Texas Department of Protective and Regulatory Services

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

Subchapter K. REQUESTING A REVIEW OF FINDING IF YOU ARE THE ADMINISTRATOR OR CONTRACTOR CEO

40 TAC §711.1001

The amendment implements the Human Resources Code, §40.029 and Human Resources Code, Chapter 48, Subchapter I.

§711.1001.What if the administrator or contractor CEO wants to challenge the finding or the methodology used to conduct the investigation?

(a) The administrator or contractor CEO may request a review of the finding or methodology used to conduct the investigation if he or she is not the perpetrator or alleged perpetrator.

(1) If the administrator is the perpetrator or alleged perpetrator then only TDMHMR may request a review.

(2) If the contractor CEO is the perpetrator or alleged perpetrator then only the administrator may request a review.

(b) If the alleged perpetrator requests a hearing in accordance with Subchapter O of this chapter (relating to the Employee Misconduct Registry), a request for review will not be accepted and processed unless:

(1) the alleged perpetrator withdraws his request for a hearing; or

(2) PRS determines prior to the hearing that the alleged act does not meet the criteria for reportable conduct.

(c) If the alleged perpetrator requests a hearing in accordance with Subchapter O of this chapter, and the hearing is conducted, a request for review will not be processed.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200459

Texas Department of Protective and Regulatory Services

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

Subchapter O. EMPLOYEE MISCONDUCT REGISTRY

40 TAC §§711.1401, 711.1403, 711.1405, 711.1407, 711.1409, 711.1411, 711.1413, 711.1415, 711.1417, 711.1419, 711.1421, 711.1423, 711.1425, 711.1427, 711.1429, 711.1431, 71.1433, 711.1435

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and under Human Resources Code, Chapter 48, Subchapter I, which specifically directs the department to adopt rules to implement its role in relation to the employee misconduct registry.

The new sections implement the Human Resources Code, §40.029 and Human Resources Code, Chapter 48, Subchapter I.

§711.1403.To which investigations does this subchapter apply?

This subchapter applies to APS investigations involving a person who works for a Home and Community Support Services Agency (HCSSA) licensed under Health and Safety Code, Chapter 142. This subchapter applies to APS investigations at a community center or local authority only if the investigation involves an employee who performs services under the auspices of an HCSW (as defined in this chapter).

§711.1405.How are some of the terms in this subchapter defined?

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Employee--A person who:

(A) works as an employee, agent, or contractor for a home and community support services agency (HCSSA);

(B) provides personal care services, active treatment, or any other personal services to an individual receiving services from a HCSSA; and

(2) Employee Misconduct Registry--The registry established under Health and Safety Code, Chapter 253.

(3) Executive director--The executive director of the Texas Department of Protective and Regulatory Services (PRS), or the executive director's designee.

(4) Hearings examiner--A PRS attorney designated to conduct a hearing to appeal a finding of reportable conduct.

(5) HCSSA--A home and community support services agency licensed under Health and Safety Code, Chapter 142, which includes HCSWs.

(6) Reportable conduct--Certain types of abuse, neglect, or exploitation of a person, as further defined in §711.1409 of this title (relating to What is reportable conduct?).

§711.1407.What is the Employee Misconduct Registry?

The Employee Misconduct Registry is a database maintained by the Texas Department of Human Services that contains the names of persons who have committed reportable conduct. A person whose name is recorded in the registry is prohibited by law from working for certain facilities or agencies, as provided under Health and Safety Code, Chapter 253, and Health and Safety Code, §250.003(c).

§711.1409.What is reportable conduct?

(a) The definition of reportable conduct depends on whether the investigation was investigated under this chapter or under Chapter 705 of this title (relating to Adult Protective Services).

(b) If the employee worked for an HCSW and the investigation was conducted under this chapter, reportable conduct is abuse, neglect, or exploitation that meets the following criteria:

(1) physical abuse, as defined in this chapter, that caused or may have caused serious physical injury or death;

(2) neglect, as defined in this chapter, that caused or may have caused serious physical injury or death;

(3) sexual abuse, as defined in this chapter;

(4) exploitation, as defined in this chapter, that involves an aggregate amount of $25 or more; and

(5) emotional or verbal abuse, as defined in this chapter, that caused substantial harm.

(c) If the employee worked for a HCSSA other than an HCSW and the investigation was conducted under Chapter 705 of this title, reportable conduct is abuse, neglect, or exploitation that meets the following criteria:

(1) abuse, as defined in Chapter 705 of this title, that caused or may have caused serious physical injury, as defined in this chapter, or death;

(2) neglect, as defined in Chapter 705 of this title, that caused or may have caused serious physical injury, as defined in this chapter, or death;

(3) sexual abuse, as defined in Chapter 705 of this title;

(4) exploitation, as defined in Chapter 705 of this title, that involves an aggregate amount of $25 or more; and

(5) emotional or verbal abuse, as defined in Chapter 705 of this title, that caused substantial harm.

§711.1411.Under what circumstances does PRS submit an employee's name to the Employee Misconduct Registry?

When PRS determines that an employee has committed reportable conduct, PRS must submit the employee's name and other relevant information to the Texas Department of Human Services for recording in the Employee Misconduct Registry, unless the finding of reportable conduct is overturned as a result of an appeal filed under this subchapter.

§711.1413.Is PRS required to give notice of finding of reportable conduct to the employee before the employee's name is submitted to the Employee Misconduct Registry?

Yes. When APS determines that an employee committed reportable conduct, APS must mail a written "Notice of Finding" to the employee's last known address by both certified mail, return receipt requested, and by regular mail. The notice must include:

(1) a brief summary of the finding of reportable conduct;

(2) a statement of the employee's right to appeal the finding by filing a "Request for Hearing" and the instructions for doing so;

(3) a statement that PRS will submit the employee's name for inclusion in the Employee Misconduct Registry if the employee accepts the finding of reportable conduct or fails to file a timely Request for Hearing;

(4) a statement of the employee's right to obtain a copy of the investigation records; and

(5) a statement that a person whose name is recorded in the registry is prohibited by law from working for certain facilities or agencies, as provided under Health and Safety Code, Chapter 253, and Health and Safety Code, §250.003(c).

§711.1415.How does an employee file a Request for Hearing and what happens if a request is not filed or not filed properly?

(a) The Notice of Finding will contain instructions for filing the Request for Hearing, including the following:

(1) a description of the information that must be included in the request;

(2) the address to which the request must be mailed; and

(3) the deadline for filing the request.

(b) The employee will be deemed to have accepted the finding of reportable conduct and PRS will submit the employee's name for inclusion in the Employee Misconduct Registry if the employee:

(1) does not file a Request for Hearing; or

(2) files a Request for Hearing, but fails to follow the filing instructions and, as a result, PRS does not receive the Request for Hearing in a timely manner or cannot determine the matter being appealed.

§711.1417.What is the deadline for filing the Request for Hearing?

(a) The employee must file the Request for Hearing no later than 30 calendar days from the date the employee receives the Notice of Finding.

(b) A Notice of Finding is presumed received on the date of delivery as indicated on the certified mail return receipt. If the certified mailing is returned unclaimed, but the regular mailing is not returned, the Notice of Finding will be presumed received on the third business day following the date the notice was mailed to the employee's last known address.

