TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 561. EMPLOYEE MISCONDUCT REGISTRY

The executive commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §561.1, concerning Purpose; §561.2, concerning Definitions; §561.3, concerning Employment and Registry Information; §561.4, concerning Investigations; §561.5, concerning Preliminary Results of Investigation and Notice to Employee; §561.6, concerning Informal Review; §561.7, concerning Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing; §561.8, concerning Entering Information in the EMR; and §561.9, concerning Removing Information from the EMR.

BACKGROUND AND PURPOSE

The proposal is necessary to implement Senate Bill (SB) 1849, 88th Legislature, Regular Session, 2023 and House Bill (HB) 3560, 89th Legislature, Regular Session, 2025.

SB 1849 amended Texas Health and Safety Code §253.010, which allows HHSC to amend rules related to the Employee Misconduct Registry (EMR) to establish criteria for a person to submit a request to be removed from the EMR and establish a process to determine whether a person meets the requirements for inclusion in the EMR.

SB 1849 also created new Texas Health and Safety Code (HSC) Chapter 810, Interagency Reportable Conduct Search Engine, known as Search Engine for Multi-Agency Reportable Conduct (SEMARC), which requires HHSC to amend rules to incorporate information and requirements established by new Chapter 810 relating to:

(1) definitions;

(2) designation of employees and contractors who are eligible to access the search engine;

(3) designation of additional users who are eligible to access the search engine, which may include controlling persons, hiring managers, or administrators of Long-Term Care Regulation providers;

(4) clarifying that an individual in the search engine is not entitled to notice or a hearing before the information is shared with another state agency or a designated user;

(5) conducting initial and periodic searches to determine whether an individual who may have access to a client has engaged in reportable conduct, and, if so, whether the individual is ineligible for employment, a volunteer position, a contract, or a license;

(6) providing notice and a due process hearing to an individual if HHSC denies, revokes, or suspends a contract or license based on that individual's reportable conduct under agency rules according to §810.006 (not that the individual "engaged" in reportable conduct); and

(7) requiring that information contained in the search engine results and information shared with other agencies is confidential.

HB 3560 amended the definition of "facility" regarding the Employee Misconduct Registry in HSC §253.001(4) to include facilities licensed under HSC Chapter 577, Private Mental Hospitals and Other Mental Health Facilities. This proposal updates the definition of "facility" in the rules.

The proposal improves access to the rules related to the Employment Misconduct Registry by consolidating them into one chapter in the Texas Administrative Code.

The proposal is also necessary to update rules and to improve the readability and understanding of the rules.

SECTION-BY-SECTION SUMMARY

Non-substantive edits were made throughout the rule text to use language that is easier for the public to understand.

The proposed amendment to §561.1, Purpose, adds a reference to Texas Human Resources Code Chapter 48, Subchapter I and revises language to HHSC "finding of reportable conduct."

The proposed amendment to §561.2, Definitions, adds definitions for terms used in the chapter and amends definitions to clarify language and information. The proposed amendment updates the definition of "facility" to align with statute.

The proposed amendment to §561.3, Employment and Registry Information, adds a reference to the Search Engine for Multi-Agency Reportable Conduct established under HSC Chapter 810 and simplifies rule language.

The proposed amendment to §561.4, Investigations, simplifies rule language.

The proposed amendment to §561.5, Preliminary Results of Investigation and Notice to Employee, removes "Preliminary" from the rule title and adds clarifying language related to the HHSC process for notifying an employee found to have engaged in reportable conduct.

The proposed amendment to §561.6, Informal Review, simplifies rule language and adds that HHSC may perform a desk review if an employee found to have engaged in reportable conduct does not request an informal review on time or does not participate in a requested informal review.

The proposed amendment to §561.7, Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing, simplifies rule language and adds information related to HHSC's right to release information in emergency situations.

