Frequently Asked Questions--Residential Child Care Licensing Standards

The Child Care Licensing (CCL) program within the Texas Department of Family and Protective Services (DFPS) has completed the first major overhaul of minimum standards for residential child care (Chapters 748 and 749, Texas Administration Code, Title 40) in several years. This update of standards will strengthen the level of protection for all children in out-of-home care while also improving the performance of the Residential Child Care Licensing (RCCL) program.

The RCCL standards went into effect on January 1, 2007. Since then, RCCL staff have been assigning preliminary weights to the new standards and providing technical assistance during the enforcement of these standards. As of July 1, 2007, RCCL staff will continue to provide technical assistance in enforcing the standards and will begin issuing citations for violations.

General | Chapter 748 Only | Chapter 749 Only | Foster Home Swimming Pools

General:

When will the new standards be enforced?
Licensing provided a six-month period of technical assistance after the new standards went into effect on January 1, 2007. Providers were offered assistance on meeting new or significantly revised standards during these six months in lieu of deficiency citations. As of July 1, operations are expected to be working toward compliance with the new standards and will still be provided technical assistance to that effect. However, Licensing staff will begin issuing citations for violations.

Will I be cited as deficient for every subsection of a rule—e.g. will I receive multiple citations for the same deficiency?
When citing a deficiency, Licensing representatives should select the most appropriate standard that meets that deficiency and cite only that standard. There should not be duplicative citations for the same deficiency. Many of the standards have numerous subsections. An individual subsection should be cited when it is most explanatory and applicable to the deficiency. However, multiple subsections in a given standard may be cited individually if each denotes a different deficiency, as each subsection is weighted differently.

What is the difference between a waiver and a variance? How do I request a waiver or variance?
A waiver is defined as permission to not meet a particular minimum standard because the economic impact of having to meet the standard would be great enough to make compliance impractical and not meeting the standard would not significantly increase the risk to children. See the Texas Human Resources Code §42.042(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.”

A variance is defined as permission to meet the objective of a particular standard in a different way if the purpose of the standard can still be met. See the Texas Human Resources Code §42.048(c), “The department may grant a variance of an individual standard set forth in the applicable standards for good and just cause.”

Licensing is open to considering any request for a waiver or variance of a standard needed for an operation to care for a child, particularly when the situation involves a placement emergency. Licensing considers waivers or variances based on specific requests submitted to Licensing from individual operations. Each request is carefully assessed, with Licensing attempting to offer flexible and reasonable regulation while also ensuring the safety, health, and well-being of children in care. Licensing cannot grant a waiver or variance for any requirement in statute. For example, Licensing could not grant a variance for a foster family home to care for seven children, since the law limits foster family homes to six children.

Licensing processes waiver and variance requests in the same way. To request a waiver/variance, you must submit your written request and any supporting documentation to your Licensing representative. Your written request must be either a PRS Child Care Waiver/Variance Request Form available to child care providers through the DFPS web site or a letter containing all of the information required on the form.

The link to the request form on the Licensing web site is: http://www.dfps.state.tx.us/Documents/Child_Care/Forms/2937.doc. DFPS is currently developing a system to allow waiver/variance requests to be submitted online.

Were some of the new minimum standards copied from day care standards?
Child Care Licensing is sensitive to the many differences in the purpose, structure, and environment of the various types of child-care settings. However, there may be some similarities between the day-care and residential standards because of Licensing’s perspective as the regulating body of both day-care and 24-hour care settings. In those few areas that are common in any group setting for children, such as safety and sanitation, Licensing used this internal expertise in drafting the initial minimum standard proposals for residential child care settings. Throughout the long development process, these draft rules were modified greatly for residential settings, and are generally more limited in scope than those enforced for child day-care operations in Texas.

Will Youth for Tomorrow reviews be affected by the new minimum standards?
If a child-placing agency or facility contracts with Child Protective Services (CPS), Youth for Tomorrow (YFT) annually reviews the child-placing agency or facility as a whole to assess what CPS service levels the facility or agency is able to serve. In addition, YFT reviews individual children’s records periodically to determine the appropriate service level for that child. When YFT reviews individual children’s records, it also reviews facilities and child-placing agencies for compliance with a portion of the CPS contract.

Since the new minimum standards strengthen the level of protection for children in many areas, Licensing minimum standards now overlap more often with YFT review indicators. For that reason, YFT’s annual reviews of facilities and child-placing agencies will be changing to reduce duplication with Licensing standards and instead emphasize those portions of the CPS residential contract that exceed or differ from minimum standards.

