PART 1. HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 370. HUMAN TRAFFICKING RESOURCE CENTER
The Texas Health and Human Services Commission (HHSC) adopts new §370.1, concerning Human Trafficking Prevention Training Requirements. The new §370.1 is adopted with changes to the proposed text as published in the August 14, 2020, issue of the Texas Register (45 TexReg 5594). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The new section is necessary to comply with Texas Occupations Code, §§116.001, 116.002, and 116.003, which require HHSC to approve, post, and update a list of human trafficking prevention training courses for certain health care practitioners.
HHSC adopts the new rule as the result of House Bill (H.B.) 2059, 86th Legislature, Regular Session, 2019. H.B. 2059 requires the Executive Commissioner to approve training courses on human trafficking prevention, including at least one that is available without charge. It also requires the Executive Commissioner to post the list of approved training courses on the agency website and to update the list of approved trainings as necessary. The bill requires an HHSC rule to define the time allowed for health care practitioners to successfully complete a training course from the approved list.
COMMENTS
The 31-day comment period ended September 14, 2020.
During this period, HHSC received comments regarding the proposed rule from 11 commenters, including the National Association of Social Workers, the University of Texas Southwestern Medical Center, Northwest Community Health Trafficking in Medical Education, Texas Association of EMS Educators, American College of Obstetricians and Gynecologists, and The SAFE Alliance. A summary of comments relating to the rule and HHSC responses follows.
Comment: A commenter suggested clarifying §370.1 to make it clear that physicians and nurses are statutorily required to take a course on human trafficking prevention.
Response: HHSC declines to revise the rule as requested. Texas Occupations Code, Chapter 116 does not address human trafficking prevention training requirements for physicians and nurses, other than to clarify that it does not apply to physicians and nurses. Two other statutes, namely, Texas Occupations Code §§156.060 and 301.308, address the issue of human trafficking prevention training course requirements for physicians and nurses. These statutes do instruct the physician or nurse to choose a human trafficking prevention training course selected by HHSC pursuant to Chapter 116. However, these statutes also provide that the boards of each particular profession will adopt rules to implement those laws. Therefore, HHSC defers to the boards of each respective profession regarding implementation of human trafficking prevention training requirements for nurses and physicians.
Comment: A commenter requested guidance on how to complete the training requirement in §370.1 and where to find courses, how many hours are required, and how to notify the licensing board of completion.
Response: HHSC declines to revise the rule in response to this comment. HHSC directs those required to complete a course on human trafficking prevention training to find information on the HHSC website and by contacting their licensing entity. The hours required and notification of course completion is regulated by each licensing entity and not by HHSC.
Comment: A commenter suggested including "10 Ideas to End Human Trafficking" in various public outreach media, which includes signs, bumper stickers, and commercials. The commenter also recommended that HHSC track internet addresses, block internet services, and provide a three-digit number to report trafficking.
Response: HHSC declines to revise the rule in response to this comment. These suggestions are outside the scope of this rule.
Comment: A commenter requested that HHSC require the license holder to take the course only once or once every 10 years since the material "will not change drastically or at all" each year.
Response: HHSC disagrees and declines to revise the rule in response to this comment. HHSC requires all approved courses to be re-certified every two years to maintain current information and resources, and many courses are updated annually.
Comment: Multiple commenters stated that HHSC should add emergency medical services (EMS) clinicians to the list of impacted health care practitioners under §370.1. They explain EMS first responders have "unique opportunities to observe, document, and report patient indicators and environmental red flags" of human trafficking and, with training, can "provide trauma-informed care" to those being trafficked.
Response: HHSC acknowledges this rationale but declines to revise the rule in response to this comment at this time. Adding health care practitioners is outside the scope of this rule and would require a statutory amendment or rule change in EMS administrative code.
Comment: A commenter requests that HHSC publicly share the "scoring tool" for human trafficking training reviews.
Response: HHSC replied to the commenter that the "scoring tool" is identical to the training standards posted publicly on the website. No revision to the rule is necessary.
Comment: A commenter requests clarification on the human trafficking training application as to whether approval would be granted if an element is missing from a training submitted by an external entity. They have requested "creative latitude" to adapt trainings to the OB/GYN profession.
Response: HHSC replied to the commenter that the review process is posted publicly on the website, all standards must be met to be approved, and each training is evaluated on an individual basis. No revision to the rule is necessary.
Comment: A commenter suggested sex trafficking prevention training should be expanded to law enforcement, child welfare, front line mental health care, and transportation professionals, each of which have regular interaction with survivors of sex trafficking.
Response: HHSC replied to the commenter that other professions, such as law enforcement and child welfare case workers, have their own training requirements for human trafficking prevention, and this law does require certain mental health practitioners to complete a training. This request is outside the scope of this rule, and no revision is necessary.