(c) If the Request for Hearing is submitted by mail, the envelope must be postmarked no later than 30 days after the date the employee received the Notice of Finding. If the Request for Hearing is hand-delivered or submitted by fax, the request must be received in the appropriate PRS office by 5:00 p.m., no later than 30 days from the date the employee received the Notice of Finding.

(d) If an employee files the Request for Hearing after the deadline, PRS will notify the employee that the request was not filed by the deadline and that the employee's name will be submitted for inclusion in the Employee Misconduct Registry.

(e) If an employee disputes the fact that the Request for Hearing was filed late, the employee may request, and PRS will grant, a hearing that is limited solely to the issue of whether the Request for Hearing was filed on time. If, as a result of that hearing, the employee can prove that the original Request for Hearing was filed on or before the deadline, a separate hearing will be scheduled as soon as possible on the issue of whether the employee committed reportable conduct.

§711.1421.When and where will the hearing take place?

(a) PRS will schedule a hearing as soon as possible and will send a "Notice of Hearing" to the employee and to APS within 45 days of when PRS receives a timely Request for Hearing.

(b) The Notice of Hearing will provide the date, time, and location for the hearing, as well as the name of the hearings examiner, and how to contact the hearings examiner.

(c) The hearing will usually be held in the same PRS region where the alleged reportable conduct took place. The hearings examiner reserves the right to take all or some of the testimony at the hearing by telephone- or video-conference and may consider a request by any party to have the hearing conducted in a different location for good cause.

§711.1423.May an employee or APS request that the hearing be rescheduled?

Yes. Both the employee and APS may request that the hearings examiner reschedule the hearing for good cause. Except in cases of emergency, the request to reschedule the hearing must be made no later than three working days prior to the hearing date. The hearings examiner must grant the request if good cause is shown.

§711.1427.How is the hearing conducted?

(a) The hearing is similar to a civil court trial, but is less formal. The parties to the hearing are the employee and APS.

(b) The hearing is conducted by a hearings examiner who has the duty to provide a fair and impartial hearing and to ensure that the available and relevant testimony and evidence is presented in an orderly manner.

(c) Prior to the hearing the employee may request a copy of the investigation record, edited to remove the identity of the reporter, in order to prepare for the hearing. Neither party may request additional discovery unless the hearings examiner finds that there is good cause for additional discovery.

(d) Both the employee and APS will be given the opportunity to present their own testimony and evidence, as well as the testimony and evidence of witnesses. Any person who provides testimony at the hearing will be sworn under oath.

(e) Both the employee and APS will be given the opportunity to examine the evidence presented by the other party, to cross-examine any witnesses presented by the other party, and to rebut or respond to the evidence presented by the other party.

(f) Testimony of a witness may be presented by written affidavit, but will be given less weight than the testimony of a witness who testifies in person, under oath, subject to cross-examination.

(g) Presentation of evidence at the hearing is not restricted under the rules of evidence used in civil cases. The hearings examiner will admit evidence if it is of a type on which a reasonably prudent person commonly relies in the conduct of the person's affairs. Evidence will not be admitted if it is irrelevant, immaterial, unduly repetitious, or precluded by statutory law.

(h) Both parties have the right to be represented at the hearing by a person of their choosing who may be, but is not required to be, an attorney.

(i) The hearings examiner will assist either party in presenting their evidence and testimony, as needed, to ensure that a complete and proper record is developed at the hearing.

(j) The hearings examiner will arrange to have an interpreter available for the hearing if a party or witness requires an interpreter in order to effectively participate in the hearing.

(k) The hearing will be recorded by audio or video tape in order to preserve a record of the hearing. PRS will not prepare a transcription of the hearing tape unless an employee seeks judicial review, as provided in this subchapter.

(l) If the employee fails to appear for the hearing to offer testimony and evidence, the employee will be deemed to have accepted the finding of reportable conduct and PRS will submit the employee's name for inclusion in the Employee Misconduct Registry.

§711.1429.How and when is the decision made after the appeal hearing?

(a) The hearings examiner will prepare a proposed decision which includes findings of fact and conclusions of law based on a preponderance of the evidence presented at the hearing. The proposed decision will be forwarded to the executive director for review.

(b) The executive director may accept or reject the proposed decision in whole or in part. If deemed necessary for a proper decision, the executive director may question the hearings examiner regarding the testimony and evidence presented at the hearing, may review all or part of the hearing record, and may direct the hearings examiner to take such additional testimony or evidence as the executive director deems necessary.

(c) After review of the proposed decision and any evidence described in subsection (b) of this section, the executive director must issue a written "Hearing Order" which will be mailed to the employee at the employee's last known mailing address. The Hearing Order must contain the following:

(1) separate statements of the findings of fact and conclusions of law;

(2) a statement of the right of the employee to seek judicial review of the order; and

(3) a statement that the finding of reportable conduct will be forwarded to the Texas Department of Human Services to be recorded in the Employee Misconduct Registry unless the employee makes a timely request for judicial review and the court reverses the finding of reportable conduct.

(d) The executive director may designate a Hearing Order to be published in an Index of Hearing Orders that are deemed to have precedential authority for guiding future decisions and PRS policy. A Hearing Order must be edited to remove all personal identifying information before publication in the Index of Hearing Orders.

§711.1433.Must PRS provide notice to anyone else if a finding is modified or reversed as the result of a review, a hearing, or judicial review?

(a) Yes. If at any stage the finding of reportable conduct is modified or reversed, PRS must provide notice of the new finding to all entities that PRS notified of the original finding.

(b) If the new letter of finding affirms a finding of abuse, neglect, or exploitation in whole or in part, a request for review from the administrator or contractor CEO as provided under Subchapter K of this title (relating to Requesting a Review of Finding if you are the Administrator or Contractor CEO), will not be processed.

§711.1435.If an employee accepts a finding of reportable conduct or the finding is upheld on appeal, what information is forwarded to the Texas Department of Human Services for recording in the Employee Misconduct Registry?

By law, PRS must forward the following information to be recorded in the registry:

(1) the employee's name, address, and social security number, if available;

(2) the name and address of the HCSSA where the employee worked when the reportable conduct occurred; and

(3) a summary of the reportable conduct and the approximate date on which it occurred.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200460

Texas Department of Protective and Regulatory Services

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

Chapter 720. 24-HOUR CARE LICENSING

The Texas Department of Protective and Regulatory Services (PRS) adopts the repeal of §§720.37, 720.47, and 720.55; and adopts an amendment to §720.602, in its 24-Hour Care Licensing chapter. The amendment to §720.602 is adopted with changes to the proposed text published in the November 9, 2001, issue of the Texas Register (26 TexReg 9057). The repeal of §§720.37, 720.47, and 720.55 are adopted without changes to the proposed text and will not be republished.

Part of Licensing's business plan is to review, analyze, and modernize Licensing rules to strengthen the protection of children in out-of-home care and improve an operator's understanding of the rules. The repealed rules have been rewritten, and are adopted in Chapter 745, Licensing, in this issue of the Texas Register . Section 720.602 is revised to update a cross reference and to be consistent with the new terminology used in §745.4027, which is adopted in this issue of the Texas Register .

The sections will function by being replaced by rewritten rules that are easier to understand, which should help improve compliance and reduce mistakes.

No comments were received regarding adoption of the sections. PRS, however, is adopting §720.602 with a minor clarification to correct the title of a cross-referenced rule.

Subchapter A. STANDARDS FOR CHILD-PLACING AGENCIES

40 TAC §§720.37, 720.47, 720.55

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes.