What are the major changes that will impact me? 
The major changes include:

• Caregiver/child ratios based on ages of the children as well as the types of services the children are receiving
• Increased requirements regarding care for infants and toddlers
• Requirements for transitional living programs
• Requirements for respite child-care
• Preliminary service plan required for each child admitted into care, initial service plan time frame changed to 40 days, service plan review time frames based on treatment services
• Discharge/transfer summaries now required
• Increased requirements regarding psychotropic medications
• Additional restrictions and requirements regarding emergency behavior interventions
• Conflict of interest rules regarding governing body members
• Increased record requirements, including electronic records
• Restrictions on use of tobacco products
• Increased training requirements
• New fire, health, and safety standards, including requirements regarding fire extinguishers and carbon monoxide detectors
• Facilities – New requirements regarding playground equipment and safety
• Facilities – Changed from limiting services based on facility type to allowing a variety of services under one license
• CPA – Licensed Child-Placing Agency Administrator required
• CPA – Each child-placing agency license limited to one DFPS region
• CPA – Branch office requirements

What is the definition of “parent” in the new minimum standard rules?
This definition can be found in §745.21:
(27) Parent - A person that has legal responsibility for or legal custody of a child, including the managing conservator or legal guardian.

How does an operation distinguish between a PRN (as needed) psychotropic medication and an emergency medication?
A psychotropic medication given to help a child manage his/her behavior or to de-escalate a child who is having trouble managing his/her behavior is regulated as a psychotropic medication. However, if the medication is given in response to an emergency situation, it is an emergency medication. Here is the minimum standards definition of an emergency situation:

A situation in which attempted preventative de-escalatory or redirection techniques have not effectively reduced the potential for injury and it is immediately necessary to intervene to prevent:
(A)  Imminent probable death or substantial bodily harm to the child because the child attempts or continually threatens to commit suicide or substantial bodily harm; or
(B)  Imminent physical harm to another because of the child’s overt acts, including attempting to harm others. These situations may include aggressive acts by the child, including serious incidents of shoving or grabbing others over their objections. These situations do not include verbal threats or verbal attacks.

What are the requirements about recording and keeping therapy notes on children receiving therapy?
Minimum standards do not include requirements about how to record and keep therapy notes. The standards do reference progress notes for children receiving treatment services. Progress notes are a log of the child’s behaviors and activities maintained by the child’s caregivers, not therapy notes recorded by professional therapists.

The standards requirements for progress notes are as follows:

Minimum Standards for Child Placing Agencies
§749.2593. What responsibilities does a caregiver have when supervising a child?
(d) Caregivers that supervise a child receiving treatment services must maintain progress notes for the child, at a frequency determined by the service planning team. Caregivers must sign and date each progress note at the time the progress note is completed. Progress notes must be available for Licensing staff to review.

Minimum Standards for General Residential Operations/Residential Treatment Centers
§748.685. What responsibilities does a caregiver have when supervising a child or children? 
(d) Caregivers that supervise a child receiving treatment services for an emotional disorder must maintain daily progress notes for the child. Caregivers must sign and date each progress note at the time the progress note is completed.

For residential child-care operations and child-placing agencies that contract for placements with Child Protective Services, there are requirements regarding therapy notes contained in the contract. Questions about therapy note requirements should be directed to your CPS contract manager.

Does a child who is receiving therapy count in the number of children needing treatment services?
You will need to determine eligibility for treatment services according to the criteria in §748.61 and §749.61. Neither going to therapy nor taking a psychotropic medication qualifies a child as needing “treatment services” under these definitions.

Regarding §748.607 and §749.727, what if I provide more than one type of treatment service, but there is no clear "prevalence?"
If your operation provides multiple treatment services, you may want to consider hiring more than one treatment director. Otherwise, your one treatment director must either meet minimum qualifications for all treatment services that you provide or must meet minimum qualifications for your most prevalent treatment service. If there is no clear prevalence, you will need to base the qualifications for this position on the treatment service that your operation intends or predicts to be the most prevalent, or manage your admissions based on the qualifications of your treatment director.

