40 TAC §809.91
The Texas Workforce Commission (Commission) proposes to amend
the following section of Chapter 809 relating to Child Care Services: Subchapter
E, Requirements to Provide Child Care, §809.91.
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The Commission is entrusted by the citizens of the state of Texas to be
a responsible steward of public funds. The Commission takes this responsibility
seriously, particularly concerning the health and safety of children. The
receipt of public child care funds includes the responsibility to ensure that
child care is provided in a safe environment. Commission rules ensure that
the health and safety of children receiving Commission-funded child care services
are protected by requiring that regulated child care providers--i.e., licensed
child care centers, licensed child care homes, and registered child care homes--that
care for children in Commission-funded child care be subject to state-mandated
and federally required health and safety standards under the supervision of
the Texas Department of Family and Protective Services (DFPS). These standards
include requiring immunizations for children, conducting periodic health and
safety inspections, as well as conducting background checks for criminal history,
and checking the Child Protective Services' (CPS) child abuse registry (Texas
Human Resources Code, Chapter 42).
Child Care and Development Fund (CCDF) regulations, however, allow states
to exempt children who are cared for by relatives from federally mandated
minimum health and safety standards (45 C.F.R. §98.41(e)). In the preamble
to the CCDF regulations, the Administration for Children and Families (ACF)
expressly states that the "intent of the statute was to give grantees (States)
the option to exempt certain relatives from the health and safety requirements
that all other CCDF child care providers must meet" (
Federal Register
, Vol. 63, No. 142, July 24, 1998, at 39957, or CCDF
preamble). The Commission is firmly committed to the principle of parent choice
and believes that parents have the right to choose the type of child care
provider that best meets their needs, including relative providers. However,
the principle of parent choice does not override the principle of ensuring
the health and safety of children receiving publicly funded child care services.
Federal regulations also allow states to impose more stringent requirements
on child care service providers that receive assistance under CCDF than those
requirements imposed on other child care providers, so long as those additional
requirements are consistent with the safeguards for parental choice (45 C.F.R. §98.40).
Other than prohibiting an individual who appears on the Texas Department of
Public Safety's (DPS) Sex Offender Registry from being an eligible relative
child care provider, the Commission has not established more stringent requirements
for relative child care providers, and as such, these providers are not subject
to criminal background checks or child abuse registry checks, as other regulated
and listed providers are. Further, the CCDF preamble provides that "with respect
to criminal background checks . . . (ACF agrees) that it is appropriate to
encourage States to adopt criminal background checks as part of their effort
to meet CCDF health and safety standards" (CCDF preamble at 39956). In light
of the flexibility afforded states under the CCDF regulations, the Commission
has determined that additional requirements for unregulated relative child
care providers can be incorporated into existing rules.
In Texas, family homes listed with DFPS are subject to background checks.
Although §42.002(9) of the Texas Human Resources Code appears to exempt
providers that care exclusively for children who are related to the provider
from the definition of "family home," Texas Human Resources Code §42.052(d)
states that a family home that provides care exclusively for any number of
children related to the caretaker is not required to be listed or registered
with DFPS. However, while not requiring a relative child care provider to
be listed, §42.052(d) does not prohibit a relative care provider from
being listed with DFPS.
Furthermore, DFPS rule at 40 TAC §745.141 states that a child care
operation that is considered exempt from DFPS regulations may still apply
for a permit from DFPS if the operator is required to have a permit to receive
public funding. Therefore, if the Commission requires relative child care
providers to list with DFPS as a prerequisite to receiving Commission funds,
relative child care providers--based on DFPS rules--will be required to have
a criminal background check conducted by DFPS.
The Commission has fully examined both state and federal regulations regarding
criminal and child abuse background checks and analyzed the feasibility of
requiring background checks of relative providers before authorizing Commission-funded
child care. Although Commission rules allows parents the right to choose a
relative provider (eligible under 45 C.F.R. §98.2 and §809.91 of
this chapter), the Commission has concluded that a parent's right to choose
a relative provider cannot come at the expense of placing that child with
someone whose criminal or CPS child abuse and neglect history may indicate
the individual could potentially endanger the child, particularly when this
placement is government funded.