The proposed amendment to §561.8, Entering Information in the EMR, simplifies rule language, removes references that specify notices of reportable conduct are received from the Texas Department of Family and Protective Services, and clarifies language related to information entered in the Employee Misconduct Registry.

The proposed amendment to §561.9, Removing Information from the EMR, changes the title of the rule to "Removal from Employee Misconduct Registry," adds information about employee requests to remove information from the EMR, what HHSC may consider when deciding whether to take an employee off the EMR, and removes a reference that specifies notices of reportable conduct are received from the Texas Department of Family and Protective Services.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new regulations;

(6) the proposed rules will expand existing regulations;

(7) the proposed rules will increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

David Kostroun, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be that rules related to the Employee Misconduct Registry will be available in one place, enhancing accessibility for the public and that the rules will be consistent with statutory requirements.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because these rules codify current procedures used by most persons.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal, including information related to the cost, benefit, or effect of the proposed rule, as well as any applicable data, research, or analysis, may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4601 West Guadalupe Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 25R016" in the subject line.

STATUTORY AUTHORITY

The amendments are authorized by Texas Government Code §524.0151, which provides that the executive commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system; Texas Health and Safety Code Chapters 253 and 810; and Texas Human Resources Code Chapter 48 Subchapter I.

The amendments affect Texas Government Code §524.0151, Texas Health and Safety Code Chapters 253 and 810, and Texas Human Resources Code Chapter 48 Subchapter I.

§561.1. Purpose.

(a) This chapter implements Texas Health and Safety Code (HSC) [(THSC),] Chapter 253, Employee Misconduct; Registry and Texas Human Resources Code Chapter 48, Subchapter I, Employee Misconduct Registry (EMR), about [Employee Misconduct Registry (EMR), regarding] a Texas Health and Human Services Commission (HHSC) finding of reportable conduct. [investigating an allegation of abuse, neglect, or exploitation, and entering] This chapter explains how HHSC enters information in the EMR about a finding of reportable conduct by an unlicensed employee of a facility, [an] agency, or [an] individual employer.

(b) HHSC manages [The Texas Health and Human Services Commission maintains] the EMR and enters information in the EMR according to [in accordance with] §561.8 of this chapter (relating to Entering Information in the EMR).

(c) The EMR lists persons who are not employable by a facility, agency, or individual employer.

§561.2. Definitions.

The following [words and] terms in this chapter have the following meanings, unless the context clearly indicates otherwise.[:]

(1) Abuse--Is defined by the law [statute] or rule that applies to investigating claims of [governs the investigation of alleged] abuse of an individual who uses [using] the Consumer Directed Services (CDS) [CDS] option or receives services from a [receiving] facility or agency. [services.]

(3) [(2)] Administrative law judge--A [An administrative law] judge from [the] SOAH [Texas State Office of Administrative Hearings (SOAH)] who handles [is authorized to preside over certain] administrative hearings under this chapter and according to [in accordance with] Texas Government Code[,] Chapter 2001.

(4) Agency--In this chapter means:

(A) a home and community support services agency licensed under Texas Health and Safety Code (HSC) [Texas Health and Safety Code (THSC)] Chapter 142. It [, that] provides services to children, older adults, adults with disabilities, and people receiving care in a hospice facility; [an elderly or disabled adult;]

(B) a person exempt from licensing under HSC §142.003(a)(19) - (20); [THSC §142.003(a)(19);]

(C) [(D)] a state supported living center as defined in HSC [THSC] §531.002;

(E) [(F)] a community center as defined in HSC [THSC] §531.002;

(F) [(I)] a contractor of an entity described in subparagraphs (C)- (E) [(D) - (H)] of this paragraph;[.]

(5) Child--A person under 18 years old [of age] who is not and has not been married or who has not had the disabilities of minority removed for general purposes.

