Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 37.
MATERNAL AND INFANT HEALTH SERVICES
The Texas Department of Health (department) adopts the repeal of §§37.21
- 37.32 and new §§37.21 - 37.39, concerning the Vision and Hearing
Screening Program and the Audiometric Lab Program. New §§37.22 -
37.24, 37.26, 37.29, 37.31, and 37.34 are adopted with changes to the proposed
text as published in the November 14, 2003, issue of the
Texas Register
(28 TexReg 10036). The repeal of §§37.21 -
37.32 and new §§37.21, 37.25, 37.27, 37.28, 37.30, 37.32, 37.33,
and 37.35 - 37.39 are adopted without changes and, therefore, the sections
will not be republished.
Government Code, §2001.039, requires that each state agency review
and consider for re-adoption each rule adopted by the agency pursuant to the
Government Code, Chapter 2001, Administrative Procedure Act. The sections
have been reviewed and the department has determined that reasons for adopting
the sections continue to exist because rules on this subject are needed. However,
the existing sections are repealed and new sections adopted to enhance their
clarity and accessibility, and to reflect current procedures and practices.
The department published a Notice of Intention to Review for the sections
as required by Government Code, §2001.039, in the
Texas Register
on April 28, 2000 (25 TexReg 3799). No comments were
received as a result of the notice.
Specifically, the new sections concern purpose; definitions; vision and
hearing screening requirements; required record of proof of screening; authorized
signatures; dates for submitting proofs of screening and reports of screening
results; inspection of facility screening records; transfer of individual
records or proofs of screenings between facilities; standards for screening
tests and screener training courses in vision and hearing; recertification
of screeners; modification, suspension, or termination of screener or instructor
certification; hearing screening equipment standards; scope of radiation control
requirements related to audiometers, audiometric testing devices, and audiometric
calibration equipment; registration of equipment and individuals using the
equipment; exemptions; violations; inspections and tests; calibration of audiometers
and audiometric testing devices; and audiometric calibration equipment.
New §37.21 restates the purpose of the subchapter.
New §37.22, concerning definitions, eliminates unnecessary and confusing
definitions and adds new definitions that reflect current practices and procedures,
including updated language regarding the type of facilities that are required
to screen enrolled children for the Vision and Hearing Screening Program.
New §37.22 also clarifies terms used in the regulation of hearing equipment
through the Audiometric Lab Program.
New §37.23 articulates the requirements of the Vision and Hearing
Screening Program, including persons who are authorized to conduct screenings,
the standards for screening children, the children who must be screened, and
authorized exemptions from required screening. Specifically, the schedule
adopted for conducting screening examinations in §37.23(d), as amended,
is consistent with the recommendations of the department's consultant. Required
screening in pre-kindergarten, kindergarten, and first, third, fifth, and
seventh grades reflects the importance of early detection and referral for
diagnosis and treatment of vision and hearing difficulties before they adversely
affect a child's ability to learn. The screening schedule also recognizes
that conducting vision and hearing screening requires time and scarce resources
for many facilities.
New §37.24 restates the procedures by which compliance with screening
requirements may be demonstrated, including specific entries in the child's
official record.
New §37.25, concerning authorized signatures, includes new language
to enhance its clarity.
New §37.26, concerning due dates for submitting proof of screening
and reports, simplifies the language and adds new entities required to comply
with the subchapter.
New §37.27, concerning inspection of records by the department, and
new §37.28, concerning transfer of individual records or proofs of screenings
between facilities, now include all entities subject to this rule.
New §37.29, concerning standards for screening tests and screener
training courses, clarifies the individuals who may conduct the screenings
or train screeners and removes redundant language.
New §37.30, concerning termination of screener or instructor participation,
includes grammatical changes.
The language of new §37.31, concerning standards for equipment, improves
the clarity of the section.
Current §37.32 is repealed because the department no longer provides
speech/language screenings.
New §§37.32 - 37.39 expand and clarify the provisions currently
included in new §37.31, concerning the use of audiometers, audiometric
testing devices, and audiometric calibration equipment monitored by the Audiometric
Lab Program for compliance with radiation control requirements in Health and
Safety Code, Chapter 401.
The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of the sections.
Change: Concerning §37.22(7), the definition of "board" has been deleted.
Because the phrase "this subchapter" has been substituted for "board" in §37.24(a),
no definition of "board" is required. The remaining definitions have been
renumbered.
Change: Concerning §37.22(12) and (24), as amended, the term "sweep
check" has been changed to "sweep-check," as well as in §§37.24(a)
and (b), 37.23(c)(4), and 37.29(e) for consistency throughout the subchapters.
Change: Concerning §37.22(13)(B) and (C), as amended, the Department
of Family and Protective Services became operational on February 1, 2004,
with a new name, and the paragraphs have been amended for consistency.
Change: Concerning §37.23(c)(3), the paragraph has been amended to
clarify that children whose test results indicate failure to respond to any
of the three frequencies in either ear should be rescreened not sooner than
three weeks but not more than four weeks after the initial screening was performed.
Change: Concerning §37.23(c)(4), the paragraph has been amended to
clarify its original intent that an extended recheck should be performed or
a referral for a professional examination should be initiated for a child
if test results indicate failure to respond to any of the three frequencies
tested in either ear on the second sweep-check screen.
Change: Concerning §37.23(c)(6), the paragraph has been amended to
clarify the procedures for conducting an extended recheck.
Change: Concerning §37.23(d), §37.23(e) as proposed has been
relettered as §37.23(d), and §37.23(d) as proposed has been designated §37.23(e)
to improve the clarity and logical progression of the subsection.
Change: Concerning §37.23(e)(1), as amended, the paragraph clarifies
when children who enroll in a facility within 60 days of the date the facility
closes for the summer must be screened.
