Texas Register March 17, 2023 Volume: 48 Number: 11

Texas Register Table of Contents

1 Texas State Board of Pharmacy
- - 1.0.1 Proposed Rules Re:
2 Texas Department of State Health Services
- - 2.0.1 Proposed Rules Re:
    - 2.0.1.1 Amending 25 TAC §300.104, regarding the manufacturing and processing of hemp products.
  - 2.0.2 Adopted Rules Re:
    - 2.0.2.1 Amending 25 TAC §91.11, §91.12 to update the DSHS Texas Cancer Registry email address.
3 Texas Health and Human Services Commission
- - 3.0.1 Proposed Rules Re:
  - 3.0.2 Adopted Rules Re:

Texas State Board of Pharmacy

Proposed Rules Re:

Amending 22 TAC §283.2, concerning accreditation requirements for residency programs.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.2

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §283.2, concerning Definitions. The amendments, if adopted, remove the requirement that a residency program be accredited by the American Society of Health System Pharmacists for a resident to be eligible for designation as an extended-intern.

BACKGROUND AND JUSTIFICATION

Julie Spier, R.Ph., President, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Spier has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to remove an unnecessary distinction between residency programs in relation to pharmacist preceptor requirements. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Amending 22 TAC §283.4, regarding the requirements for a residency program and pharmacist-intern registration expiration.

CHAPTER 283. LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §283.4

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §283.4, concerning Internship Requirements. The amendments, if adopted, remove the requirement that a residency program be accredited by the American Society of Health System Pharmacists for a resident to be eligible for designation as an extended-intern and specify that a pharmacist-intern registration expires due to failing the NAPLEX or Texas Pharmacy Jurisprudence Examination only if the intern fails either exam more than once.

BACKGROUND AND JUSTIFICATION

Julie Spier, R.Ph., President, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Spier has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to remove an unnecessary restriction on eligibility for an extended internship and an overly punitive barrier to obtaining a license to practice pharmacy. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Amending 22 TAC §291.121, concerning how remote pharmacies can provide services.

CHAPTER 291 PHARMACIES
SUBCHAPTER G. SERVICES PROVIDED BY PHARMACIES
22 TAC §291.121

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.121, concerning Remote Pharmacy Services. The amendments, if adopted, allow remote pharmacies services to be provided using an automated pharmacy system to be provided at healthcare facilities regulated under Chapters 464 and 577, Health and Safety Code.

BACKGROUND AND JUSTIFICATION

Julie Spier, R.Ph., President, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Spier has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will to improve public access to pharmacy services by allowing remote pharmacy services to be provided at more types of healthcare facilities. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Amending 22 TAC §295.8, clarifying continuing education requirements.

CHAPTER 295. PHARMACISTS
22 TAC §295.8

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §295.8, concerning Continuing Education Requirements. The amendments, if adopted, clarify the requirements for obtaining continuing education in approved procedures of prescribing and monitoring controlled substances and correct grammatical errors.

BACKGROUND AND JUSTIFICATION

Julie Spier, R.Ph., President, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Ms. Spier has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be clear and grammatically correct regulations. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Texas Department of State Health Services

Proposed Rules Re:

Amending 25 TAC §300.104, regarding the manufacturing and processing of hemp products.

CHAPTER 300. MANUFACTURE, DISTRIBUTION, AND RETAIL SALE OF CONSUMABLE HEMP PRODUCTS
SUBCHAPTER A. GENERAL PROVISIONS
25 TAC §300.104

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes an amendment to §300.104, concerning the manufacturing and processing of hemp products for smoking.

BACKGROUND AND JUSTIFICATION

The proposed amendment to §300.104 will remove the prohibition of “distribution” and “retail sale” of hemp products for smoking.

House Bill 1325, 86th Legislature, Regular Session, 2019, established Texas Health and Safety Code, Chapter 443, Manufacture, Distribution, and Sale of Consumable Hemp Products (CHPs). Texas Health and Safety Code §443.204(4) prohibits “the processing or manufacturing of a consumable hemp product for smoking.”

On June 24, 2022, as a result of Texas Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648 (Tex.2022), the Texas Supreme Court upheld the ban on the manufacturing and processing of consumable hemp products for smoking within the state of Texas. The amendment complies with the ruling in Texas Dep’t of State Health Servs. v. Crown Distrib. LLC and Texas Health and Safety Code §443.204(4).

SECTION-BY-SECTION SUMMARY

The proposed amendment to §300.104 deletes the words “distribution” and “retail sale” from the prohibition of hemp products for smoking. The proposed amendment also revises the title of the rule to “Manufacturing and Processing of Hemp Products for Smoking” for consistency with the rule text.