The repeals implement the Human Resources Code, §40.029 and §42.042.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200444

Texas Department of Protective and Regulatory Services

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

Subchapter I. STANDARDS FOR ASSESSMENT SERVICES

40 TAC §720.602

The amendment is adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC §42.042, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes.

The amendment implements the Human Resources Code, §40.029 and §42.042.

§720.602.Administration of Assessment Services.

(a) Overall administrative responsibility for the assessment services program must be assigned to a person meeting one of the following qualifications:

(1) a person who is a licensed child care administrator;

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

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

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

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

(b) If the assessment services program is provided by a residential child care facility, a single licensed child care administrator may be responsible for both programs.

(c) If the assessment services program is provided by a child-placing agency, a level I child-placing staff, as defined in §745.4027 of this title (relating to What qualifications must I meet to review and approve a foster home screening, a pre-adoptive home screening, or a post-placement adoptive report?) may be responsible for both child-placing decisions and administration of the assessment services program.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200445

Texas Department of Protective and Regulatory Services

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

Chapter 725. GENERAL LICENSING PROCEDURES

The Texas Department of Protective and Regulatory Services (PRS) adopts the repeal of §§725.1001, 725.1403 - 725.1407, 725.1501 - 725.1508, 725.1515 - 725.1520, 725.1527 - 725.1533, 725.1801 - 725.1814, 725.2001 - 725.2005, 725.2007, 725.2009 - 725.2015, 725.2017, 725.2019 - 725.2024, 725.2026, 725.2028 - 725.2030, 725.2032 - 725.2042, 725.2044 - 725.2047, 725.3043, 725.3045 - 725.3050, 725.3053, 725.3055 - 725.3059, 725.3061 - 725.3069, 725.3071 - 725.3083, 725.4001 - 725.4006, 725.4050 - 725.4057, 725.5010 - 725.5014, 725.5016 - 725.5018, 725.5020 - 725.5022, 725.7001 - 725.7003, 725.7005 - 725.7008, and 725.9801, without changes to the proposed text published in the September 21, 2001, issue of the Texas Register (26 TexReg 7225).

Part of Licensing's business plan is to review, analyze, and modernize Licensing rules to strengthen the protection of children in out-of-home care and improve an operator's understanding of the rules. The rules in this chapter are difficult to comprehend, disorganized, and repetitive. Consequently, the entire chapter, Adoptive Home Screening, is repealed in this issue of the Texas Register . The rewritten rules are adopted in Chapter 745, Licensing, in this issue of the Texas Register .

The repeals will function by providing rewritten rules that are easier to understand and should help improve compliance and reduce mistakes.

No comments were received regarding adoption of the repeals.

Subchapter A. DEFINITIONS

40 TAC §725.1001

The repeal is adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeal implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200389

Texas Department of Protective and Regulatory Services

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

Subchapter O. EXEMPTIONS FROM LICENSING

40 TAC §§725.1403 - 725.1407

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200390

Texas Department of Protective and Regulatory Services

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

Subchapter P. ALTERNATIVE ACCREDITATION

40 TAC §§725.1501 - 725.1508, 725.1515 - 725.1520, 725.1527 - 725.1533

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200391

Texas Department of Protective and Regulatory Services

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

Subchapter S. ADMINISTRATIVE PROCEDURES

40 TAC §§725.1801 - 725.1814

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200392

Texas Department of Protective and Regulatory Services

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

Subchapter U. DAY CARE LICENSING PROCEDURES

40 TAC §§725.2001 - 725.2005, 725.2007, 725.2009 - 725.2015, 725.2017, 725.2019 - 725.2024, 725.2026, 725.2028 - 725.2030, 725.2032 - 725.2042, 725.2044 - 725.2047

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200393

Texas Department of Protective and Regulatory Services

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

Subchapter EE. AGENCY AND INSTITUTIONAL LICENSING PROCEDURES

40 TAC §§725.3043, 725.3045 - 725.3050, 725.3053, 725.3055 - 725.3059, 725.3061 - 725.3069, 725.3071 - 725.3083

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200394

Texas Department of Protective and Regulatory Services

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

Subchapter OO. APPEALS OF LICENSING STAFF DECISIONS

40 TAC §§725.4001 - 725.4006

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200395

Texas Department of Protective and Regulatory Services

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

Subchapter PP. RELEASE HEARINGS

40 TAC §§725.4050 - 725.4057

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200396

Texas Department of Protective and Regulatory Services

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

Subchapter YY. INSTITUTIONAL ADMINISTRATORS LICENSING

40 TAC §§725.5010 - 725.5014, 725.5016 - 725.5018, 725.5020 - 725.5022

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200397

Texas Department of Protective and Regulatory Services

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

Subchapter NNN. ABUSE/NEGLECT INVESTIGATIONS IN CHILD CARE FACILITIES

40 TAC §§725.7001 - 725.7003, 725.7005 - 725.7008

The repeals are adopted under the Human Resources Code (HRC), §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and HRC, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The repeals implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200398

Texas Department of Protective and Regulatory Services

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

Subchapter UUUU. SUPPORT DOCUMENTS

40 TAC §725.9801

The repeal implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200399

Texas Department of Protective and Regulatory Services

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

Chapter 725. GENERAL LICENSING PROCEDURES

The Texas Department of Protective and Regulatory Services (PRS) adopts the repeal of Subchapter JJJ, Court-ordered Social Studies, consisting of §§725.6050 - 725.6052; and Subchapter KKK, Adoptive Home Screening, consisting of §§725.6070 - 725.6072, without changes to the proposed text published in the November 9, 2001, issue of the Texas Register (26 TexReg 9058). Part of Licensing's business plan is to review, analyze, and modernize Licensing rules to strengthen the protection of children in out-of-home care and improve an operator's understanding of the rules. The rules in this chapter are difficult to comprehend, disorganized, and repetitive. As a result, Chapter 725 is repealed, and the rewritten rules are adopted in Chapter 745, Licensing, in this issue of the Texas Register .

The repeals will function by being replaced by rewritten rules that will be easier to understand, which should help improve compliance and reduce mistakes.

No comments were received regarding adoption of the repeals.

Subchapter JJJ. COURT-ORDERED SOCIAL STUDIES

40 TAC §725.6050 - 725.6052

The repeals implement the Human Resources Code, §40.029 and §42.042.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200447

Texas Department of Protective and Regulatory Services

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

Subchapter KKK. ADOPTIVE HOME SCREENING

40 TAC §§725.6070 - 725.6072

The repeals implement the Human Resources Code, §40.029 and §42.042.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200448

