The Texas Controlled Substances Act ; [ , ]

(2) The following sections or chapters of the TPC:

(A) §39.04 (Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody);

(B) §42.08 (Abuse of Corpse);

(D) §42.091 (Attack on Assistance Animal);

(E) §42.092 (Cruelty to Nonlivestock Animals);

(F) §42.10 (Dog Fighting);

(G) §46.13 (Making a Firearm Accessible to a Child); or

(H) Chapter 49 (Intoxication and Alcoholic Beverage Offenses) [ ~~of Title 10 of the Texas Penal Code~~ ] ; or [ , ]

(3) The Texas Alcoholic Beverage Code, §106.06 (Purchase of Alcohol for a Minor; Furnishing Alcohol to a Minor); [ or ]

(4) Any [ ~~any~~ ] like offense of [ ~~under~~ ] the law of another state or federal law [ ~~that the person committed within the past ten years~~ ]; or

(c) Any other felony committed within the past 10 years under the TPC [ ~~Texas Penal Code~~ ] or any like offense of [ ~~under~~ ] the law of another state or federal law [ ~~that the person committed within the past ten years; and~~ ] ; or

(d) (No change.)

§745.663.What if the person with the criminal conviction or central registry finding believes the information obtained is incorrect?

Your responsibilities are the same as noted in §745.661 of this title (relating to What must I do after Licensing notifies me that a person at my operation has one of these types of criminal convictions or central registry findings?). However, you may contact the local Licensing staff who sent the notice letter to discuss the accuracy of the information. For criminal convictions, you may conduct a fingerprint-based criminal history check through DPS [ ~~an FBI fingerprint check~~ ] to determine the accuracy of the conviction.

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 1, 2008.

TRD-200800602

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Division 4. EVALUATION OF RISK BECAUSE OF A CRIMINAL CONVICTION OR A CENTRAL REGISTRY FINDING OF CHILD ABUSE OR NEGLECT

40 TAC §§745.683, 745.685, 745.687, 745.693, 745.701, 745.707

The proposed amendments implement HRC §42.042 and 42 USC §671.

§745.683.Who is responsible for submitting a request for a risk evaluation?

(a) (No change.)

(b) If the person with the criminal conviction or central registry finding is a child-placing agency foster parent, [ or ] adoptive parent, or the non-client child of the foster or adoptive home, then the child-placing agency must request the risk evaluation; [ ~~and~~ ]

(c) If the person with the criminal conviction or central registry finding is a child-care administrator, then the child-placing agency, general residential operation, or residential treatment center must request the risk evaluation; and

(d) [ ~~(c)~~ ] For everyone else, the governing body, director, designee, independent foster home parent, or family home caregiver, as appropriate, must request the risk evaluation.

§745.685.How do I submit a request for a risk evaluation?

You must [ ~~obtain a risk evaluation form from your local Licensing office,~~ ] complete the risk evaluation form, attach the appropriate documentation, and send the form back to the DFPS Centralized Background Check Unit [ ~~your local Licensing office~~ ]. If you have been notified that a person requiring a background check may continue to work or be present in child-care pending a risk evaluation, the form must be completed and returned within 21 calendar days.

§745.687.What must I include in my request for a risk evaluation based on criminal history?

You must include the following:

(1) - (4) (No change.)

(5) If the person was given a probated sentence, information related to the terms and conditions of the probation , including documentation that the person paid all court costs and supervision fees and court-ordered restitution and fines ;

(6) If the individual received deferred adjudication, include the date that the probation was or will be completed;

(7) [ ~~(6)~~ ] The nature and seriousness of the crime for which he was convicted;

(8) [ ~~(7)~~ ] The extent and nature of the person's past criminal history;

(9) [ ~~(8)~~ ] Age of the person when the crime was committed;

(10) [ ~~(9)~~ ] The time that has elapsed since the person's last criminal activity;

(11) [ ~~(10)~~ ] Evidence of rehabilitative effort;