What if the number of children receiving treatment services at my operation fluctuates regularly so that sometimes I need to meet treatment standards and sometimes I don’t?
You will need to decide in advance whether or not you will allow your operation to meet the threshold for needing a treatment director (for facilities, this also affects other areas such as child/caregiver ratios and training requirements). If you decide to remain below the threshold, you will need to control your admissions accordingly. If you decide to provide treatment services at a level above the threshold, you will need to plan on operating with the appropriate requirements in place regardless of transitory fluctuations in your population.

Can I offer two types of care at the same location—e.g. treatment services and non-treatment services; or primary medical needs children and children with emotional disorders?
Yes, the new minimum standards were specifically designed to allow for a continuum of care under one license. The exception is that children admitted to a facility for emergency care services must have separate living quarters, such as a separate wing of an operation or a separate cottage. Children admitted to a facility for emergency care services must not be combined with children in non-emergency care for routine and daily activities, except children receiving regulated respite child-care services.

Will new licenses be issued to operations that are already licensed? 
Amended licenses will be issued to all residential child-care operations except maternity homes. These licenses will be issued based on the services and programs currently in place at each operation. The licenses will still show the original issuance date, plus the date that the license was amended. Below is a chart that demonstrates how amended license types will be determined.

The following license conditions will be assessed for each operation on a case-by-case basis:

• Assessment Services Program
  
• Respite Child-Care Services
  
• Transitional Living Services
  
• Emergency Care Services
  
• Any applicable treatment services not already listed above

What are the changes to the reporting serious incident requirements?
Each chapter contains a chart which lists all reportable serious incidents and the required time frames for notifying Licensing, law enforcement, and the involved child’s parents of the incident.  New reportable serious incidents include child-on-child abuse, a child’s arrest, and communicable disease (child or employee/ volunteer).  Time frames and reporting requirements for children who run away are now specified in the minimum standards rather than the current requirement for the operation to have a policy about runaways.

• Additional information on missing children
• Additional information about Licensing staff review of serious incident reports

Must any trip to the hospital be reported as a serious incident per §748.303(a)(2) or §749.503(a)(2)? What about admission to a psychiatric hospital?
No. Only those incidents involving a “critical injury or illness” require reporting and documentation as a serious incident. The rule contains some examples of reportable serious incidents. Visits to the emergency room (that did not result in hospitalization) for a common illness such as the flu, for a chronic illness such as an asthma attack, or for a routine medical exam would not warrant reporting as a serious incident.

Admission to a psychiatric hospital would only warrant reporting and documentation as a serious incident if the admission was precipitated by a reportable incident, such as a suicide attempt. The admission itself is not reportable as a serious incident, but would be regulated as a discharge from your operation.

How can a Licensed Administrator oversee two operations but still be a full-time facility employee?
In these situations, the person is expected to work a full-time schedule. The amount of time that the person devotes to each operation will depend on the size and nature of both operations. The division of time will be determined on a case-by-case basis.

What is the difference between orientation and pre-service training?  Can the hours for those be counted to meet both requirements?
Orientation is focused more on providing new employees with information about your organization and how it operates.  Pre-service training is focused on preparing new employees to do their job competently.  Orientation may not be counted toward pre-service or annual training requirements.  Pre-service training hours that exceed the minimum requirements may be counted toward annual training.  (If an employee is required to receive 24 hours of pre-service training but actually completes 30, then the extra six hours may be counted toward annual training.)

Will my operation be cited for not obtaining all required admission assessment information?
No, not if you have documented reasonable efforts to obtain the information and why the information is not available to you.  Minimum standard rules 748.1221 and 749.1137 address this specifically.  Please note that these two rules do not pertain to other information required at admission, only to information required for the admission assessment.

What should the preliminary service plan contain?
The preliminary service plan is intended to address the immediate needs of the child, such as medical care, clothing, or school enrollment.  Additional requirements are listed in the minimum standards for those children receiving treatment services, such as identifying issues or concerns that the child may have which could escalate his/her behavior and how these can be addressed to avoid the use of emergency behavior interventions.

Can I offer respite child-care?  How do you determine if a child is in respite child-care, not just on a visit?
Both facilities and child-placing agencies can offer respite child-care.  For facilities, children in respite child-care must be physically separated from other children except those receiving emergency care services.  Respite child-care is defined as care lasting longer than 72 hours.  Therefore, shorter periods of care are not regulated as respite child-care.  Please refer to the minimum standards for more detailed requirements regarding respite care.

