Adopted Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

Part 15. TEXAS VETERANS COMMISSION

Chapter 455. TAPS PROGRAM

40 TAC §§455.1 - 455.5

The Texas Veterans Commission (commission) adopts new Chapter 455, regarding "Taps Program", which will be located in Title 40, Part 15, of the Texas Administrative Code. Chapter 455 will include §455.1, "Purpose"; §455.2, "Application"; §455.3, "Definitions"; §455.4, "Process"; and §455.5, "Adoption of Standard Form". The sections are adopted without changes to the proposed text as published in the November 9, 2007, issue of the Texas Register (32 TexReg 8113) and therefore, will not be republished.

The purpose of Chapter 455 is to establish the responsibilities, composition, and terms for Taps vouchers. This chapter is authorized under §434.0072 of the Texas Government Code, granting the commission the authority to establish Taps vouchers for the sounding of Taps at military funerals.

There were no comments received regarding the new sections.

The new sections are adopted under Texas Government Code, Chapter 434, §434.010, which authorizes the commission to adopt rules it considers necessary for its administration.

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 29, 2008.

TRD-200800475

Tina Coronado

General Counsel

Texas Veterans Commission

Effective date: February 18, 2008

Proposal publication date: November 9, 2007

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

Part 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Chapter 700. CHILD PROTECTIVE SERVICES

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§700.203, 700.1351, 700.1403, and 700.1404, without changes to the proposed text published in the November 2, 2007, issue of the Texas Register (32 TexReg 7864). The justification for the amendments is to update the rules to reflect the changes required in Senate Bill 6 of the 79th Legislative Session, which added Chapter 266 to the Texas Family Code to address medical consent for children in DFPS conservatorship. The major provisions are: (1) requirement for an individual to be authorized by the court or designated by DFPS to consent for medical care for each child in DFPS conservatorship; (2) completion of training on informed consent by the medical consenter; (3) participation in each medical appointment by the medical consenter; (4) informing 16 and 17 year old youth of rights to a court determination of their capacity to consent to some or all of their medical care; (5) requirement to include informed consent training in the PAL curriculum; (6) obtaining medical care in an emergency; (7) judicial review of medical care; and (8) notifying parents of significant medical conditions.

Section 700.203 adds the provision that DFPS may release confidential case record information to the medical consenter, and clarifies that the same restrictions on disclosure of confidential records to DFPS apply to re-disclosure by the party who receives the records.

Section 700.1351 defines medical care, clarifies that consent for medical care for children in DFPS conservatorship must be provided in accordance with Chapter 266 of the Texas Family Code, and deletes the procedures pertaining to medical care that no longer apply.

Section 700.1403 clarifies that DFPS may provide information about the child's AIDS/HIV status to the medical consenter.

Section 700.1404 adds the child's "medical consenter" to the provision that a child's caretaker may release information about a child's HIV status only to certain parties in specific circumstances. Also, TDPRS is changed to DFPS in all of the rules.

The amendments will function by ensuring that children in DFPS conservatorship will likely benefit from improved health outcomes through the provision of consistent, coordinated and informed decisions concerning their health care.

No comments were received regarding adoption of the amendments.

Subchapter B. CONFIDENTIALITY AND RELEASE OF RECORDS

40 TAC §700.203

The amendment is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendment implements the Texas Family Code, Chapter 266.

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 February 1, 2008.

TRD-200800582

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter M. SUBSTITUTE-CARE SERVICES

40 TAC §700.1351

The amendment implements the Texas Family Code, Chapter 266.

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 February 1, 2008.

TRD-200800583

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter N. AIDS POLICIES FOR CHILDREN IN DFPS'S CONSERVATORSHIP

40 TAC §700.1403, §700.1404

The amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendments implement the Texas Family Code, Chapter 266.

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 February 1, 2008.

TRD-200800584

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter H. ADOPTION ASSISTANCE PROGRAM

Division 6. HEALTH COVERAGE BENEFIT (HCB) STIPEND

40 TAC §§700.890 - 700.894

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), new §§700.890 - 700.894, in its Child Protective Services chapter. New §700.892 and §700.893 are adopted with changes to the proposed text published in the November 2, 2007, issue of the Texas Register (32 TexReg 7867). Sections 700.890, 700.891, and 700.894 are adopted without changes to the proposed text and will not be republished. The justification for the new sections is to implement the Heath Coverage Benefit (HCB) Stipend program, as required by House Bill 2702 of the 80th Legislative Session, Texas Family Code §162.304. The HCB Stipend program provides $150 per month toward health care coverage for families who adopt a child in the managing conservatorship of DFPS and whose family income is less than 300% of the federal poverty level. Additionally, the child cannot be eligible for Medicaid under Chapter 32 of the Texas Human Resources Code. The money is for the purpose of assisting the adoptive parents in covering the costs of health insurance premiums for the adopted child.

Section 700.890 describes the HCB stipend.

Section 700.891 lists the HCB stipend eligibility requirements.

Section 700.892 lists the documents that must be provided to establish eligibility for the HCB stipend.

Section 700.893 describes when the stipend is paid.

Section 700.894 clarifies that eligibility for the HCB stipend does not confer eligibility for the tuition exemption available under §54.211 of the Education Code.

The new sections will function by ensuring that additional children will have access to health care coverage.

During the public comment period, DFPS received comments from Texans Care for Children. A summary of the comments and DFPS's responses follow:

Two comments were received concerning §700.892:

(1) The commenter suggested that requiring proof of a Medicaid denial was a barrier to the program inasmuch as proof of income is already required as a condition of eligibility and the Medicaid denial would therefore be duplicative, and inasmuch as delays and backlogs at HHSC make the requirement burdensome.

Response: DFPS disagrees with this comment but does believe the wording can be clarified. The statute upon which these rules are based requires as a condition of eligibility that a child not be eligible for medical assistance under Chapter 32 of the Texas Human Resources Code. While it is true that income is relevant to medical assistance eligibility, it is not dispositive. DFPS is not authorized to make such a determination; HHSC is. Furthermore, any burden created by the requirement will be offset by the fact that proof of a Medicaid denial will not be required in order to recertify eligibility. However, this fact may not be obvious in the current wording of the rule. The word "Initial" was added to the question to make it clear that the documentation requirements of this rule only apply to the "initial" eligibility determination. And the requirements for continuing eligibility were clarified at §700.893(b), which does not require ongoing Medicaid denials.

(2) The commenter expressed concern that requiring proof of current insurance coverage is inconsistent with the intent of the legislation, which the commenter asserted is to enable a family to acquire health insurance with a stipend.

Response: DFPS agrees that there may be some families who will not have health care coverage but will be enabled to obtain coverage by the program. Accordingly, §700.892(a)(4)(B) and §700.892(b) are added to clarify that families have 30 days following the initial stipend payment to obtain proof that health care coverage has been activated.

Comments concerning §700.893: The commenter indicated that requiring recertification of eligibility "at least" once every 12 months could lead to a family being eligible for an abbreviated period that is less than 12 months.

Response: DFPS agrees in part and disagrees in part with the commenter. DFPS must ensure that it is carrying out the program in a manner consistent with the statutory directive that the subsidy is used to "obtain and maintain" health care coverage. Therefore, DFPS has retained the recertification requirement. However, DFPS agrees the language regarding documentation requirements should be clarified and there should be some leeway to prevent abbreviated periods of eligibility. As noted above in the first comment, the §700.892 documentation requirements were clarified to only apply to the "initial" eligibility determination, and the two remaining requirements for continuing eligibility were clarified at §700.893(b); DFPS has also clarified in subsection (e) that retroactive payments of up to 60 days are allowed for restored benefits; finally, DFPS edited several sections of this rule to improve clarity.

The new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new sections implement the Texas Family Code, §162.304, Subsections (b-1), (b-2), and (g), which were added by House Bill 2702, enacted in the 80th Legislative Session.

§700.892.What documents must an adoptive parent submit to DFPS to establish initial eligibility for the HCB stipend?

