SECTION 745.4151. What drug testing policy must my residential child-care operation have?

(a) The Department of Family and Protective Services is required to adopt a model drug testing policy for residential child-care operations under the Human Resources Code, 42.057. Your residential child-care operation must either adopt the model drug testing policy or have a written drug testing policy that meets or exceeds the criteria in the model policy. Although this policy only covers drugs, coverage of alcohol may be included. The department recommends that an operation obtain legal advice before adopting and implementing any drug testing policy.

(b) Residential child-care operations must pay for any required drug tests, except as provided in subsection (c)(7) of this section.

(c) The mandatory criteria for the Model Drug Testing Policy For Residential Child-Care Operations include:

(1) Purpose. (Name of residential child-care operation) has a vital interest in ensuring the safety of resident children through the appropriate drug testing of employees, while also protecting the rights of the employees.

(2) Scope. This policy applies to all employees of residential child-care operations, including child-placing agencies, that directly care for or has access to a child in care, and applicants for such employment. With respect to allegations of drug abuse (See paragraph (4)(D) of this subsection), this policy applies to any person who works under the auspices of a residential child-care operation and directly cares for or has access to a child in care.

(3) Definitions. The following definitions apply to this section.

(A) Abusing drugs--The use of any:

(i) Drug or substance defined by the Texas Controlled Substances Act, Texas Health and Safety Code, Chapter 481; or

(ii) Prescription or non-prescription drug that is not being used for the purpose for which it was prescribed or manufactured.

(B) Drug testing--The scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens for detecting a drug.

(C) Employee--A person is an employee of your operation if you pay the person a wage or salary and direct or have the right to direct his work. For the purposes of this definition:

(i) Directing a person's work includes having control over when, where, and how the person conducts his work and providing the person with training that is necessary for the person to conduct his work;

(ii) Controlling when a person works includes setting the person's work hours;

(iii) Controlling how a person works includes assigning the person the task(s) that he must accomplish and exercising responsibility for the means and details by which the person accomplishes the task(s); and

(iv) A person is not an "employee" of a child-placing agency merely because the agency verifies him as a foster parent.

(D) Random drug testing--A testing cycle that varies the frequency and intervals that specimens are collected for testing and selects employees in a random manner that does not eliminate already tested employees from future testing. The testing should ensure all employees are subject to random testing on a continuing basis.

(E) Good cause to believe the person may be abusing drugs--A reasonable belief based on facts sufficient to lead a prudent person to conclude that the person who works under the auspices of the residential child-care operation may be abusing drugs. Sufficient facts may include direct observations of the person using or possessing drugs, or exhibiting physical symptoms, including but not limited to slurred speech or difficulty in maintaining balance; erratic or marked changes in behavior, including a decrease in the quality or quantity of the person's productivity, judgment, reasoning, and concentration and psychomotor control, accidents, and deviations from safe working practices; or any other reliable information.

(F) Person who works under the auspices of the residential child-care operation--A person who meets the definition in §745.8553 of this title (relating to Who works "under the auspices of an operation"?).

(4) Mandatory drug testing.

(A) All applicants that are intended to be hired for employment are subject to pre-employment testing, and may not provide direct care or have access to a child in care until the drug test results are available;

(B) All employees are subject to random, unannounced drug testing;

(C) Any employee that is the subject of a child abuse or neglect investigation, when DFPS determines there is "good cause to believe the employee may be abusing drugs", must be drug tested within 24 hours of notification by DFPS to the residential child-care operation; and

(D) Any person alleged to be abusing drugs may be tested within 24 hours, if the person:

(i) Works under the auspices of the residential child-care operation;

(ii) Directly cares for or has access to a child in care; and

(iii) There is "good cause to believe the person may be abusing drugs."

(5) Drug testing procedures. All drug testing will:

(A) At a minimum screen for marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP);

(B) Use one of the following drug-testing methods:

(i) A drug test performed by a certified laboratory;

(ii) A testing kit with proven rates of false positives below 2% and false negatives below 8% on all drugs screened; or

(iii) Another testing method for which there is scientific proof of accuracy comparable to either of the first two choices, such as saliva, hair, or spray drug testing;

(C) Ensure the integrity and identity of the specimen collected from the time of collection to the time of disposal to minimize the opportunity for an employee to adulterate or substitute a specimen; and

(D) Preserve the privacy and rights of the person tested. This includes safeguarding the results of any test and maintaining them, so they remain confidential and free from unauthorized access.

(6) Discipline.

(A) An applicant or employee's consent to submit to drug testing is required as a condition of employment, and the refusal to consent may result in refusal to hire the applicant and disciplinary action, including discharge, against the employee for a refusal;

(B) An employee who is tested because there is "good cause to believe the employee may be abusing drugs," may be suspended pending receipt of written test results and further inquiries that may be required;

(C) An employee determined through drug testing to have abused drugs is subject to discipline, up to and including discharge;

(D) An applicant for employment or an employee determined through drug testing to have abused drugs may not be employed in a position with direct contact with children in care if the employee presents a risk of harm to children; and

(E) An employee determined through drug testing to have abused drugs may be offered the opportunity to complete a rehabilitation program at the employee's expense.

(7) Appeal. An applicant or employee whose drug test is positive may, at the applicant or employee's expense:

(A) Have an opportunity to explain and offer written documentation why there is another cause for the positive drug test;

(B) Request that the remaining portion of the sample that yielded the positive results, if available, be submitted for an additional independent test, including second tests to rule out false positive results; and/or

(C) Submit the written test result for an independent medical review.

(8) Documentation.

(A) All applicants that you intend to hire for employment and employees must be provided a copy of your drug testing policy and must sign a document consenting to these terms and conditions of employment.

(B) All drug test results of employees will be kept for one year after an employee's last work day with the residential child-care operation, or until any investigation involving the person is resolved, whichever is later. All other drug test results required by this rule will be kept for one year from the date the drug test was administered. The results must be available for review by Licensing Division within 24 hours of the request.

Source Note: The provisions of this §745.4151 adopted to be effective December 1, 2005, 30 TexReg 7493; amended to be effective January 1, 2007, 31 TexReg 9342; transferred effective July 15, 2019, as published in the June 14, 2019 issue of the Texas Register, 44 TexReg 2963