Texas Department of Protective and Regulatory Services

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

Chapter 745. LICENSING

The Texas Department of Protective and Regulatory Services (PRS) adopts new Chapter 745, Licensing. New §§745.1, 745.21, 745.115, 745.243, 745.615, 745.621, 745.801, 745.4001, 745.8001, 745.8307, 745.8315, 745.8317, 745.8319, 745.8407, 745.8415, 745.8455, 745.8511, and 745.8611 are adopted with changes to the proposed text published in the September 21, 2001, issue of the Texas Register (26 TexReg 7230). New §§745.11, 745.31, 745.33, 745.35, 745.37, 745.39, 745.41, 745.101, 745.111, 745.113, 745.117, 745.119, 745.121, 745.123, 745.125, 745.127, 745.129, 745.131, 745.133, 745.135, 745.137, 745.139, 745.141, 745.143, 745.201, 745.211, 745.213, 745.215, 745.241, 745.245, 745.247, 745.249, 745.251, 745.253, 745.271, 745.273, 745.275, 745.301, 745.303, 745.321, 745.323, 745.325, 745.327, 745.341, 745.343, 745.345, 745.347, 745.349, 745.351, 745.353, 745.371, 745.373, 745.375, 745.379, 745.381, 745.383, 745.385, 745.401, 745.403, 745.405, 745.407, 745.409, 745.431, 745.433, 745.435, 745.501, 745.503, 745.505, 745.507, 745.509, 745.511, 745.513, 745.515, 745.517, 745.519, 745.601, 745.611, 745.613, 745.617, 745.619, 745.623, 745.625, 745.627, 745.629, 745.631, 745.633, 745.635, 745.651, 745.653, 745.655, 745.657, 745.659, 745.661, 745.663, 745.681, 745.683, 745.685, 745.687, 745.689, 745.691, 745.693, 745.695, 745.697, 745.699, 745.701, 745.703, 745.705, 745.707, 745.709, 745.711, 745.731, 745.733, 745.735, 745.751, 745.753, 745.803, 745.4003, 745.8003, 745.8301, 745.8303, 745.8305, 745.8309, 745.8311, 745.8313, 745.8401, 745.8403, 745.8405, 745.8409, 745.8411, 745.8413, 745.8417, 745.8419, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8451, 745.8453, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8513, 745.8515, 745.8517, 745.8519, 745.8521, 745.8523, 745.8525, 745.8527, 745.8529, 745.8531, 745.8533, 745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8613, 745.8631, 745.8633, 745.8635, 745.8651, 745.8653, 745.8655, 745.8657, 745.8659, 745.8681, 745.8683, 745.8685, 745.8687, 745.8711, 745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, 745.8817, 745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, 745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881, 745.8901, 745.8903, 745.8905, 745.8907, 745.8909, 745.8911, 745.8913, 745.8931, 745.8933, 745.8951, 745.8953, 745.8955, 745.8957, 745.8959, 745.8961, 745.8963, 745.8965, 745.8967, 745.8969, 745.8991, 745.8993, 745.8995, 745.8997, 745.8999, 745.9001, 745.9003, 745.9005, 745.9007, 745.9009, 745.9011, 745.9013, 745.9031, 745.9033, 745.9035, 745.9037, 745.9039, and 745.9041 are adopted without changes to the proposed text and will not be republished.

The purpose of the new chapter is to rewrite the Licensing rules using a question and answer format so they are easier to understand. Chapter 725, General Licensing Procedures, excluding Subchapter JJJ, Court-ordered Social Studies, and Subchapter KKK, Adoptive Home Screening, is repealed in this issue of the Texas Register . The new chapter incorporates policy and enough information to better and more fully explain this program to the public and to facilitate understanding of the law and Licensing requirements. In an effort to be user-friendly, the rules have been placed in an order that follows the Licensing Business Process from a licensee's or potential licensee's perspective with simple and descriptive titles. The primary purpose of the rules is not to change the substance of existing rules and policies, but to make these rules easier to understand. However, in order to improve and strengthen Licensing rules some significant changes have been made:

Exemptions for Certain Educational Facilities (§745.101(1)-(2); §745.119-§745.121) - Some of the rules governing exemptions for educational facilities have been changed to be consistent with the Texas Education Code which governs public and private schools. The current rule exempts such programs serving children aged two years and older. The new rule exempts programs serving children aged pre-kindergarten and older. This change is being made to conform to the ages and grade levels currently being served in public schools and accredited private schools. Ages of pre-kindergarten (three and four years) and kindergarten children (four and five years) are defined in the Education Code and are the ages incorporated into this new rule. For those operations that will be subject to regulation due to this change, a new rule is adopted to license only that portion of the program serving children younger than pre-kindergarten.

Neighborhood Recreation Programs (§745.129(1)) - A new rule regarding neighborhood recreation programs has been written which clarifies the program components that distinguish a neighborhood recreation program from after-school child care. This rule clarifies the intent of an exemption for neighborhood youth programs where children come and go without adult permission because they live in the neighborhood.

Residential Home Exemptions (§745.129(2)) - Caregivers occasionally have a written agreement with a parent to provide residential care. (For example, a parent moves out of state and allows a teenager to stay and finish a school year by living with a friend.) A new rule is adopted to exempt such arrangements, which are not considered to be child care.

Exemption Request Timeframes (§745.133 and §745.137) - Currently, there is no required timeframe to process and complete an exemption request. A new rule establishes a timeframe for staff to process an exemption request and notify the operator of the results. In addition, if the operator disagrees with a Licensing decision denying the requested exemption, a new rule allows the operator to request an administrative review before submitting an application for a permit.

Submitting Background Checks (§745.623 and §745.625) - A background check form must be submitted to Licensing for every person in an operation that is required to have a check completed. A new rule requires that the operator verify the information documented on a background check form for each person listed. Also, the operator must submit the form to the local Licensing office no later than two business days after the person is hired or present. The current rule allows two weeks to submit this form to Licensing, and this is being amended so that the results of a background check are obtained in a timelier manner.

Criminal History Matches (§745.651 and §745.653) - Current rules require Licensing staff to respond to all criminal history matches, including hot checks, shoplifting, and traffic violations. Over 80% of the criminal history convictions found by Licensing's background checks fall into two categories: (1) convictions such as petty theft, hot checks, traffic violations, trespassing, immigration violations, credit card abuse, or forgery; or (2) one-time offenses that occurred ten or more years ago. Because a large percentage of the convictions do not pose a risk to children or impact a person's ability to work or be present in an operation, a new rule has been developed to target Licensing's resources by focusing on those matches which will help protect children. With the new rule, criminal convictions not identified as posing a risk to children will still be reported to an operation, but the presence of the person possessing the criminal history will not be a Licensing violation and will require no action on the operator's part. The convictions that will be monitored because they may pose a risk to children are: (1) a misdemeanor or felony under Title 5 (Offenses Against the Person), Title 6 (Offenses Against the Family), Chapter 29 (Robbery) of Title 7, Chapter 43 (Public Indecency) or §42.072 (Stalking) of Title 9, §15.031 (Criminal Solicitation of a Minor) of Title 4, §38.17 (Failure to Stop or Report Aggravated Sexual Assault of a Child) of Title 8 of the Texas Penal Code, or any like offense under the law of another state or federal law; (2) a misdemeanor or felony under the Texas Controlled Substances Act, §46.13 (Making a Firearm Accessible to a Child) or Chapter 49 (Intoxication and Alcoholic Beverage Offenses) of Title 10 of the Texas Penal Code, or any like offense under the law of another state or federal law that the person committed within the past ten years; (3) any other felony under the Texas Penal Code, or any like offense under the law of another state or federal law that the person committed within the past ten years; and (4) deferred adjudications covering an offense listed above, if the person has not completed the probation successfully.