Adopted Rules Re:

Amending 25 TAC §91.11, §91.12 to update the DSHS Texas Cancer Registry email address.

CHAPTER 91. CANCER
SUBCHAPTER A. CANCER REGISTRY
25 TAC §91.11, §91.12

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts amendments to §91.11, concerning Requests for Statistical Cancer Data; and §91.12, concerning Requests and Release of Confidential Cancer Data. The amendments to §91.11 and §91.12 are adopted without changes to the proposed text as published in the December 9, 2022, issue of the Texas Register (47 TexReg 8086) and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to comply with 45 Code of Federal Regulations §46.114 (updated in 2018) that requires research institutions to use a single institutional review board for federally supported research involving more than one institution.

The amendments will allow the state to remain eligible for federal grants and maintain compliance with Texas Health and Safety Code, Chapter 82 (Texas Cancer Incidence Reporting Act).

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 26 TAC §301.327, concerning the type of staff qualified to answer and screen crisis hotline calls.

CHAPTER 301. IDD-BH CONTRACTOR ADMINISTRATIVE FUNCTIONS
SUBCHAPTER G. MENTAL HEALTH COMMUNITY SERVICES STANDARDS
26 TAC §301.327

OVERVIEW

The Texas Health and Human Services Commission (HHSC) proposes an amendment to §301.327, concerning Access to Mental Health Community Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to broaden the type of staff qualified to answer and screen crisis hotline calls for local mental health authorities (LMHAs), local behavioral health authorities (LBHAs), and their subcontractors. The proposed amendment allows staff members trained in crisis screening to conduct the crisis calls in addition to staff members who are credentialed as a Qualified Mental Health Professional-Community Services (QMHP-CS). This will also assist LMHAs, LBHAs, and their contractors to broaden recruiting and applicant pools thereby potentially reducing call wait times and answering more calls within the required timeframe.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §301.327(d) substitutes “LBHAs, as defined by Texas Health and Safety Code §533.0356,” for “managed care organization” because these rules are intended to govern the LBHA’s and LMHA’s provision of crisis hotline services and requirements relating to an MCO’s responsibility are covered elsewhere. The proposed amendment also establishes requirements for staff member training in crisis screening by LMHAs, LBHAs, and their subcontractors and as provided in the LMHA and LBHA contract with HHSC. This addition clarifies who trains staff for crisis hotlines in alignment with Crisis Services Standards.
The proposed amendment references the training language added for staff members trained in crisis screening and removes the requirements for a QMHP-CS to begin the telephone screening if a call is identified as a potential crisis. This change allows any staff trained in crisis screening to respond to calls that are identified as a potential crisis, rather than only a QMHP-CS.
The proposed amendment allows any staff trained in crisis screening to take action to address emergency situations, activate the immediate screening and assessment processes, and provide, or obtain mental health community services or other interventions to stabilize the crisis.
The proposed amendment also includes minor grammatical changes, updates cross references and replaces a term for accuracy.

Amending 26 TAC §554.2312, regarding policies and procedures for surety bonds or letters of credit.

CHAPTER 554. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER X. REQUIREMENTS FOR MEDICAID-CERTIFIED FACILITIES
26 TAC §554.2312

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §554.2312, concerning Surety Bonds or Letters of Credit.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to align the Texas Administrative Code to current HHSC’s policies and procedures concerning surety bonds or letters of credit. The current rule provides an optional procedure for the issuance of a surety bond to expedite the release of vendor holds. Under the current rule, the surety bond may only be issued after all cost reports have been submitted and recoupments pertaining to staffing have been paid in full. HHSC’s standard procedure is to release the vendor hold after the provider submits the cost report and any recoupment is paid in full. Recoupments are offset against new claims or held payments. The standard procedure is efficient, and the optional surety bond procedure has not been utilized by providers to expedite the release of vendor holds. The existing rule was last amended in 2004.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §554.2312 deletes the rule because more efficient procedures have made the rule obsolete.

New 26 TAC §745.43, outlining the requirements for a relative-only listed family home.

CHAPTER 745. LICENSING
SUBCHAPTER B. CHILD CARE AND OTHER OPERATIONS THAT WE REGULATE
26 TAC §745.43

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Texas Administrative Code (TAC), Chapter 745, Subchapter B, Child Care and Other Operations that We Regulate, new §745.43; new Subchapter I, Non-Enforcement Voluntary Actions §§745.5001, 745.5003, 745.5051, 745.5101, 745.5103, 745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, and 745.5201; and new Subchapter K, Inspections, Investigations, and Confidentiality §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, 745.8441, 745.8443, 745.8445, 745.8447, 745.8449, 745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, 745.8581, 745.8583, and 745.8585.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to continue to implement House Bill 5, 85th Legislature, Regular Session, 2017, which directed the Texas Department of Family and Protective Services (DFPS) to become a stand-alone agency that is separate from the Texas Health and Human Services Commission (HHSC) system. This bill also moved the regulation of child care from DFPS to HHSC, with only the responsibility for investigating allegations of child abuse, neglect, and exploitation in child care operations remaining at DFPS.