(6) Consumer directed services (CDS) option [(CDS option)]--A service delivery option, described in Chapter 264 of this title (relating to Consumer Directed Services Option) and Texas Government Code §546.0101 [Texas Administrative Code, Title 40, Chapter 41 (relating to Consumer Directed Services Option),] in which an individual or legally authorized representative (LAR) employs and retains service providers and directs the delivery of program services.

(8) Employee--A person who:

(A) works for [an agency,] a facility, agency, or [an] individual employer;

(B) provides personal care services, active treatment, or any other personal services to an individual using the CDS option or receiving facility or agency services, or an individual who is a child for whom an investigation is authorized under Texas Family Code §261.404; [and]

(D) [(C)] is not licensed to perform those services or is a nurse aide; and [.]

(9) EMR--The Employee Misconduct Registry. The [--The] registry established in HSC [THSC] Chapter 253, and available on the HHSC website.

(11) [(10)] Exploitation--Is defined by the statute or rule that governs the investigation of alleged exploitation of an individual using the CDS option or receiving facility or agency services. Exploitation includes misappropriation in a nursing facility setting, as defined in 26 TAC §554.101 (relating to Definitions).

(12) [(11)] Facility--In this chapter means:

(A) a nursing facility licensed under HSC [THSC] Chapter 242;

(B) an assisted living facility licensed under HSC [THSC] Chapter 247;

(C) a home and community support services agency licensed under HSC [THSC] Chapter 142[, that provides services to a child];

(D) [(E)] a day activity and health services facility licensed under HRC [Texas Human Resources Code,] Chapter 103;

(E) [(F)] an adult foster care provider that contracts with HHSC; [or]

(F) [(G)] a prescribed pediatric extended care center licensed under HSC [THSC,] Chapter 248A;[.]

(13) [(12)] Financial management services agency (FMSA)--As defined in 26 TAC §264.103 [Texas Administrative Code, Title 40, Chapter 41 §41.103] (relating to Definitions)[, an entity that contracts with HHSC to provide financial management services to individuals who use the CDS option].

(20) [(13)] Individual employer--An individual or legally authorized representative (LAR) [employer, as defined in Texas Administrative Code, Title 40, Chapter 41 §41.103, which is an individual or LAR] who participates in the CDS option. The individual employer [and] is responsible for hiring and retaining service providers to deliver program services.

(21) [(14)] Informal review (IR)--A chance for an employee to offer more information to HHSC to dispute investigation findings. [An opportunity for an employee to dispute the preliminary results of an investigation by providing HHSC with additional information, initiated by a written request by the employee.]

(23) [(15)] Neglect--Is defined by the statute or rule that covers how alleged neglect [governs the investigation of alleged neglect] of an individual using the CDS option or receiving facility or agency services is investigated.

(24) [(16)] Nurse Aide Registry (NAR)--The registry established in HSC [THSC] §250.001(1), and available on the HHSC website.

(26) [(17)] Reportable conduct--Reportable conduct, as defined in HSC [THSC] §253.001 and HRC §48.401(5), which includes:

(A) abuse or neglect that causes or may cause death or harm to an individual using the CDS option or receiving facility or agency services;

(B) sexual abuse of an individual using the CDS option or receiving facility or agency services;

(C) financial exploitation of an individual using the CDS option or receiving facility or agency services in the amount of $25 or more; and

(D) emotional, verbal, or psychological abuse that causes harm to an individual using the CDS option or receiving facility or agency services.

(27) [(18)] Texas State Office of Administrative Hearings (SOAH)--The state agency responsible for conducting certain administrative hearings for other state agencies, including HHSC.

§561.3. Employment and Registry Information.

(a) A [Before a] facility, agency, or individual employer, [hires an employee, the facility, agency, individual employer,] or a financial management services agency (FMSA), on behalf of the individual employer, must conduct a SEMARC check for findings from the Employee Misconduct Registry (EMR), Texas Education Agency, Texas Department of Family and Protective Services, and Texas Juvenile Justice Department that involve reportable conduct. [search the Employee Misconduct Registry(EMR) and Nurse Aide Registry (NAR) to determine if the person applying for employment is listed as unemployable on either registry.]