Regarding §748.4267 and §749.2631, how is the respite child-care time limit for a child affected when the child is discharged from one placement and admitted to another in the middle of the year?
The time limit of 40 days per year of respite care for each child is intended to serve the best interest of the child by minimizing disruptions in care.  To that end and in an effort to comply with these minimum standard rules, an operation is expected to seek out information about a child’s time spent in respite child-care at any previous placement(s) earlier in the year.  The operation is responsible for  limiting the child’s placement(s) in respite child-care accordingly for the remainder of the year.

In addition, in an effort to comply with §749.2633, a child-placing agency which verifies a foster home previously verified by another agency is expected to obtain information about how much respite child-care the foster home has already provided that year and limit respite child-care in that home accordingly for the remainder of the year.

Why is certain equipment for infants and toddlers prohibited?
The prohibited equipment is not safe or beneficial to an infant’s development and is not recommended by either the American Academy of Pediatrics or the Consumer Product Safety Commission. 

If I need help interpreting a minimum standard, what should I do?
If you have discussed your question with your Licensing representative and still need additional information, you should send an email to the RCCL Standards mailbox.  The email box is checked daily and each email receives an individual response from the Standards Specialist in state office.  Answers to questions are also posted weekly on this website.

Chapter 748

Is there a list of changes that are “grandfathered” in?
The major changes that have been grandfathered in are:

If we issued your license prior to January 1, 2007, then you do not have to comply with the following requirements until you move your operation to a new location, you structurally alter the building or room affected by the requirement, or your license is amended or no longer valid:

• bedrooms must have one window with outside exposure;
• bedrooms must have 60 sq. feet of space per child;
• bedrooms must have no more than 4 occupants;
• basements may not be used as bedrooms;
• a child must not have to cross an activity room, dining room, living room, or similar type room to access a bathroom from the child’s bedroom; and
• the bathtub and shower requirements in 748.3397 must be met.

If we issued your license prior to January 1, 2007, then you have the stated amount of time to comply with the following new requirements:

• two years to comply with governing body membership requirements in 748.131(5);
• five years to comply with new playground requirements; and
• five years to comply with the swimming pool requirements in 748.3603.

What are professional level service providers?  Is this a new position?
This is a new position, but the duties are not new.  The position of professional level service provider simply formalizes the role of the person at the agency who provides services such as developing the admission assessment or service plan.  The new minimum standards specify the minimum qualifications for this position and the duties which this person must perform.

Do emergency care services have to meet the same requirements for treatment services as other types of care?
Only an emergency care services program that plans to admit a specific child population requiring treatment services (for example, emergency care specifically for children with mental retardation) will be mandated to meet treatment service requirements.  Emergency care service programs which do not limit their admissions with regard to treatment service needs are not expected to meet requirements related to treatment services. 

How does providing treatment services affect my operation?
Previously, facilities were licensed for one specific type of care. This often served as a barrier to offering more permanency to children as their needs changed and to offering suitable placements for sibling groups. The new facility type of “general residential operation” and the new treatment service and program service categories allow a facility to offer a wide range of services under one license. This creates both the opportunity for a facility to offer a broad continuum of care not previously permitted by service-specific license types and to keep sibling groups together in one placement, despite the varying special needs of the siblings.

Some of the new minimum standard rules require additional services for a specific child who needs treatment services, while other rules add requirements for the operation based on how many children need treatment services. For facilities, the following is required if the facility is providing treatment services to 25 or more children at any time, or to more than 30% of the children in the facility’s care:

Do the required child/caregiver ratios apply to the operation as a whole, or can I group children by age and/or treatment service needs in order to have a lower child/caregiver ratio in certain portions of my facility?
A facility may separate children into groups in order to have varying child/caregiver ratios based on the ages and treatment service needs of the children in each group, as long as the groups are easily distinguishable (by cottage, by unit, etc.) and remain separated. If the groups intermingle (on a field trip, in the dining room, etc.), then the child/caregiver ratio must be re-calculated for the entire intermingled group.

** For those facilities contracting with Child Protective Services, the ratio must be one caregiver per five children during awake hours for children with an Intense service level.

Chapter 749

Is there a list of changes that are “grandfathered” in?
The major changes that have been grandfathered in are:

If we issued your agency license prior to January 1, 2007, then you have the stated amount of time to comply with the following new requirements:

• two years to comply with new governing body membership requirements in 749.131(5);
• five years to comply with limiting licenses to one DFPS region; and
• one year for foster homes verified prior to January 1, 2007, to comply with the requirement that there be a fence or wall at least four feet high completely around a pool area.