Since HHSC Child Care Regulation (CCR) is responsible for the administrative rules in TAC Title 40, Chapter 745, that impact child care operations, these rules must be transferred from DFPS to HHSC. CCR has already administratively transferred all the rules in Title 40, Chapter 745 to Title 26, Chapter 745 except for Subchapters K, Inspections and Investigations, and M, Administrative Reviews and Due Process Hearings. Those subchapters could not be administratively transferred because some of the rules in them also apply to responsibilities that remained with DFPS.

DFPS has now adopted new rules applicable to the DFPS responsibilities in Title 40, Chapter 707. Accordingly, and to support this transition of the regulation of child care from DFPS to HHSC, CCR proposed new rules in Title 26, Chapter 745, Subchapter B and new Subchapters I and K. The proposed repeal of Title 40, Chapter 745, Subchapter K, are published elsewhere in this issue of the Texas Register.

In addition, in the proposed rules CCR is (1) removing rules directly related to any DFPS responsibilities, including the investigation of child abuse, neglect, and exploitation, as DFPS has rules to address those responsibilities; (2) updating the rules with current practices; and (3) updating the rules for better readability and understanding.

SECTION-BY-SECTION SUMMARY

Proposed new §745.43 describes the requirements for a relative-only listed family home. The proposed rule has the content from repealed 40 TAC §745.8427. There are no substantive changes to the proposed rule.

New 26 TAC §745.5001, §745.5003, describing voluntary actions and the outcome of voluntary actions.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5001, §745.5003

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.5001 clarifies that a voluntary action under Subchapter K is not an enforcement action and describes in a chart the different types of voluntary actions that an operation may take. The chart has content from repealed 40 TAC §745.8511 and §745.8521(a) and (b). Additional content (1) clarifies that an operation may not reapply after withdrawing an application if the operation is ineligible to reapply because we have taken an enforcement action against the operation; (2) clarifies that after a temporary relocation of 90 days, an operation must request that CCR amend the operation’s permit with a new address; and (3) increases the maximum period of time for a voluntary suspension for a child day care operation to two years, which makes the time period consistent for both residential and day care operations.
Proposed new §745.5003 describes how an operation taking a voluntary action affects CCR’s ability to impose an enforcement action. The proposed rule has the content from repealed 40 TAC §745.8515. Additional content clarifies that CCR may impose an enforcement action if the operation applies for another permit after voluntary closure.

New 26 TAC §745.5051, regarding when notice and approval by CCR are required before an operation may take a voluntary action.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5051

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.5051 describes whether notice and approval by CCR are required before an operation may take a voluntary action. The proposed rule has the content regarding approval from repealed 40 TAC §745.8513 and regarding notice from repealed 40 TAC §§745.8517(1), 745.8523, and 745.8533. However, the new chart adds content that (1) updates the approval requirements, which do not require CCR approval to withdraw an application or voluntarily close, and (2) requires written notice for all voluntary actions, including the withdrawal of an application.

New 26 TAC §745.5101, §745.5103, describing the process for temporary relocations and subsequent inspections.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5101, §745.5103

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.5101 describes the requirements for an operation that temporarily relocates. The proposed rule has the content from repealed 40 TAC §745.8517. However, the proposed rule updates and more fully explains the requirements. The rule also adds content to require an operation to meet documentation and reporting requirements for the emergency relocation of a residential child care operation that are outlined in minimum standards.
Proposed new §745.5103 states that CCR will conduct an inspection before or as soon as possible after a relocation to determine whether the temporary location complies with the applicable statutes, rules, and minimum standards. The rule also clarifies that CCR will consider the following factors when deciding whether to approve a temporary location that does not comply with minimum standards: (1) the anticipated length of stay at the operation; (2) the degree of deviation from minimum standards; and (3) whether there is risk to children.