(a) An adoptive parent must submit:

(1) A final adoption order;

(2) Proof of income, such as a W-2 form, verification of earnings statement from an employer, or other reliable source;

(3) Proof of denial of medical assistance benefits under Chapter 32 of the Human Resources Code; and

(4) Proof that the:

(A) Child in question currently has health coverage benefits paid for by the adoptive parent, and the amount of the monthly premium; or

(B) Adoptive parent has obtained a quote for health coverage benefits that will be obtained for the child in question following receipt of the stipend; and

(b) A parent who provides a quote for health care coverage as provided under subsection (a)(4)(B) must provide proof that the parent obtained health care coverage for the child in question within 30 days of the date on which the first HCB stipend payment is issued.

§700.893.When is the HCB stipend paid?

(a) The HCB stipend is payable for the first month following receipt of all necessary documents to prove eligibility under §700.892 of this title (relating to What documents must an adoptive parent submit to DFPS to establish initial eligibility for the HCB stipend?). Retroactive benefits are not available for the initial eligibility determination.

(b) Continuing eligibility for the monthly HCB stipend must be recertified every 12 months after the initial HCB stipend payment is issued. In order to recertify the child, the parent must provide by the annual recertification date:

(1) Proof of current income as required in subsection (a)(2) of §700.892 of this title; and

(2) Proof that the adoptive parent maintained health care coverage for the child, as required in subsection (a)(4)(A) of §700.892 of this title.

(c) Notwithstanding any provision of this section, if DFPS determines that changes in the parent's circumstances may have rendered the family ineligible for the HCB stipend, including the termination of a child's health care coverage, DFPS may require proof of continued eligibility prior to the recertification required in subsection (b) of this section. The adoptive parent must submit the proof required within 30 days of DFPS's request.

(d) Failure to submit documentation for initial eligibility as required by §700.892 of this title, or for continuing eligibility as required by this section, will result in termination of payments.

(e) Benefits that have been terminated may be restored upon receipt of the required documentation. Restored benefits may be retroactive for a maximum of 60 days.

(f) Any sums paid to a parent for which the parent was ineligible must be repaid to DFPS.

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 February 1, 2008.

TRD-200800608

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter R. STRENGTHENING FAMILIES THROUGH ENHANCED IN-HOME SUPPORT PROGRAM

40 TAC §§700.1801 - 700.1805

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), new §§700.1801 - 700.1805, without changes to the proposed text published in the November 2, 2007, issue of the Texas Register (32 TexReg 7868). The rules are adopted in new Subchapter R, Strengthening Families Through Enhanced In-Home Support Program. Senate Bill 758, 80th Legislature, requires DFPS to implement an enhanced in-home support program that diverts children from foster care or shortens their stay in substitute care. The Strengthening Families Through Enhanced In-Home Support program will assist certain low-income families and children in child neglect cases in which poverty is believed to be a significant underlying cause of the neglect and in which the enhancement of in-home support appears likely to prevent removal of the child from the home or to speed reunification of the child with the family.

Section 700.1801 provides an overview of the Strengthening Families Through Enhanced In-Home Support program.

Section 700.1802 describes generally what two types of benefits are available: (1) Family Enhancement through monetary assistance; and (2) Family Empowerment through purchasing goods and services.

Section 700.1803 describes the monetary limits and restrictions for the Family Enhancement benefits. The family determines how to make the best use of these benefits, subject to certain legal limitations.

Section 700.1804 describes the monetary limits and restrictions for the Family Empowerment benefits. The family determines how to make the best use of these benefits, subject to certain legal limitations.

Section 700.1805 describes the eligibility requirements for the program.

The new sections will function by ensuring that children will remain with their families or will return to their families more quickly.

During the public comment period, DFPS received comments from Texans Care for Children. A summary of the comments and DFPS's responses follow:

Comment concerning §700.1803(a) and §700.1804(a): These sections establish maximum dollar amounts that may be provided by DFPS to a family for cash assistance and for purchased goods and services. The commenter requested greater specificity about whether a family could receive the maximum assistance and benefits more than once after a period of time or based on the number of investigations. The commenter expressed concern that there was a risk of disparate implementation of the program throughout the state.

Response: DFPS agrees that the needs of children must be addressed uniformly throughout the state. Because the program is a pilot program based on available funding, a family will not be eligible to receive any more assistance or benefits after they have received the maximum, regardless of the passage of time or number of investigations. The language in §700.1802(b) sufficiently clarifies that the maximum limits "apply to each eligible family, regardless of the number of DFPS investigations." DFPS is adopting these sections without change.

Comment concerning §700.1805(a)(5): Among the eligibility criteria, this rule requires a family to be comprised of a parent or a managing conservator. The commenter recommended that "a guardian in actual custody of a child also be eligible" so that the benefits of the program could extend beyond families in which there is a parent or managing conservator. The commenter also noted that eligibility for other programs is based on the child and not on the legal status of the parent or guardian.

Response: DFPS appreciates the commenter's concerns for children living in households headed by people other than parents or managing conservators. However, because of the limited resources for this program, its focus is on strengthening families headed by parents or managing conservators. DFPS is adopting this section without change.

The new sections implement Texas Family Code, §264.2011.

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 February 1, 2008.

TRD-200800609

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Chapter 711. INVESTIGATIONS IN DADS MENTAL RETARDATION AND DSHS MENTAL HEALTH FACILITIES AND RELATED PROGRAMS

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§711.1, 711.3, 711.7, 711.11, 711.23, 711.201, 711.401, 711.403, 711.405, 711.415, 711.417, 711.603, 711.605, 711.607, 711.611, 711.613, 711.801, 711.1001, 711.1003, 711.1005, 711.1007, 711.1009, 711.1011, 711.1013, 711.1203, 711.1205, 711.1207, 711.1401, 711.1405, 711.1407, 711.1411, 711.1413, 711.1415, 711.1417, 711.1419, 711.1421, 711.1425, 711.1427, 711.1429, 711.1431, 711.1433, 711.1435; new §711.1002; and the repeal of §711.1209, in its Investigations in DADS Mental Retardation and DSHS Mental Health Facilities and Related Programs chapter. The amendments to §§711.3, 711.201, 711.401, 711.605, and 711.1001 are adopted with changes to the proposed text published in the August 10, 2007, issue of the Texas Register (32 TexReg 4949). The amendments to §§711.1, 711.7, 711.11, 711.23, 711.403, 711.405, 711.415, 711.417, 711.603, 711.607, 711.611, 711.613, 711.801, 711.1003, 711.1005, 711.1007, 711.1009, 711.1011, 711.1013, 711.1203, 711.1205, 711.1207, 711.1401, 711.1405, 711.1407, 711.1411, 711.1413, 711.1415, 711.1417, 711.1419, 711.1421, 711.1425, 711.1427, 711.1429, 711.1431, 711.1433, 711.1435; new §711.1002; and the repeal of §711.1209 are adopted without changes to the proposed text and will not be republished.

The justification for the rule changes is to clarify investigator responsibilities when the administrator or CEO of a state-operated mental health or mental retardation facility or related program is the perpetrator or alleged perpetrator in an investigation. The changes also update references to agency names and affected sections of the Texas Administrative Code resulting from the consolidation of the Health and Human Services agencies.

The amendment to §711.3: (a) clarifies that the Texas Home Living Medicaid waiver program is considered a Home and Community-Based Services Waiver (HCSW) program; (b) adds a definition for HCSW CEO/Administrator Designee; (c) updates statutory references to the various professional groups that are Mental Health Service Providers; and (d) clarifies which definitions apply only to community centers and HCSW programs, and which definitions apply only to DADS and DSHS state-operated facilities.

The amendments to §§711.11, 711.23, 711.405, 711.611, and 711.613 update references to the Texas Administrative Code as a result of the consolidation of the Health and Human Services agencies.

Section 711.201 clarifies that allegations may be reported to Statewide Intake via the Internet, in addition to the toll-free number.