(12) [ ~~(11)~~ ] The conduct and work activities of the person;

(13) [ ~~(12)~~ ] Other evidence of the person's present fitness, including letters of recommendation from the prosecuting attorney, law enforcement, and correctional officers who were involved in the case;

(14) [ ~~(13)~~ ] Documentation showing that the person has maintained a record of steady employment, has supported his children, has maintained a record of good conduct, and has paid any outstanding court costs, fees, fines, and restitution related to the conviction or deferred adjudication; and

(15) [ ~~(14)~~ ] If the person is an employee or volunteer or potential employee or volunteer, information about his anticipated job responsibilities, plans for supervision, and hours and days of service.

§745.693.In what circumstances can someone with a criminal history be present in a child-care operation?

[ ~~(a)~~ ] The following chart lists the types of criminal convictions that we monitor, whether the person with the conviction is eligible for a risk evaluation, and whether he may be present in a child-care operation while children are in care pending the outcome of the risk evaluation:

Figure: 40 TAC §745.693

~~[ ~~(b)~~ We will treat a deferred adjudication the same as a conviction until the probation is successfully completed.]~~

§745.701.May a person arrested or charged with a crime be present in an operation while children are in care?

We determine on a case-by-case basis whether someone arrested or charged with a crime may be present in an operation while children are in care. The person may not be present if a conviction for the arrest or charged offense would prohibit him from being at the operation pending the outcome of a risk evaluation, or if we determine that he poses an immediate threat to the health or safety of children.

§745.707.Who makes the final decision on a risk evaluation?

The manager of the DFPS Centralized Background Check Unit [ ~~Director of Licensing~~ ] or his designee reviews the risk evaluation request and determines whether or not a person with a criminal conviction or central registry finding poses a risk to children in a particular operation. [ ~~If a child day-care operation requests the evaluation, the designee will be a district director. If a residential operation requests the evaluation, the designee will be a division administrator.~~ ]

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 1, 2008.

TRD-200800603

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Division 5. DESIGNATED AND SUSTAINED PERPETRATORS OF CHILD ABUSE OR NEGLECT

40 TAC §745.735

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 proposed amendment implements HRC §42.042.

§745.735.What notice will Licensing send a designated perpetrator or a sustained perpetrator working at an operation?

(a) - (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 February 1, 2008.

TRD-200800604

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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), amendments to §§749.43, 749.2001, 749.2903, and 749.2905, concerning what do certain words and terms mean in this chapter, what do certain words mean in this subchapter, who must conduct fire and health inspections at a foster home, and how often must fire and health inspections be conducted at a foster home, in its Child-Placing Agencies chapter. The purpose of the amendments is to facilitate more inspections in foster family homes, thereby helping to ensure that fire inspections do not present a barrier to verifying or maintaining foster family homes. Section 749.43 adds a definition for certified fire inspectors. In §749.2001, some paragraphs are renumbered as a result of the change in §749.43. Section 749.2903 outlines expectations for fire and health inspections in foster homes. The amendment separates the expectations for foster family homes versus foster group homes, in order to clarify differing expectations depending on the type of foster home. Section 749.2905 adds a reference to a certified fire inspector to be consistent with changes to §749.2903.

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 child-placing agencies will be able to verify and retain more foster homes for children in need of substitute care. There will be no effect on large, small, or micro-businesses because the proposed change does not impose new requirements on any business and does not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

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.

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-374, 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 B. DEFINITIONS AND SERVICES

Division 1. DEFINITIONS

40 TAC §749.43

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.

§749.43.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) - (6) (No change.)

(7) Certified fire inspector--Person certified by the Texas Commission on Fire Protection to conduct fire inspections.

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

(9) [ ~~(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 child-care services. Unless a child has been discharged from the child-placing agency, he is considered a child in care.

(10) [ ~~(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.

(11) [ ~~(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.

(12) [ ~~(11)~~ ] Days--Calendar days, unless otherwise stated.

(13) [ ~~(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.