New 26 TAC §§745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161, regarding voluntary suspension of a permit and the the process for a voluntary suspension.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §§745.5151, 745.5153, 745.5155, 745.5157, 745.5159, 745.5161

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.5151 lists the reasons that an operation may request a voluntary suspension of a permit. The proposed rule has the content from repealed 40 TAC §745.8519. However, three additional reasons have been added to the list: (1) enrollment is too low to operate; (2) a staffing shortage; and (3) a declared disaster.
Proposed new §745.5153 describes how an operation requests a voluntary suspension. The proposed rule has the content from repealed 40 TAC §745.8523. There are no substantive changes to the proposed rule.
Proposed new §745.5155 describes the actions CCR may take in response to a request for a voluntary suspension based on certain factors. The proposed rule has the content from repealed 40 TAC §745.8525. However, CCR is updating the structure of the question and the rule. The rule also adds factors to consider when approving or denying a voluntary suspension, including (1) confirming that the operation will not care for children during the voluntary suspension period; (2) the length of time planned for a suspension; and (3) whether the request meets one of the reasons for the suspension. In addition, CCR is deleting the right to an administrative review for the denial of a request for a voluntary suspension, but CCR is adding this right to Title 26, Chapter 745, Subchapter M, Administrative Reviews and Due Process Hearings; the Subchapter M rules are anticipated to be adopted in January 2023.
Proposed new §745.5157 describes the responsibilities of the operation during the voluntary suspension period. The proposed rule has the content from repealed 40 TAC §745.8521(c) and §745.8527. However, a change to the content clarifies that as soon as possible, but no later than 24 hours after Licensing notifies the operation of the approval of the voluntary suspension, the operation must notify the parents of any children attending or enrolled in the operation of the voluntary suspension, including the dates of the voluntary suspension period.
Proposed new §745.5159 describes what must occur before an operation may reopen and begin operating at the end of the voluntary suspension period. The proposed rule has the content from repealed 40 TAC §745.8529. Additional content clarifies that CCR will conduct an inspection within 15 days to determine whether the operation is meeting all applicable statutes, rules, and minimum standards before the operation is given permission by CCR to reopen and operate.
Proposed new §745.5161 describes what happens if an operation does not begin operating at the end of a voluntary suspension period. The proposed rule has the content from repealed 40 TAC §745.8531. Additional content clarifies that the operation may request an extension if the voluntary suspension period was for less than two years.

New 26 TAC §745.5201, regarding the process for voluntarily closing an operation.

CHAPTER 745. LICENSING
SUBCHAPTER I. NON-ENFORCEMENT VOLUNTARY ACTIONS
26 TAC §745.5201

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.5201 describes how to voluntarily close an operation. The proposed rule has the content from repealed 40 TAC §745.8533. Additional content requires the operation to (1) notify parents timely; (2) surrender its permit; and (3) meet documentation and reporting requirements for the emergency relocation of a residential child care operation that are outlined in minimum standards.

New 26 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417, regarding inspection and investigation protocols.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8401, 745.8403, 745.8405, 745.8407, 745.8409, 745.8411, 745.8413, 745.8415, 745.8417

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.8401 describes who may inspect or investigate an operation. The proposed rule includes most of the content from repealed 40 TAC §745.8401. Additional content clarifies that (1) CCR may inspect or investigate a child care program to determine whether the program is subject to regulation; (2) DFPS may investigate an allegation of child abuse, neglect, or exploitation; and (3) CCR may inspect an operation during or after a DFPS child abuse, neglect, or exploitation investigation. CCR is moving the portion of repealed 40 TAC §745.8401 relating to “CCR may inspect or investigate during the hours of operation” to proposed new §745.8405(b).
Proposed new §745.8403 describes the actions CCR may take during an inspection or investigation. The proposed rule has the content from repealed 40 TAC §745.8403 and §745.8405. Additional content clarifies that these actions may also include a walkthrough of the operation.
Proposed new §745.8405 describes when CCR may inspect and investigate different types of operations. The proposed rule includes the portion of the content from repealed 40 TAC §745.8401 relating to CCR inspecting and investigating during the hours of operation and the content from repealed 40 TAC §745.8407. Additional content (1) updates the description for the types of operations; (2) updates that CCR investigates a listed family home that is not a relative-only listed family home after receiving a report of a deficiency of the new minimum standards for listed family homes; (3) clarifies that for all operation types, except relative-only listed family homes and foster homes, “we (CCR) may inspect” (in the repealed rule it was “we inspect”) because CCR is not required to inspect Priority 5 complaints; (4) updates the timeframe for inspecting registered child care homes to at least once every two years, or at least once every year if the home is receiving a subsidy for a child in care through the Texas Workforce Commission (TWC); (5) adds two situations to be consistent with current policy when CCR investigates in foster homes: (A) any deficiency in a licensing statute, rule, or minimum standard when law enforcement responds to or has previously responded to a family violence call at the foster home; and (B) a deficiency involving child-placing agency staff; (6) adds situations for investigations of adoptive homes to be consistent with policy: (A) CCR will investigate reports involving child-placing agency staff; and (B) for other reports of a deficiency in a licensing statute, rule, or minimum standard, CCR may investigate or assign to the child-placing agency to investigate; and (7) states that if a child-placing agency main office or branch office is not open between 8:00 a.m. and 5:00 p.m., Monday through Friday, the child-placing agency must ensure that the office and employees are available upon CCR’s request to inspect or investigate the agency.
Proposed new §745.8407 describes how often CCR may inspect or investigate an operation. The proposed rule has the content from repealed 40 TAC §745.8409. There are no substantive changes to the proposed rule.
Proposed new §745.8409 describes when inspections and investigations must be unannounced or announced. The proposed rule has the content from repealed 40 TAC §745.8411. Additional content updates that inspections for registered child care homes must be unannounced (1) once every year if the home is receiving a subsidy for a child in care through TWC; or (2) once every two years if the home is not receiving a subsidy for a child in care through TWC.
Proposed new §745.8411 describes an operation’s responsibilities when CCR conducts an inspection or investigation. The proposed rule has the content from repealed 40 TAC §745.8413 and §745.8425. Additional content clarifies that (1) the responsibility not to interfere or delay an inspection or investigation applies to both CCR and DFPS and includes providing access to all areas of the operation and all records; and (2) if anyone at the operation refuses access or prevents or delays an inspection or investigation CCR may issue a deficiency and seek a court order to comply or impose an enforcement action.
Proposed new §745.8413 describes what CCR may inspect and investigate at the operation. The proposed rule has the content from repealed 40 TAC §§745.8415, 745.8417, and 745.8419. Additional content clarifies that records include audio and visual records.
Proposed new §745.8415 describes how CCR investigates an anonymous report. The proposed rule has the content from repealed 40 TAC §745.8421. Additional content clarifies that CCR evaluates an anonymous report by (1) checking the operation’s compliance history for similar allegations and deficiencies; and (2) contacting the operation and collaterals. In addition, there are significant updates to the wording for better understanding and readability.
Proposed new §745.8417 describes what CCR will post on the Search Texas Child Care website about the findings from an anonymous report investigation. The proposed rule has the content from repealed 40 TAC §745.8423. While there are no changes to the content of this rule, there are significant updates to the wording for better understanding and readability.