Section 711.401 clarifies investigator responsibilities for making notifications at the start of an investigation when the alleged perpetrator is the administrator or CEO.

Section 711.605 clarifies to whom the investigator releases the investigative report when the administrator is the perpetrator or alleged perpetrator.

The title of §711.607 is revised for clarity.

Section 711.1001 clarifies who may request a review of the finding when the administrator or contractor CEO is the perpetrator or alleged perpetrator.

New §711.1002 is added to clarify how a request for review by the administrator is affected by the perpetrator's request for an Employee Misconduct Registry Hearing.

Sections 711.1003, 711.1007, 711.1009, 711.1011, 711.1203, and 711.1207 are revised to change the term "Director" to "Assistant Commissioner." Also, the title of §711.1003 is revised and §711.1207(4)(B) adds language that was repealed in §711.1209, concerning who is notified of an appeal decision.

In addition to the changes already listed above, the other rules in this package are revised to: (1) update the agency name to Department of Family and Protective Services (DFPS); (2) update the agency name of the Texas Department of Mental Health and Mental Retardation (TDMHMR) to Texas Department of Aging and Disability Services (DADS) and Texas Department of State Heath Services (DSHS), as appropriate; (3) update the Consumer Services and Rights Protection (TDMHMR) to Consumer Rights and Services (DADS) and Consumer Services and Rights Protection (DSHS); and (4) update the term "executive director" of DFPS to "commissioner."

The sections will function by ensuring that investigations conducted in DADS Mental Retardation and DSHS Mental Health Facilities and Related Programs will be conducted more efficiently and provide greater protection to persons being served by these facilities and programs.

During the comment period, DFPS received comments from Advocacy Incorporated, Department of Aging and Disability Services, and Department of State Health Services. A summary of the comments and responses to the comments follows:

General comment: One commenter recommended that language be added to Chapter 711 indicating that the Director of State Schools receives a copy of the final Investigative report of investigations conducted in state schools.

Response: Adding such language would be a substantive change to the proposed rules and would require publication for review and comment. This cannot be accomplished with this rule adoption.

Comments concerning §711.3:

(1) One commenter noted that in paragraph (9), Consumer Rights and Services at DADS state office is a section, not a unit.

Response: DFPS agrees and has revised the language.

(2) Concerning paragraph (18), one commenter recommended that references to "state centers" be removed throughout Chapter 711. The commenter notes that the term is obsolete in that what were formerly understood to be state centers are now covered by the terms state hospital, state school and community center.

Response: DFPS acknowledges that the functions of the remaining two state centers, El Paso State Center and Rio Grande State Center, have changed. However, until the names of these two facilities are officially changed, it would create confusion in the context of these rules to refer to them as anything other than state centers. DFPS is not revising the language in paragraph (18) or §§711.401, 711.605, and 711.611.

(3) Concerning paragraph (24), one commenter noted that during the 80th Texas Legislature, the Health and Safety Code was amended to state that the HHSC executive commissioner shall designate a local mental health authority and a local mental retardation authority, rather than the DADS or DSHS commissioner.

Response: DFPS agrees, and has revised the language.

(4) Concerning paragraphs (26) and (36), one commenter recommended that references to local authorities be added where community centers are mentioned. The commenter notes that not all community centers are local authorities.

Response: DFPS agrees, and has revised the language in these paragraphs, as well as in §§711.401, 711.605, and 711.1001.

Comments concerning §711.401:

(1) One commenter noted that a local authority has a board of directors, while a community center has a board of trustees.

Response: DFPS agrees, and has revised the language accordingly.

(2) One commenter requested that in addition to the investigator notifying Consumer Rights and Services at DADS when receiving an allegation where a community center administrator or CEO is the alleged perpetrator, the investigator also notify Consumer Services and Rights Protection at DSHS.

Response: DFPS agrees, and has revised the language accordingly.

(3) One commenter noted that for investigations involving HCSW programs where the Administrator or CEO is the alleged perpetrator, the process of identifying the HCSW CEO/Administrator Designee should be done proactively rather than at the start of the investigation. The commenter also recommended that the criteria for selecting the HCSW CEO/Administrator Designee be specified to include that it: (1) cannot be a family member; and (2) be someone who knows and understands HCSW programs, including rights issues and contract requirements.

Response: These recommendations are beyond the scope of DFPS rules. DADS would have to mandate these requirements of the providers. However, in response to this comment DFPS has modified the language in (1) §711.3(20) to only define the role of the designee instead of who is responsible for making the designation, and (2) §711.401(b) to notify the designee of the allegation instead of notifying the CEO or Administrator to request a designee and then notifying. These changes allow for greater flexibility for a subsequent solution to this problem. The language is revised accordingly.

Comments concerning §711.605:

(1) In subsection (a)(4)(D), one commenter notes that the phrase "instead of the CEO/Administrator" is redundant since these subsections clearly address actions to be taken when the CEO/Administrator is the alleged perpetrator.

Response: DFPS agrees, and has revised the language. DFPS has also revised §711.1001(b)(3), accordingly.

(2) In subsection (a)(4)(E), one commenter recommended that language be added to clarify who receives the investigative report when the administrator is the alleged perpetrator.

Response: DFPS disagrees. The language states who is to receive the investigative report when the administrator is the alleged perpetrator. DFPS is not revising the language.

Comment concerning §711.1207: One commenter noted that the language in paragraph (4)(B) could be clearer if stated as follows, "the victim or alleged victim, or the parent or guardian if the victim or alleged victim is a child."

Response: DFPS disagrees, and is not revising the section. An adult person may also have a guardian.

In addition, DFPS is revising the language in §711.201 because it is confusing. DFPS is deleting information to clarify reporting responsibilities. In §711.1001(b)(3), DFPS has changed the reference from the HCS CEO/Administrator Designee to the HCSW CEO/Administrator Designee.

Subchapter A. INTRODUCTION

40 TAC §§711.1, 711.3, 711.7, 711.11, 711.23

The amendments implement HRC, Chapter 48, Subchapters F, H, and I.

§711.3.How are the terms in this chapter defined?

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

(1) Administrator--The person in charge of a facility, local authority, community center, or home and community-based services waiver program, or designee.

(2) Adult--An adult is a person:

(A) 18 years of age or older; or

(B) under 18 years of age who:

(i) is or has been married; or

(ii) has had the disabilities of minority removed pursuant to the Texas Family Code, Chapter 31.

(3) APS--Adult Protective Services, a division of DFPS.

(4) Agent--An individual (e.g., student, volunteer), not employed by but working under the auspices of a:

(A) facility, local authority, community center, or home and community-based services waiver program; or

(B) contractor of one of the programs listed in subparagraph (A) of this paragraph.

(5) Allegation--A report by an individual that a person served has been or is in a state of abuse, neglect, or exploitation as defined by this subchapter.

(6) Child--A person under 18 years of age who:

(A) is not and has not been married; or

(B) has not had the disabilities of minority removed pursuant to the Texas Family Code, Chapter 31.

(7) Clinical practice--Relates to the demonstration of professional competence in nursing, dental, pharmacy, or medical practice as described in the Nursing Practice Act, Vocational Nurse Act, Dental Practice Act, Pharmacy Practice Act, or Medical Practice Act.

(8) Community center--A community mental health center, community mental retardation center, or community mental health and mental retardation center, established under the Texas Health and Safety Code, Title 7, Chapter 534, Subchapter A.

(9) Consumer Rights and Services--The section at DADS' state office charged with protecting the rights of persons served.

(10) Consumer Services and Rights Protection--The unit at DSHS' central office charged with protecting the rights of persons served.

(11) Contractor--Any organization, entity, or individual who contracts with a facility, local authority, community center, or HCSW to provide mental health and/or mental retardation services directly to a person served. The term includes a local independent school district with which a facility, local authority, or community center has a memorandum of understanding (MOU) for educational services.

(12) Contractor CEO--The person in charge of a contractor that has one or more employees, excluding the CEO.