Risk Evaluations (§745.693) - A new rule clarifies, for those criminal convictions Licensing will monitor, which convictions are eligible for a risk evaluation, and at what point a person with a criminal conviction can be present in an operation. Currently a person with a felony conviction under Title 5, Title 6, or Chapter 43 of Title 9 of the Penal Code, or any like offense in another state, may not be present in a facility while children are in care. A new rule adds the following additional offenses to this list: a felony conviction under Chapter 29 of Title 7, §15.031 of Title 4, §38.17 of Title 8, §42.072 of Title 9 of the TPC, or any like offense under the federal law. A person who has been convicted of any of these offenses is permanently barred from being present in an operation while children are in care and is not eligible for a risk evaluation. In addition, this new rule states that a misdemeanor conviction under Chapter 29 of Title 7, §42.072 of Title 9, §15.031 of Title 4, or §38.17 of Title 8 of the TPC, or any like offense under federal law be added to the list of those misdemeanors that already bar a listed or registered family home from being listed or registered. A person in any other type of operation may request a risk evaluation for these misdemeanor convictions and will be allowed to return to the operation if the risk evaluation is approved. The existing rule states that a person with any other type of criminal history may not be present in a regulated facility while children are in care until a risk evaluation has been completed. In addition to the above, this new rule lists the remaining convictions for which a person may request a risk evaluation. The rule states that a person can remain at the operation if a risk evaluation has previously been approved. These convictions are: (1) a felony or misdemeanor conviction of an offense under the Texas Controlled Substances Act, §46.13 (Making a Firearm Accessible to a Child), or Chapter 49 (Intoxication and Alcoholic Beverage Offenses) of Title 10 of the Texas Penal Code, or any like offense under the law of another state or federal law that the person committed within the past ten years; and (2) a felony conviction of an offense under any other title of the TPC, or any like offense under the law of another state or federal law that the person committed within the past ten years. A deferred adjudication for any offense will be treated the same as a conviction for that same offense until the probation is successfully completed.

Future Risk Evaluations (§745.697) - A new rule clarifies that once a risk evaluation is approved for a person for either a criminal conviction or central registry finding, an operation does not have to renew this risk evaluation. This person may remain in an operation if a subsequent background check doesn't reveal new convictions or findings, and the circumstances of the person's contact with children in the operation remain the same.

Persons Charged with a Crime (§745.701) - A current rule requires any person charged with a crime under Title 5, Title 6, and Chapter 43 of Title 9 of the TPC be removed from an operation while children are in care until the charges are dropped or the person is acquitted. A person charged with any other crime may be present if Licensing determines this person does not pose a risk to children. The new rule allows Licensing staff to determine on a case-by-case basis whether someone 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 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. This new rule allows Licensing to remove a person under criminal investigation who poses an immediate threat to the health or safety of children, while also balancing the possibility of the person's innocence.

Persons Under Investigation for Abuse or Neglect (§745.705) - A current rule states that a person being investigated for abuse or neglect may not be present while children are in care unless Licensing determines that the person does not pose a risk to children in care. A new rule provides that a person being investigated for abuse or neglect may have contact with children unless we determine that he poses an immediate threat or danger to the health or safety of children. This rule allows the investigation unit along with regional staff to make the determination based on the risk to the children, and it also allows a family home or foster home to continue operating during those investigations where there may be some concern, but the risk to children does not justify the interruption to children in care.

Risk Evaluation Decisions (§745.707) - At this time the Director of Licensing must evaluate and deny or approve all risk evaluations for past criminal history and past findings of child abuse or neglect. The new rule allows the Director of Licensing to designate other PRS staff to complete this task. If a child day-care operation requests the evaluation, the designee will be a regional director. If a residential child-care operation requests the evaluation, the designee will be a division administrator. The analysis required to grant or deny a risk evaluation is consistent with the kinds of regulatory decisions made in the regions on a daily basis. This change will free the Director of Licensing to devote additional time to other managerial duties.

Operation During Appeal (§745.8877) - Current rule §725.4003 includes a list of specific standards that when violated pose a risk to the health or safety of children. Chapter 42 of the Human Resources Code prohibits a facility under revocation from operating during an appeal to the State Office of Administrative Hearings if the operation poses a risk to children. Many factors are considered when assessing the risk to children in a regulated setting, such as the severity, the repetition, and the type of violations, how long it will take to correct a violation, the operation's compliance history, and/or immediacy of danger or threat of danger. Rather than using a list of standards to determine when there is a risk to children, a new rule will allow Licensing to evaluate the entire situation and make a decision on a case-by-case basis of those violations that pose an immediate threat or danger to the health or safety of children in care.

Alternative Accreditation - The rules governing Alternative Accreditation are not included in the rules because the 77th Texas Legislature did not pass legislation designed to reenact Alternative Accreditation.

The new rules will function by being easier to understand, which should help improve compliance and reduce mistakes.

During the public comment period, PRS received comments from the Advisory Committee to Promote the Adoption of Minority Children, the Coalition of Texas YMCAs, the YMCA of San Antonio and the Hill Country, the Kerr County YMCA, the YMCA of Greater Williamson County, and the owner of four child-day care operations. A summary of the comments and PRS's responses follow:

Comments concerning §745.117(4): Several commenters stated that (1) children are at potential risk in unregulated care for the 8 to 11 weeks of summer; and (2) without regulation, there is no monitoring and no established standards for the activities.

Response: The concerns relate to what is perceived to be a change in current policy; however current practice allows programs of 11 or fewer weeks that are not otherwise regulated by our division to serve children, ages five years and older, without being licensed, because there is lower risk to these older children in care on a short-term basis. Furthermore, the application process along with receiving a provisional license takes longer than the duration of the limited timeframe for this exemption. PRS is adopting this section without change.

Comments concerning §745.119(2): Several commenters have concerns about the potential risk to children in after-school programs offered by educational facilities accredited by the Texas Education Agency (TEA) or other TEA-approved accrediting organizations that are exempt from regulation by our division.

Response: The comments relate to what is perceived as a change in current policy; however, this rule comes directly from the Human Resources Code, §42.041(a)(7). It has been law since the Child Care Licensing Act of 1975 and has been in practice for many years. What is new in this rule is the addition of a long-standing practice of offering an exemption for non-public schools accredited by members of the organization, Texas Private School Accreditation Commission (TEPSAC). TEA has been using this practice of accreditation for non-public schools since 1989. PRS is adopting this paragraph without change.

Comments concerning §745.119(3): Several commenters have concerns about the potential risk to children in after-school programs offered by contracted entities at educational facilities accredited by TEA or other TEA-approved accrediting organizations that are exempt from regulation by our division. They also have concerns that the various divisions at TEA may or may not approve the curriculum for these after-school programs.

Response: The comments relate to what is perceived as a change in current policy. This rule comes directly from the Human Resources Code, §42.041(a)(7). It has been law since the Child Care Licensing Act of 1975 and exemptions have been offered for programs that meet the criteria since that time. PRS is adopting this paragraph without change.

Comments concerning §745.381: Several commenters sought clarification regarding the definition of "occasional" when relating to overnight care, and whether standards would be in effect during occasional overnight care and how it would be monitored.

Response: Occasional overnight care is clearly defined in the rule as overnight care once a month, such as a slumber party. It is also clear in the rule that standards must be maintained during this overnight care. CCL would investigate any report received of an incident that occurred during the overnight care. CCL would possibly inspect the facility during the overnight care. PRS is adopting this section without change.

Comment concerning §745.625: One commenter addressed a change in the timeframe allowed for a provider to submit a background check request to PRS. The timeframe will change from two weeks to two business days, and the commenter felt that more time is needed to submit a background check.

Response: The change made to this rule will reduce the amount of time allowed to submit a background check request form to PRS, and therefore speed up the background check process and reduce the amount of time that someone with a criminal or an abuse/neglect history can be present in an operation. PRS is adopting this section without change.