Comment: A commenter requested that "equal emphasis be faced on training professionals around preventing re-entry into commercial sexual exploitation." They explain that "risk factors for entry into sex trafficking must be disaggregated for adults and for juveniles. Transitional youth coming out of the foster care system are already at higher risk of entering trafficking during that time frame."
Response: This request is outside the scope of this rule, and HHSC declines to revise the rule based on this comment.
An editorial change was made to remove §370.1(a) from the adopted rule since defining these terms in §370.1 was determined to be unnecessary and out of the scope for HHSC. Subsections (b) - (e) were relabeled accordingly. Additionally, HHSC made an editorial change to §370.1(d) (relabeled to (c)) deleting "At least one approved course will be available without charge" and adding the language to §370.1(e) (relabeled to (d)), to improve the organization of the rule.
STATUTORY AUTHORITY
The new section is adopted under Texas Government Code §531.0055, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the Health and Human Services system. In addition, Texas Occupations Code §116.002(b) provides that the Executive Commissioner shall approve training courses on human trafficking prevention and post a list of the approved training courses on HHSC's Internet website. Texas Occupations Code §116.002(c) further requires the Executive Commissioner to update the list of approved training courses and consider for approval training courses conducted by health care facilities.
§370.1.Human Trafficking Prevention Training Requirements.
(a) For a human trafficking prevention training course to become approved by the Executive Commissioner, or designee, the course must meet the human trafficking training standards established by the Health and Human Services Commission.
(b) The human trafficking prevention training course, at a minimum, must include:
(1) types of human trafficking, including definitions;
(2) vulnerability factors;
(3) health impact;
(4) identification;
(5) assessment;
(6) response; and
(7) resources.
(c) Health care practitioners who provide direct patient care, except physicians and nurses, must complete an approved human trafficking prevention training course for each license renewal, within the full license term as defined by each licensing entity.
(d) A complete description of the human trafficking prevention training standards and training approval process is posted on the HHSC website. At least one approved course will be available without charge.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 12, 2020.
TRD-202004781
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: December 2, 2020
Proposal publication date: August 14, 2020
For further information, please call: (512) 438-3269
SUBCHAPTER B. ADMINISTRATION AND COMMUNICATION
DIVISION 2. REQUIRED NOTIFICATION
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §746.303, concerning What changes must I notify Licensing of regarding the child-care center's designee, governing body, and director. The amendment to §746.303 is adopted without changes to the proposed text as published in the July 10, 2020, issue of the Texas Register (45 TexReg 4710). It will not be republished.
BACKGROUND AND JUSTIFICATION
The amendment is necessary to implement the portion of Senate Bill (S.B.) 708, 86th Legislature, Regular Session, 2019, that adds Subsection (c-1) to Texas Human Resources Code (HRC) §42.0412. HRC §42.0412(c-1) requires HHSC Child Care Regulation (CCR) to collect the total number of employees who left employment with each licensed child-care center during the preceding calendar year and publish the data on the Search Texas Child Care website. HRC §2.042(a) requires HHSC to adopt rules to carry out the requirements of Chapter 42, HRC. CCR is implementing this legislative requirement by changing §746.303 to require licensed child-care centers to report the total number of employees who ceased working at the center the previous calendar year to CCR through their online CCR account. IT changes will enable this information to be published on the Search Texas Child Care website.
COMMENTS
The 31-day comment period ended August 10, 2020. During this period, HHSC received comments regarding the proposed rule from 52 commenters representing licensed child-care centers, including Brainy Kids Place, Austin Community College Children's Lab School, Candy Cane Corner, Kingdom Heights Christian School, Kiddie Academy, Gingerbread Kids Academy, The Play Yard, FBC Daycare, SHS Inc. Community Preschool, Bundles of Care Pre-K Center, His Kids Christian Learning Center, Texana Children's Center for Autism, Starting Point Children's Center, Grayson Institute for Learning, Schoolhouse 226, Bell's Little Angels, The Sherwood Academy, Hillcrest Child Development Center, Methodist Day School, Chrysalis Christian Preschool, and Country Home Learning Center. A summary of comments relating to the rule and HHSC's responses follows.
Comment: Thirty-two commenters requested HHSC to add context to the rule to more accurately reflect a child-care center's turnover. One commenter recommended adding employment status, role at the center, and whether the employee worked full time. Twenty-nine commenters, all employees of the same organization, recommended including the total number of employees when a center is fully staffed to generate a percentage of employees who left annually.