(13) DADS--Department of Aging and Disability Services.

(14) DFPS--Department of Family and Protective Services.

(15) DSHS--Department of State Health Services.

(16) Emergency order for protective services--A court order for protective services obtained under Human Resources Code, §48.208.

(17) Emergency services--Services necessary to immediately protect a person served by an HCSW from serious physical harm or death. Examples include, but are not limited to, arranging for:

(A) an emergency order for protective services;

(B) shelter;

(D) food, medication, or other supplies.

(18) Facility--A state hospital, state school, or state center that is operated by DADS or DSHS.

(19) Home and community-based services waiver (HCSW) programs--The Home and Community-based Services and the Texas Home Living Medicaid waiver programs authorized under the Social Security Act, §1915(c), operated by DADS under the authority of the Texas Health and Human Services Commission, that are exempt from licensure in accordance with Health and Safety Code, §142.003(a)(19).

(20) HCSW CEO/Administrator Designee--The person designated to perform the duties of the CEO/Administrator for the purposes of the investigation when the CEO/Administrator is the alleged perpetrator in an investigation.

(21) Incitement--To spur to action or instigate into activity; implies responsibility for initiating another's actions.

(22) Individual with a disability receiving services--A disabled person as defined in the Human Resources Code, Chapter 48, receiving services from a:

(A) facility, local authority, community center, HCSW; or

(B) contractor or agent of one of the programs listed in subparagraph (A) of this paragraph.

(23) Investigator--An employee of the division of Adult Protective Services who has:

(A) demonstrated competence and expertise in conducting investigations; and

(B) received training on techniques for communicating effectively with individuals with a disability.

(24) Local authority--An entity designated by the HHSC Executive Commissioner in accordance with the Texas Health and Safety Code, §533.035(a).

(25) Mental health services provider--In accordance with the Texas Civil Practice and Remedies Code, §81.001, an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:

(A) licensed social worker as defined by §505.002, Occupations Code;

(B) chemical dependency counselor as defined by §504.001, Occupations Code;

(D) licensed marriage and family therapist as defined by §502.002, Occupations Code;

(E) member of the clergy;

(F) physician who is practicing medicine as defined by §151.002, Occupations Code;

(G) psychologist offering psychological services as defined by §501.003, Occupations Code; or

(H) special officer for mental health assignment certified under §1701.404, Occupations Code.

(26) Non-serious physical injury (in Community Centers, Local Authorities, and HCSW Programs)--Any injury determined not to be serious by the appropriate medical personnel. Examples of non-serious physical injury include the following:

(A) superficial laceration;

(B) contusion two and one-half inches in diameter or smaller; or

(27) Non-serious physical injury (in DADS and DSHS facilities only)--Any injury requiring minor first aid and determined not to be serious by a registered nurse, advanced practice nurse (APN), or physician.

(28) Peer review--A review of clinical and/or:

(A) medical practice(s) by peer physicians;

(B) dental practice(s) by peer dentists;

(D) nursing practice(s) by peer nurses.

(29) Perpetrator--A person who has committed an act of abuse, neglect, or exploitation.

(30) Person served--An individual with a disability receiving services, or a child receiving services in a:

(A) facility or HCSW who is registered or assigned in the Client Assignment and Registration (CARE) system; or

(B) community center or local authority who is registered or assigned in CARE or who is otherwise receiving services from a community center or local authority, either directly or by contract.

(31) Preponderance of evidence--The greater weight of evidence, or evidence which is more credible and convincing to the mind.

(32) Prevention and management of aggressive behavior (PMAB)--DADS and DSHS' proprietary risk management program that uses the least intrusive, most effective options to reduce the risk of injury for persons served and staff from acts or potential acts of aggression.

(33) Professional review--A review of clinical and/or professional practice(s) by peer professionals.

(34) Program--A facility, local authority, community center, or HCSW.

(35) Reporter--The person, who may be anonymous, making an allegation.

(36) Serious physical injury (in Community Centers, Local Authorities, and HCSW Programs)--Any injury determined to be serious by the appropriate medical personnel. Examples of serious physical injury include the following:

(A) fracture;

(B) dislocation of any joint;

(D) contusion larger than two and one-half inches in diameter;

(E) concussion;

(F) second or third degree burn; or

(G) any laceration requiring sutures.

(37) Serious physical injury (in DADS and DSHS facilities only)--Any injury requiring medical intervention or hospitalization or any injury determined to be serious by a physician or advanced practice nurse (APN). Medical intervention is treatment by a licensed medical doctor, osteopath, podiatrist, dentist, physician's assistant, or advanced practice nurse (APN). For the purposes of this subchapter, medical intervention does not include first aid, an examination, diagnostics (e.g., x-ray, blood test), or the prescribing of oral or topical medication.

(38) Sexually transmitted disease--Any infection with or without symptoms or clinical manifestations that can be transmitted from one person to another by sexual contact.

(39) Victim--A person served who is alleged to have been abused, neglected, or exploited.

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 February 1, 2008.

TRD-200800588

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Subchapter C. DUTY TO REPORT

40 TAC §711.201

The amendment implements HRC, Chapter 48, Subchapters F, H, and I.

§711.201.What is your duty to report if you are an employee, agent, or contractor of a facility, local authority, community center, or HCSW?

If you know or suspect that a person served is being or has been abused, neglected, or exploited or meets other criteria specified in §711.5(b) of this title (relating to What does APS investigate under this chapter?), you must:

(1) report such knowledge or suspicion to DFPS immediately, if possible, but in no case more than one hour after knowledge or suspicion by calling the DFPS toll-free number at 1-800-647-7418 or by use of the Internet at https://www.txabusehotline.org/notice-aps.asp;

(2) preserve and protect any evidence related to the allegation in accordance with instructions from DFPS; and

(3) cooperate with the investigator during the investigation.

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 February 1, 2008.

TRD-200800589

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Subchapter E. CONDUCTING THE INVESTIGATION

40 TAC §§711.401, 711.403, 711.405, 711.415, 711.417

The amendments implement HRC, Chapter 48, Subchapters F, H, and I.

§711.401.Who and when does the investigator notify of an allegation and when is the identity of the reporter revealed?

(a) Except as provided in subsection (b) of this section, the investigator makes the following notifications, as appropriate:

Figure: 40 TAC §711.401(a)

(b) If the administrator or CEO is the alleged perpetrator, the investigator makes other notifications, in subsection (a) of this section, as appropriate, but instead of notifying the administrator or CEO:

Figure: 40 TAC §711.401(b)

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 February 1, 2008.

TRD-200800590

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Subchapter G. RELEASE OF REPORT AND FINDINGS

40 TAC §§711.603, 711.605, 711.607, 711.611, 711.613

The amendments implement HRC, Chapter 48, Subchapters F, H, and I.

§711.605.Who receives the investigative report?

(a) The investigator sends a copy of the investigative report to:

(1) the administrator, and when appropriate, the contractor CEO except as described in paragraph (4) of this subsection;

(2) Consumer Rights and Services, if the investigation involves an HCSW;

(3) local law enforcement if the investigation confirms that a person served has been abused, neglected, or exploited in a manner that constitutes a criminal offense under any law, including the Texas Penal Code, §22.04;

(4) the following, if the administrator or contractor CEO is the perpetrator or alleged perpetrator:

(A) State Hospitals--the Assistant Commissioner for Mental Health Substance Abuse Services, DSHS, Mail Code 2053, P.O. Box 12668, Austin, TX 78711-2668.

(B) State Schools/State Centers--the Director of State Schools, DADS, Mail Code W-511, P.O. Box 149030, Austin, TX 78714-9030.

(i) Chair of the Community Center Board of Trustees or Local Authority Board of Directors;

(ii) Assistant Commissioner for Mental Health and Substance Abuse Services; and

(iii) Assistant Commissioner for Access & Intake, DADS, Mail Code W-350, P.O. Box 149030, Austin, TX 78714-9030.