Comments concerning §745.627: Several commenters addressed concern about the requirement to complete a fingerprint card in order to conduct a FBI check, and the cost associated with this practice.

Response: The comments relate to what is perceived to be a change in current policy, but there is no change. When a FBI check is requested, the FBI has always required a fingerprint card to complete a check. A fingerprint card is completed at the local level, and the card is submitted to state office. PRS is adopting this section without change.

Comment concerning §745.651 and §745.693: The comment relates to the type of criminal convictions that will permanently bar a person from being present in an operation. The commenter recommended that the Board change the current policies to conform to the ASFA requirements.

Response: After researching the difference between ASFA regulations and the proposed rules, there are only minor variations between the crimes considered for permanent bars. ASFA regulates only prospective foster and adoptive homes, whereas foster and adoptive homes are only a small portion of the childcare operations covered by these rules. The rules are appropriate for Licensing's larger span of regulatory considerations. PRS is adopting this section without change.

Comments concerning §745.8453: Several commenters addressed the need for a thorough investigation of any abuse and/or neglect investigation and the need to validate the report.

Response: The Department has always been committed to the protection of children and the investigation of abuse and neglect. This rule is not a change from the current rule and incorporates and clarifies existing policy. The rule bases the notification of parents of a child involved in an investigation and the general notification of parents of children enrolled in an operation that has been the subject of an investigation upon a thorough investigation and evaluation of the risk to children in care. PRS is adopting this section without change.

PRS is adopting the following sections with minor changes for clarification. In §745.1, PRS deleted the phrase "all but two subchapters in" because the remaining two subchapters in Chapter 725 are repealed in this issue of the Texas Register . In §745.21, PRS deleted the definitions of adoptive home screening in paragraph (2), court-ordered social studies in paragraph (14), and full-time employment in paragraph (20), and renumbered the paragraphs. In §745.115(3)(D), PRS changed the phrase "child/staff ratios" to "child/caregiver ratios" and changed the phrase "minimum staff qualifications" to "minimum employee qualifications." In §745.243 (3)(H), (4)(G), (5)(F), and (6)(E), PRS changed the form name from "Plan of Care for Licensed Facilities" to "Plan of Operation for Licensed Facilities." In §745.615(a)(2) and §745.621, PRS changed the phrase "child/staff ratio" to "child/caregiver ratio." In §§745.801, 745.4001, and 745.8001, PRS deleted the phrase "and tuberculosis testing." In §§745.8307, 745.8315, 745.8317, and 745.8319, the acronym "PRS" has been changed to "Licensing" to be consistent with the language used in this chapter. In §745.8407, PRS changed the introductory sentence and renumbered the chart. In §745.8415, PRS changed "staff" to "employees," and in §745.8455, PRS changed "staff" to "employee." In §745.8511 and §745.8611, PRS changed the introductory sentences and renumbered the charts.

Subchapter A. PRECEDENCE AND DEFINITIONS

1. PRECEDENCE

40 TAC §745.1

The new section is adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.1.What is the relationship between this chapter and the other Licensing chapters?

Chapter 745 replaces Chapter 725 of this title (relating to General Licensing Procedures). Chapter 745 also takes precedence over conflicting rules in Chapters 715, 720, and 727 of this title (relating to Day Care Licensing, Standards for 24-Hour Care Facilities, and Licensing of Maternity Facilities).

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200400

Texas Department of Protective and Regulatory Services

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

2. DEFINITIONS FOR THE LANGUAGE USED IN THIS CHAPTER

40 TAC §745.11

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200401

Texas Department of Protective and Regulatory Services

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

3. DEFINITIONS FOR LICENSING

40 TAC §745.21

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.21.What do the following words and terms mean when used in this chapter?

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

(1) Abuse--As defined in the Texas Family Code, §261.401(1) (relating to Agency Investigation).

(2) Affinity--Related by marriage as set forth in the Government Code, §573.024 (relating to Determination of Affinity).

(3) Capacity--The maximum number of children that a permit holder may care for at one time.

(4) Caregiver--A person whose duties include the supervision, guidance, and protection of a child or children.

(5) Child--A person under 18 years old.

(6) Child-care administrator--As defined in §745.8901 of this title (relating to What is a child- care administrator?).

(7) Child-care facility--An establishment subject to regulation by Licensing which provides assessment, care, training, education, custody, treatment, or supervision for a child who is not related by blood, marriage, or adoption to the owner or operator of the facility, for all or part of the 24-hour day, whether or not the establishment operates for profit or charges for its services. A child-care facility includes the people, administration, governing body, activities on or off the premises, operations, buildings, grounds, equipment, furnishings, and materials. A child-care facility does not include child-placing agencies, listed family homes, or maternity homes.

(8) Child day care--As defined in §745.33 of this title (relating to What is child day care?).

(9) Child-placing agency (CPA)--A person, including an organization, other than the parents of a child who plans for the placement of or places a child in a child-care operation or adoptive home.

(10) Children related to the caregiver--Children who are the children, grandchildren, siblings, great-grandchildren, first cousins, nieces, or nephews of the caregiver, whether by affinity or consanguinity or as the result of a relationship created by court decree.

(11) Consanguinity--Two individuals are related to each other by consanguinity if one is a descendant of the other; or they share a common ancestor. An adopted child is considered to be related by consanguinity for this purpose. Consanguinity is defined in the Government Code, §573.022 (relating to Determination of Consanguinity).

(12) Contiguous operations--Two or more operations that touch at a point on a common border or located in the same building.

(13) Deficiency--Any failure to comply with a standard, rule, law, specific term of your permit, or condition of your evaluation, probation, or suspension.

(14) Designated perpetrator--As defined in §745.731 of this title (relating to What are designated perpetrators and sustained perpetrators of child abuse or neglect?).

(15) Division--The Licensing Division within the Texas Department of Protective and Regulatory Services.

(16) Employee--Any person employed by or that contracts with the permit holder, including but not limited to caregivers, drivers, kitchen personnel, maintenance and administrative personnel, and the center/program director.

(17) Endanger--To expose a child to a situation where physical or mental injury to a child is likely to occur.

(18) Exploitation--As defined in the Texas Family Code, §261.401(2) (relating to Agency Investigation).

(19) Finding--The conclusion of an investigation or inspection indicating compliance or deficiency with one or more minimum standards or laws.

(20) Governing body--The entity with ultimate authority and responsibility for the operation.

(21) Governing body designee--The person named on the application as the designated representative of a governing body who is officially authorized by the governing body to speak for and act on its behalf in a specified capacity.

(22) Household member--An individual, other than the caregiver(s), who resides in an operation.

(23) Kindergarten age--As defined in §745.101(1) of this title (relating to What words must I know to understand this subchapter?).

(24) Minimum standards--The rules contained in Chapters 715, 720, and 727 of this title (relating to Day Care Licensing, Standards for 24-Hour Care Facilities, and Licensing of Maternity Facilities) and Subchapters G, H, and I of this chapter (relating to Child Day-Care, Residential Child-Care, and Maternity Homes Minimum Standards) which are minimum requirements for permit holders and which are enforced by PRS to protect the health, safety and well-being of children.

(25) Neglect--As defined in the Texas Family Code, §261.401(3) (relating to Agency Investigation).

