Part 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§745.119, 745.509, 745.601, 745.611, 745.615, 745.623, 745.625, 745.626, 745.629, 745.651, 745.663, 745.683, 745.685, 745.687, 745.693, 745.701, 745.707, and 745.735; the repeal of §745.627; and new §745.630, in its Licensing chapter. The amendments to §745.601 and §745.615 are adopted with changes to the proposed text published in the February 15, 2008, issue of the Texas Register (33 TexReg 1285). The amendments to §§745.119, 745.509, 745.611, 745.623, 745.625, 745.626, 745.629, 745.651, 745.663, 745.683, 745.685, 745.687, 745.693, 745.701, 745.707, and 745.735; the repeal of §745.627; and new §745.630 are adopted without changes to the proposed text and will not be republished.
The justification for the amendments, repeal, and new section is to: (1) implement new fingerprint-based criminal history checks against the Department of Public Safety (DPS) and Federal Bureau of Investigation (FBI) databases for children in child care, including new fingerprint-based criminal history checks required by amendments to §42.056, Human Resources Code, that were enacted in Senate Bill 758, 80th Legislative Session, and new fingerprint-based criminal history checks required by the federal "Adam Walsh Child Protection and Safety Act of 2006" (the Adam Walsh Act); (2) implement new out-of-state central registry checks in certain foster and adoptive homes as required by the Adam Walsh Act; (3) expand the list of criminal convictions that may be used to prevent a person from having access to children in care; (4) clarify terminology and amend certain procedures relating to the background check and risk evaluation processes; (5) add child-placing agencies to the types of child-care operations that are exempt from the payment of an amended license fee; and (6) incorporate changes as a result of House Bill (HB) 1385, Section 1, 80th Legislative Session, regarding educational exemptions. The changes will not only bring Child Care Licensing (CCL) rules in compliance with state and federal law, but will significantly enhance protections for children in child care by identifying certain persons with criminal histories or child abuse or neglect findings that are not identified under the current background check process and ensuring that such persons do not pose a risk to children in care. In addition, these changes, which will necessitate the use of fingerprint-based criminal history checks, will reduce the incidence of "false positive" matches, that sometimes result from name-based criminal history checks, and cause delays in hiring qualified applicants in child-care operations.
Section 745.119 revises the current Texas Private School Accreditation Commission education exemption to only apply in a county that has a population of less than 25,000; revises an educational exemption to reduce the age of children from five to four years if the school is located in a county with a population of less than 25,000; and adds preschool to the list of grades offered at the school.
Section 745.509 adds child-placing agencies to the list of operations that are exempt from paying a fee to amend their license.
Section 745.601 amends terminology used in subsequent sections of this chapter concerning background checks in order to clarify who is subject to the new fingerprint-based criminal history check and out-of-state central registry checks.
Section 745.611 adds out-of-state central registry checks to the types of databases searched by DFPS when conducting background checks on certain persons, and significantly clarifies the names and explanation for each type of background check.
Section 745.615 is significantly amended to specify those persons for whom a fingerprint-based criminal history check is required under new mandatory provisions in §42.056(b-1) of the Human Resources Code and the federal Adam Walsh Act, or under permissive authority of §42.056(b) of the Human Resources Code. In addition, this section is amended to specify who is subject to an out-of-state central registry check.
Section 745.623 makes procedural changes to the methods that may be used by a child-care operation to submit its background check request and to require that certain new information be provided by child-placing agencies when submitting a background check for a foster or adoptive parent applicant who has lived outside the state of Texas any time during the five years preceding the person's application to become a foster or adoptive parent.
Section 745.625 clarifies language relating to when a background check request must be submitted. This clarification is necessary to implement the new background checks required under §745.615.
Section 745.626 clarifies how soon a person for whom a background check has been requested may provide direct care or have direct access to a child in care. The primary changes related to child-care centers, which are needed to comply with changes made to Human Resources Code §42.506 regarding mandatory fingerprint-based criminal history checks for child-care centers.
Section 745.627 is repealed, and the language is incorporated in §745.623.
Section 745.629 describes the procedure used for submitting a fingerprint-based criminal history check, including a requirement to use the contractor selected by DPS for electronic submission of fingerprints when conducting a background check.
New §745.630 provides that a person does not require a new fingerprint-based criminal history check if the person has a fingerprint-based criminal history on file with DFPS and more than 24 months has not elapsed since the person underwent a background check with Licensing.
Section 745.651 adds several criminal offenses to the list of offenses for which there is a 10-year bar to persons being present in a child-care operation.
Section 745.663 clarifies the process for clearing up any claimed errors in a name-based criminal history check match.