(D) HCSW Programs--the HCSW CEO/Administrator Designee.

(E) Contractor CEO--the administrator; and

(5) the state office of Adult Protective Services if a confirmed finding is made against a physician, dentist, pharmacist, registered nurse, licensed vocational nurse, or other licensed professional. The state office forwards a copy of the report to the appropriate licensing authority.

(b) Law enforcement or a prosecutor may request that DFPS delay the release of the investigative report to anyone listed in subsection (a)(1) or (2) of this section, or may request that DFPS delay forwarding a copy of the report to the appropriate licensing authority.

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 February 1, 2008.

TRD-200800591

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Subchapter I. PROVISION OF SERVICES

40 TAC §711.801

The amendment implements HRC, Chapter 48, Subchapters F, H, and I.

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 February 1, 2008.

TRD-200800592

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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 - 711.1003, 711.1005, 711.1007, 711.1009, 711.1011, 711.1013

The amendments and new section are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendments and new section implement HRC, Chapter 48, Subchapters F, H, and I.

§711.1001.What if the administrator or contractor CEO wants to request a review of 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.

(b) If the administrator is the perpetrator or alleged perpetrator, then the following may request a review:

(1) In facilities, the DADS or DSHS state office.

(2) In community centers and local authorities, the Chair of the Community Center Board of Trustees or the Chair of the Local Authority Board of Directors.

(3) In HCSW programs, the HCSW CEO/Administrator Designee.

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 February 1, 2008.

TRD-200800593

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Subchapter M. REQUESTING AN APPEAL IF YOU ARE THE REPORTER, ALLEGED VICTIM, LEGAL GUARDIAN, OR WITH ADVOCACY, INCORPORATED

40 TAC §§711.1203, 711.1205, 711.1207

The amendments implement HRC, Chapter 48, Subchapters F, H, and I.

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 February 1, 2008.

TRD-200800594

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

40 TAC §711.1209

The repeal is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The repeal implements HRC, Chapter 48, Subchapters F, H, and I.

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 February 1, 2008.

TRD-200800595

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Subchapter O. EMPLOYEE MISCONDUCT REGISTRY

40 TAC §§711.1401, 711.1405, 711.1407, 711.1411, 711.1413, 711.1415, 711.1417, 711.1419, 711.1421, 711.1425, 711.1427, 711.1429, 711.1431, 711.1433, 711.1435

The amendments implement HRC, Chapter 48, Subchapters F, H, and I.

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 February 1, 2008.

TRD-200800596

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: August 10, 2007

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

Chapter 745. LICENSING

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), new §745.461, with changes to the proposed text published in the November 2, 2007, issue of the Texas Register (32 TexReg 7869). The amendments to §§745.21, 745.37, 745.115, 745.129, 745.243, 745.301, 745.321, 745.341, 745.343, 745.435, 745.631, 745.8407, 745.9061, 745.9063, 745.9065, 745.9069, 745.9071, 745.9073, 745.9075, 745.9077, 745.9079, 745.9081, 745.9083, 745.9085, 745.9087, 745.9089, 745.9091,745.9097, and 745.9100; new §§745.429, 745.439, 745.463, 745.465, 745.467, 745.521, 745.523, 745.9060, 745.9067, 745.9068, 745.9070, 745.9090, 745.9092, 745.9093, 745.9094, 745.9095, and 745.9096; and the repeal of §§745.9067, 745.9093, 745.9095, and 745.9099, are adopted without changes to the proposed text and will not be republished. The justification for the amendments, new sections, and repeals is to update the rules to reflect changes in the 80th Legislative Session. Changes include: (1) conforming the social study rules with the new legislation, including the minimum qualifications to conduct social studies; (2) investigation of serious incident reports that pertains to a child under the age of six; (3) prohibits a person conducting an adoption home study from considering military membership as a negative factor in the adoption home study; (4) the issuance of a new type of permit to operate an employer-based day-care facility; and (5) exemptions from regulation for a food distribution program.

Section 745.21 adds employer-based child care to Licensing's definitions. Employer-based child care is excluded as a child-care facility, but included as an operation, in the rule. Its permit is called a compliance certificate.

Section 745.37 adds a description of an employer-based child care operation.

Section 745.129 adds an exemption for a food distribution program.

Section 745.243 adds a list of the materials required to apply for a permit to operate an employer-based child care.

Section 745.301 adds a 10-day time frame for Licensing staff to review and accept an application for a permit to operate an employer-based child care, or to return it because it is incomplete.

Section 745.321 adds that the decision to issue or deny a permit to an employer-based child care must be made no later than 30 days after we accept the application.

Section 745.341 adds employer-based child care to the list of those operations that receive a non-expiring permit.

Section 745.343 adds a reference to Division 10 in Subchapter D of Chapter 745 of this title (relating to Relocation of Operation) in order to include information about both a change in the ownership of an operation and a relocation of the operation.

New §745.429 provides direction for an employer-based child care that changes location, in order to establish a business process for this type of occurrence.

Section 745.435 reflects that a change in location for a child-placing agency (CPA) no longer automatically revokes the permit. A CPA that relocates will be processed as an amendment to the permit. The revisions include a time frame for a CPA to notify Licensing of its plan to relocate its operation.

New §745.439 provides direction for an employer-based operation that changes ownership, in order to establish a business process for this type of occurrence.

New §745.461 establishes parameters for a parent, with a child in care, to be in or out of the building where the employer-based child care is located.

New §745.463 establishes the qualifications and training of a caregiver at an employer-based child care.

New §745.465 requires an employer-based child care to report serious incidents to Licensing.

New §745.467 requires the permit holder to inform the employees in an employer-based child care of the duty to report suspected abuse, neglect, or exploitation.

New §745.521 establishes the Licensing fees required for an employer-based child care.

New §745.523 establishes the requirements for background checks for an employer-based child care.

Section 745.631 requires that a licensed center must complete background checks before issuance of a permit.

Section 745.8407 adds (1) requirements for Licensing staff to investigate an agency foster home; and (2) that an inspection will be conducted at an employer-based child care prior to issuance of a permit and as part of an investigation.

New §745.9060 defines a "social study." This term includes pre-adoptive social studies and post-placement adoptive social studies.

Section 745.9065 adds minimum qualifications to conduct an independent social study.

New §745.9067 instructs a person on how to assess situations, reach conclusions, and make recommendations when conducting social studies. Old §745.9067 is repealed because this rule is no longer pertinent.

New §745.9068 adds ethical requirements when conducting a social study, including communication with attorneys.

New §745.9070 prohibits a person conducting an adoption home study from considering military membership as a negative factor in the adoption home study.

Section 745.9073 changes the minimum age for interviewing a child living in the home from three years old to four years old. Other non-substantive language changes are also included.

New §745.9090 allows a combined pre-adoptive and post-placement adoptive study report when the child is already living in the prospective adoptive home.

New §§745.9092, 745.9093, 745.9094, 745.9095, and 745.9096 are adopted in new Division 4, Post-Placement Adoptive Social Study and Report, of Subchapter O, Independent Court-Ordered Social Studies. The rules repeat the requirements contained in new Division 3, Pre-Adoptive Social Studies, but they relate to post-placement adoptive social studies rather than pre-adoptive social studies. For clarity, rules in this subchapter are now separated by division, so some rules are repeated in both the division for pre-adoptive social studies and the division for post-placement adoptive social studies if the requirements of the rule apply to both types of social study. Old §§745.9093, 745.9095 and 745.9099 are repealed.

Minor, non-substantive changes are made to §§745.115, 745.9061, 745.9063, 745.9069, 745.9071, 745.9075, 745.9077, 745.9079, 745.9081, 745.9083, 745.9085, 745.9087, 745.9089, 745.9091, 745.9097, and 745.9100.

The sections will function by enhancing the health, safety, and welfare of children in day child-care and residential child-care and improving the quality of these operations. Some rules will provide more flexibility to operations that provide care for children needing emergency services, and therefore, provide solutions in case of emergency contingencies.