(14) [ ~~(13)~~ ] Department--The Department of Family and Protective Services (DFPS).

(15) [ ~~(14)~~ ] 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) [ ~~(15)~~ ] 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) [ ~~(16)~~ ] Emergency Behavior Intervention--Interventions used in an emergency situation, including personal restraints, mechanical restraints, emergency medication, and seclusion.

(18) [ ~~(17)~~ ] 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) [ ~~(18)~~ ] Family members--An individual related to another individual within the third degree of consanguinity or affinity. For the definitions of consanguinity and affinity, see Chapter 745 of this title (relating to Licensing). The degree of the relationship is computed as described in Government Code, §573.023 (relating to Computation of Degree of Consanguinity) and §573.025 (relating to Computation of Degree of Affinity).

(20) [ ~~(19)~~ ] Food service--The preparation or serving of meals or snacks.

(21) [ ~~(20)~~ ] Foster family home--A home that is the primary residence of the foster parent(s) and provides care for six or fewer children or young adults, under the regulation of a child-placing agency.

(22) [ ~~(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 or young adults, under the regulation of a child-placing agency; or

(B) Prior to January 1, 2007, that provides care for seven to 12 children or young adults, under the regulation of a child-placing agency.

(23) [ ~~(22)~~ ] Foster home--As referred to in this chapter means both types of homes, foster family homes and foster group homes.

(24) [ ~~(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

(25) [ ~~(24)~~ ] Foster parent--A person who provides foster care services in the foster home.

(26) [ ~~(25)~~ ] Full-time--At least 30 hours per week.

(27) [ ~~(26)~~ ] Garbage--Food or items that when deteriorating cause offensive odors and/or attract rodents, insects, and other pests.

(28) [ ~~(27)~~ ] Health-care professional--A licensed physician, licensed registered nurse with appropriate advanced practice authorization from the Texas Board of Nurse Examiners, a licensed vocational nurse (LVN), a licensed registered nurse (RN), or other licensed medical personnel providing health care to the child within the scope of his license. This does not include medical doctors or medical personnel not licensed to practice in the United States.

(29) [ ~~(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.

(30) [ ~~(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.

(31) [ ~~(30)~~ ] Infant--A child from birth through 17 months.

(32) [ ~~(31)~~ ] Livestock--An animal raised for human consumption or an equine animal.

(33) [ ~~(32)~~ ] Living quarters--A structure or part of a structure where a group of children reside, such as a building, house, cottage, or unit.

(34) [ ~~(33)~~ ] Long-term placement--A placement intended to last for more than 90 days.

(35) [ ~~(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.

(36) [ ~~(35)~~ ] 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.

(37) [ ~~(36)~~ ] Non-mobile--A child that is not able to move from place to place, even with assistance.

(38) [ ~~(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.

(39) [ ~~(38)~~ ] Physical force--Pressure applied to a child's body that reduces or eliminates the child's ability to move freely.

(40) [ ~~(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.

(41) [ ~~(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.

(42) [ ~~(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.

(43) [ ~~(42)~~ ] PRN--A standard order or prescription that applies "pro re nata" or "as needed according to circumstances."

(44) [ ~~(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.

(45) [ ~~(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.

(46) [ ~~(45)~~ ] Regularly--On a recurring, scheduled basis.

(47) [ ~~(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.

(48) [ ~~(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.

(49) [ ~~(48)~~ ] Seat belt--A lap belt and any shoulder strap included as original equipment on or added to a motor vehicle.

(50) [ ~~(49)~~ ] Service plan--A plan that identifies a child's basic and specific needs and how those needs will be met.

(51) [ ~~(50)~~ ] State or local fire inspector--A fire official designated by the city, county, or state government.

(52) [ ~~(51)~~ ] 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) [ ~~(52)~~ ] 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) [ ~~(53)~~ ] Toddler--A child from 18 months through 35 months old.