(c) [(b)] A facility, agency, or individual employer must not hire or keep employing [continue to employ] a person listed as unemployable in the SEMARC [EMR] or NAR. [as unemployable.]

(d) [(c)] Within five working days after hiring an employee, a [A] facility, agency, or individual employer must [, within five working days after hiring an employee,] provide the employee with written information [to the employee] explaining:

(1) that a person listed in the SEMARC [EMR] is not employable by a facility, agency, or individual employer; [and]

(3) [(2)] that the EMR is governed by this chapter and HSC [Texas Health and Safety Code] Chapter 253.

(e) [(d)] Every year, a [A] facility, agency, individual employer, or FMSA, on behalf of an individual employer, must search the SEMARC [EMR] and NAR [annually] to check [determine] if an employee is listed [on either registry] as unemployable.

(f) [(e)] A facility, [or] agency, individual employer, or FMSA, on behalf of an individual employer, must keep [maintain] a copy of the results of the searches required by subsections (a) and (e) [(d)] of this section in its records. [the books and records maintained by the entity that conducted the search.]

§561.4. Investigations.

(a) HHSC [The Texas Health and Human Services Commission (HHSC)] investigates certain allegations of abuse, neglect, and exploitation made against an employee.

(b) When HHSC starts an investigation and the findings include [After commencing an investigation, if the preliminary results indicate] an allegation of abuse, neglect, or exploitation by an employee, [might meet the definition of reportable conduct,] HHSC follows the steps outlined in [complies with] §561.5 of this chapter (relating to [Preliminary] Results of Investigation and Notice to Employee) and §561.6 of this chapter (relating to Informal Review).

(c) When HHSC finds that reportable conduct happened after investigating an allegation of abuse, neglect, or exploitation by an employee, HHSC sends the employee a [If HHSC determines that the reportable conduct occurred, after completing its investigation into an allegation of abuse, neglect, or exploitation by an employee, HHSC provides the employee with] written notice of the findings. HHSC provides the notice according to [in accordance with] §561.7 of this chapter (relating to Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing).

(d) Sections 561.5, 561.6, and 561.7 of this chapter apply only to an investigation HHSC conducts, [conducted by HHSC,] as described in subsection (a) of this section.

§561.5. [Preliminary] Results of Investigation and Notice to Employee.

(a) [When the preliminary results of the Texas Health and Human Services Commission's (HHSC) investigation indicate that an employee might have committed reportable conduct,] HHSC sends the employee a written notice if the investigation finds that abuse, neglect, or exploitation has occurred. The notice [that] includes:

(1) a summary of the investigation findings; [a brief summary of the preliminary results of the investigation and facts on which they are based;]

(2) a statement that the employee may request an informal review (IR) to challenge the findings; [by HHSC to dispute the preliminary results of the investigation;]

(3) a statement that the employee must [a] request [for] an IR [must be made] in writing within [no later than] 10 calendar days after the date the employee receives written notice of the findings; [preliminary results of the investigation;] and

(4) details on how to contact the HHSC office where the employee needs to send the request [contact information for the HHSC office where an employee must submit the request] for an IR.

(b) To challenge the investigation's findings, the employee must request [An employee may dispute the preliminary results of the investigation by requesting] an IR in writing within [no later than] 10 calendar days after the date the employee received the written notice. Subsection [described in subsection] (a) of this section describes the written notice.

(c) If an employee requests an IR, or takes part in an IR, it does not remove their responsibility [An employee's request for or participation in a requested IR does not relieve the employee of the requirement] to follow [comply with] §561.7 of this chapter (relating to Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing). [If HHSC upholds the preliminary results of the investigation,] HHSC provides [will provide the employee with] notice of reportable conduct as required by [in accordance with] §561.7, if the investigation findings are upheld.