During the comment period, DFPS received comments from State Representative Michael Villarreal and two individuals. A summary of the comments and DFPS's responses follow:

Comment concerning §745.461: State Representative Villarreal disagreed with the eight hour weekly time limit for parents to be away from the work site. He encouraged DFPS to change the eight hour limit to ten hours in order to ensure that "implementation of House Bill 1385 better reflects the realities of work demands, while still requiring parents to spend sufficient time at the workplace to monitor their children."

Response: DFPS agrees, and is changing the eight hour limit to ten hours.

Comments concerning §745.9065: Two comments were received. One commenter misunderstood the rule change proposal, commenting on text marked for deletion. Another commenter confused legal requirements for the social study itself with legal requirements for the person conducting the social study.

Response: DFPS is adopting this section without change.

Subchapter A. PRECEDENCE AND DEFINITIONS

Division 3. DEFINITIONS FOR LICENSING

40 TAC §745.21

The amendment implements HRC, Chapter 42, Subchapter F.

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 February 1, 2008.

TRD-200800624

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE

40 TAC §745.37

The amendment implements HRC, Chapter 42, Subchapter F.

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 February 1, 2008.

TRD-200800625

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter C. OPERATIONS THAT ARE EXEMPT FROM REGULATION

Division 2. EXEMPTIONS FROM REGULATION

40 TAC §745.115, §745.129

The amendments implement HRC §42.041(b).

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 February 1, 2008.

TRD-200800626

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter D. APPLICATION PROCESS

Division 3. SUBMITTING THE APPLICATION MATERIALS

40 TAC §745.243

The amendment implements HRC, Chapter 42, Subchapter F.

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 February 1, 2008.

TRD-200800627

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 5. ACCEPTING OR RETURNING THE APPLICATION

40 TAC §745.301

The amendment implements HRC, Chapter 42, Subchapter F.

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 February 1, 2008.

TRD-200800628

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

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

40 TAC §745.321

The amendment implements HRC, Chapter 42, Subchapter F.

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 February 1, 2008.

TRD-200800629

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 7. THE DECISION TO ISSUE OR DENY A PERMIT

40 TAC §745.341, §745.343

The amendments implement HRC, Chapter 42, Subchapter F and §42.054.

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 February 1, 2008.

TRD-200800630

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 10. RELOCATION OF OPERATION

40 TAC §§745.429, 745.435, 745.439

The new sections and amendment are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new sections and amendment implement HRC, §42.048.

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 February 1, 2008.

TRD-200800631

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 11. EMPLOYER-BASED CHILD CARE

40 TAC §§745.461, 745.463, 745.465, 745.467

The new sections implement HRC, Chapter 42, Subchapter F, and §42.155.

§745.461.Does a parent have to be at the work site when their child is in care?

A parent must:

(1) Work within the same building in which the child care is located;

(2) Routinely be present at the work site for the majority of the time the child is in care;

(3) Be physically accessible to the child, although a parent may be away from the building for a limited period for lunch, a business meeting, doctor appointment, or to attend training; and

(4) A parent may not be away from the building for more than four hours in a day or for more than ten hours in a week.

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 February 1, 2008.

TRD-200800632

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter E. FEES

40 TAC §745.521, §745.523

The new sections implement HRC §42.054.

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 February 1, 2008.

TRD-200800633

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter F. BACKGROUND CHECKS

Division 2. REQUESTING BACKGROUND CHECKS

40 TAC §745.631

The amendment implements HRC, §42.056.

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 February 1, 2008.

TRD-200800634

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter K. INSPECTIONS AND INVESTIGATIONS

Division 1. OVERVIEW OF INSPECTIONS AND INVESTIGATIONS

40 TAC §745.8407

The amendment implements HRC, Chapter 42, Subchapter F, and §42.044.

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 February 1, 2008.

TRD-200800635

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter O. INDEPENDENT PRE-ADOPTIVE HOME SCREENING AND INDEPENDENT POST-PLACEMENT ADOPTIVE REPORT

40 TAC §§745.9067, 745.9093, 745.9095, 745.9099

The repeals are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The repeals implement the Family Code, §107.0513(c), (e) and (f).

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 February 1, 2008.

TRD-200800636

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter O. INDEPENDENT COURT-ORDERED SOCIAL STUDIES

Division 1. DEFINITIONS

40 TAC §§745.9060, 745.9061, 745.9063

The new section and amendments are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new section and amendments implement the Family Code, §107.050.

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 February 1, 2008.

TRD-200800637

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 2. MINIMUM QUALIFICATIONS AND OTHER REQUIREMENTS

40 TAC §§745.9065, 745.9067, 745.9068

The amendment and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendment and new sections implement the Family Code, §107.0511.

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 February 1, 2008.

TRD-200800638

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 3. PRE-ADOPTIVE SOCIAL STUDIES

40 TAC §§745.9069 - 745.9071, 745.9073, 745.9075, 745.9077, 745.9079, 745.9081, 745.9083, 745.9085, 745.9087, 745.9089, 745.9090

The amendments and new sections are adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendments and new sections implement the Family Code, Chapter 107.

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 February 1, 2008.

TRD-200800639

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 4. POST-PLACEMENT ADOPTIVE SOCIAL STUDY AND REPORT

40 TAC §§745.9091 - 745.9097

The amendments and new sections implement the Family Code §107.052(b).

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 February 1, 2008.

TRD-200800640

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 5. COMPLAINTS

40 TAC §745.9100

The amendment implements the Family Code, §107.0519(f) and §107.052(b).

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 February 1, 2008.

TRD-200800641

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Chapter 746. MINIMUM STANDARDS FOR CHILD-CARE CENTERS

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§746.201, 746.611, and 746.1311, without changes to the proposed text published in the November 2, 2007, issue of the Texas Register (32 TexReg 7881). The justification for the amendments is to ensure that child-care operations provide inclusive care to children with special needs. Enforcement of federal laws lies with the U.S. Department of Justice, Civil Rights Division.

Section 746.201 is revised to require permit holders to report any substantive Department of Justice (DOJ) complaints about Title III of the Americans with Disabilities (ADA) Act to DFPS. Currently, there is not a requirement for permit holders to report DOJ Title III complaints to DFPS.

Section 746.611 is revised to delete the word "physically" from the description of a health statement. The current rule describes a health statement as a written statement from a health-care professional who has examined the child within the past year, indicating the child is "physically" able to take part in the child-care program.

Section 746.1311 is revised to include an additional topic, related to serving children with special care needs, to the annual training requirements for directors.

The amendments will function by promoting awareness of the Americans with Disabilities Act.

During the public comment period, DFPS received comments from the Texas Council for Developmental Disabilities, The Arc of Texas, the Disability Policy Consortium, and 59 individuals. A summary of the comments and DFPS's responses follow:

Comments concerning §746.201:

(1) Fifty-two commenters generally were in favor of the rule change, stating the proposed changes are a step in the right direction. The majority of these commenters suggested the rule should require that a child-care provider tell DFPS when they deny services to a child because of their disability.

Response: Failure to report will be a violation of the minimum standard rule. Regarding the suggestion that the standard require the providers to tell DFPS when they deny services to a child because of their disability, DFPS maintains that neither the provider nor DFPS will necessarily be in position to know whether the denial of services would be due to a "disability" as defined in the ADA. Hence, the DOJ or another entity responsible for the enforcement of the ADA should first be involved to determine the validity of a complaint that an operation has violated the ADA. DFPS is not making changes as a result of the comment.

(2) One commenter stated the proposed rule change will require extra staff to supervise children with disabilities and providers are losing their ability to serve children as a result of this.

Response: The rule change does not require additional staff or changes to the child/caregiver ratio. Supervision needs for children vary based on many factors including ages of children, their individual differences and abilities, and the layout and location of the operation. DFPS is not making changes as a result of the comment.