Response: Although HHSC accepts that context could be helpful in interpreting the number of employees who left employment from an operation, HHSC declines to revise the rule. Recommendations for a more nuanced rule would require prohibitive additional IT costs. However, HHSC will address this recommendation by adding an explanatory text box to the Search Texas Child Care website with information like the following:
"This number reflects the number of employees who left employment during the previous year. Employees include all full-time, part-time, and seasonal child-care center staff, including caregivers, kitchen staff, office staff, maintenance staff, assistant director, director, and owner. If you would like additional information about this number, please contact the center directly."
Comment: Eleven commenters stated that the rule will provide information that is misrepresentative of child-care center quality, will be punitive, and will reflect poorly on the child-care center. Many argued that turnover is inherent in the child-care industry and not indicative of quality care. Several of those commenters had specific concerns about posting the number publicly for prospective parents to review.
Response: HHSC disagrees with the comments and declines to revise the rule. Implementation of HRC Section 42.0412(c-1) is mandatory. HHSC cannot support any recommendation that will not result in the public posting of the number of employees who ceased employment with each child-care center. However, HHSC will address these concerns by adding an explanatory text box to the Search Texas Child Care website, as outlined in the response above.
Comment: Six commenters stated that the rule is administratively burdensome or redundant. Three of those six asserted that the information is already available to Licensing through another process that requires child-care centers to verify their employee list quarterly and inactivate people no longer working at the child-care center. The other three commenters were unclear regarding the purpose of the rule, with one requesting information on the origin of the rule.
Response: HHSC disagrees with the comments and declines to revise the rule. The process referred to by the commenters does not provide a cumulative annual total that is posted publicly for parents to review, as required by statute. Additionally, HHSC does not anticipate that compliance with the rule will require a large time investment from child-care centers, as they will only provide the information once per year. To address the commenter's question about the rule's origin, HHSC provided the commenter with legislative information regarding the rule.
Comment: Three commenters expressed concerns that the rule may result in child-care centers changing hiring practices or retaining employees with poor performance to reduce the appearance of turnover in their centers.
Response: HHSC disagrees with the comments and declines to revise the rule. HHSC must implement the rule as statutorily required. Parents may access many different metrics when selecting a child-care center. Disclosing the annual number of employees who left the center will provide each center with an opportunity to engage in discussions with parents to explain how that number relates to quality care within the specific child-care center. Child-care centers continue to have a responsibility to hire and maintain quality staff who will protect the health and safety of children.
Comment: One commenter opposed the rule as written due to concerns that prospective employees deemed ineligible for employment due to background check results would negatively skew the child-care center's numbers, resulting in the appearance of higher turnover. The commenter requested operations not be penalized for submitting background checks on prospective employees that they later do not hire.
Response: HHSC disagrees with the comment and declines to revise the rule. The rule requires child-care centers to count employees only, not prospective employees. An individual deemed ineligible for hire would not be included in the child-care center's annual numbers. HHSC will further clarify this issue for licensed child-care providers by adding information to a Helpful Information box that will appear after the rule in the Minimum Standards on the HHSC provider webpage.
Comment: One commenter expressed support of the rule but recommended collecting additional information, including the reason the employee left employment and where the former employee is currently seeking employment.
Response: HHSC appreciates the support of the rule but declines to revise the rule. HHSC does not agree with adding more requirements to the rule that would increase the workload for child-care centers and require prohibitive additional IT costs.
Comment: One commenter stated the rule is not beneficial and requires the collection of data not required in other industries. The commenter recommended HHSC license individual caregivers in child-care centers in order to hold employees accountable, rather than holding a child-care center accountable for the actions of the caregivers.
Response: HHSC disagrees with the comment and declines to revise the rule. HHSC must implement the rule as statutorily required. With regards to licensing individual center employees, CCR functions as a regulatory entity for operations that care for children in out of home settings. It is not within the scope of CCR to license individual caregivers employed by a child-care center.
Comment: One commenter opposed the timing of the rule and recommended it be delayed due to the COVID-19 pandemic, which will automatically inflate a child-care center's numbers if the center closed and furloughed employees during the pandemic.
Response: HHSC disagrees with the comment and declines to revise the rule. HHSC must implement the rule as statutorily required and cannot alter the timeline of the rule.
Comment: One commenter requested HHSC refer to all child-care centers as early childhood programs or child-care, rather than day care, to elevate the perception of professionalism in the industry.
Response: This comment was not in response to the proposed rules. The terminology referenced by the commenter was not used in the proposed rules.
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and HRC §42.042, which requires the Executive Commissioner to adopt rules to carry out the requirements of Chapter 42, HRC.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 10, 2020.
TRD-202004756
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: December 15, 2020
Proposal publication date: July 10, 2020
For further information, please call: (512) 438-3269