§561.6. Informal Review.

(a) If an employee requests an informal review (IR) according to [in accordance with] §561.5(b) of this chapter (relating to [Preliminary] Results of Investigation and Notice to Employee), HHSC [the Texas Health and Human Services Commission (HHSC)] sets an IR [informal review (IR)] date within [no later than] 30 calendar days after HHSC receives [the date] the request. [is received by HHSC.]

(1) The employee can challenge the investigation findings [may dispute the preliminary results of the investigation] by providing more [additional] information to the designated HHSC staff.

(2) If HHSC [the designated HHSC staff] does not uphold the [preliminary] investigation findings, [results,] HHSC informs [notifies] the employee of the IR results [of the IR] and does not enter the employee's name or related information in the EMR. [Employee Misconduct Registry.]

(3) If HHSC [designated HHSC staff] upholds the [preliminary] investigation findings [results] and finds reportable conduct, HHSC sends written notice to the employee, as described in §561.7(a) of this chapter (relating to Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing).

(b) If an employee does not [timely] request an IR on time or does not [or fails to] participate in a requested IR, HHSC may perform a desk review and either uphold or overturn the investigation findings. If HHSC upholds the [preliminary] investigation findings and [results,] finds that reportable conduct happened, HHSC [occurred, and] sends the employee the written notice described in §561.7(a) of this chapter. This [, except that the] notice does not include a summary of the IR results. [of an IR.]

§561.7. Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing.

(a) [After an investigation in which HHSC finds that reportable conduct occurred,] HHSC provides the employee with written notice of its findings after an investigation in which HHSC finds that reportable conduct happened. The notice [, which] includes:

(1) a summary of HHSC's reportable conduct [Reportable Conduct] finding;

(2) a statement that the employee has the right to an administrative hearing to challenge the [on the occurrence of] reportable conduct finding;

(3) a statement that:

(A) the employee must make a request for hearing [must be made] in writing within [no later than] 30 calendar days after the date the employee receives the written notice; or

(B) the employee may accept the reportable conduct finding, which would result in HHSC placing the employee on the EMR; [and]

(4) details on how to contact the HHSC office where the employee needs to send the request for an administrative hearing; [the contact information for the Texas Health and Human Services Commission (HHSC) where the employee must submit the request for an administrative hearing.]

(b) HHSC enters [If the employee accepts HHCS's determination or does not timely request an administrative hearing,] the employee's name and related information [are entered] in the EMR if the employee accepts the decision made by HHSC. HHSC also enters the employee's name and related information in the EMR if the employee does not request an administrative hearing on time. [Employee Misconduct Registry (EMR).]

(c) An employee may request an administrative hearing. The hearing must follow the [conducted in accordance with the Health and Human Services Commission's administrative hearing] procedures in [Title] 1 TAC [, Texas Administrative Code,] Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

(d) An [If an employee timely requests a hearing, the employee is granted an] administrative hearing about the [on the occurrence of] reportable conduct finding is provided to the employee when the employee requests a hearing on time. The hearing is before an administrative law judge at the Texas State Office of Administrative Hearings (SOAH).

(e) SOAH completes the [The] administrative hearing described in subsection (d) of this section and completes the [§561.7(d) requires the hearing and] hearing record within [record to be completed no later than] 120 days after the date HHSC receives [received] the hearing request.

(f) The administrative law judge makes findings of fact [facts] and conclusions of law and issues a proposal for decision as to whether the [occurrence of] reportable conduct occurred.

(g) [Based on the findings of fact and conclusions of law and the recommendation of the administrative law judge,] HHSC may, by order, [may] find that the reportable conduct occurred. This finding is based on the findings of fact, conclusions of law, and the administrative law judge's recommendations. [occurred.]