(3) One commenter stated instead, modify the rule to include unsubstantiated claims that have clear points and would reasonably be thought to be substantiated by the DOJ pending their process. The same commenter suggested adding a rule that would quantify what a "fair assessment" and "reasonable accommodation" means and provide a method of accomplishing it (such as a standardized form).

Response: DFPS agrees that the DOJ process is complicated and lengthy, however Licensing staff does not have the expertise to determine a "reasonable" complaint nor would it be able to take any action based on such information. The jurisdiction and expertise for these judgments lie outside Licensing. DFPS is not making changes as a result of the comment.

(4) One commenter stated the rule will have no meaningful impact because there is no specific resulting penalty or remedy or proposed policy change to alert monitors if a provider did not report a substantiated claim. The same commenter also stated the rule should require a provider to document that a service was denied (to a child with a disability), because the provider would have to substantially alter their program to serve the child in question, and require the provider to notify the parent, including the reason for denial.

Response: Failure to report will be a violation of the minimum standard rule. Any minimum standards violation is documented and may be established as a part of a pattern of noncompliance significant enough to be the basis of remedial action against the operation's permit. Duplicating the DOJ role to any great degree is unprecedented and not recommended by various organizations, including Advocacy Inc. and the Governor's Office on People with Disabilities. The enforcement entities have the authority to seek remedies against an operation that has violated the ADA. DFPS is not making changes as a result of the comment.

(5) One commenter stated while the rule change takes great strides at holding providers accountable for substantiated violations, the rule should require child-care providers to report any DOJ complaints being investigated. The same commenter also stated even with the proposed change, the rule continues to inadequately address the issue of the continued denial of child-care services to children with disabilities. A DOJ complaint is a very lengthy process which can take up to a year or more to substantiate a case. The DOJ may choose to not pursue a complaint thus leaving children with disabilities with limited or no options for child-care services.

Response: As DFPS does not have the expertise to enforce the ADA, there would be no practical purpose for an operation to report an unsubstantiated complaint to DFPS. But DFPS is very interested in knowing that an entity with that expertise has determined an operation has violated the ADA. DFPS is aware that litigation involving most subject matters is a lengthy process. DFPS believes that the process will still be more expeditious if an entity with ADA expertise is enforcing this very important body of laws. DFPS is not making changes as a result of the comments.

(6) Four commenters gave an account of their hardship due to the lack of child care for children with disabilities.

Response: DFPS is aware of this type of hardship and hopes that this minimum standards rule change will promote compliance with the ADA.

Comments concerning §746.611:

(1) Seven commenters support the proposed rule change. One commenter stated the proposed rule change is a step in the right direction.

Response: DFPS acknowledges and appreciates the comments.

(2) One commenter stated instead of removing the word "physical" in regards to participating in activities, add the phrase "to the extent the child is capable of". This shows inclusion at the level best for the child.

Response: The purpose of this standard is for the parent to provide a health statement, at enrollment, stating a child can safely participate in group child care. A health statement ensures the individual needs of children are met, while protecting the health and safety of all the children in care. DFPS is not making changes as a result of the comment.

(3) One commenter stated the actual effect will be for child-care centers to avoid providing services to children and cease provision of those services now currently provided.

Response: The change does not present a fiscal impact. Obtaining a health statement from a health-care professional is not a new requirement. DFPS is not making changes as a result of the comment.

(4) One commenter stated the assertion that this provision will not have fiscal implication for the state of Texas is extremely impossible. The same commenter stated the removal of the word "physically" infers that medical providers must now make a psychological evaluation of a child.

Response: DFPS disagrees that this change will have a fiscal impact or that a written statement from a health-care professional infers the necessity of a psychological evaluation of the child. DFPS is not making changes as a result of the comment.

(5) One commenter stated opposition to the proposed changes as well as the current rule.

Response: This comment included no specific complaint to which DFPS can respond.

Comments concerning §746.1311:

(1) Fifty-three commenters support the proposed rule changes. Commenters stated changes are a move in the right direction. Another commenter stated the training for staff is a great idea. Commenters agreed the rule should include training requirements for child-care providers to improve access to child care and compliance with the ADA.

Response: The training requirements stated in the current rule include care for children with special needs as an optional annual training topic for caregivers. DFPS is not making changes as a result of the comment.

(2) One commenter stated the State is creating more paperwork. The same commenter also stated there is no way the state is going to enforce any of these rules.

Response: DFPS proposes rules with the full intent of enforcing them. DFPS is not making changes as a result of the comment.

(3) One commenter stated by not having the special care needs training every year it could be treated by certain plaintiff's counsel as failure to meet a duty of care for developmentally-impaired children.

Response: The rule change adds a fifth optional topic to the annual training requirements for child-care director in support of inclusive child care. This rule does not preclude an operation from seeking any additional training beyond the requirements of this minimum standard. DFPS is not making changes as a result of the comment.

(4) One commenter suggested adding some type of additional certification to identify inclusive child-care centers for parents.

Response: DPFS' Texas Child Care Search allows parents to search for child-care operations matching certain criteria such as care for children with special needs. DFPS is not making changes as a result of the comment.

Subchapter B. ADMINISTRATION AND COMMUNICATION

Division 1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §746.201

The amendment implements Human Resources Code §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 February 1, 2008.

TRD-200800585

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter C. RECORD KEEPING

Division 1. RECORDS OF CHILDREN

40 TAC §746.611

The amendment implements Human Resources Code §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 February 1, 2008.

TRD-200800586

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter D. PERSONNEL

Division 4. PROFESSIONAL DEVELOPMENT

40 TAC §746.1311

The amendment implements Human Resources Code §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 February 1, 2008.

TRD-200800587

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter R. HEALTH PRACTICES

Division 1. ENVIRONMENTAL HEALTH

40 TAC §746.3427

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), an amendment to §746.3427, without changes to the proposed text as published in the November 2, 2007, issue of the Texas Register (32 TexReg 7883).

The justification for the amendment is to also reference the Texas Department of Agriculture, because the Texas Structural Pest Control Board has been transferred to the Texas Department of Agriculture, as required by House Bill 2458 of the 80th Legislature.

The amendment will function by ensuring that the health, safety, and welfare of children in child-care will be enhanced and the quality of these operations will improve.

No comments were received regarding adoption of the amendment.

The amendment implements Chapter 1951 of the Occupations Code, and HRC §42.042(a).

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 February 1, 2008.

TRD-200800642

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Chapter 748. GENERAL RESIDENTIAL OPERATIONS AND RESIDENTIAL TREATMENT CENTERS

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§748.103, 748.109, 748.1203, and 748.3019, without changes to the proposed text as published in the November 2, 2007, issue of the Texas Register (32 TexReg 7884).

The justification for the amendments is to reflect changes in the 80th Legislative Session.

Sections 748.103, 748.109, and 748.1203 are revised to allow a residential facility providing emergency care services to go over its licensed capacity for 48 hours.

Section 748.3019 is revised to reference the Texas Department of Agriculture, because the Texas Structural Pest Control Board is transferred to the Texas Department of Agriculture, as required by House Bill 2458 of the 80th Legislature.

The amendments will function by ensuring that the health, safety, and welfare of children in residential child-care will be enhanced and the quality of these operations will improve. Some rules will provide more flexibility to operations that provide care for children needing emergency services, and therefore, provide solutions in case of emergency contingencies.

No comments were received regarding adoption of the amendments.

Subchapter C. ORGANIZATION AND ADMINISTRATION

Division 1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §748.103, §748.109

The amendments implement HRC §42.042(a) and (r).

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 February 1, 2008.

TRD-200800643

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter I. ADMISSION, SERVICE PLANNING, AND DISCHARGE

Division 1. ADMISSION

40 TAC §748.1203

The amendment implements HRC §42.042(a) and (r).

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 February 1, 2008.

TRD-200800644

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter O. SAFETY AND EMERGENCY PRACTICES

Division 1. SANITATION AND HEALTH PRACTICES

40 TAC §748.3019

The amendment implements Occupations Code, Chapter 1951 and HRC §42.042(a).

