Tex. Human Resources Code § 42.042 — TX Code / Code hr / Chapter 42 / Section 42.042
§ 42.042. RULES AND STANDARDS.
Status: in_force

(a) The executive commissioner shall adopt rules to carry out the provisions of this chapter.

(b) The department shall conduct a comprehensive review of all rules and standards at least every six years. For purposes of this subsection, the six-year period begins on the latest of the date of:

(1) the conclusion of the review of the rules and standards;

(2) a decision by the department not to revise the rules and standards;

(3) a decision by the executive commissioner not to revise the rules and standards; or

(4) executive commissioner action adopting new standards.

(c) The department shall provide a standard procedure for receiving and recording complaints. The executive commissioner shall adopt rules regarding the receipt of anonymous complaints made regarding child-care facilities and family homes to limit the number of anonymous complaints investigated by the department.

(d) The department shall provide standard forms for applications and inspection reports.

(d-1) The executive commissioner by rule shall adopt minimum standards for listed family homes. The minimum standards must:

(1) promote the health, safety, and welfare of children attending a listed family home;

(2) promote safe, comfortable, and healthy listed family homes for children;

(3) ensure adequate supervision of children by capable, qualified, and healthy personnel; and

(4) ensure medication is administered in accordance with Section 42.065.

(e) The executive commissioner shall promulgate minimum standards that apply to licensed child-care facilities and to registered family homes covered by this chapter and that will:

(1) promote the health, safety, and welfare of children attending a facility or registered family home;

(2) promote safe, comfortable, and healthy physical facilities and registered family homes for children;

(3) ensure adequate supervision of children by capable, qualified, and healthy personnel;

(4) ensure adequate and healthy food service where food service is offered;

(5) prohibit racial discrimination by child-care facilities and registered family homes;

(6) require procedures for parental and guardian consultation in the formulation of children's educational and therapeutic programs;

(7) prevent the breakdown of foster care and adoptive placement;

(8) ensure that a child-care facility or registered family home:

(A) follows the directions of a child's physician or other health care provider in providing specialized medical assistance required by the child; and

(B) maintains for a reasonable time a copy of any directions from the physician or provider that the parent provides to the facility or home; and

(9) ensure that a child's health, safety, and welfare are adequately protected on the grounds of a child-care facility or registered family home.

(e-1) The commission may not prohibit possession of lawfully permitted firearms and ammunition in an agency foster home. Minimum standards may be adopted under this section relating to safety and proper storage of firearms and ammunition. The minimum standards must allow firearms and ammunition to be stored together in the same locked location.

(e-2) The department may not prohibit the foster parent of a child who resides in the foster family's home from transporting the child in a vehicle where a handgun is present if the handgun is in the possession and control of the foster parent and the foster parent is not otherwise prohibited by law from carrying a handgun.

(e-3) The minimum standards for a day-care center or registered family home adopted under Subsection (e) must be consistent with:

(1) American Academy of Pediatrics standards for physical activity and screen time as published in Caring for Our Children: National Health and Safety Performance Standards; Guidelines for Early Care and Education Programs, 4th Edition; and

(2) the nutrition standards in the Child and Adult Care Food Program administered by the Department of Agriculture.

(e-4) A day-care center or registered family home is not required to participate in or comply with the reporting requirements of the Child and Adult Care Food Program administered by the Department of Agriculture.

(e-5) If the commission determines that the economic impact of requiring a day-care center or registered family home to comply with a minimum standard adopted under Subsection (e-3) is sufficiently great to make compliance impractical, the commission may require the day-care center or registered family home to meet the guidelines of the minimum standard through an alternative method.

(e-6) The commission, the department, and a child-placing agency that contracts with the department may not require an agency foster home to:

(1) disclose the specific types of firearms that are present in the home; or

(2) notify the child-placing agency if there is any change in the types of firearms that are present in the home.

(e-7) If the commission, the department, or a child-placing agency that contracts with the department has or obtains information relating to the types of firearms that are present in an agency foster home, the commission, department, or child-placing agency may not use that information for any purpose other than determining whether there are firearms present in the home.

(e-8) A child-placing agency that violates Subsection (e-7) is liable to the state for a civil penalty in an amount not to exceed $5,000 for each violation. The attorney general may bring an action to recover a civil penalty authorized under this subsection.

(e-9) Information relating to the types of firearms that are present in an agency foster home is confidential and is not subject to disclosure under Chapter 552, Government Code.

(f) In promulgating minimum standards for the provision of child-care services, the executive commissioner shall recognize the various categories of services, including services for specialized care, the various categories of children and their particular needs, and the differences in the organization and operation of child-care facilities and general residential operations. Standards for general residential operations must require an intake study before a child is placed in an operation. The intake study may be conducted at a community mental health and intellectual disability center.