(h) If, after an administrative hearing, HHSC finds that the employee committed reportable conduct under subsection (g) of this section, [§561.7(g),] HHSC must issue a final order on that determination. HHSC also enters [and enter into the EMR] the information described in §561.8(c) of this chapter (relating to Entering Information in [into] the EMR) into the EMR. [EMR.)]

(i) Notice of a final order issued by HHSC under subsection (h) of this section [§561.7(h)] must be sent to the employee . The notice [and] must include the following information:

(1) separate statements of the findings of fact and conclusions of law;

(2) a statement of the right of the employee to judicial review of the order; and

(3) a statement that the reportable conduct will be recorded in the EMR under HSC [Texas Health and Safety Code] §253.007, if:

(A) the employee does not request judicial review of the determination; or

(B) the determination is sustained by the court.

(j) As stated in Texas Government Code Chapter 2001, to challenge [Not later than the 30th day after the date on which the decision becomes final as provided by Texas Government Code Ch. 2001, the employee may file a petition for judicial review contesting] the finding of [the] reportable conduct, the employee has 30 days from the date the decision becomes final to file a petition for judicial review. If the employee does not request judicial review, HHSC [of the determination, the department] will record the reportable conduct in the EMR according to the rules [as set forth] in §561.8 of this chapter.

§561.8. Entering Information in the EMR.

(a) HHSC [The Texas Health and Human Services Commission (HHSC)] enters the information described in subsection (c) of this section in the EMR: [Employee Misconduct Registry (EMR):]

(1) when HHSC investigation procedures [investigates] and all applicable due process procedures are completed for a substantiated finding of reportable conduct;

(2) [(3) as a finding of reportable conduct] when HHSC finds that a nurse aide working in a nursing facility has committed abuse, neglect, or exploitation [misappropriation] (as those terms are defined in §561.2 of this chapter (relating to Definitions)) and HHSC also lists the nurse aide's certification as revoked on the Nurse Aide Registry (NAR); or

(3) [(4)] at the [HHSC's] discretion of HHSC, according to HSC [in accordance with THSC] §253.007(b), if [an agency of] another state or the federal government finds that an employee has committed an act that constitutes reportable conduct.

(b) HHSC does not offer an informal review, [(IR),] as described in §561.6 of this chapter (relating to Informal Review), or an administrative hearing, as described in §561.7 of this chapter (relating to Reportable Conduct Finding and Notice and Opportunity for Administrative Hearing), to an employee about [regarding] a finding of reportable conduct described in subsection (a)(2) or (3) of this section [§561.8(a)(2), (3), or (4)] before entering employee information related to the finding in the EMR.

(1) For a finding under subsection (a)(3) [(a)(2) or (4)] of this section, another Texas state agency, [the Texas Department of Family and Protective Services,] the federal government, or an agency of another state provides any due process required by its laws[,] or rules[, or regulations] before sending a finding to HHSC.

(2) For a finding under subsection (a)(2) [(a)(3)] of this section, HHSC provides due process before listing a nurse aide's certification as revoked in the NAR according to §556.13 of this title [in accordance with Title 26, Texas Administrative Code §556.12] (relating to Findings and Inquiries).

(c) The following information is entered in the EMR according to HSC [in accordance with THSC] §253.007 and HSC §810.005: [(relating to Employee Misconduct Registry):]

(1) the employee's full name;

(3) [(2)] the employee's address;

(4) [(3)] the employee's social security number;

(5) [(4)] the name of the facility or agency, or a notation that the employee was an employee of an individual employer;

(6) [(5)] the address of the facility or agency, or the city and state of the individual employer;

(7) [(6)] the date on which the reportable conduct occurred; [and]

§561.9. Removal from Employee Misconduct Registry. [Removing Information from the EMR.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 16, 2026.