If a foster home was verified before January 1, 2007, then it does not have to comply with the following requirements until it structurally alters the home or room affected by the requirement, or the verification is amended or no longer valid:

• foster group homes must be the primary residence of the foster parents (all foster family homes must be the primary residence of the foster parents, regardless of when they were verified);
• caregivers in foster homes must be 21 years of age;
• foster homes must limit each bedroom to four occupants for children in care;
• foster homes must not use a basement as a bedroom for a foster child if there is no natural lighting;
• foster homes must have one full bathroom (sink, toilet, tub/shower) for every eight household members; and
• foster homes that care for children with primary medical needs must have the child’s bedroom and bathroom on the same floor.

In complying with §745.4127, can I attach the HSEGH report and/or the pre-adoptive home screening to the post-placement adoptive report rather than summarizing information from these documents in the post-placement adoptive report?
Yes, you can attach the HSEGH report and/or the pre-adoptive home screening to the post-placement adoptive report to meet the related content requirements for the post-placement adoptive report as long as all required information has been updated and reflects any changes.

Do kids in respite care have to meet the verification restrictions of the foster home that provides the respite care?
Yes they do. Foster homes must be in compliance with the following standard:

§749.2629. In addition to the requirements of this division, what requirements of this chapter apply to respite child-care services that a foster home provides?

You and the foster home providing respite child-care must meet all requirements of the applicable rules of this chapter for all children in care, including children admitted for respite child-care services. This includes compliance with capacity and child/caregiver ratios and supervision rules.

For example, if a foster home is verified for six children and has four children in the home, it can only accept two children for respite child-care. A home cannot go over its verified capacity.

What if I offer both foster home and adoption services?
Regarding the requirement to limit a child-placing agency license to one DFPS region, you have five years to comply with this requirement. This requirement only applies to foster care. §749.2443 states that you can provide adoption services anywhere in the state. So, if you provide both foster care and adoption services, you can choose how to structure your adoption services within the required framework of your foster care services.

Once my agency has a separate license for each DFPS region, can my staff cross regional lines?
Most staff can cross regional lines if this is part of your staffing plan and reasonable for the person’s workload.  If you have a Treatment Director who is required to work full-time based on 749.721, it is expected that this person work exclusively under the license for his/her region.  The same is expected of Licensed Child-Placing Agency Administrators, unless they oversee two regional licenses under the conditions of 749.633(a).

Is caregiver the same as foster parent?  Is it the same as adoptive parent?
“Caregiver” is a generic term which applies to people who have direct care responsibility for a child in foster care.  This includes foster parents and any additional persons who provide care for foster children, such as additional staff in a foster group home.  The word caregiver is not used in the minimum standards related to adoption.

How does babysitting in a foster home affect the capacity of that home?
Children who are in the home for the foster home to babysit them do not count in the home’s capacity, although they do count in the child-to-caregiver ratio.  If the foster home provides babysitting on a regular basis, it would be best for the home to make the agency aware of this activity, as both the agency and the foster home are responsible for ensuring adequate care and supervision for children placed in the home.  As noted in 749.2551, children receiving day care in the home are counted in the home’s capacity.  Please also refer to §749.353 regarding babysitting in foster homes.

When a child moves from one foster home to another, how do I know whether this is a transfer as defined in 749.1361 or a subsequent placement regulated under 749.1281?
Movement from one foster home to another within the same child-placing agency is only considered a transfer when the primary reason for the move is to provide the child with programmatic or treatment services not offered in the child's current foster home but offered in the foster home to which the child is moving.  Moves for other reasons, such as the foster parents deciding to relinquish their verification, are regulated as subsequent placements.

What information must I include on a foster home's verification certificate?
Rule 749.2471(9) specifies what information must be included on a foster home's verification certificate.  This rule states that the capacity must include all children receiving care in the home, but that the age range and gender(s) on the verification certificate should only reflect the children receiving foster care or respite care in the home.  Licensing understands that this results in information that is inconsistent and confusing.  Therefore, we are working to change the verification certificate and agency home report (both online and on paper) to include space for both a total capacity and a foster care capacity.  The total capacity will include all children in care in the home (biological, adopted, foster, respite, etc.), and the foster care capacity will include  only that portion of the total capacity intended to reflect children in regular foster care (not respite).  Until these revisions can be made to the agency home report and verification certificate, child-placing agencies may choose to record/report each home’s foster care capacity on the agency home report and on the verification certificate.  Child-placing agencies will be notified by Licensing when the changes to these two forms are ready for implementation.