Section 745.683 clarifies that a child-placing agency must request a risk evaluation on a non-client child of a foster or adoptive parent and requires that the risk evaluation for a licensed administrator must be requested by the CPA, general residential operation, or residential treatment center.
Section 745.685 requires that risk evaluations must be sent to the DFPS Centralized Background Check Unit, and the risk evaluations must be returned within 21 days if the person is continuing to work in child-care pending a risk evaluation.
Section 745.687 clarifies the documentation that must be submitted to establish that a person has completed all of the conditions of probation, including the date the probation was completed for deferred adjudications.
Section 745.693 adds certain criminal convictions to the list of those which bar a person from being present at a child-care operation; and clarifies who is eligible for a risk evaluation and who can be present at a child-care operation pending the outcome of the risk evaluation.
Section 745.701 clarifies when a person who has been arrested for an offense may be present in a child-care operation.
Section 745.707 transfers authority for approval of a risk evaluation from the Director of Child Care Licensing to the Manager of the DFPS Centralized Background Check Unit.
Section 745.735 clarifies that when a DFPS central registry check is conducted on a person who is a minor and that person is found to be a designated perpetrator, notice of the finding will be sent to the minor's parent rather than to the minor.
The sections will function by ensuring that children in regulated child care will be better protected as a result of the expanded criminal history central registry checks and related changes to the background check and risk evaluation process. These changes will minimize the likelihood that a person who has engaged in prior criminal activity that may pose a risk to children, or who has previously been found to have abused or neglected a child in another state, will have access to children in child care, thus keeping children safer from persons who may pose a danger to the health and safety of those children.
During the public comment period, DFPS received comments from Austin Community College, University of Texas-Austin, Texas Licensed Child Care Association, Texas Alliance of Child and Family Services, Faith School, DePelchin Children's Center, Head Start Program - CenTex Family Services, Inc., Advance Child Care, Inc., Tree House Academy, Church at Canyon Creek, First Presbyterian Church of Austin, Oh Miss Tempie Kids, Child Protective Services, and nine individuals. The comments related to various issues. Two of the comments supported the new requirements. Eleven of the comments involved Integrated Biometric Technology (IBT), DPS' electronic fingerprint vendor. Some of the IBT concerns noted include: appointment scheduling delays, unsatisfactory customer service, and the inconvenience of the available IBT locations. Eleven of the comments addressed the adverse economic impact on providers. Three comments were general in nature, including a concern on duplication of fingerprint checks from other state agencies. Fifteen referred to the rules published in the Texas Register. A summary of the comments and DFPS' responses follow:
Comments concerning §745.601: Three commenters expressed concern that the proposal would require background checks on all people over the age 14, who regularly or frequently visits a foster home, including foster children friends, study buddies, extended family of the foster parents, etc.
Response: Staff agree in part and disagree in part with these comments. Staff agrees that this rule is unclear and as worded is over burdensome regarding a foster child's friends and recommends a clarification. Staff is recommending a change to the language that is consistent with current policy. Staff do not agree that the rule is unclear or over burdensome regarding the extended family of the foster parents. The published rule gives sufficient latitude. If family members rarely visit, then a background check is not required. On the other hand, if family members like adult children visit frequently, then a background check should be obtained and is required by this rule. DFPS is revising paragraph (3) to state: "For foster homes, the following individuals are not considered frequently present at a foster home: (A) A child unrelated to a foster parent who visits the foster home unless the child is responsible for the care of foster children or there is a reason to believe that the child has a criminal history or previously abused or neglected another child; and (B) An adult unrelated to a foster parent who visits the foster home unless the adult has unsupervised access to children in care or there is a reason to believe that the adult has a criminal history or previously abused or neglected a child."
Comments concerning §745.615:
(1) One commenter declared his approval of fingerprint/background checks; however, he also noted there are numerous gaps and inconsistencies in the rule.
Response: CCL conducted meetings across the state throughout the summer in order to assist providers in preparation for the change in the rules. Where gaps or inconsistencies were noted, DFPS has clarified the language of the rules prior to publication and via these comments and responses. DFPS is including as much information as possible regarding fingerprint/background checks on the Agency website. DFPS is not revising the rule as a result of this comment.
(2) Two commenters support FBI background checks for child-care providers, but noted concern over students in training programs needing FBI checks.
Response: This issue was addressed prior to the rule publication. As long as these trainees/students are in classrooms with other teachers and/or professionals and are not counted in the child/caregiver ratio nor allowed unsupervised access, they are not required to be fingerprinted.