(55) [ ~~(54)~~ ] Treatment director--The person responsible for the overall treatment program providing treatment services. A treatment director may have other responsibilities and may designate treatment director responsibilities to other qualified persons.

(56) [ ~~(55)~~ ] 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) [ ~~(56)~~ ] Volunteer--A person who provides services:

(A) Child-care services, treatment services, or programmatic services under the auspices of the agency without monetary compensation, including a "sponsoring family;" or

(B) Any type of services under the auspices of the agency without monetary compensation when the person has unsupervised access to a child in care.

(58) [ ~~(57)~~ ] Water activities--Activities related to the use of splashing pools, wading pools, swimming pools, or other bodies of water.

(59) [ ~~(58)~~ ] Young adult--An adult whose chronological age is between 18 and 22 years, who is currently in a residential child-care agency, 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 1, 2008.

TRD-200800605

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Subchapter L. FOSTER CARE SERVICES: EMERGENCY BEHAVIOR INTERVENTION

Division 1. DEFINITIONS

40 TAC §749.2001

The amendment implements HRC §42.042.

§749.2001.What do certain words mean in this subchapter?

These words have the following meaning in this subchapter:

(1) (No change.)

(2) De-escalation--See §749.43(13) [ ~~§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) [ ~~§749.43(16)~~ ] of this title.

(4) - (7) (No change.)

(8) PRN--See §749.43(43) [ ~~§749.43(42)~~ ] of this title [ ~~(relating to What do certain words and terms mean in this chapter?)~~ ].

(9) - (14) (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 February 1, 2008.

TRD-200800606

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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

Subchapter O. FOSTER HOMES: HEALTH AND SAFETY REQUIREMENTS, ENVIRONMENT, SPACE AND EQUIPMENT

Division 1. HEALTH AND SAFETY

40 TAC §749.2903, §749.2905

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 HRC §42.042.

§749.2903.Who must conduct fire and health inspections at a foster home?

(a) All foster homes are required to obtain fire and health inspections.

(b) The requirements related to fire and health inspections for foster family homes are as follows:

(1) You must [ ~~explore all available resources, city, county, and local governments to~~ ] determine whether there is any local authority or certified fire inspector 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.

(2) If no local authority or certified fire inspector exists to complete a fire inspection for the home, you must request that the state Fire Marshal's Office [ to ] do the inspection.

(3) 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.

(4) [ ~~(3)~~ ] If, after exploring and documenting all efforts to obtain a [ ~~local or state~~ ] fire inspection for a home, you cannot obtain a fire inspection, you may use our Fire Prevention Checklist form.

(5) [ ~~(4)~~ ] If, after exploring and documenting all efforts to obtain a [ ~~local or state~~ ] health inspection for a home, you cannot obtain a health inspection, you may use our Environmental Health Checklist form.

(1) You must 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.

(2) If no local authority exists to complete a fire inspection for the home, you must request that the state Fire Marshal's Office do the inspection.

(3) 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.

(4) If, after exploring and documenting all efforts to obtain a fire inspection for a home, you cannot obtain a fire inspection, you may use our Fire Prevention Checklist form.

(5) If, after exploring and documenting all efforts to obtain a health inspection for a home, you cannot obtain a health inspection, you may use our Environmental Health Checklist form.

(d) [ ~~(b)~~ ] Once you document that [ ~~there is no entity to conduct~~ ] a health and/or fire inspection is not available in a particular area, you may use that documentation for any foster home verified by you in that area. A copy of the documentation must be on file in each foster home record to which the documentation applies.

(e) [ ~~(c)~~ ] Documentation that [ ~~there is no entity to complete~~ ] a health and/or fire inspection is not available in a particular area is valid for one year.

§749.2905.How often must fire and health inspections be conducted at a foster home?

(a) Unless otherwise stated in the report, a fire or health inspection report obtained from a [ ~~local or state fire or~~ ] health or fire authority , including a certified fire inspector, is current for:

(1) - (2) (No change.)

(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 February 1, 2008.

TRD-200800607

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: March 16, 2008

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