Must a foster home meet the required child/caregiver ratio at all times?
In the new minimum standards, the total number of children that can be cared for in a foster family home or foster group home has not changed. However, to increase the attention and supervision given to children in substitute care, the new standards do require a slightly lower child-to-caregiver ratio in some circumstances. The following rule must also be considered when determining ratios:

RULE §749.2567  Must a home maintain the child/caregiver ratio at all times?
No. However, even during a time that all children in care are away from the home, at least one caregiver must be available by phone to:  
(1) Respond to emergencies, changes in schedules, or unplanned events; and  
(2) Provide care and supervision whenever a child needs the attention of a caregiver, including when the child returns to the home.

Below are comparisons of the previous and current ratios.

Foster Family Home Ratios
A foster family home may care for up to six children total (including biological and adopted children). However, depending on the characteristics of the children, this number may decrease if there is only one caregiver.     
 

• "Treatment services" include specialized services for emotional disorders, mental retardation, primary medical needs, and pervasive developmental disorders.
• "Primary medical needs" are the needs of children who require the use of sterile techniques or specialized procedures to promote healing, prevent infection, prevent cross-infection or contamination, or prevent tissue breakdown.

In most cases, the new caregiver ratios restrict the capacity of foster homes if there is only one caregiver. Because of the family-based setting and the smaller number of children allowed in a home, when there is more than one caregiver in a foster family home, all caregivers are counted in the child-to-caregiver ratio unless the additional foster parent/caregiver is routinely absent for extended periods of time (e.g., traveling for weeks at a time).  

Foster Group Home Ratios
A foster group home is a foster home that cares for seven or more children, and, as a result, has some additional licensing standards to address the needs of a larger group. Because of the increased number of children in a foster group home, the following requirements must be met in supervising children (these were previously required in rule):

• Children must not be left unsupervised; and
• Ratios must be met at all times with the following exceptions (see rule §749.2567 above):
• Exclusively staffed foster group homes must meet the ratio at all times as they do not have the type of family situation that reduces the risk of such flexibility.
• In a traditional foster group home, a second or third caregiver, if required by the child-caregiver ratios, may be absent for:
• Limited periods of time during waking hours; and
• During sleeping hours if the CPA has a safety plan for nighttime supervision.

Note: If 3 caregivers are required by ratios, there must always be 2 caregivers with the children.

Note: Both the previous and current standard limit a foster group home to no more than 12 children, regardless of the number of full-time caregivers.

Is the child to caregiver ratio for a foster home based on the services that the home is verified to provide or on the children actually placed in the home?
The child to caregiver ratio for a foster home is based on the children in care at the time.

For example, if a foster family home is verified to provide child-care services and treatment services for mental retardation, ages 0 to 10 years old, the required child to caregiver ratio would depend on the ages and needs of the children in care at any given time:

If I host a birthday party, Boy Scout meeting, sleepover, or other group event for children in my home, do the visiting children count in the child/caregiver ratio?
No, visiting children attending an event in your home are not required to be counted in the child/caregiver ratio. Child/caregiver ratios only apply to biological and adopted children of the caregivers who live in the foster home, any children receiving foster or respite child-care in the home, and children for whom the family provides day care. You must ensure appropriate care and supervision to children in care during these events.

How does a child-placing agency distinguish between a babysitter, a respite care provider, and a caregiver?
A person is considered a babysitter if they are not affiliated with the agency (not an employee, verified foster parent, or official volunteer) and only provide occasional care for short periods. If a person regularly provides care in the home (every day, or every evening, or every week day, etc.), then they are a caregiver and must meet all caregiver requirements in the minimum standards. Care provided outside of the foster home for over 72 hours by a person who is not a regular caregiver in the home is respite care.

What are the Licensing requirements regarding fire inspections, and why am I hearing so many concerns about fire inspections recently?
Licensing requires foster homes to comply with all applicable fire, health, and safety laws, ordinances, and regulations. Licensing requires fire inspections to be conducted by a government authority or local fire official, since these persons have the expertise to conduct the best assessment of a home’s fire safety. However, if no government authority or local fire official is available to conduct an inspection, foster homes can use the DFPS Fire Prevention Checklist. Licensing also requires foster homes to have smoke detectors and fire extinguishers.