(g) In promulgating minimum standards the executive commissioner may recognize and treat differently the types of services provided by and the grounds appurtenant to the following:

(1) listed family homes;

(2) registered family homes;

(3) child-care facilities, including general residential operations, cottage home operations, specialized child-care homes, group day-care homes, and day-care centers;

(4) child-placing agencies;

(5) agency foster homes;

(6) continuum-of-care residential operations;

(7) before-school or after-school programs; and

(8) school-age programs.

(g-1) The executive commissioner in adopting and the department in enforcing minimum standards for a school-age program shall consider commonly accepted training methods for the development of a skill, talent, ability, expertise, or proficiency that are implemented with the consent of the parent or guardian of the participant and that are fundamental to the core purpose of the program.

(g-2) The executive commissioner by rule shall adopt minimum standards that apply to general residential operations that provide comprehensive residential and nonresidential services to persons who are victims of trafficking under Section 20A.02, Penal Code. In adopting the minimum standards under this subsection, the executive commissioner shall consider:

(1) the special circumstances, needs, and precautions required of victims of trafficking of persons;

(2) the role of the general residential operations in assisting, supporting, and protecting victims of trafficking of persons; and

(3) the vulnerability of victims of trafficking of persons on the grounds of a general residential operation operating as a residential treatment center.

(h) The executive commissioner shall promulgate minimum standards for child-placing agencies.

(h-1) The executive commissioner shall adopt rules governing:

(1) the placement and care of children by a child-placing agency, as necessary to ensure the health and safety of those children;

(2) the verification and monitoring of agency foster homes and adoptive homes by a child-placing agency; and

(3) if appropriate, child-placing agency staffing levels, office locations, and administration.

(i) Before the executive commissioner adopts minimum standards, the department shall:

(1) convene a temporary work group to advise the executive commissioner regarding the proposed standards, composed of at least six members who represent the diverse geographic regions of this state, including:

(A) a department official designated by the commissioner to facilitate the work group's activities;

(B) a person with demonstrated expertise or knowledge regarding the different types and classifications of child-care facilities, homes, agencies, or programs that will be covered by the proposed standards;

(C) a parent with experience related to one of the different types or classifications of child-care facilities, homes, agencies, or programs that will be covered by the proposed standards; and

(D) a representative of a nonprofit entity licensed under this chapter; and

(2) send a copy of the proposed standards to each licensee covered by the proposed standards at least 60 days before the standards take effect to provide the licensee an opportunity to review and to send written suggestions to the department.

(j) The department may waive compliance with a minimum standard in a specific instance if it determines that the economic impact of compliance is sufficiently great to make compliance impractical.

(k) The department may not regulate or attempt to regulate or control the content or method of any instruction or curriculum of a school sponsored by a religious organization.

(l) In promulgating minimum standards for the regulation of family homes that register with the department, the executive commissioner must address the minimum qualifications, education, and training required of a person who operates a family home registered with the department.

(m) In determining minimum standards relating to staff-to-child ratios, group sizes, or square footage requirements applicable to nonresidential child-care facilities that provide care for less than 24 hours a day, the department shall, within available appropriations, conduct a comprehensive cost-benefit analysis and economic impact study that includes families and licensed child-care providers.

(n) Not later than the 60th day before the date the executive commissioner adopts a revision to the minimum standards for child-care facilities, the executive commissioner shall present the revision to the appropriate legislative oversight committees that have jurisdiction over child-care facilities for review and comment.

(p) The executive commissioner by rule shall prescribe minimum training standards for an employee of a regulated child-care facility, including the time required for completing the training. The executive commissioner may not require an employee to repeat required training if the employee has completed the training within the time prescribed by department rule. The department's local offices shall make available at the local office locations a copy of the rules regarding minimum training standards, information enabling the owner or operator of a regulated facility to apply for training funds from other agencies to lower facility costs, and any other materials the department may develop to assist the owner or operator or other entity in providing the training.

(q) Each residential child-care facility shall notify the department and the appropriate local law enforcement agency immediately on determining that a child is missing from the facility.

(r) A residential child-care facility that provides emergency services may temporarily exceed the facility's capacity for not more than 48 hours to provide temporary care for a child in an emergency. The facility shall notify the department within 24 hours of the placement that the facility temporarily exceeded the facility's capacity.

(s) A continuum-of-care residential operation shall ensure that each residential child-care facility operating under the operation's license complies with this chapter and any standards and rules adopted under this chapter that apply to the facility. The executive commissioner by rule may prescribe the actions a continuum-of-care residential operation must take to comply with the minimum standards for each facility type.

(t) The commission by rule shall grant to each child-placing agency and each single source continuum contractor the authority to waive certain minimum standards related to preservice training, annual training, or other requirements that are not directly related to caring for the child for:

(1) the child's foster or prospective adoptive parent; or

(2) foster homes that have no citations or violations reported to the commission.