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 February 1, 2008.

TRD-200800645

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Chapter 749. CHILD-PLACING AGENCIES

The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§749.103, 749.2445, 749.2447, 749.2473, 749.2475, 749.2489, 749.2961, 749.2967; and new §749.3624, in its Child-Placing Agencies chapter. The amendments to §749.2475 and §749.2489 are adopted with changes to the proposed text published in the November 2, 2007, issue of the Texas Register (32 TexReg 7885). The amendments to §§749.103, 749.2445, 749.2447, 749.2473, 749.2961, 749.2967; and new §749.3624 are adopted without changes to the proposed text and will not be republished. The justification for the amendments and new section is to update the rules to reflect changes in the 80th Legislative Session. Changes include: (1) eliminating DFPS's restrictions on foster parents possession of firearms, while adding rules on safety and proper storage of firearms and ammunition; (2) obtaining law enforcement family violence information before issuing a license or verifying a foster home; (3) not considering military membership when conducting an adoption home study; (4) a verified agency foster home transfer process, notifications on Licensing violations, and past citations; and (5) a change in the location of a child-placing agency no longer automatically revokes the permit.

Section 749.103 is revised to allow a child-placing agency to change location without having to apply for a new license. The rule is amended to include a requirement that the child-placing agency notify Licensing of a change in location prior to the move.

Section 749.2445 adds the requirement that the child-placing agency submit to Licensing any family violence information obtained on a prospective foster home, regardless of whether the child-placing agency decides to verify the home.

Section 749.2447 is revised to require a child-placing agency to obtain information from a potential foster home about family violence reports at the home to which a law enforcement agency has responded during the previous 12 months. The revision also requires the child-placing agency to follow up with the appropriate law enforcement agency if any incidents are disclosed.

Section 749.2473 is revised to increase the requirements related to a foster home that transfers from one child-placing agency to another. The agency seeking to verify the home must send a written request for transfer to the agency that currently verifies the home.

Section 749.2475 is revised to increase the requirements related to a foster home that transfers from one child-placing agency to another. The child-placing agency must request the following when verifying the transferring foster home: any corrective action plan(s), an annual development plan, or a description of any imposed or potential service limitations related to the foster home. The revision also adds the requirement that a child-placing agency release background information on a foster home to a second child-placing agency as soon as the first agency becomes aware of the foster home's intent to transfer to the second agency.

Section 749.2489 is revised to increase the information that a child-placing agency must report regarding closure of a foster home. This rule is amended to include the additionally required information, which is the reason for the closure and a contact person. The rule is also revised to add the requirement that child-placing agencies report to Licensing the denial of a foster home verification and the reason for the denial.

Section 749.2961 is revised to delete the paragraph that prohibits firearm possession if the foster home provides treatment services. Storage requirements are being added to this rule based on storage requirements already in effect in other states. Specifically, the following is being added: (1) locked storage must be made of unbreakable material; (2) locked storage with a glass front or enclosure must have guns secured with a locked cable or chain through the trigger guards; and (3) firearms which are inoperable and solely ornamental are exempt from storage requirements.

Section 749.2967 is revised to clarify that a caregiver can now transport a child with legal firearms that are not loaded and inaccessible to the child.

New §749.3624 is added to prohibit a person conducting an adoption home study from considering military membership as a negative factor in the home study.

The amendments and new section will function by enhancing the health, safety, and welfare of children in residential child-care and improving the quality of these operations. Some rules will provide more flexibility to operations that provide care for children needing emergency services, and therefore, provide solutions in case of emergency contingencies.

During the comment period, DFPS received comments from The Texas Alliance of Child and Family Services and two individuals. A summary of the comments and DFPS's responses follow:

Comments concerning §749.2445 and §749.2447: The commenter did not express concern about the rules, but instead offered suggestions about rule implementation.

Response: DFPS is adopting the sections without change.

Comments concerning §749.2475: DFPS received three comments.

(1) One commenter suggested that background check information should be shared between CPAs when a foster home transfers.

Response: While staff believe this is a laudable suggestion, there are too many legal issues related to the sharing of background information (i.e. criminal background and central registry information) between CPAs. DFPS is not making changes as a result of this comment.

(2) Two other commenters expressed concern about the proposed requirement that a CPA share background information on a verified foster home as soon as the CPA became aware of the foster home's intent to transfer to another CPA.

Response: Staff agree with this comment and the language is changed accordingly.

Comment concerning §749.2489: One commenter disagreed with the proposed requirement to report foster home verification denials.

Response: Staff agree in part and disagree in part with this commenter. The information regarding the closing of a foster home is required by the new legislation. However, requiring the submittal of verification denials is not required in the legislation, and there are many legal issues related to the release and further sharing of personal and sometimes confidential information. The rule has been changed accordingly.

Subchapter C. ORGANIZATION AND ADMINISTRATION

Division 1. PERMIT HOLDER RESPONSIBILITIES

40 TAC §749.103

The amendment implements HRC §42.042(a) and §42.048(e).

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 February 1, 2008.

TRD-200800646

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter M. FOSTER HOMES: SCREENINGS AND VERIFICATIONS

Division 2. FOSTER HOME SCREENINGS

40 TAC §749.2445, §749.2447

The amendments implement HRC §42.042(a) and §42.0561.

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 February 1, 2008.

TRD-200800647

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Division 3. VERIFICATION OF FOSTER HOMES

40 TAC §§749.2473, 749.2475, 749.2489

The amendments implement HRC §§42.042(a), 42.0535(e) and 42.0536.

§749.2475.To whom must I release information regarding a family on which I previously conducted a foster home screening, pre-adoptive home screening, post placement adoptive report, or home study?

(a) If background information is requested by a child-placing agency conducting a foster home screening, pre-adoptive home screening, post placement adoptive report, or home study, then you must release any background information you have acquired through a previous foster home screening, pre-adoptive home screening, post placement adoptive report, or home study.

(b) Background information must also be released to independent contractors who are hired or required by the court to conduct a social study under Chapter 107 of the Texas Family Code.

(c) You must release the background information to the requesting agency within 10 days after receiving the written request, including generally informing the requesting agency of any unresolved investigations and/or deficiencies. After the resolution of the investigations and/or deficiencies, you must release the remaining background information to the requesting agency within 10 days after the resolution of the investigations and/or deficiencies.

(d) Background information is any information that must be obtained by §749.2447(23) of this title (relating to What information must I obtain for the foster home screening?). In addition to the items noted in §749.2447(23), the background information for a transferring foster home must also include, if applicable:

(1) An annual development plan;

(2) Any corrective action plan(s); and

(3) A description of any imposed or potential service limitation.

§749.2489.What information must I submit to Licensing about a foster home's verification status?

You must submit information to us within two working days of:

(1) Verifying a new foster home;

(2) Temporary verification of a foster home and when the verification is not longer temporary;

(3) Putting a foster home on inactive status or taking a foster home off of inactive status;

(4) Changing conditions of the verification for an existing home; or

(5) Closing a foster home, including:

(A) The reason the foster home closed; and

(B) The name and contact information of a person at your agency who may be contacted by another child-placing agency to obtain records relating to the closed foster home.

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 February 1, 2008.

TRD-200800648

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

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

Division 3. WEAPONS, FIREARMS, EXPLOSIVE MATERIALS, AND PROJECTILES

40 TAC §749.2961, §749.2967

The amendments implement HRC §42.042(a) and (e-1).

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 February 1, 2008.

TRD-200800649

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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

Subchapter S. ADOPTION SERVICES: ADOPTIVE PARENTS

Division 2. PRE-ADOPTIVE HOME SCREENING

40 TAC §749.3624

The new section is adopted under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new section implements the Family Code, §162.0025.

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 February 1, 2008.

TRD-200800650

Gerry Williams

General Counsel

Department of Family and Protective Services

Effective date: March 1, 2008

Proposal publication date: November 2, 2007

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