(3) Three commenters expressed concern that the requirements over who needs a background check conflict fundamentally with the concept of the foster care system that foster children be given as normal a home life as possible.
Response: DFPS is revising the definition of "frequently present at your operation" in §745.601(3) as a result of the comment.
(4) One commenter questioned whether subsection (b)(2)(A) and (2)(B) apply to prospective homes only, which is consistent with current policy?
Response: Subsection (b)(2)(A) applies to prospective homes only, which is consistent with current policy. Subsection (b)(2)(B) mistakenly applies to all foster homes and is not consistent with current policy. DFPS is revising subsection (b)(2)(B) to state "any adults 18 years or older living in the home of a foster or adoptive parent applicant," which is consistent with current policy.
Comment concerning §745.630: Five commenters misunderstood the rule change proposal, commenting the language is unclear as to how often fingerprint checks will be required.
Response: Individuals who work at multiple child-care operations will only have to pay for and complete one FBI fingerprint check. Individuals who continue working in any child-care operation and renew their DFPS name-based background check at least every 24 months, regardless of whether they move to another DFPS-regulated operation, will not be required to submit a new FBI fingerprint check. DFPS is adopting this section without change.
Comments concerning Integrated Biometric Technology (IBT): Three commenters expressed concern over the appointment scheduling delays with IBT. One commenter expressed concern that the fingerprint process is inconvenient and unpleasant, and the staff at IBT was rude and unpleasant. Seven commenters expressed concern over the inconvenience of the IBT locations.
Response: DFPS continues to work with DPS' electronic fingerprint vendor, IBT, to resolve the challenges related to these concerns. Weekly meetings are being held between DFPS, DPS, and IBT to resolve issues. When this legislative action was first proposed in February 2007, CCL staff immediately began working with both DFPS Information Technology staff and DPS on the project, and it soon became clear that there were certain things that DFPS staff would and would not be able to do. One of the first things investigated was the idea of using fingerprints obtained by DPS in the process of issuing driver's licenses, but, because only thumbprints are collected, that would not be acceptable for either the DPS or the FBI for a background check. Another concern was whether there would be enough DPS contracted IBT sites across the state to ensure that providers could conveniently send their staff or applicants to be fingerprinted, and DFPS is still working closely with DPS and IBT in this effort.
Comments concerning adverse economic impact: Three commenters stated fingerprinting all staff is a financial burden on centers. Turnover is high in this industry and having to process fingerprints is costly for short-term, part-time help. One commenter expressed concern that this is being funded by private agencies rather than by the state. One commenter stated the imposition of fingerprint checks poses a substantial cost to residential child-care facilities. If DFPS cannot fund this fiscal impact, the standard should not be adopted. Two commenters commented the cost of fingerprinting will be a hardship for child care homes. One commenter asked why the cost was so high and requested that fingerprinting be done at TLCCA or TAEYC conferences. One commenter expressed concern that the background checks are too costly for child-care centers and many parents cannot afford to cover these expenses either. One commenter was concerned that the $44.20 does not include time and gas expense. One commenter stated she believes that this added cost is unreasonable and could affect the quality of care in her center.
Response: Fingerprint background checks are a statutory mandate. The cost of fingerprinting and background checks is not controlled by DFPS and none of the money received comes to DFPS; DPS receives $15, the FBI receives $24, and IBT receives $9.95 for conducting each fingerprint scan. The cost to have background checks performed on all day care staff in the state was estimated at about $5.5 million and, since none of the money generated in the process would come to DFPS, no funds were allocated to DFPS in order to perform the function. Since hundreds of thousands of background checks will be performed each year, staff looked into as many different options as possible in order to implement the process smoothly. The public benefit anticipated as a result of the change will be that children in regulated child care will be better protected as a result of the expanded criminal history and central registry background checks.
General comments:
(1) One commenter indicated only one set of prints should be required if an individual works in child care and is also employed through another agency requiring fingerprinting (e.g. teachers, real estate agents, etc.).
Response: DPS does not retain or share the results of previous fingerprint checks, so in order to know the results and meet the statutory requirements we must require a fingerprint check through DFPS.
(2) One commenter indicated the legislation was done too quickly.
Response: These new requirements were part of Senate Bill 21 (not passed) and later SB 758 (passed) and the bills were reviewed and had public hearings during the legislative session.
(3) One commenter indicated they are an in-home child care provider and fully support the new requirements for criminal background checks.
Response: DFPS appreciates the comment.
Subchapter C. OPERATIONS THAT ARE EXEMPT FROM REGULATION
Division 2. EXEMPTIONS FROM REGULATION
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 House Bill 1385 Section 1, 80th Legislative Session.
