Texas Administrative Code › Title 26 - HEALTH AND HUMAN SERVICES › Part 1 - HEALTH AND HUMAN SERVICES COMMISSION › Chapter 745 - LICENSING › Subchapter H - RESIDENTIAL CHILD-CARE: DRUG TESTING AND LAW ENFORCEMENT ADMISSIONS › Division 1 - DRUG TESTING › Section 745.4151 - What drug testing policy must my residential child-care operation have?

Current through Reg. 49, No. 28; July 12, 2024
(a) The Department of Family and Protective
					 Services is required to adopt a model drug testing policy for residential
					 child-care operations under the Human Resources Code,
					 42.057. Your
					 residential child-care operation must either adopt the model drug testing
					 policy or have a written drug testing policy that meets or exceeds the criteria
					 in the model policy. Although this policy only covers drugs, coverage of
					 alcohol may be included. The department recommends that an operation obtain
					 legal advice before adopting and implementing any drug testing
					 policy.
(b) Residential child-care
					 operations must pay for any required drug tests, except as provided in
					 subsection (c)(7) of this section.
(c) The mandatory criteria for the Model Drug
					 Testing Policy For Residential Child-Care Operations include:
(1) Purpose. (Name of residential child-care
					 operation) has a vital interest in ensuring the safety of resident children
					 through the appropriate drug testing of employees, while also protecting the
					 rights of the employees.
(2) Scope.
					 This policy applies to all employees of residential child-care operations,
					 including child-placing agencies, that directly care for or has access to a
					 child in care, and applicants for such employment. With respect to allegations
					 of drug abuse (See paragraph (4)(D) of this subsection), this policy applies to
					 any person who works under the auspices of a residential child-care operation
					 and directly cares for or has access to a child in care.
(3) Definitions. The following definitions
					 apply to this section.
(A) Abusing drugs--The
					 use of any:
(i) Drug or substance defined by
					 the Texas Controlled Substances Act, Texas Health and Safety Code, Chapter 481;
					 or
(ii) Prescription or
					 non-prescription drug that is not being used for the purpose for which it was
					 prescribed or manufactured.
(B) Drug testing--The scientific analysis of
					 urine, blood, breath, saliva, hair, tissue, and other specimens for detecting a
					 drug.
(C) Employee--A person is an
					 employee of your operation if you pay the person a wage or salary and direct or
					 have the right to direct his work. For the purposes of this definition:
(i) Directing a person's work includes having
					 control over when, where, and how the person conducts his work and providing
					 the person with training that is necessary for the person to conduct his
					 work;
(ii) Controlling when a
					 person works includes setting the person's work hours;
(iii) Controlling how a person works includes
					 assigning the person the task(s) that he must accomplish and exercising
					 responsibility for the means and details by which the person accomplishes the
					 task(s); and
(iv) A person is not
					 an "employee" of a child-placing agency merely because the agency verifies him
					 as a foster parent.
(D)
					 Random drug testing--A testing cycle that varies the frequency and intervals
					 that specimens are collected for testing and selects employees in a random
					 manner that does not eliminate already tested employees from future testing.
					 The testing should ensure all employees are subject to random testing on a
					 continuing basis.
(E) Good cause to
					 believe the person may be abusing drugs--A reasonable belief based on facts
					 sufficient to lead a prudent person to conclude that the person who works under
					 the auspices of the residential child-care operation may be abusing drugs.
					 Sufficient facts may include direct observations of the person using or
					 possessing drugs, or exhibiting physical symptoms, including but not limited to
					 slurred speech or difficulty in maintaining balance; erratic or marked changes
					 in behavior, including a decrease in the quality or quantity of the person's
					 productivity, judgment, reasoning, and concentration and psychomotor control,
					 accidents, and deviations from safe working practices; or any other reliable
					 information.
(F) Person who works
					 under the auspices of the residential child-care operation--A person who meets
					 the definition in §
													745.8553
					 of Title 40 (relating to Who works "under the auspices of an
					 operation"?).
(4)
					 Mandatory drug testing.
(A) All applicants
					 that are intended to be hired for employment are subject to pre-employment
					 testing, and may not provide direct care or have access to a child in care
					 until the drug test results are available;
(B) All employees are subject to random,
					 unannounced drug testing;
(C) Any
					 employee that is the subject of a child abuse or neglect investigation, when
					 DFPS determines there is "good cause to believe the employee may be abusing
					 drugs", must be drug tested within 24 hours of notification by DFPS to the
					 residential child-care operation; and
(D) Any person alleged to be abusing drugs
					 may be tested within 24 hours, if the person:
(i) Works under the auspices of the
					 residential child-care operation;
(ii) Directly cares for or has access to a
					 child in care; and
(iii) There is
					 "good cause to believe the person may be abusing drugs."
(5) Drug testing procedures. All
					 drug testing will:
(A) At a minimum screen
					 for marijuana, cocaine, opiates, amphetamines, and phencyclidine
					 (PCP);
(B) Use one of the following
					 drug-testing methods:
(i) A drug test
					 performed by a certified laboratory;
(ii) A testing kit with proven rates of false
					 positives below 2% and false negatives below 8% on all drugs screened;
					 or
(iii) Another testing method for
					 which there is scientific proof of accuracy comparable to either of the first
					 two choices, such as saliva, hair, or spray drug testing;
(C) Ensure the integrity and identity of the
					 specimen collected from the time of collection to the time of disposal to
					 minimize the opportunity for an employee to adulterate or substitute a
					 specimen; and
(D) Preserve the
					 privacy and rights of the person tested. This includes safeguarding the results
					 of any test and maintaining them, so they remain confidential and free from
					 unauthorized access.
(6)
					 Discipline.
(A) An applicant or employee's
					 consent to submit to drug testing is required as a condition of employment, and
					 the refusal to consent may result in refusal to hire the applicant and
					 disciplinary action, including discharge, against the employee for a
					 refusal;
(B) An employee who is
					 tested because there is "good cause to believe the employee may be abusing
					 drugs," may be suspended pending receipt of written test results and further
					 inquiries that may be required;
(C)
					 An employee determined through drug testing to have abused drugs is subject to
					 discipline, up to and including discharge;
(D) An applicant for employment or an
					 employee determined through drug testing to have abused drugs may not be
					 employed in a position with direct contact with children in care if the
					 employee presents a risk of harm to children; and
(E) An employee determined through drug
					 testing to have abused drugs may be offered the opportunity to complete a
					 rehabilitation program at the employee's expense.
(7) Appeal. An applicant or employee whose
					 drug test is positive may, at the applicant or employee's expense:
(A) Have an opportunity to explain and offer
					 written documentation why there is another cause for the positive drug
					 test;
(B) Request that the
					 remaining portion of the sample that yielded the positive results, if
					 available, be submitted for an additional independent test, including second
					 tests to rule out false positive results; and/or
(C) Submit the written test result for an
					 independent medical review.
(8) Documentation.
(A) All applicants that you intend to hire
					 for employment and employees must be provided a copy of your drug testing
					 policy and must sign a document consenting to these terms and conditions of
					 employment.
(B) All drug test
					 results of employees will be kept for one year after an employee's last work
					 day with the residential child-care operation, or until any investigation
					 involving the person is resolved, whichever is later. All other drug test
					 results required by this rule will be kept for one year from the date the drug
					 test was administered. The results must be available for review by Licensing
					 Division within 24 hours of the request.