New 26 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 749.8449, concerning unannounced inspections or investigations and notification of the inspection or investigations outcomes.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8441, 745.8443, 745.8445, 745.8447, 749.8449

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.8441 describes when CCR will notify an operation of the purpose of an unannounced inspection or investigation. The proposed rule has the content from repealed 40 TAC §745.8441 and §745.8443. Additional content clarifies that (1) CCR will notify the person in charge of an investigation at the time of the first contact with the operation unless an exception applies; or (2) if the exception applies, then CCR will notify the person in charge, designee, administrator, director, or primary caregiver as soon as possible after CCR determines that doing so will not compromise the investigation. In addition, there are significant updates to the wording for better understanding and readability.
Proposed new §745.8443 describes whom CCR will notify of the outcome of an inspection or investigation. The proposed rule replaces the content from repealed 40 TAC §745.8445 by clarifying that CCR will notify (1) the operation of the outcome of the inspection or investigation by providing a completed inspection form or notification letter to the designee, director, administrator, or primary caregiver, and the person in charge if one of the other persons is not available during the exit interview; and (2) the reporter of the outcome of an investigation, unless the reporter is anonymous or there is a reasonable likelihood that the notification will jeopardize the reporter’s safety.
Proposed new §745.8445 describes what the notification of the outcome of the inspection or investigation to the operation and the outcome of the investigation to the reporter will include. The proposed rule has the content from repealed 40 TAC §745.8447. However, additional content clarifies that the notification to the operation will also include any statutes, rules, or minimum standards that CCR investigated and whether the operation was in compliance. In addition, CCR is deleting the portion of repealed 40 TAC §745.8447 currently requiring “corrections necessary for compliance” because CCR does not provide this information in the notice.
Proposed new §745.8447 describes what an operation must do if CCR notifies the operation of a deficiency. The proposed rule has the content from repealed 40 TAC §745.8449. Additional content clarifies that an operation must correct the deficiency (1) within the timeframe CCR specified, unless CCR approves an extension that the operation requests; or (2) if CCR approves a request for an extension, within the new timeframe CCR specified. The operation may also request a new extension.
Proposed new §745.8449 describes who will provide notices related to investigations of child abuse, neglect, and exploitation. DFPS provides notifications regarding child abuse, neglect, and exploitation according to the DFPS rules, including (1) notification to CCR of the DFPS investigation findings, any evidence regarding possible minimum standard deficiencies, and any safety plan implemented; and (2) for an investigation in a residential child care operation, notification to the residential child care operation of the investigation findings and the name of the person alleged or designated as a perpetrator of child abuse, neglect, or exploitation. CCR will provide notification to an operation of any deficiencies within 10 days of receiving the results from a DFPS child abuse, neglect, or exploitation investigation.