Local fire officials must enforce the fire code adopted by the State Fire Marshal’s office, but may choose to adopt a code that requires even higher standards of safety. Recently, the State Fire Marshal’s office adopted the National Fire Protection Association’s (NFPA) Life Safety Code. This code categorizes certain foster homes as “residential board and care facilities” and may require of them additional fire safety measures such as integrated fire alarms and sprinkler systems. These foster homes include all foster group homes and any foster family home with four or more children who would not be able to evacuate on their own in case of a fire (for example, children with primary medical needs). DFPS is working with the State Fire Marshal’s office to address this at the state level as well as with county fire authorities on individual cases. Child-placing agencies are encouraged to share fire inspection issues with Licensing staff so that we can continue to problem-solve each individual case with the proper authorities.

Why does Licensing conduct inspections in foster homes, and what have the results been thus far?
The 79th Texas Legislature in 2005 added the following to Chapter 42 of the Human Resources Code:

42.044(e) “The department shall periodically conduct inspections of a random sample of agency foster homes and agency foster group homes. The department shall use the inspections to monitor and enforce compliance by a child-placing agency with rules and standards established under Section 42.042.”

Prior to this legislation taking effect, Child Care Licensing staff were only present in foster homes to conduct abuse/neglect investigations. The new random sample inspections give Licensing staff a greater opportunity to assess how agency foster homes are complying with minimum standards and how child-placing agencies are ensuring this compliance. Foster homes are not cited as a result of these inspections, but the child-placing agency may be cited for any deficiencies noted during the inspections.

Licensing staff understand how disruptive a licensing inspection can be for a foster home’s routine. Licensing staff typically schedule the inspection in advance and attempt to conduct the inspection as efficiently as possible so that the foster family can get back to their usual activities. Each foster home is given a feedback card, so that they can contact Licensing with any compliments or concerns regarding the inspection of their home. To date, Licensing has conducted more than 2,000 agency home inspections and has received about 1,000 feedback cards in response to those inspections. Of the feedback cards received thus far, more than 95% have indicated a positive experience.

Which foster home visitors are required to have a background check?
Please read Background Checks in Foster Homes for a detailed answer to this question.

Foster Home Swimming Pools

The previous minimum standards included no swimming pool requirements for foster family homes. For foster group homes, the previous minimum standards required a fence, locked entrance/exit, locked machinery room, and a certified lifeguard on duty when the pool was in use. Since swimming is such a high-risk activity, the new minimum standards related to swimming and swimming pools apply to all foster homes, not just foster group homes. They do NOT require a certified lifeguard when a swimming pool is in use, although at least one adult providing supervision for the swimming activity must be able to swim and perform a water rescue, if necessary. The new minimum standards also require the following:

• Informing children of the swimming rules and appropriate safety precautions
• Ensuring children do not have unsupervised access to a pool or other body of water
• Specific height requirement (four feet) for the fence/wall around a home pool
• Specific requirements for the entrances to the home pool area, such as locks
• Required life-saving devices
• Required life jackets for children based on the activity and/or the child’s needs
• Visibility and supervision requirements, including a specific adult/child ratio for swimming
• Specific rules for wading pools and hot tubs

Does the fence/wall have to be around the pool itself, or can a backyard fence also serve as the pool fence/wall?
A backyard fence may serve as the pool fence/wall if it meets all fence/wall and gate criteria in 749.3133.  The foster home must be willing to consider the entire back yard as the pool area, and treat it as such.  This means that children may not have unsupervised access to the back yard and that doors leading to the back yard must comply with 749.3133(e).

If the backyard fence also serves as the pool fence/wall, can the children still play in the back yard?
749.3133(a) requires that children may not have unsupervised access to the pool area.  If the entire backyard is serving as the pool area, children may not play in the backyard without direct caregiver supervision.

Can a pool cover substitute for the required fence/wall?
No, a pool cover does not substitute for any required pool safety mechanisms, including the required fence/wall and locked gate.

Do the swimming pool requirements apply to adoptive homes?
749.3131 states that the rules in Division 7 of Subchapter O related to swimming pools apply only to foster homes or foster/adopt homes, not to homes that are only approved for adoption.  749.3663(c) requires that the child-placing agency discuss safety issues and plans to ensure the child’s safety with adoptive applicants who have a swimming pool, wading pool, hot tub, or other body of water on the premises of their home.