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 May 6, 2008.
TRD-200802365
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 HRC §42.056, as enacted by Senate Bill 758, 80th Session.
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 May 6, 2008.
TRD-200802366
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 HRC §42.042 and 42 USC §671.
§745.601.What words must I know to understand this subchapter?
These words have the following meanings:
(1) Continuous stay--Staying overnight or consecutive nights at an operation.
(2) Direct care or direct access--Being counted in the child-to-caregiver ratio or having any responsibility that requires contact with children in care.
(3) Frequently present at your operation--More than two non-continuous visits at your operation in a 30-day period; one continuous stay per year at your operation and the duration of the stay exceeds seven days; or more than two continuous stays per year at your operation and the duration of each stay exceeds 48 hours. For foster homes, the following individuals are not considered frequently present at a foster home:
(A) A child unrelated to a foster parent who visits the foster home unless:
(i) The child is responsible for the care of foster children; or
(ii) There is a reason to believe that the child has a criminal history or previously abused or neglected another child; or
(B) An adult unrelated to a foster parent who visits the foster home unless:
(i) The adult has unsupervised access to children in care; or
(ii) There is a reason to believe that the adult has a criminal history or previously abused or neglected a child.
(4) Non-continuous visit--Being physically present at an operation for a period of time of less than 24 hours. Multiple or periodic visits to an operation within the same day is one visit.
(5) Regularly--On a scheduled basis.
(6) Unsupervised access--The person is allowed to be with children without the presence of a qualified caregiver.
This agency hereby certifies that the 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 May 6, 2008.
TRD-200802367
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
40 TAC §§745.611, 745.615, 745.623, 745.625, 745.626, 745.629, 745.630
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 §42.042, 42 USC §671, and HRC §42.056, as enacted by Senate Bill 758, 80th Session.
§745.615.On whom must I request background checks?
(a) You must request a name-based criminal history check and a DFPS central registry check for:
(1) The directors, owners, operators, or administrators of the operation;
(2) Employees and applicants you intend to hire;
(3) Any person(s), including volunteers, who are counted in any child/caregiver ratio required in minimum standards;
(4) Person(s) applying to adopt or foster children through any licensed or certified child-placing agency;
(5) Any person who has unsupervised access with children in care;
(6) Non-client residents of the operation that are 14 years or older;
(7) Applicants for a child-care administrator's license; and
(8) Any other person 14 years or older, excluding client residents, who will regularly or frequently be present at your operation while children are in care.
(b) In addition:
(1) You must request a fingerprint-based criminal history check for any person who requires a background check under subsection (a) of this section if that person has lived outside of Texas any time during the previous five years or there is reason to believe other criminal history exists;
(2) Child-placing agencies and independent foster homes that will accept the placement of children in the conservatorship of DFPS must request a fingerprint-based criminal history check for:
(A) Any foster and/or adoptive parent applicant, including a person who has adopted in the past and who applies to adopt again unless the person is also verified as a foster/adopt home; and
(B) Any adults 18 years or older living in the home of a foster or adoptive parent applicant; and
(3) Child-care centers must request a fingerprint-based criminal history check for:
(A) The directors, owners, operators, or administrators of the center;
(B) Employees and applicants you intend to hire;
(C) Any person(s), including volunteers, who are counted in the child/caregiver ratio specified in §746.1601 of this title (relating to How many children may one caregiver supervise?), §746.1701 of this title (relating to How many children may one caregiver supervise if 12 or fewer children are in care?), and §746.1901 of this title (relating to If I operate a get-well care program, must I use a different child/caregiver ratio?); and
(D) Any person who has unsupervised access to children in care.
(c) In addition, child-placing agencies and independent foster homes that will accept the placement of children in the conservatorship of DFPS must request an out-of-state central registry check for a foster or adoptive parent applicant who has lived outside of the state any time during the previous five years preceding the person's application to become a foster or adoptive parent.
(d) You do not have to request a background check on professionals who have currently cleared a background check in compliance with another governmental entity's requirements, if you do not employ or contract with the professional.
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 May 6, 2008.
TRD-200802368
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 §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 May 6, 2008.
TRD-200802377
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 HRC §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 May 6, 2008.
TRD-200802369
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
40 TAC §§745.683, 745.685, 745.687, 745.693, 745.701, 745.707
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 HRC §42.042 and 42 USC §671.
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 May 6, 2008.
TRD-200802370
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 HRC §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 May 6, 2008.