New 26 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493, concerning required childcare records.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8481, 745.8483, 745.8485, 745.8487, 745.8489, 745.8491, 745.8493

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.8481 describes what types of child care records CCR maintains, including a record for each (1) operation that applies for a permit; (2) regulated operation; (3) program or operation that is investigated as a possible unregulated operation; (4) exemption determination; and (5) individual who applies for an administrator’s license. The rule also describes the types of electronic and hard copy records maintained in a child care record that are subject to retention periods that may affect the availability of a record.
Proposed new §745.8483 describes the portions of a child care record that are confidential, including (1) an open investigation, including (A) CCR interviews with operation staff, foster parents or other caregivers, children, or any other person; and (B) internal discussions by or among CCR staff; (2) reporter information; (3) information obtained from another agency that is confidential; (4) legally private information, including (A) a person’s social security number; (B) a foster home screening, adoptive home screening, and post-placement adoptive report; and (C) any information pertaining to a pending court case where the state is a party; (5) information that would interfere with a law enforcement or DFPS investigation; (6) the location of a family violence or trafficking shelter or information pertaining to an individual receiving services at one of these shelters; and (7) any photograph or recording of a child.
Proposed new §745.8485 states that an operation may not record, listen to, or eavesdrop on (1) CCR interviews with operation staff, foster parents or other caregivers, children, or any other person; or (2) internal discussions by or among CCR staff. However, an individual is not prohibited from recording a CCR interview with the individual.
Proposed new §745.8487 describes exceptions to proposed new §745.8483, which would allow the confidential portions of a child care record to be released to the public or certain persons, including the release of (1) information concerning an investigation once it has been completed, unless otherwise confidential; (2) a foster home screening, adoptive home screening, and post-placement report to the subject of the screening or report or to protect the health or safety of a child; (3) the location of a family violence or trafficking shelter in a CCR public hearing; and (4) any photograph or recording of a child as noted in proposed new §745.8491.
Proposed new §745.8489 describes the situations when certain individuals may get copies of the confidential portions of a child care record under proposed new §745.8483 unless the release of the information would endanger the life or safety of an individual. These exceptions include (1) HHSC staff and volunteers to perform their assigned duties; (2) DFPS staff and volunteers to perform their assigned duties; (3) the staff and volunteers of a single source continuum contractor that contracts with DFPS to perform the SSCC’s duties under Texas Family Code; (4) law enforcement personnel investigating a crime; (5) an administrative law judge for a case arising out of an inspection, investigations, or enforcement action; (6) any other person authorized by state or federal law; and (7) any other person ordered by a judge under certain circumstances. CCR is also clarifying that a person or entity that receives confidential information under this rule may not release it to an unauthorized person or entity.
Proposed new §745.8491 describes who may review or have a copy of a photograph or recording of a child that is confidential under proposed new §745.8483. The individuals noted in proposed new §745.8489 and the parent of the child may get a copy of the photograph or recording. The following persons may review the photograph or recording but not get a copy: (1) attorney ad litem, guardian ad litem, or court appointed special advocate; and (2) the operation cited for a deficiency during which the photograph was taken, or recording was made. CCR is also clarifying that a person or operation that receives a photograph, recording, or documentation of a child under this rule may not release it to an unauthorized person or entity.
Proposed new §745.8493 describes when CCR will release information related to child abuse, neglect, or exploitation investigation conducted by DFPS. DFPS child abuse, neglect, and exploitation investigations remain confidential. A person must request DFPS investigation information from DFPS. DFPS may release DFPS investigation information to (1) an operation to support a deficiency assessed against the operation, so long as confidential information is redacted; or (2) any other person or entity authorized by state or federal law to have a copy. CCR is also clarifying that an operation, person, or entity that receives DFPS investigation information under this rule may not release the information to an unauthorized person or entity.

New 26 TAC §§745.8581, 745.8583, 745.8585, concerning technical assistance by CCR.

CHAPTER 745. LICENSING
SUBCHAPTER K. INSPECTIONS, INVESTIGATIONS, AND CONFIDENTIALITY
26 TAC §§745.8581, 745.8583, 745.8585

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.8581 describes technical assistance. The proposed rule has the content from repealed 40 TAC §745.8581. There are no substantive changes to the proposed rule.
Proposed new §745.8583 describes when CCR provides technical assistance. The proposed rule has the content from repealed 40 TAC §745.8583. Additional content clarifies that CCR may provide technical assistance at any time, including on the inspection form or investigation letter, regardless of whether the operation is deficient or in compliance.
Proposed new §745.8585 describes why an administrative review is not allowed for technical assistance. The proposed rule has the content from repealed 40 TAC §745.8585. There are no substantive changes to the proposed rule.