Therefore, the Commission proposes to amend its rules to require relative
child care providers to be listed with DFPS, and in doing so, make relative
providers subject to criminal background checks, CPS central registry searches,
and facility inspection in the event of a complaint of suspected child abuse
or neglect.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
(Note: Minor editorial changes are made that do not change the meaning
of the rules and, therefore, are not discussed in the Explanation of Individual
Provisions.)
The Commission proposes the following amendments to §809.91 Minimum
Requirements for Providers.
Section 809.91(b) provides the requirements for child care providers listed
with DFPS. Section 809.91(b)(1) states that Local Workforce Development Boards
(Boards) shall not prohibit a relative child care provider who is listed with
DFPS and meets the eligibility requirements of §809.91 from being an
eligible relative child care provider. The Commission includes this statement
to clarify that although §809.91(b)(2) allows Boards the option not to
include listed family homes as eligible child care providers, Boards do not
have the option to exclude relative providers listed with DFPS as eligible
relative child care providers.
Section 809.91(b)(2) gives Boards the option to include listed family homes
as eligible providers, as long as the Boards ensure that there are local laws
in effect that protect the health and safety of children. The Commission adds
language to clarify that this option applies only to listed family homes,
as defined in §809.2(12) of this chapter, that provide care for children
unrelated to the provider. This provision is consistent with 45 C.F.R. §98.41(e),
which does not allow states to exempt non-relative child care providers from
health and safety standards.
Section 809.91(f), which prohibits an individual who appears on the DPS
Sex Offender Registry from being an eligible relative child care provider,
is removed.
New §809.91(f) is a broader provision designed to ensure that a criminal
background check on a relative child care provider is conducted by DFPS prior
to authorizing care with the relative provider. The new subsection requires
that relative child care providers shall list with DFPS to ensure that a criminal
background check and a check of the CPS central registry is conducted prior
to authorizing care with that relative.
The Commission emphasizes that the criminal background check and the check
of individuals on the CPS central registry of child abuse and neglect will
be conducted by DFPS using its current application and background check procedures
for listed family homes. The Commission does not intend for a Board or the
Board's child care contractor to conduct any of the functions associated with
the listing process.
Prior to authorizing child care, the child care contractor must inform
the parent that the prospective relative must be listed with DFPS and provide
the application--or notify the relative how to access the application--for
listing with DFPS. The relative must submit the application along with the
$20 annual fee to DFPS and DFPS will conduct the necessary background checks.
If there is no criminal history match or match on the CPS central registry
of child abuse and neglect, DFPS will inform the relative that no matches
occurred and will issue a listing to the relative. Once the listing is issued,
the relative will be eligible to provide Commission-funded child care services
for the eligible child. DFPS has informed the Commission that background checks
usually are completed within 48 hours and the listing issued to the relative
within one week of receiving the application. The Board's sole responsibility
is to ensure that the child care contractor verifies that the relative is
listed with DFPS, which can be authenticated by viewing the listing permit
that DFPS provides to the relative. DFPS also has informed the Commission
that once the listing is issued, the DFPS Web site is updated the next day.
The child care contractor also can verify the listing through the DFPS Web
site.
The Commission emphasizes that the child care contractor cannot authorize
the relative to receive Commission child care funds until DFPS issues the
listing to the relative. Additionally, the Commission does not intend that
relative child care providers be reimbursed retroactively for child care provided
to the eligible child by the relative pending the results of the DFPS background
checks.
In addition, new §809.91(f) states that in all other respects, relatives
listed with DFPS are exempt from the CCDF health and safety requirements at
45 C.F.R. §98.41(a). This provision is consistent with 45 C.F.R. §98.41(e),
which allows states to exempt relative child care providers from health and
safety standards. Specifically, other than the background checks required
of child care providers listing with DFPS, relative providers who care for
children receiving Commission-funded child care services are exempt from standards
related to the prevention and control of infectious disease; building and
physical premises safety; and minimum health and safety training.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for each year
of the first five years the rules will be in effect, the following statements
will apply:
Based on the Agency's estimates of approximately 15,000 per year of self-arranged
care providers who will choose to apply to become listed family homes, and
DFPS' cost estimates for processing this number of listed family homes, including
associated criminal background checks (conducted by DPS), CPS central registry
checks, and facility inspection in the event of a complaint of suspected child
abuse or neglect, we estimate the additional cost to the state, as a result
of enforcing or administering the rule, to be approximately $41 per relative
provider home listed in Fiscal Year 2008 and $37 in each of the succeeding
four years.