TRD-200802371
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
The Health and Human Services Commission adopts, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§749.43, 749.2001, 749.2903, and 749.2905, in its Child-Placing Agencies chapter. The amendment to §749.2903 is adopted with a change to the proposed text published in the February 15, 2008, issue of the Texas Register (33 TexReg 1295). The amendments to §§749.43, 749.2001, and 749.2905 are adopted without changes to the proposed text and will not be republished.
The justification for the amendments is to facilitate more inspections in foster family homes, thereby helping to ensure that fire inspections do not present a barrier to verifying or maintaining foster family homes. Section 749.43 adds a definition for certified fire inspectors. In §749.2001, some paragraphs are renumbered as a result of the change in §749.43. Section 749.2903 outlines expectations for fire and health inspections in foster homes. The amendment separates the expectations for foster family homes versus foster group homes, in order to clarify differing expectations depending on the type of foster home. Section 749.2905 adds a reference to a certified fire inspector to be consistent with changes to §749.2903.
The amendments will function by ensuring that child-placing agencies will be able to verify and retain more foster homes for children in need of substitute care.
During the comment period, DFPS received comments from Catholic Charities of Houston, DePelchin Children's Center, Texas Foster Family Association, Texas Association of Child Placing Agencies, Texas Alliance of Child and Family Services, Homes 4 Good, and the Harris County Fire Marshal's office. All comments concerned §749.2903. The child-placing agencies and industry associations support the rule change. The Harris County Fire Marshal's office indicated that a fire inspector should work for the local authority, thus not favoring the rule change. In addition, the State Fire Marshal's office has explained that the certification through the Texas Commission on Fire Protection does not promulgate standards for the inspections conducted by certified fire inspectors. Under their advice, DFPS added additional language to ensure that the inspections conducted by these individuals are governed by standards in fire safety. DFPS is adopting §749.2903 with the following addition to paragraph (b)(1): "A certified fire inspector who is not a state or local fire inspector must conduct the inspection in accordance with the Texas State Fire Marshal's adopted standard, NFPA Life Safety Code 101 appearing in 28 TAC §34.303."
Subchapter B. DEFINITIONS AND SERVICES
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 HRC §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 May 6, 2008.
TRD-200802372
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 HRC §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 May 6, 2008.
TRD-200802373
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437
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 HRC §42.042.
§749.2903.Who must conduct fire and health inspections at a foster home?
(a) All foster homes are required to obtain fire and health inspections.
(b) The requirements related to fire and health inspections for foster family homes are as follows:
(1) You must determine whether there is any local authority or certified fire inspector to conduct health and fire inspections. You must document all contacts with the date, name of person contacted, and the person's response to the request to complete an inspection. A certified fire inspector who is not a state or local fire inspector must conduct the inspection in accordance with the Texas State Fire Marshal's adopted standard, NFPA Life Safety Code 101 appearing in 28 TAC §34.303.
(2) If no local authority or certified fire inspector exists to complete a fire inspection for the home, you must request that the state Fire Marshal's Office do the inspection.
(3) If no local authority exists to complete a health inspection for the home, you must request a health inspection from the Department of State Health Services.
(4) If, after exploring and documenting all efforts to obtain a fire inspection for a home, you cannot obtain a fire inspection, you may use our Fire Prevention Checklist form.
(5) If, after exploring and documenting all efforts to obtain a health inspection for a home, you cannot obtain a health inspection, you may use our Environmental Health Checklist form.
(c) The requirements related to fire and health inspections for foster group homes are as follows:
(1) You must determine whether there is any local authority to conduct health and fire inspections. You must document all contacts with the date, name of person contacted, and the person's response to the request to complete an inspection.
(2) If no local authority exists to complete a fire inspection for the home, you must request that the state Fire Marshal's Office do the inspection.
(3) If no local authority exists to complete a health inspection for the home, you must request a health inspection from the Department of State Health Services.
(4) If, after exploring and documenting all efforts to obtain a fire inspection for a home, you cannot obtain a fire inspection, you may use our Fire Prevention Checklist form.
(5) If, after exploring and documenting all efforts to obtain a health inspection for a home, you cannot obtain a health inspection, you may use our Environmental Health Checklist form.
(d) Once you document that a health and/or fire inspection is not available in a particular area, you may use that documentation for any foster home verified by you in that area. A copy of the documentation must be on file in each foster home record to which the documentation applies.
(e) Documentation that a health and/or fire inspection is not available in a particular area is valid for one year.
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 May 6, 2008.
TRD-200802374
Gerry Williams
General Counsel
Department of Family and Protective Services
Effective date: June 1, 2008
Proposal publication date: February 15, 2008
For further information, please call: (512) 438-3437