Amending 26 TAC §748.105, adding screening requirements for applicants for positions at GROs.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION
26 TAC §748.105

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §748.105, concerning What are the requirements for my personnel policies and procedures, §748.363, concerning What information must the personnel record of an employee include, and §748.505, concerning What minimum qualifications must all employees meet; and new §748.751, concerning What are the requirements for obtaining and verifying an applicant’s employment history, and §748.753, concerning What are the requirements for completing an applicant’s reference checks, in Texas Administrative Code, Title 26, Chapter 748, Minimum Standards for General Residential Operations.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to adopt rules in Chapter 748 to support the June 9, 2022, court filing regarding the June 6, 2022, status hearing in the MD v. Abbott litigation. The filing, signed by the court, refers to an agreement by HHSC to initiate rulemaking to require operations to contact all an applicant’s job references prior to commencement of employment. In addition to this court filing, CCR has determined that the rules will improve the safety of children in care in general residential operations by requiring a more thorough vetting of prospective employees. Accordingly, HHSC Child Care Regulation (CCR) is proposing new and amended rules to establish (1) employment history verification standards that require a General Residential Operation (GRO) to obtain and verify the most recent five years of an applicant’s employment history; and (2) applicant reference check requirements that require a GRO to complete reference checks for each applicant by obtaining at least two references and contacting each of those references as part of an operation’s pre-employment screening process.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.105 (1) adds a requirement that a GRO’s personnel policies and procedures include written procedures for screening applicants to determine suitability for any position for which the GRO is considering them; the procedures must include (A) employment history verification as required in proposed new §748.751; and (B) reference checks as required in proposed new §748.753; (2) updates punctuation in the rule; and (3) updates the numbering of the paragraphs accordingly.

Amending 26 TAC §748.363, requiring additional information to be included in an employee’s personnel record.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER D. REPORTS AND RECORD KEEPING
26 TAC §748.363

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.363 (1) adds a requirement that a GRO include in an employee’s personnel record documentation that the GRO has (A) verified employment history as required in proposed new §748.751; and (B) conducted reference checks as required in proposed new §748.753; (2) updates punctuation in the rule; and (3) updates the numbering of the paragraphs accordingly.

Amending 26 TAC §748.505, outlining the pre-employment screening requirements for GRO employees.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER E. PERSONNEL
26 TAC §748.505

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

The proposed amendment to §748.505 (1) adds a requirement that employees must have cleared a pre-employment screening in which the GRO determined the employee is suitable for the employee’s position; the pre-employment screening must include (A) employment history verification as required in proposed new §748.751; and (B) reference checks as required in proposed new §748.753; (2) updates a reference; and (3) updates punctuation in the rule.

New 26 TAC §748.751, §748.753, concerning the requirements for applicant’s employment history and background checks.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER E. PERSONNEL
26 TAC §748.751, §748.753

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §748.751 outlines the requirements for obtaining and verifying an applicant’s employment history prior to employment. The proposed rule requires a GRO to (1) obtain the previous five years of the applicant’s employment history in writing; (2) verify the applicant’s employment history by contacting (A) each employer included in the five year employment history; or (B) the applicant’s three most recent employers, at a minimum, if the five year employment history includes more than three employers; and (3) for any applicant hired, maintain in the applicant’s personnel file documentation of (A) the applicant’s employment history that the GRO is required to obtain; (B) the results of any contact with previous employers related to employment verification; and (C) if unable to contact or obtain information from an employer, any refusal by the employer to provide required information or diligent efforts to contact the employer, unless the employer is permanently unreachable, in which case, the GRO must document the reason for that determination. The proposed new rule also provides examples of reasons an employer might be permanently unreachable and specifies that the rule applies to applicants who seek employment with the GRO on or after the date the rule is effective.
Proposed new §748.753 outlines the requirements for completing an applicant’s reference checks prior to employment. The proposed rule requires a GRO to (1) obtain from each applicant two references from unrelated individuals who can speak to whether the applicant is suitable to work with or around children; (2) contact each reference, through an interview or in writing, to verify the applicant’s suitability to work with or around children; (3) for any reference check the GRO is unsuccessful in completing, document (A) diligent efforts to contact each reference, which must include more than one attempt; and (B) the GRO’s assessment of the applicant’s is suitability to work with or around children; and (4) document and maintain in the personnel file specific information for each applicant hired. The proposed new rule also requires at least one reference check to be with a current or prior employer who is familiar with the applicant’s history and performance if the applicant is currently or was previously employed in a role providing care or services to children within the past five years. In addition, the proposed rule specifies that the rule applies to applicants who seek employment with the GRO on or after the date the rule is effective.