TRD-202601229

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 26, 2026

For further information, please call: (512) 348-7677

CHAPTER 711. INVESTIGATIONS OF INDIVIDUALS RECEIVING SERVICES FROM CERTAIN PROVIDERS

SUBCHAPTER L. EMPLOYEE MISCONDUCT REGISTRY

The executive commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §§711.1401 - 711.1404; 711.1406 - 711.1408; 711.1413 - 711.1415; 711.1417; 711.1419; 711.1421; 711.1423; 711.1425 - 711.1427; 711.1429; 711.1431; 711.1432; and 711.1434, concerning Employee Misconduct Registry.

BACKGROUND AND PURPOSE

The purpose of the proposal is to remove duplicate rules from the Texas Administrative Code and consolidate them into one chapter relating to the Employee Misconduct Registry in 26 TAC 561. The relevant information in these rules are incorporated into the rules in Chapter 561 with updates for clarification and to align with statute. The amendments to Chapter 561 are proposed elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

The proposed repeal of rules in 26 TAC Chapter 711, Subchapter L, Employee Misconduct Registry, deletes the rules as no longer necessary because the information in this subchapter is being revised and added to 26 TAC Chapter 561.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new regulation;

(6) the proposed rules will repeal existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules are repealed and do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

David Kostroun, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be improved clarity of the rules relating to Employee Misconduct Registry.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the proposed rules are being repealed and incorporated into other rules in 26 Chapter 561.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal, including information related to the cost, benefit, or effect of the proposed rules, as well as any applicable data, research, or analysis, may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4601 West Guadalupe Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 25R016" in the subject line.

STATUTORY AUTHORITY

The rules are authorized by Texas Government Code §524.0151, which provides that the executive commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system; Texas Health and Safety Code Chapters 253 and 810; and Texas Human Resources Code, Chapter 48, Subchapter I.

The rules affect Texas Government Code §524.0151, Texas Health and Safety Code Chapters 253 and 810, and Texas Human Resources Code, Chapter 48, Subchapter I.

§711.1401. What is the purpose of this subchapter?

§711.1402. How are the terms in this subchapter defined?

§711.1403. To which investigations does this subchapter apply?

§711.1404. How are the terms physical abuse, sexual abuse, verbal or emotional abuse, neglect, exploitation, and financial exploitation defined for the purpose of this subchapter?

§711.1406. How is the term agency defined for the purpose of this subchapter?

§711.1407. What is the Employee Misconduct Registry?

§711.1408. What is reportable conduct?

§711.1413. What notice must HHSC give to an employee before the employee's name is submitted to the EMR?

§711.1414. How will the Notice of Finding be provided to an employee and who is responsible for ensuring that HHSC has a valid mailing address for an employee?

§711.1415. How does an employee dispute a finding of reportable conduct and what happens if the "Request for EMR Hearing" is not filed or not filed properly?

§711.1417. What is the deadline for filing the Request for EMR Hearing?

§711.1419. Is a finding of reportable conduct ever reversed without conducting a hearing?

§711.1421. When and where will the EMR hearing take place and who conducts the hearing?

§711.1423. May an employee or HHSC request that the EMR hearing be rescheduled?

§711.1425. May an employee withdraw a Request for EMR Hearing after it is filed?

§711.1426. What happens if a party fails to appear at a pre-hearing conference or a hearing on the merits?

§711.1427. How is the EMR hearing conducted?

§711.1429. How and when is the decision made after the EMR hearing?

§711.1431. How is judicial review requested and what is the deadline?

§711.1432. What action does HHSC take when an employee has exhausted the employee's administrative remedies?

§711.1434. What special considerations apply to employees of state-operated facilities?

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on March 16, 2026.

TRD-202601231

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: April 26, 2026

For further information, please call: (512) 348-7677

CHAPTER 745. LICENSING

The executive commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §745.115, concerning What programs regulated by other governmental entities are exempt from Licensing regulation; and §745.273, concerning Which residential child-care operations must meet the public notice and hearing requirements.