(26) Operation--A person or entity offering a program that may be subject to Licensing regulation. An operation includes the building and grounds where the program is offered, any person involved in providing the program, and any equipment used in providing the program. An operation includes a child-care facility, child-placing agency, listed family home, or maternity home.

(27) Parent--A person that has legal responsibility for or legal custody of a child, including the managing conservator or legal guardian.

(28) Permit--A license, certification, registration, listing, or any other written authorization granted by Licensing to operate a child-care facility, child-placing agency, listed family home, or maternity home. This also includes a child-care administrator's license.

(29) Permit holder--The person or entity granted the permit.

(30) Pre-kindergarten age--As defined in §745.101(2) of this title (relating to What words must I know to understand this subchapter?).

(31) Program--Activities and services provided by an operation.

(32) Regulation--The enforcement of statutes and the development and enforcement of rules, including minimum standards. Regulation includes the licensing, certifying, registering, and listing of an operation or child-care administrator.

(33) Report--An expression of dissatisfaction or concern about an operation, made known to PRS staff, that alleges a possible violation of minimum standards or the law and involves risk to a child/children in care.

(34) Residential child care--As defined in §745.35 of this title (relating to What is residential child care?).

(35) State Office of Administrative Hearings (SOAH)--See §745.8831 and §745.8833 of this title (relating to What is a due process hearing? and What is the purpose of a due process hearing?).

(36) Sustained perpetrator--See §745.731 of this title (relating to What are designated perpetrators and sustained perpetrators of child abuse or neglect?).

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200402

Texas Department of Protective and Regulatory Services

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

Subchapter B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE

40 TAC §§745.31, 745.33, 745.35, 745.37, 745.39, 745.41

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200403

Texas Department of Protective and Regulatory Services

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

Subchapter C. OPERATIONS THAT ARE EXEMPT FROM REGULATION

1. DEFINITIONS

40 TAC §745.101

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200404

Texas Department of Protective and Regulatory Services

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

2. EXEMPTIONS FROM REGULATION

40 TAC §§745.111, 745.113, 745.115, 745.117, 745.119, 745.121, 745.123, 745.125, 745.127, 745.129, 745.131, 745.133, 745.135, 745.137, 745.139, 745.141, 745.143

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.115.What programs regulated by other governmental entities are exempt from Licensing regulation?

The following programs and facilities are exempt from our regulation:

Figure: 40 TAC §745.115

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200405

Texas Department of Protective and Regulatory Services

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

Subchapter D. APPLICATION PROCESS

1. DEFINITIONS

40 TAC §745.201

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200406

Texas Department of Protective and Regulatory Services

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

2. STAGES OF THE APPLICATION PROCESS AND PRE-APPLICATION INTERVIEW

40 TAC §§745.211, 745.213, 745.215

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200407

Texas Department of Protective and Regulatory Services

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

3. SUBMITTING THE APPLICATION MATERIALS

40 TAC §§745.241, 745.243, 745.245, 745.247, 745.249, 745.251, 745.253

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.243.What does a completed application for a permit include?

Application forms vary according to the type of permit. We will provide you with the required forms. Contact your local Licensing office for additional information. The following table outlines the requirements for a completed application:

Figure: 40 TAC §745.243

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200408

Texas Department of Protective and Regulatory Services

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

4. PUBLIC NOTICE AND HEARING REQUIREMENTS FOR RESIDENTIAL CHILD-CARE OPERATIONS

40 TAC §§745.271, 745.273, 745.275

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200409

Texas Department of Protective and Regulatory Services

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

5. ACCEPTING OR RETURNING THE APPLICATION

40 TAC §745.301, §745.303

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200410

Texas Department of Protective and Regulatory Services

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

6. REVIEWING THE APPLICATION FOR COMPLIANCE WITH MINIMUM STANDARDS, RULES, AND STATUTES

40 TAC §§745.321, 745.323, 745.325, 745.327

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200411

Texas Department of Protective and Regulatory Services

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

7. THE DECISION TO ISSUE OR DENY A PERMIT

40 TAC §§745.341, 745.343, 745.345, 745.347, 745.349, 745.351, 745.353

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200412

Texas Department of Protective and Regulatory Services

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

8. DUAL AND MULTIPLE PERMITS

40 TAC §§745.371, 745.373, 745.375, 745.379, 745.381, 745.383, 745.385

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200413

Texas Department of Protective and Regulatory Services

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

9. REAPPLYING FOR A PERMIT

40 TAC §§745.401, 745.403, 745.405, 745.407, 745.409

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200414

Texas Department of Protective and Regulatory Services

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

10. RELOCATION OF OPERATION

40 TAC §§745.431, 745.433, 745.435

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200415

Texas Department of Protective and Regulatory Services

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

Subchapter E. FEES

40 TAC §§745.501, 745.503, 745.505, 745.507, 745.509, 745.511, 745.513, 745.515, 745.517, 745.519

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200416

Texas Department of Protective and Regulatory Services

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

Subchapter F. BACKGROUND CHECKS

1. DEFINITIONS

40 TAC §745.601

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200417

Texas Department of Protective and Regulatory Services

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

2. REQUESTING BACKGROUND CHECKS

40 TAC §§745.611, 745.613, 745.615, 745.617, 745.619, 745.621, 745.623, 745.625, 745.627, 745.629, 745.631, 745.633, 745.635

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.615.On whom must I request background checks?

(a) You must request 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) Employees, including those you intend to hire;

(2) Any person(s), including volunteers, who are counted in the child/caregiver ratio;

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

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

(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) You do not have to request a background check on professionals who have cleared a background check through another governmental regulatory entity, and you do not employ or contract with the professional.

§745.621.Must I request background checks on board members of corporations or associations who own or govern the operation?

No, we do not require a background check unless the individual board member is also an employee or a volunteer who is counted in the child/caregiver ratio and will regularly or frequently be present at your operation while children are in care.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200418

Texas Department of Protective and Regulatory Services

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

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

40 TAC §§745.651, 745.653, 745.655, 745.657, 745.659, 745.661, 745.663

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200419

Texas Department of Protective and Regulatory Services

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

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

40 TAC §§745.681, 745.683, 745.685, 745.687, 745.689, 745.691, 745.693, 745.695, 745.697, 745.699, 745.701, 745.703, 745.705, 745.707, 745.709, 745.711

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200420

Texas Department of Protective and Regulatory Services

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

5. DESIGNATED AND SUSTAINED PERPETRATORS OF CHILD ABUSE OR NEGLECT

40 TAC §§745.731, 745.733, 745.735

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200421

Texas Department of Protective and Regulatory Services

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

6. IMMEDIATE THREAT OR DANGER TO THE HEALTH OR SAFETY OF CHILDREN

40 TAC §745.751, §745.753

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200422

Texas Department of Protective and Regulatory Services

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

Subchapter G. CHILD DAY-CARE MINIMUM STANDARDS

40 TAC §745.801, §745.803

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.801.What immunizations are children in my care required to have?

Children enrolled or admitted to child-care facilities must meet applicable immunization requirements specified by the Texas Department of Health Immunization Requirements in Texas Elementary and Secondary Schools and Institutions of Higher Education. This requirement applies to all children from birth through 17 years of age.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200423

Texas Department of Protective and Regulatory Services

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

Subchapter H. RESIDENTIAL CHILD-CARE MINIMUM STANDARDS

1. IMMUNIZATIONS

40 TAC §745.4001, §745.4003

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.4001.What immunizations are children in my care required to have?