There are no estimated reductions in costs to the state and to local governments
as a result of enforcing or administering the rules. We estimate an increase
in revenue to the state of $20 for each relative home listed per year (a required
DFPS fee). There are no estimated reductions in revenue to the state and to
local governments as a result of enforcing or administering the rules.
Mr. Townsend has determined that administering or enforcing the rules may
have implications relating to child care costs for Boards, although it is
unclear whether this rule would influence or otherwise affect the proportion
of children in subsidized child care who are in relative child care arrangements.
Mr. Townsend has determined that the anticipated economic costs to persons
required to comply with the rules is $20 annually, based on the current DFPS
licensing fee for listed homes. Other fees that may become necessary as a
result of changes in law may affect this anticipated economic cost.
Mr. Townsend also has determined that there is no anticipated adverse economic
impact on small businesses or microbusinesses as a result of enforcing or
administering these rules because they are not regulated or otherwise affected
by this rule.
Mark Hughes, Director, Labor Market Information, has determined that there
is no significant negative impact upon employment conditions in this state
as a result of the proposed rules. Mr. Hughes does not expect any significant
impact upon overall employment conditions in the state as a result of the
proposed rules.
Laurence M. Jones, Director, Workforce Development Division, has determined
that the public benefit anticipated as a result of enforcing the proposed
rules will be to ensure that child care funds are used for child care services
that promote a safe environment for children.
The Agency hereby certifies that the proposal has been reviewed by legal
counsela nd found to be within the Agency's legal authority to adopt.
PART IV. COORDINATION ACTIVITIES
In the development of these rules for publication and public comment, the
Commission sought the involvement of Texas' 28 Boards. The Commission provided
the policy concept regarding these rule amendments to the Boards for consideration
and review. The Commission also conducted conference calls with Board executive
directors and Board staff on January 5, 2007, to discuss the policy concept.
Additionally, the Commission sought the involvement of DFPS. During the rulemaking
process, the Commission considered all information gathered in order to develop
rules that provide clear and concise direction to all parties involved.
Comments on the proposed rules may be submitted to TWC Policy Comments,
Policy and Development, 101 East 15th Street, Room 440T, Austin, Texas 78778;
faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days from
the date this proposal is published in the
Texas
Register
.
The rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Commission the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Agency services and activities, and the Texas Human Resources Code §44.002,
regarding Administrative Rules.
The proposed rules will affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.
§809.91.Minimum Requirements for Providers.
(a)
A Board shall ensure that child care subsidies are paid
only to:
(1)
regulated child care providers as described in §809.2(17);
(2)
relative child care providers as described in §809.2(18),
subject to the requirements in subsections (e) and (f) of this section; or
(3)
at the Board option, listed family homes as defined in §809.2(12),
subject to the requirements in
subsection (b)(2)
[
subsection
(b)
] of this section.
(b)
For providers listed with DFPS, the following applies:
(1)
A Board shall not prohibit
a relative child care provider who is listed with DFPS and meets the minimum
requirements of this section from being an eligible relative child care provider.
(2)
If a Board chooses to include listed family
homes
, as defined in §809.2(12), that provide care for children
unrelated to the provider
, a Board shall ensure that there are in effect,
under local law, requirements applicable to the listed family homes designated
to protect the health and safety of children. Pursuant to 45 C.F.R. §98.41,
the requirements shall include:
(A)
[
(1)
] the prevention and control
of infectious diseases (including immunizations);
(B)
[
(2)
] building and physical premises
safety; and
(C)
[
(3)
] minimum health and safety training
appropriate to the child care setting.
(c) - (e)
(No change.)
(f)
To be eligible for reimbursement
for Commission-funded child care services, relative child care providers shall
list with DFPS; however, pursuant to 45 C.F.R §98.41(e), relative child
care providers listed with DFPS shall be exempt from the health and safety
requirements of 45 C.F.R. §98.41(a).
[
(f)
An individual appearing on
the Texas Department of Public Safety's Sex Offender Registry, pursuant to
Chapter 62 of the Texas Code of Criminal Procedure, shall not be eligible
to be a relative child care provider.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 30, 2007.
TRD-200700254
Reagan Miller
Deputy Director for Workforce and UI Policy
Texas Workforce Commission
Earliest possible date of adoption: March 18, 2007
For further information, please call: (512) 475-0829