BACKGROUND AND PURPOSE

The proposal is necessary to implement House Bill (HB) 4529 and HB 3597, 89th Legislature, Regular Session, 2025.

HB 4529 amended Texas Human Resources Code (HRC) §42.041(b) to add exemptions to regulation by HHSC Child Care Regulation (CCR) for the following entities that are regulated by the United States Department of Defense: (1) a child-care facility located on a federal military base or other federal property; and (2) a military family child-care provider.

HB 3597 amended HRC §42.0461(a), which requires certain residential child-care facilities to hold a public hearing before receiving a license or certificate or expanding capacity if the residential child-care facilities are located in a county with a population of less than 500,000. Previously, the statutory language set the population threshold for public hearings at 300,000.

CCR is proposing amendments to (1) add a regulatory exemption for a child-care facility located on a federal military base or other federal property that has a certificate required by HRC §42.041(b)(26); (2) add a regulatory exemption for a child-care home operated by a military family child-care provider that has a certificate required by HRC §42.041(b)(27); and (3) update the population threshold triggering the public hearing requirement for a general residential operation (GRO) from 300,000 to 500,000.

The purpose of this proposal is also to remove duplicative content and improve the readability and understanding of the rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §745.115 (1) amends the rule title; (2) deletes the rule's figure because the figure's content has been updated and added to the body of the rule; (3) amends a subsection to exempt a child-care facility from CCR's regulation if it is located on a federal military base or other federal property and has a certificate from the United States Department of Defense to operate; (4) adds a paragraph to exempt a military family child-care provider from CCR's regulation if it has a certificate from the United States Department of Defense to operate; and (5) removes a treatment facility or structured program licensed by HHSC to treat chemically dependent persons from a list of other state governmental entities to align the content of §745.115 with the title of the rule.

The proposed amendment to Subchapter D, Division 4, amends the division title.

The proposed amendment to §745.273 (1) amends the rule title; (2) changes 300,000 to 500,000 wherever referenced throughout the rule; (3) deletes duplicative content that exists in another rule; and (4) makes nonsubstantive changes for better readability and understanding.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new regulation;

(6) the proposed rules will expand existing regulations;

(7) the proposed rules will increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be an adverse economic effect on small businesses or micro-businesses because a general residential operation that chooses to amend the GRO's license must meet the public notice and hearing requirements in the proposed rule resulting in administrative costs for the GRO.

HHSC is unable to determine how many GROs would amend current licenses and what the administrative costs would be for each GRO. There are no rural communities licensed to provide child care.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Rachel Ashworth-Mazerolle, Associate Commissioner for Child Care Regulation, has determined that for each year of the first five years the rules are in effect the public benefit will be (1) a reduction in regulatory burden for operations already regulated by the United States Department of Defense; and (2) increased public awareness of matters affecting communities in a county with a population less than 500,000.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs. The costs are based on when the statutory changes took effect and if an existing GRO chooses to amend the GRO's license.

A GRO applicant in a county with a population of less than 500,000 whose application would have been processed on or after the effective date of HB 3597 (September 1, 2025) is already legally required to meet the applicable public hearing requirements in statute and any existing rules that support the statute.

An existing GRO that was licensed before September 1, 2025, and is located in a county with a population between 300,000 and 500,000, will not need to follow the new public hearing requirements unless the GRO voluntarily chooses to amend the GRO's license, as detailed in current rules 26 Texas Administrative Code §745.273(b) and §745.275, which mandate providing public notice of the hearing and specify the required methods for conducting the hearing. This could result in potential administrative costs for the GRO. However, HHSC is unable to determine the exact costs for these tasks.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal, including information related to the cost, benefit, or effect of the proposed rule, as well as any applicable data, research, or analysis, may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4601 West Guadalupe Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 26R028" in the subject line.

SUBCHAPTER C. OPERATIONS THAT ARE EXEMPT FROM REGULATION

SUBCHAPTER D. APPLICATION PROCESS