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200424

Texas Department of Protective and Regulatory Services

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

Subchapter I. MATERNITY HOME MINIMUM STANDARDS

40 TAC §745.8001, §745.8003

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.8001.What immunizations are children in my care required to have?

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200425

Texas Department of Protective and Regulatory Services

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

Subchapter J. WAIVERS AND VARIANCES FOR MINIMUM STANDARDS

40 TAC §§745.8301, 745.8303, 745.8305, 745.8307, 745.8309, 745.8311, 745.8313, 745.8315, 745.8317, 745.8319

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.8307.How does Licensing make the decision to grant or deny my waiver or variance request?

We will not grant a waiver or variance if the minimum standard is required by statute. For all other waiver and variance requests, we consider the following factors when making the decision to grant or deny your request:

(1) The risk to children if you are not meeting the standard;

(2) The compliance history of your operation;

(3) The monitoring plan assigned to your operation;

(4) Any waivers or variances currently in effect;

(5) Your regulatory status (for example, whether you are on provisional status, evaluation, or probation);

(6) Any economic factors or other constraints affecting your ability to comply; and

(7) Any other variables identified by Licensing staff.

§745.8315.What if I disagree with the time limit or conditions that Licensing places on my waiver or variance?

The waiver or variance time limit and conditions are determined by the supervisor or the supervisor's designee and are based on the risk to children. You may discuss an alternative time limit or conditions with the Licensing staff who made the decision. The Licensing supervisor or designee may choose to amend the time limit or conditions as a result of the discussion or continue to require the original conditions. If you cannot reach a mutual agreement as to the time limit or conditions, you can either comply with the minimum standard or appeal the denial in the same manner specified in §745.8319 of this title (relating to What can I do if Licensing denies or revokes my waiver or variance?).

§745.8317.Can Licensing amend or revoke a waiver or variance, including its conditions?

Yes. We may amend or revoke a waiver or variance if:

(1) It presents a risk to children;

(2) The circumstances that supported it have changed;

(3) You failed to meet the conditions; or

(4) We agree to an alternative time limit or conditions.

§745.8319.What can I do if Licensing denies or revokes my waiver or variance?

If we deny or revoke your waiver or variance, you may request an administrative review. You must send your written request to the Director of Licensing within 15 calendar days after you receive our denial or revocation letter. Forward a copy of your letter to the Licensing supervisor. Your request for a review must include a copy of the letter denying your request for a waiver or variance, and any additional information that supports your waiver or variance request. We will hold you accountable for complying with the minimum standard for which you requested a waiver or variance while you are requesting an administrative review.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200426

Texas Department of Protective and Regulatory Services

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

Subchapter K. INSPECTIONS AND INVESTIGATIONS

1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS

40 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8419

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.8407.When will Licensing inspect and/or investigate an operation?

Please refer to the following chart:

Figure: 40 TAC §745.8407

§745.8415.What can Licensing inspect and/or investigate?

We may investigate any part of your operation that could affect the health, safety, or well being of children. This includes, but is not limited to, access to all children in care, employees, records, and any area of the building, home, or grounds where your operation is located.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200427

Texas Department of Protective and Regulatory Services

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

2. NOTIFICATION

40 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8451, 745.8453, 745.8455

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.8455.Can PRS hold me responsible for abuse without identifying me as the perpetrator?

We may hold you responsible if you are an administrator, director, or other employee and evidence indicates that you:

(1) Were aware of the abuse or the genuine threat of substantial harm to a child; and

(2) Did not act to prevent the abuse or threat.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200428

Texas Department of Protective and Regulatory Services

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

3. CONFIDENTIALITY

40 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200429

Texas Department of Protective and Regulatory Services

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

4. VOLUNTARY ACTIONS

40 TAC §§745.8511, 745.8513, 745.8515, 745.8517, 745.8519, 745.8521, 745.8523, 745.8525, 745.8527, 745.8529, 745.8531, 745.8533

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.8511.What are the different types of voluntary actions that an operation may take?

The following chart lists the types of voluntary actions:

Figure: 40 TAC §745.8511

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200430

Texas Department of Protective and Regulatory Services

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

Subchapter L. REMEDIAL ACTIONS

1. OVERVIEW OF REMEDIAL ACTIONS

40 TAC §§745.8601, 745.8603, 745.8605, 745.8607, 745.8609, 745.8611, 745.8613

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

§745.8611.For remedial actions that cover a specific period of time (e. g. evaluation, probation, suspension, etc.), how long do they last and can they be extended?

The following chart describes when corrective actions are taken and the length of time they can be imposed:

Figure: 40 TAC §745.8611

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200431

Texas Department of Protective and Regulatory Services

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

2. CORRECTIVE ACTIONS

40 TAC §§745.8631, 745.8633, 745.8635

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200432

Texas Department of Protective and Regulatory Services

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

3. ADVERSE ACTIONS

40 TAC §§745.8651, 745.8653, 745.8655, 745.8657, 745.8659

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200433

Texas Department of Protective and Regulatory Services

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

4. JUDICIAL ACTIONS

40 TAC §§745.8681, 745.8683, 745.8685, 745.8687

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200434

Texas Department of Protective and Regulatory Services

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

5. MONETARY ACTIONS

40 TAC §745.8711

The new section implements the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200435

Texas Department of Protective and Regulatory Services

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

Subchapter M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS

1. ADMINISTRATIVE REVIEWS

40 TAC §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, 745.8817

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200436

Texas Department of Protective and Regulatory Services

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

2. DUE PROCESS HEARING

40 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200437

Texas Department of Protective and Regulatory Services

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

3. OPERATIONS PENDING THE ADMINISTRATIVE REVIEW AND DUE PROCESS HEARING

40 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200438

Texas Department of Protective and Regulatory Services

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

Subchapter N. CHILD-CARE ADMINISTRATOR'S LICENSING

1. OVERVIEW OF CHILD-CARE ADMINISTRATOR'S LICENSING

40 TAC §§745.8901, 745.8903, 745.8905, 745.8907, 745.8909, 745.8911, 745.8913

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200439

Texas Department of Protective and Regulatory Services

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

2. SUBMITTING YOUR APPLICATION MATERIALS

40 TAC §745.8931, §745.8933

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200440

Texas Department of Protective and Regulatory Services

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

3. LICENSING'S REVIEW OF YOUR APPLICATION

40 TAC §§745.8951, 745.8953, 745.8955, 745.8957, 745.8959, 745.8961, 745.8963, 745.8965, 745.8967, 745.8969

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200441

Texas Department of Protective and Regulatory Services

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

4. RENEWING YOUR CCAL

40 TAC §§745.8991, 745.8993, 745.8995, 745.8997, 745.8999, 745.9001, 745.9003, 745.9005, 745.9007, 745.9009, 745.9011, 745.9013

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200442

Texas Department of Protective and Regulatory Services

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

5. REMEDIAL ACTIONS

40 TAC §§745.9031, 745.9033, 745.9035, 745.9037, 745.9039, 745.9041

The new sections are adopted under the Human Resources Code, §40.029, which authorizes the department to propose and adopt rules to facilitate implementation of department programs; and Human Resources Code, §42.042 and §43.005, which gives the department the authority to promulgate rules to carry out the statute and to regulate child-care facilities and homes, and child-care administrators.

The new sections implement the Human Resources Code, §§40.029, 42.042, and 43.005.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 25, 2002.

TRD-200200443

Texas Department of Protective and Regulatory Services