Adopted Rules Re:

Amending 26 TAC §§371.1, 371.3, 371.5, 371.7, 371.9, 371.11, 371.13, 371.15, to update rules related to program services for the Breast and Cervical Cancer Services (BCCS) program.

CHAPTER 371. BREAST AND CERVICAL CANCER SERVICES
26 TAC §§371.1, 371.3, 371.5, 371.7, 371.9, 371.11, 371.13, 371.15

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to Texas Administrative Code (TAC) Title 26, Part 1, §371.1, concerning Purpose; §371.3, concerning Federal Authorization and Requirements; §371.5, concerning Providers; §371.7, concerning Client Eligibility Requirements; §371.9, concerning Screening Requirements; §371.11, concerning Follow-up and Case Management Requirements; §371.13, concerning Payment for Services; and §371.15, concerning Client Fees.

The amendments to §§371.1, 371.3, 371.5, 371.7, 371.9, 371.11, 371.13, and 371.15 are adopted without changes to the proposed text as published in the December 9, 2022, issue of the Texas Register (47 TexReg 8098). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to update rules related to program services for the Breast and Cervical Cancer Services (BCCS) program. The proposed amendments include updates to reflect current clinical recommendations, statutes, and program titles, and to clarify the roles of BCCS contractors and HHSC staff. The proposed amendments are also necessary to reflect the transition of authority from the Texas Department of State Health Services (DSHS) to HHSC and other non-substantive administrative updates.

Amending 26 TAC §550.5, to add a new definition for the term “premises” and update certain nursing degree requirements for Prescribed Pediatric Extended Care Centers (PPECC).

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER A. PURPOSE, SCOPE, LIMITATIONS, COMPLIANCE, AND DEFINITIONS
26 TAC §550.5

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 550, Licensing Standards for Prescribed Pediatric Extended Care Centers, amendments to §550.5, concerning Definitions; §550.309, concerning Nursing Director and Alternate Nursing Director Qualifications and Conditions; §550.1102 concerning Transportation and Safety Conditions; and §550.1208, concerning Food Preparation.

Amended §§550.5, 550.309, 550.1102, and 550.1208 are adopted without changes to the proposed text as published in the December 9, 2022, issue of the Texas Register (47 TexReg 8101). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to update licensing standards for Prescribed Pediatric Extended Care Centers. The amendments add a definition for the term “premises,” remove the term “public health disaster declaration,” and update nursing degree requirements for the nursing director and alternate nursing director and staffing ratio requirements. The amendments also update outdated references to Texas Food Establishment rules, correct rule references that became outdated as a result of the administrative transfer of rules from 40 TAC Chapter 15 to 26 TAC Chapter 550, and reflect the transfer of functions from the Texas Department of Aging and Disability Services to HHSC.

Amending 26 TAC §550.309, to remove the baccalaureate degree requirement for the nursing director and alternate nursing director for Prescribed Pediatric Extended Care Centers (PPECC).

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER C. GENERAL PROVISIONS
26 TAC §550.309

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §550.1102, to remove the requirement for a center nurse to accompany all minors during transport and add language that instead allows center staff to determine the necessity for a nurse during transport according to a minor’s plan of care.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER D. TRANSPORTATION
26 TAC §550.1102

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §550.1208, to clarify that a Prescribed Pediatric Extended Care Center with a kitchen must meet rules related to retail food establishments.

CHAPTER 550. LICENSING STANDARDS FOR PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS
SUBCHAPTER E. BUILDING REQUIREMENTS
26 TAC §550.1208

OVERVIEW

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §745.475, §745.477, to update requirements for license renewals.

CHAPTER 745. LICENSING
SUBCHAPTER D. APPLICATION PROCESS
26 TAC §745.475, §745.477

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §745.475, concerning What does a completed renewal application for a permit include, and §745.477, concerning What happens after Licensing receives my renewal application, in Texas Administrative Code, Title 26, Chapter 745, Licensing, Subchapter D, Application Process, Division 12, Permit Renewal.

Amended §745.475 and §745.477 are adopted without changes to the proposed text as published in the November 18, 2022, issue of the Texas Register (47 TexReg 7651). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary to implement the portions of Senate Bill (S.B.) 225, 87th Legislature, Regular Session, 2021, that amended Texas Human Resources Code (HRC) §42.050(c) and §42.052(f-2). These amendments change the time period that HHSC Child Care Regulation (CCR) must review for patterns of violations when evaluating whether to renew a license, certification, or registration from two to five years. CCR is also adopting a rule amendment to remove requirements that a completed renewal application include verifications from the provider that they have corrected deficiencies and paid all fees and administrative penalties that the provider owed; these provider verifications are not part of the current business process, and CCR conducts these verifications when processing a renewal application.