Change: Concerning §37.23(g), the subsection has been amended to clarify
that a child may be admitted to a facility on a provisional basis without
having been screened at the facility, or may be denied admission until the
results of a screening conducted by another person selected by the child's
parent, or other person legally responsible for the child's support, is provided.
Change: Concerning §37.23(h), the subsection has been amended to correct
an omission in the proposed rule, adding that screening should not take place
if the child's parent or person legally responsible for the child's support
submits an affidavit stating that screening conflicts with the affiant's religious
principles.
Change: Concerning §37.24(a), the subsection has been amended to clarify
that the standards for vision and hearing screening adopted by the Texas Board
of Health are those found in this subchapter.
Change: Concerning §37.26(a), the subsection has been amended to clarify
when proof of screening for children who enroll in a facility within 60 days
of the date the facility closes for the summer must be submitted to the facility.
Change: Concerning §37.29(e), the subsection has been reworded to
improve its readability and clarity.
Change: Concerning §37.31(a)(1), the word "using" has been deleted
to correct a syntax error.
Change: Concerning §37.31(c), the subsection has been omitted because
Health and Safety Code, Chapter 36, does not require that screeners and/or
instructors shall receive a formal hearing before the department modifies,
suspends, or terminates their certifications. Retention of access by persons
who are providing this service to a formal hearing without a statutory mandate
contradicts department policy.
Change: Concerning §37.34(d)(2), the requirement that registrants
retain a copy of the registration form with the equipment was inadvertently
omitted, and has been added.
The following comments were received concerning the proposed repeal and
new sections. Following each comment is the department's response and any
resulting change(s).
Comment: Concerning §37.23(b)(3) and (c)(2), one commenter stated
that the new sections appear to require that vision and hearing screening
results must be recorded on separate forms.
Response: The department disagrees. The rules do not require use of separate
forms. Child care facilities and schools may develop their own forms for recording
purposes. No changes were made as a result of this comment.
Comment: Concerning §37.23(b)(5) and (6) and §37.23(c)(4) and
(5), one commenter stated that the department should assume more enforcement
authority when parents ignore referrals from vision and/or hearing screeners
for professional examinations.
Response: The department disagrees. The department has no statutory authority
to require a parent or other person responsible for a child's welfare to act
on a screener's recommendation that the child should receive a professional
examination. No changes were made as a result of this comment.
Comment: Concerning §37.23(c)(2), several commenters stated that the
department should continue to authorize screeners to conduct sweep-check screens
at an intensity of less than or equal to 25 dB for all age/grade levels, as
provided by the current rules.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §37.23(d)(1) and (2), one commenter stated that
the §37.23(d)(2) should be deleted and the second sentence of §37.23(d)(1)
should be amended as follows to clarify the intent of subsection (d): "If
a child is enrolled within 60 days of the date a facility closes for the summer,
the child's vision and hearing may be tested the following year before December
31."
Response: The department disagrees because the commenter's suggested changes
would then be applied to two different populations. The second sentence of §37.23(d)(1)
applies to children four years of age or older who are enrolled within 60
days of the date a facility closes for the summer, and §37.23(d)(2) applies
to children who are already four years of age on September 1. No changes were
made as a result of this comment.
Comment: Concerning §37.23(d)(3), one commenter suggested that the
paragraph should be amended by adding a clarifying phrase such as "...in order
to be exempted from that year's screening requirements."
Response: The department agrees that the circumstances under which a child
whose vision and hearing has been screened in the prior reporting year may
be exempted from screening should be clarified, and has amended the section
accordingly.
Comment: Concerning §37.23(e), one commenter stated on behalf of other
state-certified screeners that students in grade 9 should continue to be screened
because that would be the last opportunity to identify vision and/or hearing
deficiencies through the public health system.
Response: The department believes that most children who have vision and/or
hearing problems have been identified prior to grade 9, and therefore screening
in grade 9 should no longer be required. However, individual child care facilities
and schools may choose to continue screening children in grade 9. No changes
were made as a result of this comment.
Comment: Concerning §37.23(e), several commenters supported the department's
decision to eliminate the mandatory screening requirements for children in
grade 9.
Response: The department acknowledges the commenters' support. No changes
were made as a result of these comments.
Comment: Concerning §37.23(e), one commenter asked, if the proposed
changes are adopted, whether facilities would still be required to screen
children in grade 9 for vision and hearing problems.
Response: The department confirms that adoption of §37.23(e) as proposed
would eliminate the requirement for vision and hearing screening in grade
9. No changes were made as a result of this comment.
Comment: Concerning §37.23(f), one commenter stated that the subsection
should be amended to clarify its meaning because schools conduct vision and
hearing screening in alternate years under the current rules. The commenter
also asked whether the proposed rule would authorize schools not to screen
students in kindergarten because that is the only grade that has no alternative
year.
Response: The department agrees that the intent of the proposed section
may not have been clearly stated, and has amended the section accordingly.
Comment: Concerning §37.23(g), one commenter asked whether the subsection
is intended to prevent admission of a child to a facility unless the screening
is done or the affidavit is signed.
Response: According to Health and Safety Code, §36.005(c), the chief
administrator of each preschool or school shall ensure that each individual
admitted complies with the screening requirements in this chapter. The department
believes each facility is therefore authorized to implement an admission policy/procedure
that either allows only provisional admission or denies admission for each
child until screening records are received by the facility. No changes were
made as a result of this comment.
The department received comments on 22 issues concerning the proposed rules
from six school nurses, three school district coordinators or health services,
and one pediatric nurse practitioners. The comments received were generally
favorable of the rules as proposed. However, many of the commenters had questions
or specific concerns, and/or offered suggestions for change.
Subchapter C. SPECIAL SENSES AND COMMUNICATION DISORDERS